Constantin hamanya v elias kayoza pc civ app 33 m 67

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(1968)H.C.D. - 43 – 125. Constantin Hamanya v. Elias Kayoza , (PC) Civ. App. 33-M-67, 27/1/68, Mustafa J. Plaintiff was the successor in interest, by bequeath, to a shamba formerly owned by an old lady. Before her death, second defendant, also a descendant of the la- dy, had incurred a debt to first defender, which he had honored by permitting his creditor to pick 100 debes of coffee from the shamba. The lady learned of this arrangement, and gave her verbal approval. After her death, plaintiff sued both defendants, in Primary Court in the Bukoba District, for the value of the coffee removed from the shamba. However, he was unable to show how much had been picked before her death, and how much after. Held: (1) Plaintiff was not he owner of the shamba until after the lady’s death, and therefore has no right to the value of coffee removed from it during her life-time. (2)Plaintiff would be entitled to compensation for coffee picked sub- sequent to her death; however; without evidence as to the quantities picked be- fore and after her death, his claim is “bad for uncertainty”. Plaintiff’s appeal dis- missed.
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126. Gabriel Nzizula v. Rooza d/o Muyungi , (PC) Civ. App. 49-M-66, 5/2/68, Mustafa J. Plaintiff’s close relative borrowed a sum of money from defendant, pledging a certain shamba as security. The borrower did not pay on the date specified, and defendant took possession of the shamba. Plaintiff sued to redeem the land. Held: Under Haya Law, if a shamba has been pledged on the condition that it will become the property of a creditor failing repayment of a debt on an agreed date, relative has the right to redeem it even after the time limit for re- payment has expired. Upon payment of the sum due, the relative becomes the owner of the property. [Citing Cory & Hartnoll, Customary Law of the Haya Tribe.] 127. Ndewawiosia d/o Ndeamtzo v. Imanuel s/o Malasi, (PC) Civ. App. 80-D-66, 10/2/68, Saudi J. Plaintiff, the youngest daughter of deceased and the only unmarried daughter, appealed against a judgment awarding deceased’s land to defendant, the ne- phew of deceased. Deceased died twenty years ago survived by his five daugh- ters, four of whom had married, and by the illegitimate son of plaintiff, whom he had recognized. Defendant bases his claim to the land on the fact that females are not entitled to inherit clan land and on the assertion that shortly before his death the deceased had asked defendant to take charge of the land. Both plain- tiff and defendant are Wachagga. Held: (1) Traditionally, among the Wachagga and various other tribes of Tanzania, women were disabled from inheriting the property of their fathers in order that such property would stay within the clan. (2) The provisions of the Res- tatement of Customary Law [G.N. 436 of 1963, Cap. 333 of the Laws] are some what contradictory and do not appear to terminate this disability. Paragraph 29 declares a daughter to be a principal heir if the deceased has left no sons, but paragraph 20 provides, “Women can inherit, except for clan land, which they may receive in usufruct but may not sell”. (3) The disability preventing females from inheriting has been abolished in other areas of Tanzania.
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(1968) H.C.D.
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