THOMAS MATONDANE v DIDAS MAWAKALILE & 3 OTHERS 1989 TLR 210 (HC)

 

THOMAS MATONDANE v DIDAS MAWAKALILE & 3 OTHERS 1989 TLR 210 (HC)

Court High Court of Tanzania- Mwanza

Judge Mwalusanya J

2 November, 1989 B

Flynote

Customary Law - Will - Deceased illiterate - Requirements as to attestation rules on

wills, GN No. 436/1963.

Customary land law - Clan land pledged to stranger - Relative redeems land prior to

pledger's death - Effect of redemption.

Customary land law - Redemption of clan land - Acquisition of title by redeemer by

long C and adverse possession - Customary Law (Limitation of Proceedings) Rules

schedule, Item No. 6.

Customary land law - Clan land pledged to stranger - Relative redeems land -

Redeemer deprived land by clan council - Redeemer not at clan council meeting -

Natural justice. D

-Headnote

At Nshamba Primary Court, Muleba District in Kagera Region the respondents

brought on action claiming a piece of clan land from the appellant. It was the

appellant's case that E said piece of land belonged to him as it was bequeathed to him

by will by his deceased brother one Karaba s/o Matondane. Moreover, he testified

that he had redeemed that piece land on payment of shs.100/= from where it was

pledged by the deceased. The case of the respondents was that the clan council had in

1982 allocated F the disputed piece of land of the deceased Karaba s/o Matondane to

the respondent as the deceased had died intestate.

The Primary Court found in favour of the respondent holding that the will relied on

by the appellant at the trial was null and void as the same was not attested by two

clan G members and two non-clan members in terms of paragraph 19 of the Rules

on Wills the deceased being an illiterate and further holding that the clan council

properly allocated the disputed piece of land of the deceased Karaba s/o Matondane

who had died intestate.

On first appeal by the appellant to the District Court of Muleba, the District Court H

concurred with the Primary Court that the will was null and void for offending para

19 of the rules on wills but held that the allocation of the land of the deceased by the

clan council to the respondents was illegal as the appellant who was brother of the

deceased was not called to attend the meeting of the clan council, he way condemned

unheard I contrary to the principles of natural justice. The District Court ordered

that another clan council meeting

1989 TLR p211

MWALUSANYA J

incorporating the appellant be convened to decide the distribution of the estate of the

A deceased Karaba s/o Mtondane.

Both the Primary Court and District Court did not consider the effect of the

redemption of the piece of land by the appellant.

The appellant was aggrieved by the order of the District Court and appealed

therefrom B to the High Court of Tanzania. In the course of hearing the appeal it

was submitted by Mr. Rweyemamu, counsel for the respondents, that when one

redeems clan land the land reverts to the clan and that it does not become the

property of the redeemer. C

Held: (i) The will under which the appellant claimed ought to have been witnessed

by two clan members and two non-clan members as required by the Rules on Wills

since the deceased was illiterate. The will was therefore null and void;

(ii) redeemed clan land does not become the property of the clan. It is the law

D that the redeemer of clan land which had been pledged becomes the owner of that

land;

(iii) the appellant acquired a title to the piece of land after the expiry of 12

years during which he was in uninterrupted possession thereof;

(iv) it was contrary to the principles of justice to deprive the appellant of the E

piece of land which he had long possessed without giving him a hearing.

Case Information

Appeal allowed. F

Rweyemamu, for respondent.

[zJDz]Judgment

Mwalusanya, J.: The four respondents (Didas s/o Rwakakile and his three brothers)

successfully sued the appellant Thomas s/o Matondane, their uncle, in a claim of piece

of G land at Nshamba Primary Court, Muleba District in Kagera Region. The trial

court held that the clan council had in 1982 properly allocated the disputed piece of

land of the deceased Karaba s/o Matondane to the four respondents as the said Karaba

s/o Matondane died intestate without leaving behind any will. The trial court also

held that H the will that was produced by the appellant at the trial was null and void

as it offended para 19 of the Rules on wills GN. No. 436/1983 in that it was not

attested by the clan members and two non-clan members, the deceased being an

illiterate who did not know how to read and write.

The appellant made his first appeal to Muleba District Court. The District Court

agreed I with the trial court that the will produced

1989 TLR p212

MWALUSANYA J

by the appellant at the trial was null and void for offending para 19 of the Rules on

Wills. A However, the District Court held that the distribution of the land of the

deceased Karaba s/o Matondane by the clan council was illegal as the appellant was

not called to attend that meeting of the clan council. The District Magistrate held that

as the appellant B was the brother of the deceased, he should have been called to

attend that meeting of the clan council. he said that it was against the principles of

natural justice to have condemned the appellant unheard. So the learned District

Magistrate held that the clan council should convene a fresh meeting incorporating

the appellant and thereby decide C the distribution of the estate of the deceased

Karaba s/o Matondane.

Aggrieved by that decision, the appellant has now appealed to this court. He contends

that the District Court should have held that the land in dispute belonged to him as it

was D bequeathed to him by will by his deceased brother Karaba s/o matondane.

