Ramadhani, Omar and Mnzavas, JJ.A.: This is another protracted litigation over inheritance of a shamba between an uncle, the respondent, and his four nephews, the appellants. The dispute was filed in the Primary Court of Nshamba in Muleba District C on 5/6/1986. The parties found their way to the Muleba District Court, the High Court at Mwanza and now in this Court.
It is appropriate to give a concise account of the facts leading up to this litigation. There was a man by the name of Matondane who had six sons and upon his death his land D was distributed among them. Four of these are known to have died by the time this dispute arose. The fifth brother, Celestin Kikugusi, has been presumed dead as nothing has been heard of him since he went to Uganda in 1932. So only one of the six sons is E alive and this is the present respondent, Thomas Matondane. Two of the deceased brothers, Rwakakile and Francis, are survived by two sons each. These four survivors are the present appellants. The other three brothers; Nshuli, Celestin and Karaba, died childless. The plots of land belonging to two of them, Nshuli and Celestin, have been F inherited by the respondent. In 1982 when Karaba died the clan council decided to divide his shamba among the appellants.
This decision aggrieved the respondent who regarded himself to be the sole heir as the remaining brother. But more particularly he founded his claim upon a will of Karaba. It G was also in evidence that he had twice redeemed the shamba in dispute for Shs.130/= and Shs.70/= during the lifetime of Karaba. Again it was not in dispute that he has been in a continuous possession of the same since 1966 when Karaba emigrated to Kome Island to the time the dispute arose. H
The reasoning of the clan council in coming to the decision they did was plain and simple. They felt that since the respondent already had the plots of the two brothers who had died childless, then this plot in dispute belonging to the third childless brother, should go to the sons of the other two dead brothers. But the respondent was not I moved by that philanthropy. He plucked off
RAMADHANI JJA, OMAR JJA, MNZAVAS JJA
the trees planted to mark the boundaries of the plot of each and did not abandon the A shamba. That sent the appellants to the Primary Court.
It was decided that both parties were entitled to inherit the shamba and that the respondent should have a larger share because, not only was he a principal heir, he B had redeemed the shamba and had soon to its upkeep. It was ordered that the matter should go back to the clan council for a proper distribution. The respondent was dissatisfied with that and appealed.
The District Court upheld the decision of the Primary Court and added that as the C respondent had not been given a hearing at the clan council he should be allowed to participate in its deliberations. That again did not appease the respondent and he went to the High Court.
Mwalusanya, J. found that the shamba belonged to the respondent. The learned judge D concurred with the findings of the two lower courts that the will produced by the respondent was but a sham. It violated the requirements of a will as prescribed by G.N. 436 of 20/9/1963. As Karaba was undisputedly illiterate his will had to be attested to by two clan members and two non-clan persons. This was not done. However, the E court found that the property in the shamba vested on the respondent because he had redeemed it. That finding was come upon on the authority of paragraph 574 of Cory and Hartnoll. The learned judge decided that the shamba belonged to the respondent since 1/12/1966. From that finding Mwalusanya, J. went on to declare the suit by the F appellants to have been time barred under the provisions of item 6 of the schedule to the Customary Law (Limitation of Proceedings) Rules, G.N. 311/1964 since 12 years had elapsed.
The appellants are contesting that judgment on three points of law which were argued G before us by Mr. Rweyemamu, learned advocate.
First, Mr. Rweyemamu said that a person who redeems a mortgaged shamba does not always become the owner of that shamba. He propounded that there are two types of mortgages in Haya customary law. One type gives rise to the ownership by the H redeemer of the morgaged property but the other does not. He argued that the two mortgages in this case were of the second type and therefore the shambaremained to be the property of Karaba until his death in 1982.
As his second point, and arising from the first, Mr. Rweyemamu contended that the I possession of the respondent
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became adverse from 1982 and so, he continued, when the suit was filed in 1986 the A limitation period had not expired. Lastly, Mr. Rweyemamu submitted that as the shamba did not belong to the respondent and as Karaba died intestate then the clan council was the proper authority to dispute it.
