FRANCIS ADOLF v IBRAHIM MUSTAFA 1989 TLR 219 (HC)

 

FRANCIS ADOLF v IBRAHIM MUSTAFA 1989 TLR 219 (HC)

Court High Court of Tanzania- Bukoba

Judge Moshi J

20 November, 1989

Flynote

Contract - Customary contract - Between members of same tribe - Loan of Shs.

20,000/= - B Land pledged as security - Law applicable - Jurisdiction.

-Headnote

The respondent had in a written agreement pledged his shamba to secure a loan of

shs.20,000/= from the appellant. The agreement was duly witnessed. On failure to

repay C the loan the appellant sued seeking to realize the shamba.

The Primary Court which heard the case decided in favour of the appellant. On

appeal by the respondent the District Court found that the Primary Court had no

jurisdiction to D hear the case as provided by the Magistrate's Courts Act, 1984

because the loan of shs.

20,000/= exceeded its pecuniary jurisdiction.

The second appellate court considered what law was applicable and whether the

Primary Court had jurisdiction to entertain the case. E

Held: The transaction between the parties was governed by customary law therefore

the Primary Court had jurisdiction to hear the case based on customary law and not

on the general principles of contract law. F

Case Information

Appeal allowed.

[zJDz]Judgment

Moshi, J.: The appellant, Francis Adolf, successfully sued the respondent, Ibrahim

Mustafa, at Katoro Primary Court for a shamba worth Shs. 20,000/=. G

The respondent had, in a written agreement, pledged the shamba to secure a loan of

shs.20,000/= from the appellant on 12/11/85. The agreement was witnessed by not less

than four persons, as well as their ward CCM office. It had provided that the shamba

H would become the property of the appellant if the loan was not paid by 30/5/86. By

30/5/86 the loan remained unpaid, and for several days thereafter, the whereabouts of

the respondent was unknown. Hence the suit for the shamba filed on 24/6/86.

On the hearing day, the appellant and his witnesses were present in court, whereas

the I respondent, who was duly served to

1989 TLR p220

MOSHI J

appear, failed, for unknown reasons, to enter an appearance in court. The trial court

then A heard the appellant and his witnesses, and pronounced judgment in his

favour.

Consequent upon a complaint made by the respondent at Bukoba District Court on

22/9/87, the District Court called the trial court record for inspection. In a revisional

B order dated 17/11/87, the District Court found that the suit before the trial court

ought to have been for the loan, and not for the shamba, and further that the Primary

Court could not have had jurisdiction to try the case in view of the provisions of

section 18(1)(a)(iii) C of the Magistrates' Courts Act 1984, since the loan of

shs.20,000/= exceeded its pecuniary jurisdiction. The trial court proceedings were

declared null and void, and the appellant was directed to file a suit for the loan, if still

unpaid, before a court of competent jurisdiction. Hence this appeal.

While admitting the appeal my brother Munyera, J. minuted: D

DR

Admit to consider the jurisdiction of the trial court. What is a customary law

transaction or a contract in general law? E

It seems to me, and I am certain Munyera, J. had this in mind, that the one issue on

which this appeal must stand or fall is whether the transaction between the parties

was a customary law one or one based on the general principles outlined in the Law

of F Contract Ordinance. This question is vital in that in the event the transaction is

found to have been a customary law one, the decision of the trial court, as against that

of the District Court, would carry the day, and vice-versa.

With respect, I am satisfied that the transaction between the parties was a customary

law G one. Georges, C.J. as he then was said in Mtatiro Mwita v Mwita Marianya

[1968] HCD 82, that:

If persons of the same tribe enter into an agreement well known to the tribal

custom under which the terms are prescribed, these persons must, in the absence of

evidence to the H contrary, be understood to be contracting in accordance with

these terms.

In our case, both parties are of Haya tribe. Under Haya law, a shamba may be pledged

on condition that it will become the property of a creditor failing repayment of a debt

on I an agreed date. The transaction had received the necessary publicity - the

witnesses and

1989 TLR p221

involvement of the CCM office. I have found no evidence to the contrary, and I am A

satisfied, and hereby find, that the parties had transacted under their customary law

dictates.

It is law that where money is loaned upon a pledge of property on condition that the

property becomes the property of the pledgee if the loan is not repaid within a B

prescribed time, the pledgee has a right to resort to the courts for the enforcement of

the agreement by suing for the property on the basis of the agreement. This is exactly

what the appellant had done, in the Primary Court. There was no evidence that the

sum secured was much less than the value of the shamba, in which case the trial court

would C have been empowered to order the sale of the shamba, instead of its

transfer to the appellant, and the surrender back to the respondent the money in

excess of the secured loan. In our case, we are told that the value of the shamba was

equal to that of the sum loaned. For the foregoing reasons, and with respect, I am

satisfied, and hereby find, that D the District Court erred in law in reversing the

decision of the trial court, and in its finding that the trial court had acted without

jurisdiction.

In the event, I allow the appeal with costs, quash and set aside the District Court

judgment and its orders, and hereby restore in full the Primary Court decision. E

Appeal allowed.

1989 TLR p221

F