Abdereheman Omary vs Exveria Herman (PC. Civil Appeal No. 19 of 1998) [1999] TZHC 62 (16 November 1999)
Judgment
IN THE HIGH COURT OF TANZANIA AT MTWAR& PC, CIVIL APPEAL NO. 19 OF 1998 NASASI DISTRICT COURT CIVIL APPEAL NO. 2V98 ORIGINAL NDANDA PRINABY COURT CIVIL CASE NO. 34/98
-
(YERI HEI*4AN... . . . S. S• .RESiNDZNT appeal. DZIAU 2IX ak4.ts#a 4 . sut before asJ 4gurt at %danda for deca,etion that h a ahamba measuring about 1A acres, He was success ful. The respol4dent MM= UE1AN who was the defendant was aggrievedp SAO ac4eesul3. aj'ea]ed to the Lirst appellate Court., The appellant was aggrieved. Hence this appeal. Before the lower Courts it was common ground that the a 1 i.w a closely related. The 11L 1 th 2ate -aw of the respondent's mother SECILIA, Binti Nasi was re83ding with her brother the late HE1'4AN NA$I who was the father of tta imspondent * While residing under the ambit Z her b1ther she was usiag th amba. A^ 4ite for 1wr sawnvald , In 1979 the late Herman died. By then the late Binti Nasi was old and weak, She could not attend to that shamba. She invited her g?and3on the appellant to stay with her and assist her. The appellant obliged and wnt there and stayed with her. This was in 1980. During his stay with her he developed the said sbaxnba by planting cashewnut trees and other annual crops. In 1993 the late Bint Nasi died, The appellant went on staiing there and using the said aharnba. Early 1998 the respondent claimed back that shamba alleging it was her rightal inheritance from her late ftber Herman. The appellant resisted alleging he was given that sharnba by his grandmother the late Binti Ni. ./2....
-
2 When efforts to settle the matter amicably failed the respondent soj,d it to a men called STEVEN CHIVINJE. The appellant took the matter to Gour, and the respondent returned the sale money to the said 5tevn and the sale came to an end. Tb. tzjal Pimary Court held that since the appellant had used it for many years, and planted cashewnut trees without any protest by tb ràpondent, the said land became his property. I The tu'st appellate Court found most of the facts as found IV the trial Court. However it held that according to African Culture, a grandson gannot inherit land from his grand parent where there is a dsughtr who is atill alive, A daughter has a preference over a Vd5oij. t isic'. of the trial Court. was eed and the respoi,de'.t 44 to be the rlshtftl The appellant was aggrieved.. Bance this appeal, Before this Court both parties seate4 more or l.aes what they ad t.d before t.he Lowe$ CouVte. The totality of the evidence before the trial Court tned heavily on the appellant's allegation that he had beea Imijag that AbmsbA6 since. t9} sad plted. cashetaut trees and that the respondent was aware of all this and did not protest. But since her aunt Binti Nazi was ,øtill ALive one would be *osto3 to thixk that ehe ProbabX7 tbobelr.t in good faith that all was for the benefit of her aunt and not for the benefit of the appellant as an individual. But after her death in 1993 the respondent should have protested if
-
fialt the appolInnt was encro.chiag on her right. She rernainad i.(ta till in 1998. Although a giiendson e.arcinot, inherit directly from his z.randfather or andmother as of right where there is a son or daughter who is still alive, yet the said son or daughter should not reap freely where he or she did not plant. The respondent saw the appellant developing the shamba, She did not protest. Now that the shamba is developed she wants it back under the pretext that a grandson cannot inherit where there is a daughter who is alive. The period from 1993 when the respondent's aunt Binti Nazi died up to 1998 is 5 years. It is not long enough to forfeit her redemption right even if by adverse possession. The respondent is free to redeem the said shamba under the following conditions:
- She nnist compensate the appellant with a fair compensation for the uneshausted improvements which the appellant had made in that land between 1993 and the date of judgment of the first appellate Court. 00
3 5hc nist compensate the appellant with a fair compenSation for pegmmmt cah crops wbjcb the appellant planted from 1980 to 199 (if eziy) The commmation in item I and 2 above is to be assessed by th t44 Primary court. In so doing it may.ua .the wisdom of th Bwana $hamba with pod know1 4 ge in assetwing ccpnmation.1or -UQnt5. k, The Primary Court WiU set a reasQnable time within which themospondmt is to pay the appellant the assessed compensation. . If the respondent will fail to oompaata f, t4a pel1 the 3peoified p'io4 withozD w A S&C c loot .ause, the shamba will be. the .so3-e roparty of the appellant. 6 ile the appellant is waiting to be paid fully his assessed gnMjvi tb,- ahamba ud3 remallm ;6A IU.S ps6o The eona. wz.0 quir +eito v4yr after compensating fully the appellant, Aw 11. Waa 4 shamba is in the possession of the appellant waitizi to be ttU,y id,. 1'o pe4 to- OUt çi1t 4DO OD to- destroy, sell, pledge or do anything bad with that shaxnba. Appeal partly aiJ.wed, The pavtie wb.e cz'o l'caaj )'4 a boasi fteiroum coetar of this appeal. /L S. N. KAJI JGE 16.11.99 Court: Judgment has been dlirered in the presence of both parties thi 16th-day of November, 1999.
- - A S.N.KAJI JUDGE £2 1- 16.11,99 Ws Miss Nanyanga WA.