Held 1 if the land were held under family tenure a

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Held: (1) If the land were held under family tenure, a right in the pledgor to redeem “cannot be said to be logically deducible from the existence of such a right in his relative”; no such right appears to exist. (2) Where money is loaned upon a pledge of property, on condition that the property becomes the property of the pledge if the loan is not repaid on time, the property does not pass unless there is a court order to that effect. Although there is no clear evidence of any such custom obtaining in this area, the scheme of land transactions in Bukoba “shows that publicity is an essential part of any transaction intended to pass property in land”. [Citing “Section 929”, requiring all conditions of a sale to be specified before six witnesses, and “Rule 930”, providing that a sale without wit- nesses is void, though both parties may agree that it has taken place.} This rule “will ensure the proper amount of publicity. In appropriate cases, the Court would
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be empowered to order sale of the property instead of its transfer to the pledge, particular where the sum secured is much less than the value of time property.” (1968)H.C.D. - 47 – The Court stated, obiter: even if the land had been clan land, and even if a pled- gor’s right to redeem could be inferred from the rights of relatives, the pledgor would be bound by the same period of limitations governing actions by the rela- tives in pledge cases ---- i.e., three months after notice of the pledge; plaintiff’s action in this case, thus, would have been barred. [Citing Cory & Hrtonoll, Cus- tomary Law of the Haya Tribe, paragraphs 572, 573, 574; and Bi. Paulina for Leornard Nestor v. Issa Kamala, Appeal No. 10 of 1959, Digest of Appeals from Local Courts No. 152. 135. Simon Kashumala v. Leonard Mutajwaha , (PC) Civ. App. 16-D-67, 16/2/68, Saudi J. This was an action to recover money loaned, plus interest at the rate of 25% per annum, the interest rate requested being part of the contract between the parties. The High Court quashed the lower court Judgment and ordered a trial de novo. The Court stated, obiter; “(I)nterest at 25% p. a is excessive and the res- pondent should not be allowed more than 9% interest or the loan until 15/7/66 when the first judgment was pronounced, and 6% interest on the decretal amount, if any, after the date of judgment. 136. Damas Sabi v. John Kisika, (PC) Civ. App. 80-D-67, 2/2/68, Saudi J. Plaintiff and defendant were engaged in selling local pombe jointly. After 1965, they had a dispute and defendant worked the business by himself. Apparently having concluded a settlement for capital invested in the business, plaintiff sued for his share of the profits. He could not substantiate his estimate of the profits due him. Defendant admitted that the profits for the year 1965 were Shs. 700/- but the District Court ruled that he was entitled to the entire sum.
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Held: Each party to a two-man joint business is entitled to half of the prof- its. Appeal allowed to extent that defendant will have only half the profits, with costs on that amount.
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  • Fall '17
  • Dean Majamba

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