ZARUKI MBOKEMIZE v SWAIBU OMARI & FRANCIS ADOLPH 1988 TLR 160 (HC)

 

ZARUKI MBOKEMIZE v SWAIBU OMARI & FRANCIS ADOLPH 1988 TLR 160 (HC)

Court High Court of Tanzania - Bukoba

Judge Moshi J

1 September, 1988 F

Flynote

Land law - Disposal of land belonging to minors - Role of guardian.

Civil Practice and Procedure - Res judicata. G

-Headnote

On his death the father of the appellant left behind two farms; one for the appellant

and another for appellant's brother. The appellant and his brother, being minors at

the time, were left under the Guardianship of one Malifedha c/o Mbokemize.

Appellant's brother, H while still a minor, sold his farm to respondents and the

guardian successfully challenged the sale and she was allowed to redeem the farm by

paying back the purchase price within three months. This she failed to do. Upon

attaining the age of majority the appellant filed a suit in Primary Court which held

that the same was res I judicata. On appeal to the District Court, that ruling was

upheld. On further appeal to the High Court:

1988 TLR p161

MOSHI J

Held: (i) The issue of ownership of the land was finally and conclusively determined

in an A earlier case. The farm was found to belong to appellant's brother who had

sold the same to respondents;

(ii) upon failure by the guardian to redeem it, the farm became the property of

the respondents.

Case Information

Appeal dismissed. B

No case referred to.

Rweyemamu, for respondents. C

[zJDz]Judgment

Moshi, J.: The appellant, Zaruki A. Mbekomize, was the unsuccessful party in a claim

against both respondents, Swaibu Omari and Francis Adolf, for a shamba worth shs.

20,000/= at Katoro Primary Court. His appeal to Bukoba District Court was dismissed,

D and hence this second appeal.

In this appeal, as was before the District Court, Mr. Rweyemamu, learned advocate,

represented both respondents, whereas the appellant argued the appeal in person.

It was established in evidence before the Primary Court that the father of the

appellant E died in 1973 leaving behind, among other property, two shambas - one

for the appellant and the other for the appellant's brother, Mahmud Ahmed. The

appellant's aunt, Malifedha d/o Mbekomize, was staying with, and guarding, the

appellant, who was then F aged about 10 years, at the shamba left for the appellant.

On 15.12.75 Mahmud sold a portion of his shamba to the first respondent for shs.

2,000/=, and the remaining portion to the second respondent for shs. 4,500/=. Upon

becoming aware of the sale, the aunt of the appellant, Malifedha, filed redemption G

proceedings in Katoro Primary Court Civil Case No. 12 of 1977 on behalf of the minor

children of the deceased and the clan.

On 17.5.78 the Primary Court, in that case, found the shamba in dispute to belong to

Mahmud, and allowed Malifedha to redeem it within three months of that date by

paying H back to the respondents the purchase price and their costs. No appeal was

preferred against that decision. Malifedha, however, failed to redeem the shamba, and

it then became and remained the property of the respondents. On 24th March, 1986

the appellant instituted these proceedings before the same Primary Court claiming

the same I shamba from the respondents. On the evidence before it, the Primary

Court

1988 TLR p162

MOSHI J

unanimously found the case to be res judicata, and this finding was upheld by the A

District Court on first appeal.

I would, on the evidence, respectfully agree with the concurrent finding by both

courts below that the case filed by the appellant against the respondents was res

judicata. The B matter had come before the same Primary Court in 1977, and

disposed of, after being instituted by the guardian of the appellant, Malifedha, on his

behalf. The issue of the ownership of the land in dispute had been finally decided

upon in that earlier case. It was found to belong to Mahmud, who had sold it to

respondents, and upon failure by C Malifedha to redeem it on behalf of the

appellant, the shamba became the property of the respondents. The present case, in

my view, cannot be said to have been based on different rights or different principles

of law from those involved in the earlier case. And even if it is assumed, without

deciding, that the suit was not res judicata, there was no D evidence, apart from the

appellant's bare assertion, that the land in dispute belonged to the appellant. He could

not have known the issues involved as he was then of tender age. There was no

evidence before the trial court that the appellant had inherited the shamba in dispute

or had otherwise acquired it. The evidence established that it E belonged to

Mahmud who then sold it to the respondents. In his memorandum of appeal the

appellant has more or less reiterated what he told both courts below, and which, in

my considered opinion, was rightly rejected.

For the foregoing reasons, I find no merit in this second appeal which is, by reason F

thereof, hereby dismissed with costs.

Appeal dismissed.

1988 TLR p163

A