TASIANARU RUTASHOBORWA v TYPHON RUTASHOBORWA AND BONIFACE KYAMWANGILE 1988 TLR 76 (HC)

 

TASIANARU RUTASHOBORWA v TYPHON RUTASHOBORWA AND BONIFACE KYAMWANGILE 1988 TLR 76 (HC)

Court High Court of Tanzania - Bukoba

Judge Munyera J

17th June, 1988 B

Flynote

Land Law - Return of purchase price - Difficulties in raising the money - Whether

sufficient reason for the Trial Court to threaten to foreclose the right of redemption.

Land Law - Appellate Jurisdiction - Whether judge can assume powers of a District

C Magistrate - Judicature Ordinance.

-Headnote

The appellant was the plaintiff in the Urban Primary Court where she sued both

respondents for redemption of a shamba. The appellant and her husband had seven D

children in their marriage. The husband sold the shamba leaving the children with

nothing. For the benefit of the children she decided to redeem the shamba. The suit

was in her favour and nobody appealed against the decision. But nevertheless she was

told to return the purchase price. She had problems raising the sum and the Trial

Court E threatened to foreclose her right of redemption. She sought to appeal to the

District Court but was told that she was time barred whence she decided to file an

application for leave to appeal out of time which was enventually dismissed. Being

aggrieved by the F dismissal, she decided to pursue a further appeal to the High

Court.

Held: (i) There was no reason for foreclosing her rights to redeem the shamba;

(ii) under the Judicature Ordinance, the Judge may assume the position of the

G District Magistrate.

Case Information

Appeal allowed.

No cases referred to. H

[zJDz]Judgment

Munyera, J.: The appellant was the plaintiff in Urban Primary Court. She sued the

two respondents for redemption of a shamba. It was agreed that the first respondent is

the appellant's husband and the second respondent just an outsider. At the time of

filing I the suit the appellant and her husband had seven children in their marriage.

It was her case that the husband sold the only shamba they had to

1988 TLR p77

MUNYERA J

the second respondent leaving the children with nothing for the future. On behalf of

the A children she sought to redeem the shamba. She won the suit and nobody

appealed. She was told to pay Shs. 20,000/= purchase price. She got into difficulties in

raising the money and the trial court threatened to foreclose her right of redemption.

She sought to appeal to the District Court but she was told she was out of time. She

filed an B application for leave to appeal out of time but it too was dismissed. She

appealed to this court.

In reading the judgment of the trial court I found she was given time up to 30/4/83, a

period of 6 months, to pay the purchase money or else the sale be declared absolute. It

appears she was unable to pay the money within the time given. When making her C

submissions before me she produced four Exchequer Receipts on which she deposited

the money in the District Court as follows:-

Receipt No; Date: Amount D

566281 11/3/83 4,000

566287 23/3/83 5,000

56629 28/4/83 5,000

789212 23/5/85 6,000

Total 20,000 E

That being the case there is no reason for foreclosing her rights to have the shamba

back. This is a case where the interests of children are at stake because of their

father's recklessness. The appellant should be given every assistance. The appeal is

allowed but there is no need for her to appeal to the District Court. F

In exercise of my powers under the Judicature Ordinance I assume the position of the

District Magistrate and order that the money the appellant deposited be paid to the

second respondent immediately and he also do surrender the shamba to the appellant

on G receipt of his purchase money. If there be any claim for improvements it

should be directed against the first respondent.

H Appeal allowed.

1988 TLR p78

A