Recent Posts

6/recent/ticker-posts

Yoel Harmani v. Said Harmani (PC) Civ. App. 106-D-69; 10/7/70; Georges, C.J.



Yoel Harmani v. Said Harmani (PC) Civ. App. 106-D-69; 10/7/70; Georges, C.J.

The appellant in this action claimed in the Mwanarumango Primary Court that he had pledged his shamba to the respondent to secure a loan of Shs. 300/- made to him by the respondent and that when he offered to redeem the shamba by repaying the loan the respondent would not accept. The respondent’s defence was that the shamba never was the property of the appellant but had always belonged to the respondent. The Primary Court Magistrate found for the appellant although both assessors though that the shamba did all along belong to the respondent. The appellant had three witnesses to support his claim that the shamba had been his ……. There was evidence also that he had had a quarrel with a neighbour over boundaries which had been reconciled by neighbors. On appeal the District Magistrate reversed this decision. He held, in effect, that the Primary Court Magistrate had misconceived the point in the suit and had been concentrating on the issue of ownership rather than on the issue of pledge. He held that there was no evidence of the pledge or its terms and that once the appellant failed to establish the pledge then he could not succeed. On appeal to the High Court

            Held: (1) “I agree with the Primary Court Magistrate rather than the assessors …. With respect, I think this approach is misconceived and that the view of the Primary Court Magistrate is preferable. The defence ….. realised that if he could establish that the shamba always belonged to him, then the appellant’s contention that there had been a pledge could not possibly be true. On the other hand if the appellant had always been in possession of the shamba and then later the respondent was seen in possession, then the change of possession could be accounted for b the explanation of a pledge – particularly as the respondent was not himself putting forward any other explanation – as for example that he had purchased it. (2) “The District Magistrate was much concerned over unexhausted improvements which the respondent may have effected to the land during his term o occupation. I do not think this should be a problem. No person to whom land is pledged should put permanent structures on it. He should keep it in good order – planting annual crops from which no doubt he could make a profit on the money he had advanced. …… In this case the respondent has built a pombe club on the land. There is no evidence that the appellant warned him not to do so when he began building.” (3) “The appellant has long delayed in redeeming the property and the respondent may well have felt he had no further interest. I shall allow this appeal and restore the judgment of the Primary Court Magistrate. The appellant shall be put in possession of the shamba on paying to the respondent the sum of Shs. 300/- and the value of the club to be assessed by the Primary Court Magistrate after hearing evidence from both sides in the matter.”

Post a Comment

0 Comments