20160719 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DARES SALAAM DISTRICT REGISTRY) _.. · ATDAR.ESSA~M . · {ORIGINA·LJURISDICTIONJ · 'LAND CASE NO.9 OF2011 · 1~·F(ORENCE .GATI ~b~Ge,i·~•~~-~··············~········:~ ..... ·1 s,-· PLAINTIFF i. FLOREl\1'CE GATI NDEGE - _ .:· _ · ._ . {:•,:...::< ~. . (As guardian of BAZIL SAFARI NDEGE) ...........•.. 2ND PLAINTIFF , 3. FLORENCI-~ GATI NDEGE {As guardian of . . .t , .•• : ; . . .. ',._ .,,. . _·. :;': ·: . ·:~: ; ~ ·'. ., AUGus,~INE ND{:G"E)' ~, .... -~ .. ~~,.~~.~ ....... : ............-~. 3RD PLAINTIFF :t_. ' 4. f'LORENCE GATI NDEGE • • r,.:'•·I \_:_~-~:;:'.<.::•"",, ~);·: ;I• (As guardian ot BLAZf;.J'+,11WITA NDEGE) ............ . 4TH PLAINTIFF ',;.;_ :·,_ .;· : , . . . ·- •. VERSUS . -1. STRATON AMANl MANG'ONDI NDEGE ....-..... . - - lsr DEFENDANT; · < ,-, :.·'"; · 2.. SEBASTIAN SlASA N~EGE •••••. ~ .•••••.•••••.•.•••• :. 2ND DEFENDANT, C':"''':_,···;,. J. AN'[)R·EW NDEGE " ■ :a ■ 1 1 ■ 11 ■■ 11 ■ aw111,'11 ■■■••••~• ■■ 11 ■ ~1111111••••••r1a11 3·RD DEFENDANT· .. ,...;r , ,. ,--... ·, ' . I~••:•<:, ·~_!, •.. , .~· \ :.•· 4. :JUS1'INE M.AGIGE NDEGE ............. ~ .. : ....... ~· ...... 4TH DEFENDANT.'·.·_<: ".:Jr,·:: > Date of Last Order: Date of Judgment: 23/06/2016 19/07/2016 ~00 ~- f ~~: ·. JUDGMENT ON ADMIS~ION C/ ~~ _FE_LESHIJ,: . . .. . ~&,)/r,,. t ·... CJ . ·. The plaintiffs sue the defendants in this Court for an order dir&ting · sale of a

house and immovable property in Plot·No. 16 Block 31H situate. in Kinondoni. District registered under Certificate of Title of Title No. 41754,, an order directing proceeds of sale of the suit property to be_ distributed· . . equally to each and every tenaht in common and costs of the suit. On their ·part, the defendants prayed for the suit to be dismissed . . Moreover, -. . they preferred a Counter Claim ' - praying for declaration . that the· •. ._1st plaintiff in Probate an~ Administratio·n Cause No. 42 of 2001 in the High· -· Page 1 of 6 Court· mismanaged and· or misappropriated·- the assets -of the deceased's estate. Likewise, they prayed for . an order compelling the 1st plaintiff to . exhibit a correct inventory '. . . . and :. . account .' for the deceased's .estate: ~ '. . . .. . -· Besides, the defehdahts ·prays. for detlaration that the trans~er of CT . No. 41754 into the name of th~ 1st plaintiff and subsequent tr~nsfer ·into the names of the plaintiffs· ·and the · defendants · W_QS fraudulent and purported one, consequently, ineffectual,. null· and voidi Likewise, the defendants prayed for an order compelling the ·-1st plaintiff to return· all the·. • · assets and proceeds to . the•· estate of · the deceased which she. · . misappropriated for Iler benefit and the other plaintiffs. ,.,·. :. Moreover, . they pray for general damages, ' . . -declaration that the family . . . . . . - - ~ house on the suit land is not liable for sale, division or· po_rtionin·g .. · Furthermore, they pressed for costs of the suit. '., ) ,_ On 17/06/2016, learned counsels for both sides filed their• .agreed. · issues as follows;- . . ' ·:.

1) Whether the registration of transfer of ownership of the suit property · to b9th the plaintiffs and the defendants as tenants in common in. equal shares was done fraudulently?

