DEOGRATIAS KATUNDABWIRE v JOVIN LUKA 1986 TLR 228 (HC)

DEOGRATIAS KATUNDABWIRE v JOVIN LUKA 1986 TLR 228 (HC)

Court High Court of Tanzania - Bukoba

Judge Moshi J

4th March, 1987. H

(PC) CIVIL APPEAL 138 OF 1984

Flynote

Customary Law - Of the Haya - Sale of clan land to a clan member - Whether another

clan member may redeem it. I

-Headnote

A clan member duly sold a clan land to a fellow clan member. When another clan

member who was not aware of the sale knew about it he sought to redeem the land.

1986 TLR p229

MOSHI J

Held: A clan member has no right to redeem clan land sold by a clan member to

another clan member. A

Case Information

Appeal dismissed.

Cases referred to: B

1. Laurean Baitu v Stanslaus Tibenda [1968] HCD 410

2. Lensia Balyagati v Samwel Maganja [1978] LRT n.5.

Malingumu, Rutashobya for the appellant C

[zJDz]Judgment

Moshi, J.:The appellant, Deogratias Katundabwire, successfully brought an action,

before the Kanyigo Primary Court, to redeem a clan shamba sold by his brother,

Deogratias Mpya, to the respondent, Jovin Luka, without D his notice. That decision

was, on appeal to the District Court, reversed, and hence this appeal.

At the hearing of the appeal, the appellant was represented by Mr. Malingumu,

learned advocate, whereas the respondent was present, and argued the appeal in

person. E

It was established that, the appellant and his brother Deogratias Mpya, the vendor,

belong to the same family. Their grandfather is the same, but their fathers are

different. The father of Deogratias Mpya is deceased, F whereas the father of the

appellant, Leonard Katundabwire, is the clan head as well as the administrator of the

estate of the deceased father of the vendor. The respondent belongs to the same clan,

but different family unit (shina).

On 8/11/81 the vendor sold his clan land to the respondent for Shs.15,000/=. The sale,

which was in writing G (Exh.B), was sanctioned by the father of the appellant, and

witnessed by ten clan members. This, it would appear, was after the father of the

appellant had declined to exercise his right of pre-emption. It is conceded that the

appellant was absent. He was in Dar es Salaam where he works for gain. On

19/11/1981 he became aware H of the sale. On 23/12/1981 he took to the

respondent the purchase price of shs.15,000/= in order to redeem the shamba. The

respondent refused to accept the money and, by reason thereof, the redemption suit

was then filed on 29/1/1982.

The learned district magistrate allowed the appeal mainly on two grounds - that the

notice of the sale, which the I father of the appellant had, was notice to all members

of the clan including the appellant, and secondly that as the parties belonged to the

same

1986 TLR p230

MOSHI J

clan, no right of redemption existed. He relied upon the decision of this court in

Laurean Baitu v Stanslaus A Tibenda [1968] H.C.D. 410.

Mr. Malingumu, advocate, has vehemently criticized the decision of the District

Court. He has submitted that it B was wrong to presume notice of the sale on the

part of the appellant, who was absent at the time of the sale and did not have notice

of it, and thus could not exercise his right of pre-emption, he being a nearer relative

than the respondent. He argued further that on the authority of Lensia Byalyagati v

Samwel Maganja [1978] LRT n.5, C Bahaya clan members are allowed to buy clan

land in hands of other clan members.

I would outrightly agree with Mr. Malingumu that the District Court erred in

presuming notice of the sale on the part of the appellant. He was not in the village at

the time of the sale. He was in Dar es Salaam. It is conceded D that he must have

heard of the sale before, and when, it took place because his father had notice was, in

the circumstances, clearly wrong. Notice of sale, on the part of the redeemer, in clan

land redemption cases generally, is an essential element for purposes of their time

limit, and an interested relative, who happens to be E absent at the time of the sale,

is entitled to take action without delay whenever he returns (See paras 568 and 569

Customary Law of the Haya Tribe by Cory and Hartnoll). On the evidence, I am

satisfied that the appellant did not have notice of the sale for purposes of either to

object to it, if he thought he had grounds, or to F exercise a right of pre-emption, if

he thought he had one. However, the vital and crucial question which follows is, to

me, whether the appellant could redeem the relevant clanland notwithstanding the

absence of notice of the sale on his part.

Mr. Malingumu has submitted, and I agree, that clan members are allowed to buy

clan land in the hands of other G clan members. In fact this was one of this court's

findings in Leonsia Byalyagati's case. Within one clan ancestry members are at

liberty to sell to one another immovable property. However, with respect, this right

by clan members to sell and to buy clan land within the clan appears to me to be

beside the point. That right is H there. It is well established, and not in dispute.

What in this case is, to my mind, at issue is the right of a clan member to redeem clan

land sold by a clan member to another clan member.

It is amply established in evidence, which appears to be un-disputed, that the

appellant, the respondent and the I vendor, whether as near or distant relatives,

belong to the same clan or "paternal

1986 TLR p231

family" as defined under para 557 by Cory and Hartnoll. On account of this, it would

appear that para 557 A above which is meant to restrict the disposition of land

outside the family is inapplicable. The reason for this, and the good sense in it, is that

where a clan shamba is sold to another clan member, the sale becomes within the B

clan, and not to an outsider away from the clan, and there is therefore no loss of

immovable property to the clan which would give to a clan member right to redeem.

This is in line with what this court said, and rightly so in my view, in Lensia

Byalyagati's case (supra) and in Laurean Baitu's case (supra). It therefore follows that

as the C appellant, the vendor and the purchaser belonged to one clan, the appellant,

for reasons given, had no right of redemption. The redemption proceedings before

the Primary Court were therefore, on account thereof, incompetent ab initio and, on

this ground alone, the appeal must fail. D

For the foregoing reasons, the appeal is, and it is hereby, dismissed in its entirety. The

respondent to remain in occupation of the relevant shamba undisturbed. The

respondent to have his costs. E

Appeal dismissed

1986 TLR p232