Bwabwa v. Itabu (PC) Civ. App. 186-D-69; 9/5/70; Makame Ag. J.

 

Bwabwa v. Itabu (PC) Civ. App. 186-D-69; 9/5/70; Makame Ag. J.

Appellant and respondent’s father who were nephew and uncle were in dispute over a piece of land after the Second World War. A local chief divided the land and each of the disputants got a piece. When the respondent’s father died the appellant occupied his land. The respondent brought an action in the Primary Court to recover it from the appellant. Appellant alleged that the local chief had in fact found that the land was his and had only allowed the respondent’s father to cultivate it temporarily. The Primary Court found for the respondent and both the District Court and the High Court affirmed. The District Court-relying on the Customary Law (Limitation of Proceedings) Rules, 1963 G.N. 311 of 1964 – had found as an additional ground for dismissing the appeal that the suit was time-barred because the respondent and his father had been in uninterrupted occupation of the land for over twelve years before the matter was taken to court.

            Held: (obitor): (1) “With respect, a less cursory reading of that law would reveal that the District Magistrate proceeded under a misconception. That law provides that, inter alia, with certain exceptions, proceedings to recover possession of land or money secured on mortgage of land may not be instituted – ‘after the expiration of the corresponding period shown in the third column of that Schedule, such period being deemed to commence on the day when the right to bring such proceedings has accrued or on the day when these Rules came into operation, WHICHEVER IS THE LATER’, and the appropriate period in the Schedule is twelve years. This must necessarily mean that even if the present appellant slept on his rights since immediately after the Second world War he may seek to enforce them within twelve years of the LATER date, which would mean any time from about the 21^st of December 1963, when the Rules came into operation, until the 20^th of December 1975; so that in fact the suit was not time-barred.” (2) Appeal dismissed.