ANGELO BISIKI v ANTONIA BISIKI AND OTHERS 1989 TLR 225 (HC)

 

ANGELO BISIKI v ANTONIA BISIKI AND OTHERS 1989 TLR 225 (HC)

Court High Court of Tanzania- Bukoba

Judge Moshi J

27 November, 1989

Flynote

Customary Law - Haya - Succession - Inheritance of land by female - Female sells the

B land with consent of clan members - Whether such sale valid.

Customary Law - Haya - Sale of clan land - Redemption - Whether buyer entitled to

compensation for unexhausted improvements. C

-Headnote

The appellant was the brother of the first respondent. The first respondent inherited a

clan shamba from her father. She then sold it to the 2nd respondent with the consent

of clan members. The 2nd respondent later sold the shamba to the 3rd respondent

again with the consent of clan members. The appellant sought to redeem the clan

land. The D two lower courts found both sales valid. On appeal

Held: (i) The first respondent, being a Buhaya woman, could not have legally disposed

of the land to any person, and in any manner, even with the consent of the clan - rule

20 E of the Local Customary Law (Declaration) No. 4 Order 1963 - GN.436 of 1963;

(ii) since the purported sale by the first respondent was void, no title in the

land passed to the 2nd respondent who, thus, had no title to pass to the third

respondent;

(iii) the third respondent, in all fairness, is entitled to be paid compensation in

F respect of unexhausted improvements if any made by him during his reoccupation

of the land under the authority of the courts below.

Case Information

Appeal allowed. G

[zJDz]Judgment

Moshi, J.: This was a claim for the redemption of clan land filed by the appellant,

Angelo Bisiki, against the three respondents, Antonia d/o Bisiki, Leonsia d/o

Cleophace and Elizeus s/o Tinilao, at Kashasha Primary Court. H

The material facts, very briefly, were that the appellant is the brother of the first

respondent. They belong to the same clan, whereas the second and third respondents

are strangers to that clan. The first respondent inherited the relevant clan shamba

from her father. On 11/5/86 she sold it to the second respondent, with the consent of

clan I members, for shs.140,000/=. And on 12/9/86 the second

1989 TLR p226

MOSHI J

respondent, for her part, sold the same shamba to the third respondent, again with

the A consent of clan members, for shs. 300,000/=.

The Primary Court found both sales valid, and permitted the appellant to redeem the

land upon payment to the third respondent the purchase money of shs. 300,000/=.

The B District Court of Muleba, upon an appeal thereto by the appellant, upheld the

decision of the Primary Court, and gave the appellant six months to pay the purchase

money to the third respondent and redeem the shamba. The appellant still felt

aggrieved, and hence this second appeal.

With respect, I am satisfied that both courts below erred in law by finding both sales

C valid. They had both miserably missed the legal significance of the fact that the

first respondent was a Buhaya woman in occupation of clan land. On the authority of

rule 2 of the Local Customary Law (Declaration) No. 4 Order 1963 - GN 436 of 1963 -

D the first respondent could not have legally disposed of the land to any person, and

in any manner, even with the consent of the clan. The court of Appeal discussed at

length the status of Buhaya females vis a vis clan land in Deocras Lutabana v Deus

Kashaga (unreported) which is Civil Appeal No. 5 of 1981. E

The same question was also the central point for determination in the recent Court of

Appeal decision in Rukuba Nteme v Bi Jalia Hassan and Gervas Baruti (unreported)

which is Civil Appeal No. 19 of 1986. The golden thread that runs through these

decisions of the Court of Appeal is that a Buhaya female heir, having inherited clan

land, F has no more than a life interest in the land, which she could neither sell nor

bequeath to any person whomsoever, even with the clan consent. That is the position

in law regarding the status of Buhaya females vis a vis clan land.

It follows, therefore, that the first respondent was not entitled to sell the land in

question G to the second respondent. In other words, that purported sale was null

and void and did not pass any title to the second respondent. Equally null and void

was the purported sale between the second respondent and the third respondent as

there was no title to H pass. The position in law is that the question of the

redemption of the land does not arise. The land is still legally in the hands of the first

respondent for use during her lifetime. Of course she will have to refund the purchase

price of shs.140,000/= to the second respondent, and it shall be for the third

respondent to recover the purchase money of shs.300,000/= from the second

respondent. The third respondent, in all fairness, is I entitled to be paid

compensation in respect of unexhausted improvements, if any,

1989 TLR p227

made by him during his occupation of the land under the authority of the courts

below - A that is from the date of the Primary Court judgment to the date of this

court's judgment. The exact amount is to be properly assessed by the trial Primary

Court after it has received evidence of the improvements made to the land during that

period. And it is fair and just that such compensation as determined by the Primary

Court has to be paid B by the first respondent to the third respondent since she is the

one who is bound to derive immediate benefit from the land which must be vacated

by the third respondent without delay.

In the result, I allow the appeal, quash and set aside the decisions of both courts

below, C and hereby declare that the transaction of sale by first respondent to

second respondent, and by second respondent to third respondent were, and still are,

invalid. The first respondent is ordered to refund the purchase price of shs.140,000/=

to the second respondent who, in her turn, is ordered to refund the purchase price of

D shs.300.000/= to the third respondent. The first respondent to pay to the third

respondent compensation for unexhausted improvements, if any, to be determined by

the trial Primary Court as stated earlier in this judgment. The appellant to have his

costs in this court and the courts below. E

Order accordingly.

1989 TLR p227

F