The respondent was represented by one of his four sons, Alfred Thomas, who had a B power of attorney. In all fairness he could not come to grips with the points of law raised. He merely repeated points of fact.
We agree with Mr. Rweyemamu that there are two types of mortgages in Haya customary law. That paragraph 574 which Mwalusanya, J. relied upon from Cory C and Hartnoll provides as follows:
If the plantation has been pledged on the condition that it will become the property of the creditor failing the repayment of the debt within an agreed time, a relative has the right D to redeem it, even after the time has expired, as an invalid sale; in which case it follows that the plantation becomes the property of the man who redeems it. E
There are two conditions here. First, there must be a time stipulated for the repayment of the loan. Second, upon failure to repay, it must be stipulated that the property becomes that of the creditor. If the two conditions are missing then the plantation falls under the provisions of paragraphs 572 and 573 which say: F
572. A plantation under family tenure may be pledged, but any relative may at any time, even in the absence of the owner, redeem it. G
573. If a relative does so, the payment of the money does not give him possession of the plantation. The redemption money is due to him as a common debt by the owner. H
To us the rationale is very clear. Under paragraph 574 the relative who redeems the plantation steps into the shoes of the creditor. If the creditor could become the owner of the shamba then the relative could be so too. But under the second type of mortgage where the creditor can never become the owner of the I
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plantation but is merely entitled to his debt, then a relative who redeems cannot have A a title but a debt.
In the present case the two mortgage deeds, that of 26/9/1966 Exh.D5 and that of 1/12/1966 - Exh.D.6, do not have the two conditions stipulated under paragraph 574. Exhibit D.5 says:
B Mimi Karabe naweka rehani migomba yangu kwa Venant sehemu ya migomba kwa shilingi mia moja thelathini (130/=). Nitakapopata pesa nitamrudishia aondoke.
Then Exhibit D.6 is couched in these terms: C
Mimi Karaba naweka rehani sehemu ya migomba kwa Laurent Rutotoza akate ndizi za kula na ndizi kali. Amenipa Shs.70/= (sabini) siku yeyote nikipata nimrudishie zake tu na aondoke kwenye shamba langu. D
It is evident from the two deeds that none of them contain the two terms which would entitle one who redeems to be the owner of the pledged plantation as provided by paragraph 574. It is most unfortunate that none of the lower courts, not even the High E Court, bothered to have the deeds translated from Kihaya.
The learned judge cited Martin s/o Bikonyoro v Celestin s/o Kaikola [1968] H.C.D. n. 87 by Cross, J. and Gabriel s/o Nzizula v Rooza d/o Muyungi [1968] H.C.D. n. 126 by Mustafa, J. (as he then was). Those decisions are sound because the facts fell F squarely on paragraph 574.
Thus the respondent did not become the owner of the shamba in dispute because he had redeemed it twice as evidenced by Exh.D.5 and 6. The shamba remained that of Karaba and upon his death reverted to family tenure to be inherited. For the sake of G completeness the shamba did not even become of the respondent because he has been in continuous possession from 1966 when Karaba left for Kome Island. Paragraph 511 of Cory and Hartnoll provides:
H Actual occupation of land confers no title, no matter how long it has been occupied.
It follows from the above exposition, and as properly submitted by Mr. Rweyemamu, I that there was no question, of
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limitation. The occupation by the respondent became adverse to the interests of the A family when Karaba died in 1982 and the suit was filed in 1986.
It is also evident from the above holding that the respondent cannot and is not entitled to any extra claim on the shamba because of having redeemed it or of long possession. B For redemption he is entitled to a refund of the moneys he had paid and for possession and therefore the upkeep of the shamba, he enjoyed the proceeds from the same as was properly held by the clan council.
