Abel Rewebogora v. Raphael Mukaja (PC) Civ. App. 166-M-69; 20/1/70; Bramble J.

 

Abel Rewebogora v. Raphael Mukaja (PC) Civ. App. 166-M-69; 20/1/70; Bramble J.

The appellant was sued in the primary court for redemption of a shamba worth Shs. 3,000/-. The respondent’s (fourth child of nine of his father, the former owner of the shamba in question) case was that the shamba was clan land and the appellant had no right to it and that if he had bought it he should produce the receipt and he (respondent) was prepared to refund the money. He also relied on Customary Law, paras 561 563 and 563 of Cory and Hartnoll. The appellant led evidence to show that he had bought the shamba 25 years before when the relatives of the deceased owner had the option to purchase but did not; that the receipt for the money was destroyed when his house was burnt down, that the former owner made a will and did not include the disputed shame in it and that the respondent knew that he was in possession of the shamba for a long time before the action. At the hearing of the appeal the respondent stated that he returned to Bukoba in 1954 and worked until 1960 and that in 1956 he was paying money to redeem another shamba and for this reason he could not start the case in time.

            Held: (1) “The respondent’s evidence was very nebulous in that he did not prove tat the relatives concerned were not informed of the transaction so as to give him a right to bring the action nor did he say when he, first knew of the transaction so as to show that the action was brought in time. He expressed doubts as to whether or not there had been a sale and sought to throw the burden of proving it on the appellant. The basis of his claim was that there was a sale but that the relatives were not informed so he could not challenge the fact of the sale.” (2) “It is clear that he brought the claim more than 12 years after he had knowledge of the transaction. A claim for possession of land is barred if brought after twelve years from the date the claim arose or 1964 whichever is the later. Technically the limitation rules do not bar the claim. The respondent at least had a right to the possession of the shamba if the claim was brought within 3 months of the date he returned to Bukoba and that would be early 1955. Under the old Customary Law his right would then have lapsed. The new Limitation Rules G. N. 311 could not resurrect a right that had expired and the suit brought in 1967 could not succeed.” (3) “All the evidence

As to the sale of the shamba was given by the appellant and this showed that it was legal and that the relatives had notice of it.” (4) “The respondent did not make out a case and the trial magistrate was right to dismiss it. I allow the appeal with costs and restore the judgment of the primary court.”