Court name
High Court of Tanzania

Thomas Matondane vs Didas Mawakalile & Others () [1989] TZHC 44 (02 November 1989);

Law report citations
1989 TLR 210 (TZHC)
Media neutral citation
[1989] TZHC 44
Coram
Mwalusanya, J.

Mwalusanya, J.: The four respondents (Didas s/o Rwakakile and his three brothers) successfully sued the appellant Thomas s/o Matondane, their uncle, in a claim of piece of G land at Nshamba Primary Court, Muleba District in Kagera Region. The trial court held that the clan council had in 1982 properly allocated the disputed piece of land of the deceased Karaba s/o Matondane to the four respondents as the said Karaba s/o Matondane died intestate without leaving behind any will. The trial court also held that H the will that was produced by the appellant at the trial was null and void as it offended para 19 of the Rules on wills GN. No. 436/1983 in that it was not attested by the clan members and two non-clan members, the deceased being an illiterate who did not know how to read and write.
The appellant made his first appeal to Muleba District Court. The District Court agreed I with the trial court that the will produced

by the appellant at the trial was null and void for offending para 19 of the Rules on Wills. A However, the District Court held that the distribution of the land of the deceased Karaba s/o Matondane by the clan council was illegal as the appellant was not called to attend that meeting of the clan council. The District Magistrate held that as the appellant B was the brother of the deceased, he should have been called to attend that meeting of the clan council. he said that it was against the principles of natural justice to have condemned the appellant unheard. So the learned District Magistrate held that the clan council should convene a fresh meeting incorporating the appellant and thereby decide C the distribution of the estate of the deceased Karaba s/o Matondane.
Aggrieved by that decision, the appellant has now appealed to this court. He contends that the District Court should have held that the land in dispute belonged to him as it was D bequeathed to him by will by his deceased brother Karaba s/o matondane. Moreover he said that he had redeemed that piece of land on payment of shs.70/= from where it was pledged by the deceased. The appellant agrees with the decision of the District Court that the decision of the trial court was using as he was not present when the clan E council deprived him his right of inheritance to that piece of land.
I will start the decision of this case by discussing the validity of the will that appellant produced at the trial. I agree with both courts below that the will in question is null and void as it offended para 19 of the Rules on wills GN. No. 436/1963. The will under F which the appellant claimed ownership was not witnessed by two clan members and two non-clan members as required by the Rules on wills which are applicable to Muleba District. The will that was produced at the trial was attested by three clan members but there was a non-clan member who signed it. It is not in dispute that the deceased G Karaba s/o Matondane was illiterate, as he did not know to read and write. Therefore the will was obviously null and void, and for the preposition of this law see the decision of this court in the case of Ferdinand s/o Lumboyo v Ngeiyamu s/p Kajuna [1982] T.L.R. N. 142 by Rubama, J. H
I now go to the question as to whether the appellant became the owner of the land in dispute after he had redeemed it in 1966. There was uncontroverted evidence at the trial that the deceased Karaba s/o Matondane has pledged that piece of land to a stranger for a loan of shs.100/= or shs.70/=. According to the appellant on 1/12/1966 he I redeemed that piece of land from the pledger by paying the shs.100/=. He did so after the deceased Karaba had declared his

failure to pay the loan and decided to emigrate for good to Kome Island where he died A in 1982. The appellant was using that piece of land since 1966 when he redeemed it until 1982 when the clan council decided to take the land in dispute from him and gave it to the four respondents. The clan council in their allegedly duly refunded by the four B respondents to the appellant at the clan council meeting. The appellant says that he never attended that clan council meeting which met in his absence.
Both courts below did not discuss the effect of the redemption of that piece of land by the appellant. Apparently both courts thought that because the appellant was refunded C the shs.100/= by the four respondents at the clan council meeting, then that was the end of the matter. Council for the four respondents Mr. Rweyemamu submitted that when one redeems clan land it reverts to the clan and that it does not become the property of the redeemer. He added by stating that since in the case at hand the appellant was D refunded the shs.100/= then he has no reason to complain.
In my considered view, the view taken by counsel for the four respondents Mr. Rweyemamu is wrong. It is the law that the redeemer of clan land that had been pledged becomes the owner of that land. That proposition of law is contained in paragraph 547 E of Cory and Hartnoll which reads as follows:
If the plantation has been pledged on the condition that it will become the property of the creditor failing the repayment of the debt within an agreed time, a relative has the right to F redeem it, even after the time limit has expired, as in invalid sale; in which case it follows that the plantation becomes the property of the man who redeems it.
The underlining above is mine for emphasis. And that is actually what was decided by G this court in the case of Martin s/o Bikonyoro v Celestin s/o Kaokola [1968] H.C.D. N. 87 by Cross J. and also in the case of Gabriel s/o Nzizula v Rooza d/o Muyungi: [1968] H.C.D. N. 126 by Mustafa, J. These two cases were emphatic that a relative who redeems clan land that had been pledged, becomes the owner of the redeemed H land; and para 547 of Cory and Hartnoll were cited as authority for that preposition of law. That being the case, it is obvious that the land in dispute in this case, became the property of the appellant when he redeemed it on 1/12/1966. That disposes of this case. I

I am also of the view that the appellant acquired the title to the land in dispute by long A possession. It is common knowledge that the appellant in this case became in possession of the land in dispute in 1966 when he retained it. He had uninterrupted possession of that land from 1966 till 1986 (some 20 years later) when the four respondents filed this B suit. According to the Customary Law (Limitation of Proceedings) Rules GN. No. 311/1964 item No. 6 in the Schedule, any proceeding to recover possession of land should be filed within 12 years from the day the right accrues. Since it is contended that the appellant was in adverse possession of that piece of land since 1966, then the four C respondents or the clan council should have sued the appellant within 12 years from 1966. But that was not done and so the appellant acquired a title to that piece of land after the expiry of the 12 years.
It is now unnecessary to discuss the significance and effect of the clan council meeting of D 17/10/1982. The appellant has argued that the said meeting was void as it did not incorporate him, being a close member of the clan. In passing I would like to observe that the decision of the District Court appears to be correct that appellant did not attend E the clan council meeting in question. The trial court left this question open, without deciding as to whether the appellant attended the clan council meeting or not. I agree with the District Court that as the appellant did not sign the minutes of the meeting while all those who attended signed the minutes, then the appellant did not attend the meeting. It was contrary to the principles of natural justice to deprive the appellant of the piece of F land he was occupying since 1966 without giving him a hearing.
Be that as it may, this appeal is allowed with costs. The judgments of the two courts below are set aside and I hereby declare the appellant to be the lawful owner of the piece of land in dispute.
G Order accordingly.

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