Joseph Constantive v. Losilale Ndaskoi, Civ. Case 18-A-67, 28/6/68, Platt J.

Joseph Constantive v. Losilale Ndaskoi, Civ. Case 18-A-67, 28/6/68, Platt J.

Plaintiff agreed to build a house for defendant and, in return, defendant was to give plaintiff a piece of land. Both are Waarusha. Plaintiff entered the land and carried out a number of improvements. He failed to build the house for the defendant. Defendant forcibly ejected plaintiff from the land. Plaintiff, in an action brought initially in the High Court, claimed compensation for unexhausted improvements, including permanent trees and some houses and produce, under Arusha law. In earlier proceedings, defendant had claimed title to the land on the basis of Arusha Law.

            Held: (1) The dispute is governed by Arusha law, because (i) plaintiff based his claim upon it and not upon the Law of Contract Ordinance; (ii) both parties had accepted that the agreement was governed by customary law; and (iii) defendant’s claim for title of the land had been governed by customary law, and it would now be illogical to decide the question of unexhausted improvements on a different basis. (2) Since the agreement was governed by customary law, the Law of Contract Ordinance was excluded by section 1 (3) of that Ordinance, as amended in the Magistrates Courts Act 1963, Sixth Schedule. (3) By section 57(1) of the Magistrates Courts Act, no proceedings  relating to immovable property under customary law could be instituted in any court other than a Primary Court without the leave of the High Court. “Immovable property” in that section must be defined to include permanent trees and houses, but to exclude crops and “food plants.” Since most of this claim related to permanent trees and houses, it was necessary to obtain leave from the High Court. (4)Since it is undesirable to devide the claim, the entire proceedings are referred to the Primary Court.