We come now to the crucial matter for determination. As Karaba died childless and intestate who as between the parties has a better claim of inheritance? C
Cory and Hartnoll give three grades of heirs. Paragraph 2 of Cory and Hartnoll say:
Three grades of heirs proper are recognised:
A. THE MUSIKA - primary heir D
B. THE MAINUKA - secondary heir
C. THE KYAGATI - minor heirs
Paragraph 3 provides who are the MUSIKA. What is relevant to the present case reads as follows: E
... The Musika of a man who leaves no descendants in direct line is one of his brothers ...
So, here the respondent is definitely the Musika of Karaba. F
Was the clan council wrong to come to the decision they did? We cannot answer that in the affirmative. There is a NOTE to paragraph 3 which is very eloquent and operates as equity to soften the vigours of law. The NOTE goes: G
Unless a man has sons his immovable property is inherited by one of his relatives who is chosen by family council. Therefore, if he has brothers, the oldest need not necessarily inherit. For example: If there is a brother who has none or only a small plantation he H may be chosen to inherit. If the plantation is capable of providing two families with livelihood it may be divided between the two relatives.
I On this chosen relative's death the plantation is inherited by his heirs in the usual way.
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In the present case the respondent already has his own plot out of the six into which A the shamba of the old Matondane was divided. He also has the two parts which had belonged to his two deceased childless brothers. Thus he has three parts out of six which he will pass on to his four sons. On the other hand the four appellants, who are B the heirs of the other two brothers of the respondent, have only a plot for each pair. So as between the respondent, and the appellants the latter have smaller plantations than the former and this NOTE to paragraph 3 was meant for them. No wonder the clan council decided the way it did.
In fact that principle of equity transcends the Haya customary law. For example, in C the division of land paragraph 75 provides that "the Musika shall inherit enough land to provide him and his family with a livelihood. The interests of the other heirs are a very secondary consideration". However, there is a NOTE again ameliorating the hardships which could be caused: D
In practice distribution is affected by many different circumstances, for instance in the case of one of the lesser heirs having a large family, he may be granted a larger share than is really his just due; ... E
We are of the firm opinion that the clan council was justified in arriving at the decision they did and did not contravene the Haya customary law and its equity.
But was the respondent condemned unheard? That was the concurrent finding of the F High Court and the District Court. As such, and as this is a third appeal, we cannot make a factual finding though that fact could be argued one way or the other. Be it as it may, we take it as proved that the respondent was absent from the clan council of 17/10/1982. What is the effect of that? G
We can say two things here. One both the Primary Court and the District Court gave orders that this matter be returned to the clan council. The District Court was explicit "that appellant [the respondent now] be given an opportunity to defend himself". But on both occasions the respondent did not favour that and decided to appeal. In fact in H his ground five of appeal to the High Court he said in relevant parts:
... ilibainika jinsi wanaukoo walivyojipotosha kutoa mgao wa shamba la marehemu bila kunishirikisha ... mahakama za chini I
A zisingeagiza tena kifanyike kikao kingine cha ukoo wakati hawapo wengine tofauti na hao ...
So the respondent wanted the matter to be settled by the courts where he has been given a hearing. This is what we intend to do.
The second matter is that we are also of the opinion that it is a futile exercise to return B this dispute to the clan council to let them observe that cardinal principle of natural justice. As the respondent has been given a hearing in four different forums and as the decision of the clan council is equitable following the Haya law, we adopt it as our own. The shamba of Karaba to be inherited by the appellants. We order that the clan C council in conjunction with the Primary Court Magistrate of Nshamba to petition the shamba as between the first and the second appellants on the one hand, and the third and the fourth appellants on the other.
It is in evidence, as already said, that the respondent had redeemed the shamba by D paying Shs.200/=. It has been claimed that he was refunded Shs.100/=. But that was at the clan council. If we take it as settled that the respondent was not at that Council, then it follows that he could not have been repaid. So we order that he be paid his Shs.200/=. Everyone of the appellants to pay Shs.50/=. E
Appeal allowed.
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