20181205 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ;. I 'I ATMWANZA I LAND APPEAL NO 39 OF 2018 (From the Decision of the District 1Jnd and housing tribunal of Musoma · District at Musoma in L4nd Case No 54 of 2006) .ATHUMAN ALLYNYABANGE ...I,............................APPELLANT VERSUS . l JOHN PETRO LUSAYA (Administrator of estate I of the Late Suzan Peter Lusaya ··~····························RESPONDENT I JUDGMENT f" July, & gh December, 2018 Matupa, l. The late Suzan Peter Lusaya, vyho during her life time was the wife of . the appellant, filed a c~mplaint in the District Land and Housing Tribunal for an order !of eviction against the appellant ' from plot no 90 block 'B' Nyashd area Musoma. The late Susana Peter Lusaya onI the 16th June, 1986 without any i- justification denied the applic~nt her rightful possession and 1 ' i. ' I enjoyment over residential hous1e on the plot of land the subject I of the application. l In response to the application, the appellant gave wild accusations to the late Susan, claiming that the applicant was his wife since 1964 and that the hduse was built in their matrimonial I home, that the said Susan was ,a drunkard and when drunk, she l would fornicate . with "a group of I hooligans of the age of (their) 1· children" At the trial of the case, which proceeded after the demise of Susan and under the legal repr~sentative of her estate, there was j ample evidence to suggest that the late Susan had the title to the I land, as it was registered in 1her own name. There was also I evidence that the house was I a Matrimonial home, where she stayed with the appellant. Ttiere was also evidence that the appellant decided to marry a s~cond wife, which was the reason I 2 r.; I for the discourse and the cause for the late Susan to move out of I the matrimonial house. I There were no submissions by t~e respondent, despite the leave I to file written submissions by i this court. Mr. Godfrey Martin counsel for the appellant argles that the administrator was I illegally, joined in the case. The proceedings do not support this I argument because on the 9 ~pril 2009 and 15th of December, th 2010 the court was advised th~t the respondent was appointed I to~ administer the estate of tre deceased Susan. The case of I Nyabayungu Ndimila versus Emanuel Opulukwa I miscellaneous land case no 23i of 2013 (HC)(Mwanza Regis~ry) i which the- learned counsel - for I the appellant cited for the . proposition that a suit cannot tontinue in the name of the legal I representative without the lea~e of the court, is distinguishable from the case at hand. This is tiecause, in that case there was no I evidence of appointment and none was demanded when the case I I j 3 . was instituted. Unlike that case, i,n the present case there was the I leave of the court to join the legalI representative as the applicant. The learned counsel for the appJllant makes a point th3 at issue I her) was a joint matrimonial prpper~ because there were joint efforts to improve the house as was evidenced by DWl and Dw2. I The children of the appellant testified that that could not happen, . ~·. because the father was deported from Musoma fur~e period he claims that he built the house. !There is· also evidence that the I mother was an employee of 9overnment. As sue~ she was a person of means, and she built the house single handedly. I I believe this story and do not I find favor in the story of the appellant that he gave the dece~sed wife eighteen tons to· build I the house of four rooms. This sh'ows that he does not even know I I the cost of building a house. . I Nevertheless, I have held that thb house was a matrimonial home I of the deceased Susan and the appellant. Even if I take that the I 4 appellant contributed towards the construction of the house, the '--J title shows that it belonged to the late Susa~a, and this truth i cannot be taken away. The learned counsel for the appellant iI i seems to place on the same scale, the concept of matrimonial home and matrimonial assets as envisaged under section 114. In terms of section 2 of the Law of Marriage Act, a "matrimonial home"has the following meaning:- ''matrimonial home" means the building or part of a building in which the husband and wife ordinarily reside together and includes- (a) where a building and its curtilage are occupied for residential purposes on!½ tt,at curtilage and any outbuildings thereon/ and (b) where a building is · on or occupied in conjunction with agricultural Janet any land allocated by 5 the husband or the wife, aj the case may be, to his or her spouse for her or his exJusive use That is why j held that the house\ the subject of the dispute is a ' matrimonial home and therefork, as long as the marriage \ subsists, parties to the marriage have the right to cohapit in it, \ unless recourse is taken under the law of marriage Act to dissolve - \ the marriage. The matrimonial home does not become a matrimonial ·asset unless the spou~es have a common interest I under section 114. Notwithstanding the common interest that \~ ,. creates a matrimonial asset under/\ section, there is always a common interest where the parties dohabit in the same house as L I a married couple and the presump ion of com•mon ownership, 1 arise once there is a marriage. • I In the present case, the. marriage of\ the parties. was not called into question. The complaint by t\e late S4san before the Tribunal was clearly out of forum. Matr:imonial proceedings have a I 6 · forum different from the Tribunals. The persistence of Mr. '-.J Makowe, who advocated for the late Susan, that the eviction was not a matrimonial wrong in the light of the history of the ownership of the house, was therefore misplaced. The special difficulty in this case is that, the appellant indulged in a polygamy. This relationship was co-habited in the matrimonial home of the late Susan. When the time to give evidence on this ' came, already Susan was demised. This would form a gro,und for divorce, which the late Susan was advised against. I will leave it at that. Reverting to section 59(3) of the law of marriage Act provides that:- (3) Where any estate or interest in the matrimonial home is owned by the husband or by the wife and that husband or wife, deserts his or her spouse, the deseJted spouse shall not be liable to 7 be evicted from the matrimonial home by or at 0 the instance of the husband or the wife, as the case may be/ or any person claiming through <;Jr under him or her✓ except- , (a) on the sale of'the estate or interest by the court in execution of a decree against the husband or wife/ as the ~ase maybe; or .,1"" . ,;/,./ . (!)}' by a trustee in bankruptcy of the husband or / wife/ as the case may be There is no doubt that the application here, which was for eviction of the appellant, was bad under the foregoing section. It was bad because the husband is protected under the section. Those who came to give evidence did not address the .tenor of application, which was simply for eviction and not for ownership of the matrimonial house. If anything 'I the late Susan herself had _) 8 I reasons for the eviction, and th;ese could barely come from strangers to the marriage. The tribunal therefore, digressed 'from the application before .. it, j so was the learned counsel for the appellant. The section and the I I evidence, speak of the matrimon~al house, which the appellant lived with the late Susan. It was not lawful to issue an order for ' , j tt tm~). eviction against the husband at the instance of SusanLagainst the j husband. It is now also not lawf61 to issue it at the instance of I her representative. Let me straighten my decision. The house was always owned by • I the late Susan. The ownership of it by the appellant was by virtue I . i . of. the marriage, which was then subsisting. The right the appellant in widowhood . is confined I to his relationship with the - I deceased wife not to the representative in title of the deceased. This eventuality would be obviat~d, had the parties followed the _ forum for resolution of the marriage discourse. i 9 . To the following extent the appeal ·is allowed. The decree of the it I I trial tribunal· is hereby quashed and set aside. Athumani Ally Nyabange the lawful husband and ;widow for that ma__tter, of the ~et, late Susan shall remain in the matrimonial horn, kher deceased wife left. JUDGEI I. 10