NICOLAUS KOMBA v KONDRAD KOMBA 1988 TLR 172 (HC)

 NICOLAUS KOMBA v KONDRAD KOMBA 1988 TLR 172 (HC)

Court High Court of Tanzania - Songea

Judge Kazimoto J

7 October, 1988 E

Flynote

Land law - Disposition of clan land - Requisite consent. F

-Headnote

Parties to the suit were members of the same clan. The respondent sold his piece of

land to non-clan members without prior approval of other clan members. Clan

members had expressed willingness to buy the land in dispute. The trial court

(Primary Court) G unanimously found for the appellant. On appeal to the District

Court, the appellate Court held that despite the fact that the land in dispute was clan

land, the respondent had all the right to dispose of his house and all plants which

were in the clan land.

Held: (i) Clan land cannot he sold to non-clan members without prior approval of H

other clan members. The respondent had no right to sell clan land to a non-clan

member without clan members consent;

(ii) where there are clan members who are ready and willing to buy clan land,

I such land should be sold to them.

1988 TLR p173

KAZIMOTO J

Obiter: Magistrates should be careful in keeping record of proceedings. A

[zJDz]Judgment

Kazimoto, J.: This is an appeal against the decision and judgment of Mbinga District

Court Civil Appeal No. 59/87 which overrulled the decision of Mkumbi Primary

Court B in Civil Case No. 24/87. The parties in the Primary Court were the appellant

and the respondent in this appeal.

Briefly the appellant and the respondent are members of the same clan. Both own

clan land. The respondent sold clan land to a third party, that is, to a non-clan

member. C Efforts by the appellant and the respondent's father to prevent the sale

had failed despite the members of the clan's willingness to buy the land in dispute.

The trial court unanimously found in favour of the appellant.

In allowing the appeal in favour of the respondent the District Court, although

conceding that the land belonged to the clan, held nevertheless that the respondent

had all the right D to dispose of his house and all plants which were in the clan land.

In my considered view the learned senior district magistrate erred in this. Clan land

cannot be sold to non-clan members without the prior approval of the clan members.

In E this case there was clear evidence that the members of the parties' clan had

resisted the sale. They arranged a meeting and PW2 stated in his evidence that the

respondent demanded shs.50,000/= and that he agreed to pay the amount and on the

following day he took shs.35,000/= with him to give to the respondent. He said also

that the F respondent did not appear and later he demanded shs.70,000/= and then

shs150,000/=. The respondent did not dispute this evidence. The decision of the

district court is perverse the evidence at the trial. Clearly PW2 was prepared to buy

off the respondent and the respondent kept on vacillating in his demands which were

clearly unreasonable G under the circumstances of the case. I therefore hold that the

respondent had no right to sell clan land to a non clan - member without the prior

consent which, in this case, has been withheld.

In its judgment the trial court held that the respondent can sell the permanent trees

which H can be harvested and leave the land to the clan members. It be noted that

the respondent had a house on the clan land. In my judgment the house and

permanent crops on the land can only be sold to clan members and in the event of

their failure to do so or inability to purchase the same only then can the respondent

sell the property and the land to non-clan member. As stated above the members of

the clan were prepared I to pay for the

1988 TLR p174

land but the respondent kept on changing the price. It cannot be said that the clan A

members were unable to buy the land in dispute. This right which the respondent

had in this case was to sell land to the clan members. This disposes the appeal.

One thing concerning the record must be stated. I have stated above that the parties

in B Mkumbi Primary Court civil case No. 25 of 1987 were Nikolaus Komba and

Kondrad Komba. In Mbinga Civil Appeal No. 59 of 1987 the parties were Kondrad

Komba and Nikolaus Komba. The copy of judgment accompanying the memorandum

of appeal shows that the parties in the District Court Civil Appeal No. 59/87 were

Condrad C Komba and Nikodem Komba. This Nikodem Komba does not appear to

be a party in these proceedings either at the trial or the District Court. Both

appellants and respondent have assured the court that this case does not concern

Nikodem Komba and that he is unknown to them. The judgment had been certified as

a true copy of the judgment. It D now turns out to be untrue copy of the judgment.

This underscores the need to be careful. Had the learned senior district magistrate

exercised a bit of a diligence he would not have failed to notice that Nikodemu

Komba was not a party in the appeal before him. That was for the record. E

As I have said the decision of the District Court was against the weight of the

evidence at the trial and that the respondent had no right to sell clan land to a non

clan member in the circumstances of this case. The decision of the District Court

cannot be supported. F

In the result I allow the appeal with costs, set aside the judgment of the District Court

and would uphold the judgment of the trial court which is affirmed.

G Appeal allowed.

1988 TLR p174

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