KABUYA s/o ESSORE v MTURI NYEGERI 1989 TLR 172 (HC)

 

KABUYA s/o ESSORE v MTURI NYEGERI 1989 TLR 172 (HC)

Court High Court of Tanzania- Mwanza

Judge Mwalusanya J

29 September, 1989

Flynote

Limitation Law - Limitation in customary law - No specific period of limitation

specified -But B no unwarrantable delay is allowed.

Family Law - Inheritance - Inheritance of wife - Legal effect on children and

property.

-Headnote

When the respondent's father died in 1951 the appellant inherited the wife of the C

deceased. The respondent was born in 1951. The deceased's property was distributed

to the children of the deceased by the clan council. Each wife was given a number of

cattle to keep on behalf of her children. The respondent's mother was given nine head

of D cattle and as she was inherited by the appellant, the said cattle were kept by the

appellant. After some matrimonial conflicts the respondent's mother deserted the

appellant. There was no dispute that the appellant received the nine head of cattle. In

l987 the respondent sued the appellant for the recovery of the nine head of cattle

which E he claimed were part of his inheritance in the Primary Court. Although the

trial magistrate was of the view that the suit was time barred yet the majority gave

judgment in favour of the respondent. The appellant was also unsuccessful in his

appeal to the District Court. He appealed further to the High Court. F

Held: (i) Under the Customary Law (Limitation of Proceedings) Rules

GN.No.311/1964 no specific period of limitation is laid down in the case of a claim of

head of cattle but prudence requires that there should be no unwarrantable delay in

G bringing such proceedings;

(ii) the question as to whether the delay is unwarrantable is a question of fact;

(iii) a delay of seventeen (17) years in this case was unwarrantable; H

(iv) when the appellant inherited the mother of the respondent she became his

legal wife and the respondent became his legal son and so he (the respondent) had no

separate property from that of his now legal father. I

Case Information

Appeal allowed.

1989 TLR p173

MWALUSANYA J

[zJDz]Judgment

Mwalusanya, J.: The respondent Mturi s/o Nyegeri successfully sued the appellant A

Kabuya s/o Essore at Mugango Primary Court in Musoma District, in a claim of nine

heads of cattle which were allegedly unlawfully withheld by the said appellant. The

appellant appealed to Musoma District Court against the judgment of the trial court,

but he again lost and hence this second appeal. B

The respondent testified that his father died in 1951 when his mother was pregnant.

Soon after his father's death in 1951 he was born. His father left more than 80 head of

cattle. The appellant is the uncle of the deceased father of the respondent and when

the C respondent's father died, the appellant was asked to inherit the wife of the

deceased, that is respondent's mother. Then the deceased's property was distributed to

the children of the deceased by the clan council. Each wife was given a number of

cattle to keep them on behalf of her children. The respondent's mother was given

nine head of cattle D and as she was inherited by the appellant, the said cattle were

kept by the appellant. After some matrimonial conflicts, the respondent's mother

deserted the appellant. The appellant did not dispute at the trial that he received the

nine heads of cattle, but he said he was given the cattle in his own right as a person

who had inherited the deceased's E wife. He said that as the said wife has deserted

him, then nor her nor her child (the respondent) has the right to the cattle in

question.

The Primary Court Magistrate who was in the minority held that the suit was timebarred.

He said that as the respondent was born in 1951, then he attained the age F

of majority (21 years) in 1970 and so he should have filed this suit soon after 1970. He

said that as the suit was filed in 1987 (17 years after the cause of action arise) then the

suit was time-barred. However the gentleman assessors did not care about the law on

the limitation period and held that the respondent was entitled to get the nine heads

of G cattle. As the gentleman assessors were in the majority, they out-voted the

Primary Court Magistrate and their view carried the day as the judgment of the

Court.

Surprisingly the Principal District Magistrate did not discuss at all, as to whether the

suit H was time-barred or not. That was wrong. This was a fit case to allude to that

pertinent question. Under the Customary Law (Limitation of Proceedings) rule

GN.No.311/1964, no specific period of limitation is laid down in a case of a claim of

heads of cattle. But I rule 5 of the said Rules states:

1989 TLR p174

Where any proceeding is brought for the enforcement of a claim under

customary law for A which no period of limitation is prescribed by these Rules, the

court may reject the claim if it is of the opinion that there has been unwarrantable

delay in bringing the proceedings and that B the just determination of the claim may

have been prejudiced by that delay.

The question as to whether the delay is unwarrantable is a question of fact. In the

case of Isoto v Isota: (1970) H.C.Dn.328 Mr. Justice Biron found that a delay of six

years in C these type of claims was unwarrantable and rejected the claim. In the case

at hand the delay was for some 17 years. No explanation has been given by the

respondent for this delay. In my considered view the delay is quite inordinate, and

therefore the trial court should have rejected the claim. The learned Primary Court

Magistrate was right. D

Even on merits, I am of the considered view that the suit should have been dismissed.

I agree with the appellant that he inherited the nine head of cattle on his right. When

the appellant was installed by the clan council as the inheritor of the wife of the

deceased, then the said wife and her child (respondent) became the legal wife and son

of the E appellant respectively. In other words the respondent became the legal son

of the appellant and so he had no separate property apart from that of his now legal

father. He can claim the property of his new legal father (the appellant) when that

father dies and he F can claim as a lawful heir to the deceased's estate of his

new legal father. But once the appellant still lives, he cannot claim anything from

him. I think that logic makes sense.

In the event this appeal succeeds and it is allowed with costs.

Appeal allowed.

1989 TLR p174

G