Moreover he said that he had redeemed that piece of land on payment of shs.70/=

from where it was pledged by the deceased. The appellant agrees with the decision of

the District Court that the decision of the trial court was using as he was not present

when the clan E council deprived him his right of inheritance to that piece of land.

I will start the decision of this case by discussing the validity of the will that appellant

produced at the trial. I agree with both courts below that the will in question is null

and void as it offended para 19 of the Rules on wills GN. No. 436/1963. The will

under F which the appellant claimed ownership was not witnessed by two clan

members and two non-clan members as required by the Rules on wills which are

applicable to Muleba District. The will that was produced at the trial was attested by

three clan members but there was a non-clan member who signed it. It is not in

dispute that the deceased G Karaba s/o Matondane was illiterate, as he did not know

to read and write. Therefore the will was obviously null and void, and for the

preposition of this law see the decision of this court in the case of Ferdinand s/o

Lumboyo v Ngeiyamu s/p Kajuna [1982] T.L.R. N. 142 by Rubama, J. H

I now go to the question as to whether the appellant became the owner of the land in

dispute after he had redeemed it in 1966. There was uncontroverted evidence at the

trial that the deceased Karaba s/o Matondane has pledged that piece of land to a

stranger for a loan of shs.100/= or shs.70/=. According to the appellant on 1/12/1966

he I redeemed that piece of land from the pledger by paying the shs.100/=. He did so

after the deceased Karaba had declared his

1989 TLR p213

MWALUSANYA J

failure to pay the loan and decided to emigrate for good to Kome Island where he died

A in 1982. The appellant was using that piece of land since 1966 when he redeemed

it until 1982 when the clan council decided to take the land in dispute from him and

gave it to the four respondents. The clan council in their allegedly duly refunded by

the four B respondents to the appellant at the clan council meeting. The appellant

says that he never attended that clan council meeting which met in his absence.

Both courts below did not discuss the effect of the redemption of that piece of land by

the appellant. Apparently both courts thought that because the appellant was

refunded C the shs.100/= by the four respondents at the clan council meeting, then

that was the end of the matter. Council for the four respondents Mr. Rweyemamu

submitted that when one redeems clan land it reverts to the clan and that it does not

become the property of the redeemer. He added by stating that since in the case at

hand the appellant was D refunded the shs.100/= then he has no reason to complain.

In my considered view, the view taken by counsel for the four respondents Mr.

Rweyemamu is wrong. It is the law that the redeemer of clan land that had been

pledged becomes the owner of that land. That proposition of law is contained in

paragraph 547 E of Cory and Hartnoll which reads as follows:

If the plantation has been pledged on the condition that it will become the

property of the creditor failing the repayment of the debt within an agreed time, a

relative has the right to F redeem it, even after the time limit has expired, as in

invalid sale; in which case it follows that the plantation becomes the property of the

man who redeems it.

The underlining above is mine for emphasis. And that is actually what was decided by

G this court in the case of Martin s/o Bikonyoro v Celestin s/o Kaokola [1968] H.C.D.

N. 87 by Cross J. and also in the case of Gabriel s/o Nzizula v Rooza d/o Muyungi:

[1968] H.C.D. N. 126 by Mustafa, J. These two cases were emphatic that a relative

who redeems clan land that had been pledged, becomes the owner of the redeemed

H land; and para 547 of Cory and Hartnoll were cited as authority for that

preposition of law. That being the case, it is obvious that the land in dispute in this

case, became the property of the appellant when he redeemed it on 1/12/1966. That

disposes of this case. I

1989 TLR p214

MWALUSANYA J

I am also of the view that the appellant acquired the title to the land in dispute by

long A possession. It is common knowledge that the appellant in this case became in

possession of the land in dispute in 1966 when he retained it. He had uninterrupted

possession of that land from 1966 till 1986 (some 20 years later) when the four

respondents filed this B suit. According to the Customary Law (Limitation of

Proceedings) Rules GN. No. 311/1964 item No. 6 in the Schedule, any proceeding to

recover possession of land should be filed within 12 years from the day the right

accrues. Since it is contended that the appellant was in adverse possession of that

piece of land since 1966, then the four C respondents or the clan council should have

sued the appellant within 12 years from 1966. But that was not done and so the

appellant acquired a title to that piece of land after the expiry of the 12 years.

It is now unnecessary to discuss the significance and effect of the clan council

meeting of D 17/10/1982. The appellant has argued that the said meeting was void as

it did not incorporate him, being a close member of the clan. In passing I would like

to observe that the decision of the District Court appears to be correct that appellant

did not attend E the clan council meeting in question. The trial court left this

question open, without deciding as to whether the appellant attended the clan council

meeting or not. I agree with the District Court that as the appellant did not sign the

minutes of the meeting while all those who attended signed the minutes, then the

appellant did not attend the meeting. It was contrary to the principles of natural

justice to deprive the appellant of the piece of F land he was occupying since 1966

without giving him a hearing.

Be that as it may, this appeal is allowed with costs. The judgments of the two courts

below are set aside and I hereby declare the appellant to be the lawful owner of the

piece of land in dispute.

G Order accordingly.

1989 TLR p215

A