Ignace Kasaula v. Oscar Kazaula (PC) Civ. App. 9-M-69, 14/2/69, Seaton J.

 Ignace Kasaula v. Oscar Kazaula (PC) Civ. App. 9-M-69, 14/2/69, Seaton J.

The appellant Ignace was the successful defendant in a case brought by the respondent Oscar in the primary court claiming a clan shamba. Oscar and Ignace are related. They have the same father but different mothers. Oscar claimed that in 1955, he sold to one Sydion his shamba together with a house thereon. Subsequently another relative, Gabriel, instituted proceedings for redemption of this shamba which was heard by the Gombola Court. As a result of this case, the shamba was ordered to be given up by Sydion and Oscar was ordered to refund to Sydion. Thereupon Ignace occupied the shamba whilst Oscar strove to acquire the money to repay him. By now, the house has been destroyed in part by Igance and in other parts ruined. In this suit, Oscar claimed the fight to possess the shamba on payment of the value of the undeveloped land to Ignace. The defence was that the shamba and house were re-purchased by Ignace from Sydion to whom Oscar had sold it. Neither party called witnesses. Ignace produced three documents relating to a sale by Oscar of other shambas he had inherited. He also produced a document purportedly signed by Sydion acknowledging receipt by him of the sum of money in respect of a shamba and house. The assessors and the magistrate of the primary court found that Oscar had sold the shamba and house to Sydion in March, 1952 and there had been are-purchase by Ignace from Sydion in September, 1956. Since Oscar had been out of possession for over 12 years, in fact 16 years, the primary court disallowed his claim and gave judgment for Ignace. The district court on appeal reversed this judgment. The learned magistrate based his decision on the grounds: (1) that the document exhibit B stated that Ignace had repaid Shs. 3, 152/50 for redemption of the shamba (“amekomboa”) not for its re-purchase; (2) that there is no time-limit for the redemption of clan lands by relatives within the same clan; and (3) even if there was a time-limit of 12 years, as the primary court had found , it was less than 12 years since Ignance had occupied the shamba. The learned magistrate held there was no evidence to support Oscar’s contention that he had repaid Shs. 5,000/- to Sydion and ordered that Oscar should regain the shamba on repayment to Ignace of Shs. 3,152/50.  The district court’s judgment was based on paras 562 and 567 of CORY AND HARTNOLL’S CUTOMARY LAW OF THE HAYA TRIBE which state as follows: “562. The plantation [i.e. which is redeemed] is thus returned to the family and becomes the property of the man who repays the purchase price. 567. At any time the original owner or his direct male descendants have the right to claim the return of the plantation from the relative, or the descendants of the relative who redeemed it, on payment of the redemption price. Any hardship to the present occupier incurred by his dispossession is not considered.”

Held: (1) “It would seem that the learned magistrate has correctly applied the law as set out in CORY AND HARTNOLL, but Ignace in his petition of appeal, has asked this Court to set aside Para 567 of CORY AND HARTNOLL “because it is useless and old”. He submits that to permit the repossession by the original owners of shambas at any time after their redemption is to “recognize the lawlessness committed by persons such as Oscar”. The rule of customary law set out in Para 567 of CORY AND HARTNOLL has been set aside b the Magistrates’ Courts (Limitation of Proceedings under customary Law )  Rules, 1964, which prescribes a time-limit of 12 years for proceedings to recover possession of land. This period is deemed to commence from the date a right of action occurred on the date of the coming into operation of the said Rules, whichever is the later. As the Rules came into operation in 1964, it is clear that the Primary Court misdirected itself in holding that Oscar’s claim to possession was time-barred in 1968”.

            (2) “It is noted in Para 564 of CORY AND HARTNOLL that the buyer is entitled to compensation for any improvements he has made. There is nothing to suggest that under customary law the relative who has redeemed in good faith is in any worse position than an innocent purchaser. I would accordingly uphold the judgment and award of the District Court with the clarification that in addition to the refund the money paid by Ignace he is the receive compensation for any unexhausted improvements he has made to the shamba since redeeming it.”.

            (3) Appeal dismissed.