2) Whether the pla5ntiffs had been denied by the defendants or any of ~ .. ... ,, '.' ··-' . . . them the right of use and occupation of the suit property?

3) Whether the defendants are using the suit property for their own benefits excluding the plaintiffs? :; 4) Whether the defendants are required to pay rent to their own share in · the suit property? .5) What relief~ are parties entitled to? ,, When the matter was set for settlement of · issues and .commencement of hearing on 21/6/2016, both counsels intimated the Page 2 of 6 intent by the parties to amicably settle the matter the intimation which-:- re$ulted into an adjournment to~llow the. parties to explcire. that ~ettlement·.:_.:-.·. . ',· '· avenue. Whilst alive to the provisi:ons of Order VHIB Ru.le 3 ·(1) of the Civil;· ,. -· .-_.; Procedure Code, [CAP. 33 R.E, 2002] that requir~s · a trial Judge or. :_·_:_:, ·.. <1' . . .Magistrate to give.a last chance to parties to explore non trial avenues that..-: ::-.·-, <· _ may settle the civil dispute :amicably, this Court adjourned the matter to· _--"- t, -:.- . ·,·:· 23/06/20i6 and invoke .. o~d~(X, 'xt, XII.. and XIV of·the Civil Procedur~'. . ' 1 ·,.},'..•··. ·:·· Code {supra) to guide :>the:··subsequent adjudicative processes should _ •,) ,. ,:", ' , amicabl~ settlement not_:b~ep ·att.ai~ed tJy 23/6/2016. Notably, the said . :;_/: .---~.:•· intended amicable settlement was not attained . . : HavinQ exarnined~the pleadings thoroughly, this Court found to be ·_ 'r;:., ·'. . ' ·, ;_ ; :: ~~? '. <·,'-~,' . ,,· unabfe to

E:-ndorse the proposed issues thus' resorting to. approach the·>-:: matter in terms of Order Rule 1 , XI Rule 12 and XIV Rule 4 of the Ciyil: ·. · . .._. Procedure Code (supra) of which the WILL 'of. the late Casmir Big~~ho;. •. ' Ndege was admitted in evidence as Exhibit "Pl". . r ,. i Acting on Exhibit "Pl" and . considering the five framed. issues proposed by the learned counsels and having paid regard to the-pleadings, ... the Court found it expedient to invoke Order X Rule· 1 of the. Civil .. Procedure-::: · · - , ~ • ~ ,.. . . . . . . . -~ , •• , ... ·,-~.. • ....... -. p Code (supra) to ascertain· sori1e facts by examining· the parties present,: The two matters which the Court ascertained for determination were:- · · ·. •· ·. · 1) Whether item X of the WILL (Exhibit Pl) which reads--- "Warithi wangu , wote kyva p9_r.noja ninawarithisha nyumba iliyopo kwenye kiwanja naml,~j~§ Kit~1Y.~1F KJnondoni Jijini Dar es Salaam__: has been varied or vacated,and · 2) Whether the house on plot No. 16 Block 31F Ki_nondoni Dar es Salaam. · is. now occupied by other persons other ~hari the heirs of the late Casmir Bigacho Ndege. Page 3 of 6 r . In response to the -reframed issues by this Court, Blaze Mwita Ndege stated as to the first issu~ that, jtem X of the WILL (Exhibit Pl) ha? npt . changed. As to the 2nd issue,, he stated that, it is only Andrew ~dege a~d Justine Magige Ndege (3 rd

& 4th defendants) who are presently living in- the · house situated at Plot No. 16 Block 31F K1nondoni Dar es Salaam. The 1 st& • .. 2nd defendants have their own residences whereas he· (Blaze Mwita Ndege) . and .Augustine Ndege are presently living in a leased _ho~sej . -· ' On his part, Augustine Ndege, _subscribed to the position presented by Blaze Mwita Ndege whereas Justine Magige Ndege ·also stated as to the · ., . . . t 1st issue that item X jn. Exhibit Pl has not. been varied. As regards the 2nd . ~ . : issue, Justine Magige Ndege stated that the house on plot No~ 16 Blofk 31F Kinondoni Dar es Salaam ··is pres~ntly occupied by him and Andrew I I who are both heirs of the late Casrnir Bigacho Ndege. That position w~s ·shared by Andrew Ndege and Straton Aman Mang'ondi Ndege. -1 · [ On his part, in view of the position presented during the Court's . . I' examination, Mr. Dennis Michael Msafiri, advocate for the plaintiffs prayed · . : ' . this Court to guarantee his client's rights falling in the property in question. Besides, he pointed out that they earlier. intimated. to . him of their . willingness to sell their respective shares in the property to the defendants. being among the best _ways' fo_r them to benefit from.the property .. On the other hand;. Mr. ·Michael Ngalo ad~ocate of Ngalo & Company Advocates for the defendants submitted that, it appears to him that

