Ruled 1 not every balance sheet amounts to an account

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Ruled; (1) Not every balance sheet amounts to an account stated, and each case must be decided upon its particular facts. (2) In the facts of this case, the balance sheet was an account stated. (3) Although it is a general basic prop- osition that settled accounts are final, the Court has equitable power to depart from this rule in instances where accounts are drawn up under a common mis- take or where fraud has operated with respect to principal, agent, trustee or be- neficiary. Such matters are raised by the pleadings in the present case. Defen- dant’s application for dismissal rejected. 78. Lesindamu Kinawanawa v. Ngobani Shila , (PC) Civ. Rev. 3-D-66, 2/2/68 Hamlyn J. The parties entered into an agreement under which defendant occupied plaintiff’s land and agreed to develop it. Plaintiff later sought the return of the land, which he had a right to do, whereupon defendant requested compensation for the im-
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provements he had made. The primary court assessed the improvements at Shs. 6,000/- and ordered defendant to quit the land upon receiving payment from plaintiff. Although not appealing against this decision, plaintiff made an applica- tion to the district court in respect of this action, to the effect that he could not raise Shs. 6,000/- and seeking to drop his suit for recovery or possession of his land. The District Court did this, and also vested the land in defendant, at the same time extinguishing plaintiff’s debt to defendant. Held: The district court on an ex parte application by one of the parties without any proper appeal before it. Defendant had neither notice nor knowledge of this “appeal” to the district court. Order of primary court restored. 79. Sheikh Kasim Suleman v. Ayubu Kamgila, (PC) Civ. App. 71-M-67, 27/12/67, Mustafa J. Plaintiff and defendant were members of a community of Muslims. A plot of land was held by the community, whose affairs are generally looked after by a com- mittee which was controlled, at the time of this action, by a faction led by the de- fendant. The land was held under a grant to “all the Muslims” which apparently had been made for the erection of a mosque. (1968) H.C.D. 28 – A mosque and a school had been built, but a group led by plaintiff wanted anoth- er school to be built. Plaintiff sued unsuccessfully in Primary Court for possession of a portion of the land; this judgment was reversed by the District Court. Defen- dant argued to the High Court; that only the committee could decide what to do with the land: that plaintiff had no personal right to deal with it, albeit for the bene- fit of the public; that neither the village authorities, TANU nor the Ministry of Edu- cation had authorized the building of a school on the land by plaintiff, and that the District Court should have held that “whatever was done in the interests of the community was to be done according to the constitution and procedure of the community organization.’
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Held: “This appears to be a dispute between two factions of a community as regards administration of its affairs. The land issue is but one aspect of such dispute. A dispute of this kind, by its very nature, could not possibly be dealt with
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  • Fall '17
  • Dean Majamba

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