joseph john vs donat john chuma 2005 tzhc 296 14 july 2005

iw t le hig .l court op s o ^ ania , AT TAiGA DC CIVIL APPEAL NO.9 OF 2004' (O r ig in a tin g from D/C Tanga C iv il Case No. 36 o f 200 3) JOSEFS JOHN ..............* ............... APP2LLAITT 73R5US jDOl-i .iT JOHN C&UtfA............ ..................... RESIONDJUT J U P Gh E N T kKWAWAq J > Th is is e s s e n tia lly an appeal again st the d ecision o f the D is t r ic t Court o f Tanga in C iv il Case No* 38 o f 2003 -which had adjudged the in sta n t i l e 3 P o n d e n t ? namely, DONAT JOiiN CIIUlfA t h e owner o f a h o u s e whi'cjh- i s on P lo t N o.4 BL 84 Ngamiani area -within the c it y o f Tanga, -with the o f f e r o f r ig h t o f occupancy B e»L .0 .N o* S .4 & 17 1* The Appellant, th a t is , JOSEPH JOiUJ ■who is the .Respondent1s h a l f brother i s aggrieved by that d ecision and hence has p re fe rre d h is appeal against the judgment and decree o f the t r i a l D is t r ic t Court, I t is no-'; ir r e le v a n t to c: eat ion th at both p a rtie s have engaged the s e rv ic e s o f advocates in th is house ownership1s le g a l wrangle. These are Messrs tfaisaka and ^sakainari, r e s p e c tiv e ly . The same lea rn ed advocates had represented the p a rtie s in the t r i a l D is t r ic t Court* I t is common ground "between the p a rtie s that the p a rtie s to th is m atter are sons o f the l a t e JOHN UAKlS CIUWA who passed away sometime in December 2002* I t is also common ground that the a fo re s a id deceased had during h is lif e t im e used the house now in question f o r h is business e n te rp ris e s , namely, as a bar and guest houses and hence a l l persons and sundiy never questioned h is occupation and/or: possession. I t is also n ot in dispute between the p a rtie s that the said house was p reviou sly owned by one MASUDI JAEA. I t is the A p p e lla n t's case that h is l a t e mother, one VERONICA who was also a businesswoman and at one time the w ife o f the la t e .......... -/2. JOHN had purchased the houee in. dispute in tfc% name o f her son? namely, 1ke A p p ellan t as at the re le v a n t period, lie -was only a y e a r o ld . In support o f h is a ssertio n , the A p p ellan t r e l i e s on the o f f e r a f the r ig h t - o f occupancy Raf.No.L.O.No,,S.4&171 dated October 25? 1967 in the name o f J05SK1 JOJift and the tra n s fe r (S d i . P . 5)* Ee fu rth e r places r e lia n c e on the testimony o f Ptf. 2 MAiu^d BXSR»TuLO "who a t the m aterial poxiod was a lands O f f ic e r with the then Tanga M u n ic ip a lity . The l a t t e r had in h is testim ony s u b s ta n tia lly and u n equ ivocally averred th a t to—date there has bee:! no revocation o f the a fo r e s a id o f f e r o f the r ig h t o f occupancy which is in resp ect o f the house in dispute. lie was also emphatic when he was r©~e:-:amined by ter. Waisaiea that the v a lid it y o f the a fo re s a id o f f e r was nnquestionable* The Respondent b a s ic a lly r e s ts h is ownership1s claim on the purported w i l l ( id e n t if ic a t io n D„1) handed over to him by th e ir l a t e r fa th e r , th at is , trie la t e JOHN llAklS CHUSfA at a meeting oonvened ly him in Moshi on January 3? 