the WILL (Exhibit Pl) is still intact and no one has denied the plaintiffs' right to use the house on Plot No. 16 Block 31.F Kinondoni Dar es Salaam. Page 4 of 6 . : Under the circumsta·nce where living in harmony· is prime to both ·sides;- -Mr. Ngalo urged::the ·court ·to •rely on -the pleadings and tt;)e •responses -to the examiriation conducted to issues and make equita~t~,.: ; - Orders under Order XII)<.ute4 of the Civjl Procedure Code (supra) that:... . . ·:·, · ··"Any party- may at. ~ny stage of a suit, where admissions of fact have been made either on the pleading, or otherwise, apply to · the court for such judgment or order as upon such admissions he .may ·be entitled ~o, ..wit'1out_ waiting for deter~ination of any · other questionbet.ween' the parties, and the court may upon such application made such ,Qr~er,: or, give such judgment, as the court may thinkjt1st". ·- · From both. the pi~;3dings . ._: ·~·-·: . ;·. and ..respective admissions, since Judgment .. .. -~,.;. ~ , ,• . ·:·•.:·· and Order of the Higti Court in Probate and Administration of Cause No._· 'jl:2 ; I of 2001 are in existence and considering- that the house in dispute forri,s, ·part in the "WILL"· nf the deceased subject· for· execution, that is, Its· execution and filing of inventory as prescribed by law, the same has to be subjectedto the said execution wl~h ultimate filing of an

inventd1y. Besides, considering that item X of • the WILL (Exhibit Pl) which read_s ! "Warithi Vltangu wote kwa -pamoja ninawarithisha nyumba: i: ·-'.. r iliyopo kwenye khr1,u1ja namba 16 Kitalu 31F •Kinondoni Jijini Dar es Salaam'' has been admittedto bestill·in force, it is my considered view,-:,_;;,,'::-·,,• that parties should stick to the, said "WILL" unless otherwise agreed· by· _; -<' 0 :--,:: • • · consent. It is thus clear to .me. that, the way the parties framed, filed and pleaded their claims renders the reliefs sought misconceived. This is· -· - because,-• both parties paid no regard to at all to other appropriate avenues :• seized with jurisdictionto .entertain the complaints raised in relation to the Page 5 of 6 . . . administration of the deceased estate. Entertaining-those prayers therefore is tantamount to abusing· the. court process. . I therefore, allow only pray~r (iv) of the plaint, and prayers (i) and . (k) of the Counter . Claim. The rest prayers are hereby dismissed. . ' . . In view of . ' . . ·-- the admissions made by the parties above, both the plaintiffs and the --- . . defendg_nl:S are hereby declared to responsibility over the prope ,· .. . .· .· . - .. ----:----:------ have . equal . . .• rP1ot-N~l6t31ock 31H situated in · right, share and Kinondoni District registered under Certificate of Title of Title No. 41754. In addition, this Cou1t holds

that, by virtue of item x ,of the WILL of the late· ·Casmir Bigacho Ndege the aforesaid family house ]s not liable for sale or division or· partiti~ning. Sh?uld the lawful heirs in the deceased's estate, wish to dispose it by sale or· etse,:' then the"y should do so- by their unfettered consent. · The suit and Counter Claim are therefore allowed to the extent explained above. Considering that the parties have equal right, share and, responsibility over the property and the cir~umstances of the case, I ~efrain from awarding costs. It is so ordered. absence of the parties. Right of appeal is explained. c::· . ..-- J.S.K~ AASSAN ~ -;7""'--,.-- ,.... ----- AG. DEPUTY REGISTRAR . Page 6 of 6