Jacob Tibifunukula v. Daud Justinian, (PC) Civ. App. 211-M-66, 5/2/68, Georges C. J.

Jacob Tibifunukula v. Daud Justinian, (PC) Civ. App. 211-M-66, 5/2/68, Georges C. J.

Plaintiff pledged a portion of his shamba to secure a loan of Shs. 130/- The evidence conflicted as to whether he had made a timely offer to repay the debt, the finding being that he had not. Several months after the debt, came due, defendant entered upon the land and twice cut bananas, whereupon plaintiff instituted as action to redeem his shamba. There was not showing that the land, located in the Bukoba area, was held under family tenure. However, plaintiff won in District Court, on the grounds that defendant had not obtained a court order enforcing the pledge.

            Held: (1) If the land were held under family tenure, a right in the pledgor to redeem “cannot be said to be logically deducible from the existence of such a right in his relative”; no such right appears to exist. (2) Where money is loaned upon a pledge of property, on condition that the property becomes the property of the pledge if the loan is not repaid on time, the property does not pass unless there is a court order to that effect. Although there is no clear evidence of any such custom obtaining in this area, the scheme of land transactions in Bukoba “shows that publicity is an essential part of any transaction intended to pass property in land”. [Citing “Section 929”, requiring all conditions of a sale to be specified before six witnesses, and “Rule 930”, providing that a sale without witnesses is void, though both parties may agree that it has taken place.} This rule “will ensure the proper amount of publicity. In appropriate cases, the Court would be empowered to order sale of the property instead of its transfer to the pledge, particular where the sum secured is much less than the value of time property.”

The Court stated, obiter: even if the land had been clan land, and even if a pledgor’s right to redeem could be inferred from the rights of relatives, the pledgor would be bound by the same period of limitations governing actions by the relatives in pledge cases ---- i.e., three months after notice of the pledge; plaintiff’s action in this case, thus, would have been barred. [Citing Cory & Hrtonoll, Customary Law of the Haya Tribe, paragraphs 572, 573, 574; and Bi. Paulina for Leornard Nestor v. Issa Kamala, Appeal No. 10 of 1959, Digest of Appeals from Local Courts No. 152.