20011009 TZHC Mwanza

(Cr:i.ginating fTom ;J•,ranza Civil App Hoc. 2 1+/1999 • G 0 Respondent. JUJ)Glvii'""N'I appeal 2.gainst the concurrent dee isio::3 of the two lovr'?,r courts whieh mat:,~:'c1non:l.al hou,c;;e as the sa.m.8 '.-JaS use.J e.s ,3uch by the parties who have- 'been 1:i.vinz: t;:_,gether as hw,::'b3.nd and wife to:r over ten years Y and have tb.rt-_:e chilc:rt:JD. the fir~st born Of' 1/r101~1 ce.1led J onr:.ra is in Form IV this ;p:car ~ The house in q 'JJ.stion_ on the prepcmci.erance of evidenoe was acquired through the joint effort of the parties during their •Jonc·:1b1.ltage. And even not! these partie:s are merely separated, as thei:::· co11t:ubinage has not been comp~.etely severred. due to the preseno41 of tlKi thr,-= Ghi.ldren born out of ths 1.mion., T~ie a}l;,3llant still claims that r::Jhe has been living with the bit,::<t:ii:m they :. ·:'.'7.Etructed the house in dispute on a squatter area in l:oru:,'.:;:;!•uctcr\. 1 she has been !.1-vi:.\s in th2.t hour:;e with the respondent a.e hu,iband an, wife bef·,1°e they separated,. '.I';:1::~ re.spo:ndent has ()ther t3cpa-c-8:c" house c. I h0mesteRd ~ tvhen they separated 1 the respondent went t,J 1ive with · 's other wives at their homes~ living the appellant \~' i th her tl-rree c_hild:::· residing in the house. in dispute. '· 0 "./2. 2 The_ap:pellant explained that before they.separated, the reapo.;. ndent donated the house in dispute as a gift to their son call~d Nyika s/o Aron. The said gift was made both orally and in writing -in ! a document which was tendered in evidence and was marked exhibit "A"• This gift was made in 1995 when Nyika Aron was then in Std,. II. The appellant stated that on the plot where the house in disputt is situated, there is also another small house which ie rented, and she collects the rent from that house. Now the respondent is alleg:i.iig that it is that small house which he gave a gift to his son Nyilta. Aron 11 The respondent admits almost everything in the appellant's story except the fact that he had donated the house in dispute to their $On Nyika Aron. He is alleging tha.t it is the small hoU5e which he had made a gift t1' their son Ny:1.ka ·/¥£on together with his two fell,w ehildlr~f.+•:'_~,,~l"Lthe, e11~Y1,Js..13ue; f,or: <i~te,rmiI;1.~t10:r1,r~,n··ithi.$ 1 di~puiJie3is.,.ae F,~.--;:~h,·e<12,ci~~t4tyhqf·t,tih~0hQ.1JS~ :.lt!}J-~qlJ. t)1ec._r~~p9ngenthga..yeo~ ~d~ilt tt Ar~n~.-t~§iti.f~eg.r,.-inrthi.s:'.'slilP.ea:J,..,as1 .a.·. Qovrt:;w,it-:ge,9s:~12,~.;m.:i.~rjY'QµIl~~l-,m1-i- ,. s,:.m l:-i~c!P .t~W.i}.~iEbti.~f-.1.tti~(.'~"'lf~i~b.ie:i ~vi4en,c@ ,a:::.tJrell::r·,it'.~d:;!t;@.~ t.J:ie h~-~~::·~ fili~:pµte,:)!T~~--•g~j:l~;Wi·th~ut.he;:,,a,(,)tn-tc~ifif~~.t ;Qf\•1h~~~ ~t~~1W~eJ' ~heyrj~~~~bit.~~ .. ~~; h~~~~(;_,~g yr4fecJ.f <:lrr,9Y~I't t~D, Y.~af!l;,$ ~til.. Pr~,,~.n;,._y w!l,eI.}h'tl:i,~;iE:_§e,,~~~t~d.~ttf~JJ;p~r;t.,.,f?~~a;t,iip11,; . -.:tl1-.~naP.1'~:l~~~1;@.?~h.~~):tflfe'11 te~~,l~ffP•N9§>..~~ ~:f .,:t;b,is, conc~~~!lagt0c?nJ~ue~ ~~Jdi_ne;11: Bl !~~t,. ~use•.-.··: - . .in_: th~:~ c~~-~-~~ ~;f.:; 1ti~ t J:i~j -_rn s;ppn1~n;t,:. ~@§Jde d,< tP:n§eJ{t. 1t.}.J.~.~d;h'@~.Sff t~r· -~ ' - . · .: a~+~---~L ~~j.,j._.~et". F!~,;,~G.99/:;jf .r~$• ~P.~~ -A~~ QI,... ft~!'?OO -a~ill.a ••' . t+I ,,._ "' ~ - ., - 3 Na. 1483. It is this very house which the respondent transferred its ownership from him to his son tryik§l. J,ron by wa-:f' of a gift ~s supported , ' ' by his undisputed dop:wnent .exhibit 1W 1 ,,_ In that document the re~po- ndent wrote thus: 11 1 • 6. 1995 nyumba namba 1483 n i nyumba ya ·Nyika na v: ndugu zak~. Jamila. Bma . ,. ' . ' .,.; Sgd Aron-\S~wa, 11 · • -· "':. '. .•.. ,:"'/ ,·; .!:. . ;' -~:· From the above quot0d document, the identity of the house which the respondent gave to };).is son Nyika Aron as a gift is not an issue. So, I f$nd •~hat\ri~.:hJuse in dispute which is Na. 1483 which the respondent has·. ~old to• one Ali Zaidi is the same house whose ownership the respondent transferred to his son Nyika Aron and his fellow ... ,. children namely Jamila and Ema by way of gfft'·,-:as ]'ar back as ?n 1et June, 1995. And the law on gifts expressly pro,i:ides that U.Once e. gift is always a gift • 11 That is that once a person has dive~ted hi8 ., ..,wnership from a certain property by way of a gift to another, the former or giver of the gift cannot retrieve or call back the ownerehi~ in that property without the consent of the doneeo I therefore _find that the respondent has no longer any ownership in the house in dispute, and his purported sale of it to Ali Zaidi is legally in- effective the same is hereby revoked and set aside. I am satisfied that this appeal has merit. I find that the concu·rre:rit decisions of the two lower courts were arrived at wrongly, the same are quashed, and the orders made therein are set aside. I accordingly allow thie appeal with costs here Order accordingly. Appeal allowed. 1/10/2001 •••• /4. r -r •. f 4 . 9/16/2001 . Coram : M.D 4 · Nchalla, J. For Appellant: present in person For Respondent: present in person C .c. Rest ituta - Court: .. Judgment delivered. in court at Mwanza i.1\ the presence of · the parties, this the 9th day of October, 2001, Right of appeal explained. AT MWANZA 9/10/2001