MALEKELA MAHITA v KIBUWI NZENGWA 1989 TLR 113 (HC)

 MALEKELA MAHITA v KIBUWI NZENGWA 1989 TLR 113 (HC)

Court High Court of Tanzania- Dar Es Salaam

Judge Kyando J

30 June, l989 H

Flynote

Land Law - Mortgage - Definition of mortgage where customary law applies.

Land Law - Limitation - Period to redeem a mortgage created under customary law. I

1989 TLR p114

KYANDO J

-Headnote

In a suit before a trial Primary Court to redeem a mortgage purportedly entered into

A more than 70 years ago, the appellant succeeded. On appeal by the respondent the

District Court found that there had been no mortgage arrangement as contended by

the appellant and that even if there had been one the period for redeeming it had

lapsed. B Accordingly the Primary Court decision was reversed.

The High Court, on further appeal found that there was a mortgage arrangement but

its redemption was hopelessly barred by limitation.

Held: The Law of Limitation Act, l97l defines a "mortgage" as including, where C

customary law applies, as in this case, any arrangement under customary law which

has similar effect and incidents as a mortgage. A suit to redeem land in possession of a

mortgagee must be brought within twelve years as prescribed under the First

Schedule D to the Law of Limitation Act, Part I. Under Section 3(1) of that Act,

every proceeding for which a period of limitation has been provided in the First

Schedule to the Act and which is instituted after the prescribed period of limitation

"shall be dismissed whether or not limitation has been set up as defence".

Case Information

Order accordingly. E

[zJDz]Judgment

Kyando, J.: The appellant's uncle, Dilunganika Mwanamvuvulu, allegedly mortgaged

his 12 shambas to the respondent's uncle Kibuwi bin Mbukwa for three goats, a pair

of F "amarekani" pieces of cloth a measure (pishi) of salt and a cock. This was when

the appellant was only a baby; he is 76 years now. The respondent is 109 years and he

says he has been using the shambas since he was a young man, upon the death of his

uncle G Kibuwi bin Mbukwa, from whom he inherited them. His position is that

appellant's uncle sold the shambas to his (respondent's) uncle and it is not that he

mortgaged them as contended by the appellant. The appellant filed a suit in the

Primary Court at Tawa, Morogoro District, seeking to redeem the shambas from the

respondent. He succeeded, H and the respondent appealed. On 8/9/88 Shillogila

PDM on appeal reversed the decision of the Primary Court holding that there had

been no mortgage arrangement as contended or alleged by the appellant and that

even if there had been one the period for redeeming the shambas has elapsed. The

appellant now appeals to this court against the I decision of learned Principal

District Magistrate.

1989 TLR p115

In the first place I accept that the arrangement pleaded by the appellant was a

mortgage A transaction. The Law of Limitation Act, l97l, defines a "Mortgage" as

including, where customary law applies, as in this case, any arrangement under

customary law which has similar effect and incidents as a mortgage. This, as I have

said, was such an arrangement B between appellant's and respondent's deceased

uncles. Under the first schedule to the Law of Limitation Act, Part I, a suit to redeem

land and possession of a mortgagee must be brought within twelve years. And under

s.3(1) of this same Act, every proceeding for which a period of limitation has been

provided in the First Schedule to the Act and which C is instituted after the

prescribed period of limitation "shall be dismissed whether or not limitation has been

set up as a defence."

The shambas in the instant case were mortgaged many years ago, when, as I have said

already, the appellant, was on his own admission, only a baby and he is 76 years old

now. He did not even witness the transaction and as the learned Principal District D

Magistrate in the Court below rightly observed, he had been only informed about it

by others. His attempts to redeem the shambas now are, as far as the law is concerned,

therefore, hopeless as he is barred by limitation. E

The redemption should have been done within twelve years of his uncle mortgaging

the shamba's to the respondent's uncle. That this was not done within these years the

appellant's rights to the shambas, have been extinguished-under the provisions of s.39

of the Law of Limitation Act, 1971. Like the learned Principal District Magistrate

therefore, F I have to hold for the respondent and dismiss, as I hereby do, the

appellant's appeal to this Court, with costs. The shambas are to remain the legitimate

property of the respondent.

G Order accordingly.

1989 TLR p115

H