Martin Bikonyoro v. Celestin Kaokola, (PC) Civ. App. 99-M-67, 3/1/68, Cross J.

Martin Bikonyoro v. Celestin Kaokola, (PC) Civ. App. 99-M-67, 3/1/68, Cross J.

Plaintiff sued to recover a clan shamba which his sister, having inherited it from her uncle, had sold to defendant (she was also named as a defendant). The record showed two “mortgage” arrangements between the sister and defendant, with plaintiff’s knowledge, in consideration of sums advanced by defendant to the sister. The second of these gave the defendant an option to purchase, for an amount equal to the difference between the sums.

Advanced and to be advanced by him and the true value of the shamba, should the sister be unable to pay her debts to him. Another document showed an “outright sale” of the shamba to defendant by the sister, which plaintiff alleged had occurred without his knowledge, for an amount including the sums advanced and an additional payment. The Primary Court ordered plaintiff to pay defendant the small consideration for the original mortgage, whereupon be might take possession of the land; it advised defendant bring an action for the remainder of the sums actually advanced to the sister on the strength of the second mortgage-instrument. The District Court ordered plaintiff to repay the entire amount advanced by defendant, citing paragraphs 561 and 562 of Corry & Hartnoll’s “Customary Law of the Haya Tribe.”

            Held: (1) Paragraphs 561 and 562 of Cory & Hartnoll refer to a “sale without reference to the family.” Whether or not plaintiff knew of the actual sale, he did acquiesce in the arrangement which gave defendant an option to purchase. (2) The applicable provision is paragraph 574 dealing with pledges of clan land which transfer the land to the creditor upon failure to repay the debt within an agreed time. “a relative has the right to redeem it, even after the time limit has expired, as in invalid sale; in which case it follows that the plantation becomes the property of the man who redeems it.” Therefore, plaintiff may redeem the land, not for the amount advanced by defendant to the sister, but for the entire “purchase price” ---- i.e., the sums advanced and the additional amount actually paid. (3) Should plaintiff fail to redeem the land for this amount within 3 months, it will remain the property of defendant.