Paskazia d/o Lutahikirwa v. Felician Malilwa (Pc) Civ. App. 240-M-68, 27/1/69 Seaton J.

 Paskazia d/o Lutahikirwa v. Felician Malilwa (Pc) Civ. App. 240-M-68, 27/1/69 Seaton J.

Bi. Paskazia the appellant in this case, was the original claimant in the primary court for the recovery of a family shamba which had been sold to the first two respondents in succession. It was first sold in December, 1958, for Shs. 577/- to the first respondent, Felician, at a public auction by order of the Kishanje

court to satisfy a judgment debt of Shs. 577/- of Bi. Paskazia father. Subsequently, some time in 1959, part of the shamba was sold by Felician to the second respondent, Bushaija, who exercised his rights of ownership by entering the shamba and harversting its coffee crop. At the time of the auction sale in 1958, Bi Paskazia was a young girl of about 12 years of age. Because of her minority, she says, she did nothing to oppose the sale or to challenge Bushaija’s acts of ownership. Now aged 23, Bi. Paskazia has brought by relatives she would have no objections but as it was not, she wishes to refund the purchase-price of Shs. 577/- and recover the family shamba. The assessors in the primary court and he magistrate were all in favour of Bi. Paskazia’s claim, they being of the view that the auction sale in 1958 had not been property conducted. Bi Paskazia stated that her father, Lutahikirwa, had taken the sum of Shs. 577/- to Felican after the auction sale but the had refused to accept it. At the time of the sale Felician was one of the Vishanje court elders and the primary court seems to have been at least partly influenced by a feeling that he may or must have misused his position in purchasing the shamba.

The district court on appeal reversed the primary court decision on the ground that the challenge or objection to the auction sale is long overdue.

Held: (1) The Rules cited, by the district court i.e. The Magistrates’ courts (Civil Procedure in Primary Courts) Rules, (G.N. 310 of 1964) are not relevant as they cannot be applied retrospectively.

(2) (Up-holding district court on this point) the principle of Merchandse Mutangila vs. Nsubuga Zilimanya (PC) Civil Appeal No. 163 of 1968 (unrep.) applied. In that case the High Court at Mwanza held that the appellant could not succeed in his application to set aside an auction sale ordered by the primary court long after the matter had been completed. In the present case, the appellant seeks to challenge an auction sale completed some nine or ten years ago. Further, she seeks to do so on grounds which seem to indicate some confusion. I would endorse the observations of the learned district magistrate that

“It should be understood by the disputants that recovery of shambas in Bukoba concerns only those family clan shamba which are sold by their owner without the knowledge of the family clan. (Banyaruganda) as provided in Cory & Hartnoll paras 557 and 560. But as to those shambas which are sued in public auction by an shambas which are said in public auction by an order of the court, they cannot be recovered by any member of the family clan – this is in accordance with Cory and Hartnoll, Para 575.”

There is no evidence that Bi. Paskazia is entitled to bring this action even if the auction sale was irregular.”

                        (3) Appeal dismissed.