Kazimoto, J.: This is an appeal against the decision and judgment of Mbinga District Court Civil Appeal No. 59/87 which overrulled the decision of Mkumbi Primary Court B in Civil Case No. 24/87. The parties in the Primary Court were the appellant and the respondent in this appeal.
Briefly the appellant and the respondent are members of the same clan. Both own clan land. The respondent sold clan land to a third party, that is, to a non-clan member. C Efforts by the appellant and the respondent's father to prevent the sale had failed despite the members of the clan's willingness to buy the land in dispute. The trial court unanimously found in favour of the appellant.
In allowing the appeal in favour of the respondent the District Court, although conceding that the land belonged to the clan, held nevertheless that the respondent had all the right D to dispose of his house and all plants which were in the clan land.
In my considered view the learned senior district magistrate erred in this. Clan land cannot be sold to non-clan members without the prior approval of the clan members. In E this case there was clear evidence that the members of the parties' clan had resisted the sale. They arranged a meeting and PW2 stated in his evidence that the respondent demanded shs.50,000/= and that he agreed to pay the amount and on the following day he took shs.35,000/= with him to give to the respondent. He said also that the F respondent did not appear and later he demanded shs.70,000/= and then shs150,000/=. The respondent did not dispute this evidence. The decision of the district court is perverse the evidence at the trial. Clearly PW2 was prepared to buy off the respondent and the respondent kept on vacillating in his demands which were clearly unreasonable G under the circumstances of the case. I therefore hold that the respondent had no right to sell clan land to a non clan - member without the prior consent which, in this case, has been withheld.
In its judgment the trial court held that the respondent can sell the permanent trees which H can be harvested and leave the land to the clan members. It be noted that the respondent had a house on the clan land. In my judgment the house and permanent crops on the land can only be sold to clan members and in the event of their failure to do so or inability to purchase the same only then can the respondent sell the property and the land to non-clan member. As stated above the members of the clan were prepared I to pay for the
land but the respondent kept on changing the price. It cannot be said that the clan A members were unable to buy the land in dispute. This right which the respondent had in this case was to sell land to the clan members. This disposes the appeal.
One thing concerning the record must be stated. I have stated above that the parties in B Mkumbi Primary Court civil case No. 25 of 1987 were Nikolaus Komba and Kondrad Komba. In Mbinga Civil Appeal No. 59 of 1987 the parties were Kondrad Komba and Nikolaus Komba. The copy of judgment accompanying the memorandum of appeal shows that the parties in the District Court Civil Appeal No. 59/87 were Condrad C Komba and Nikodem Komba. This Nikodem Komba does not appear to be a party in these proceedings either at the trial or the District Court. Both appellants and respondent have assured the court that this case does not concern Nikodem Komba and that he is unknown to them. The judgment had been certified as a true copy of the judgment. It D now turns out to be untrue copy of the judgment. This underscores the need to be careful. Had the learned senior district magistrate exercised a bit of a diligence he would not have failed to notice that Nikodemu Komba was not a party in the appeal before him. That was for the record. E
As I have said the decision of the District Court was against the weight of the evidence at the trial and that the respondent had no right to sell clan land to a non clan member in the circumstances of this case. The decision of the District Court cannot be supported. F
In the result I allow the appeal with costs, set aside the judgment of the District Court and would uphold the judgment of the trial court which is affirmed.
G Appeal allowed.
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