Moshi, J.: The appellant, Francis Adolf, successfully sued the respondent, Ibrahim Mustafa, at Katoro Primary Court for a shamba worth Shs. 20,000/=. G
The respondent had, in a written agreement, pledged the shamba to secure a loan of shs.20,000/= from the appellant on 12/11/85. The agreement was witnessed by not less than four persons, as well as their ward CCM office. It had provided that the shamba H would become the property of the appellant if the loan was not paid by 30/5/86. By 30/5/86 the loan remained unpaid, and for several days thereafter, the whereabouts of the respondent was unknown. Hence the suit for the shamba filed on 24/6/86.
On the hearing day, the appellant and his witnesses were present in court, whereas the I respondent, who was duly served to
appear, failed, for unknown reasons, to enter an appearance in court. The trial court then A heard the appellant and his witnesses, and pronounced judgment in his favour.
Consequent upon a complaint made by the respondent at Bukoba District Court on 22/9/87, the District Court called the trial court record for inspection. In a revisional B order dated 17/11/87, the District Court found that the suit before the trial court ought to have been for the loan, and not for the shamba, and further that the Primary Court could not have had jurisdiction to try the case in view of the provisions of section 18(1)(a)(iii) C of the Magistrates' Courts Act 1984, since the loan of shs.20,000/= exceeded its pecuniary jurisdiction. The trial court proceedings were declared null and void, and the appellant was directed to file a suit for the loan, if still unpaid, before a court of competent jurisdiction. Hence this appeal.
While admitting the appeal my brother Munyera, J. minuted: D
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Admit to consider the jurisdiction of the trial court. What is a customary law transaction or a contract in general law? E
It seems to me, and I am certain Munyera, J. had this in mind, that the one issue on which this appeal must stand or fall is whether the transaction between the parties was a customary law one or one based on the general principles outlined in the Law of F Contract Ordinance. This question is vital in that in the event the transaction is found to have been a customary law one, the decision of the trial court, as against that of the District Court, would carry the day, and vice-versa.
With respect, I am satisfied that the transaction between the parties was a customary law G one. Georges, C.J. as he then was said in Mtatiro Mwita v Mwita Marianya [1968] HCD 82, that:
If persons of the same tribe enter into an agreement well known to the tribal custom under which the terms are prescribed, these persons must, in the absence of evidence to the H contrary, be understood to be contracting in accordance with these terms.
In our case, both parties are of Haya tribe. Under Haya law, a shamba may be pledged on condition that it will become the property of a creditor failing repayment of a debt on I an agreed date. The transaction had received the necessary publicity - the witnesses and
involvement of the CCM office. I have found no evidence to the contrary, and I am A satisfied, and hereby find, that the parties had transacted under their customary law dictates.
It is law that where money is loaned upon a pledge of property on condition that the property becomes the property of the pledgee if the loan is not repaid within a B prescribed time, the pledgee has a right to resort to the courts for the enforcement of the agreement by suing for the property on the basis of the agreement. This is exactly what the appellant had done, in the Primary Court. There was no evidence that the sum secured was much less than the value of the shamba, in which case the trial court would C have been empowered to order the sale of the shamba, instead of its transfer to the appellant, and the surrender back to the respondent the money in excess of the secured loan. In our case, we are told that the value of the shamba was equal to that of the sum loaned. For the foregoing reasons, and with respect, I am satisfied, and hereby find, that D the District Court erred in law in reversing the decision of the trial court, and in its finding that the trial court had acted without jurisdiction.
In the event, I allow the appeal with costs, quash and set aside the District Court judgment and its orders, and hereby restore in full the Primary Court decision. E
Appeal allowed.
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