1999• Th is a ssertion fin d s support in the accounts o f D*T.2 J0S3PI &1L0NI I X i 3 7I0T0HI HaMIS CSCSuj DP. 4 IVuiHY JOxiN OluWi. and DsT. 3 Jt^-jTiViQrljQ JOiir,<« A l l these w itnesses t e s t i f i e d to the e f f e c t that the meeting was a fam ily meeting and was attended ty w ell over twenty nine ( 29) fam ily members inclu din g the a p p ella n t. I t was in th is gath erin g that the house in dispute was w illed/bequ eatted to the Respondent* I t is apparent from 'th eir accounts that the A ppellan t did not r a is e any o b je c tio n or p ro te s ta tio n s on the a fo re s a id a llo c a tio n o f the house i f i t was ever h is property. The learn ed t r i a l m agistrate in a r r iv in g a t h is decision was s a t i s f i e d that the A ppellan t (th en P l a i n t i f f ) o wn e r s h i p * s a ssertion s could not be en terta in ed on -the fo llo w in g grounds* One, that the claim ant did ngt su bstan tiate h is claim by producing/furnishing a sa le agreement that shows the purported sa le between h is mother, that is VJSfiOi'jIG.*. and the said JiAiiOUD J/uhw Two, -that th ere was no tra n s fe r deed as req u ired under section 8 (1 ) o f the R e g is tra tio n o f the ^ocument Ordinance (^ a p .1 1 7 ). Three, th a t i f he was ever the owner o f the s u it properly why did he not a s s e rt h is ow nership's claim during h is fa t h e r ’ s l i f e time and/or why d id not he ch allen ge th e purported 'w ill (££h..2)l) on January 3j 1999 th e r e a fte r w h ile the a llocatfce was a liv e . He is thus estopped from la d in g any claim o ver th at property. I t is not ir r e le v a n t to mention at th is juncture th at I allow ed the learn ed counsel fo r the p a rtie s to present to me t h e ir w ritten i submissions in support o f t h e ir r e s p e c tiv e stances in the m atter, Iia p p ily , they did so* but -with unfeigned resp cct th e ir submissions ■were c irc u irto u s , fo r the purposes o f th is appeal I w i l l , however, attempt to paraphrase th e ir re s p e c tiv e stances fo r the purposes o f con sid era tion and d ecision in th is appeal* L e t me now begin with Ivir. Waisaka's submissions, -^hqy are s u b s ta n tia lly as fo llo w s ; One, that the Appellant, u n lik e the Respondent did produce the o f f e r o f r ig h t o f occupancy ( ^ h . P . 5 ) in support o f h is ownership’ s a ssertio n . The fo re g o in g did fin d support in PW. 2f s testimony. Thus making h is ownership’ s claim u n a ssa ila b le. Two, that JOUR H/iAilSl CHU&i. could not bestow a properly on another person as he never owned i t in the f i r s t p lace. In re b u tta l, Mr, fcisakamari counter submitted as (follows* t i One, th a t n e ith e r the A ppellan t nor rV*2 adduced evidence, namely,, anthentic documents to su bstan tiate the ownership1s assertion . Two, that the la t e JOj II -IziMIs I ChutfA owned the property and did bequest the same to the Respondent. In essence the fo re g o in g is what each party is having in h is arsenal and has used in th is le g a l b a t t le . The c en tra l issue fo r con sideration and d ecision is which party/side has su ccessfu lly esta b lis h e d the ownership1s claim o ver the s u it p rop erly. In otherwords, who is the lega l/ 1 awful owner- o f the house in question. T h is being the f i r s t a p p e lla te cou rt, I h a ve'd isp a ssio n a tely scanned through the evidence o f each sid e so th at ^ be ab le to make my own assessment on the evidence and come to my own conclusion. (Sees Pjsrias. V. 5uKDAT ?031' LTD (1958) E.,^424 at pg»429 and P.GULLINO (ADflO LTD V. TUB HiresTa3S 0I? Tug PORT 02' ADSI A-j;p iJvTOT,iZS. - CAT - ( 1960) £•4*. 247 at pg. 261 to mention ju s t a few decided cases on th is p o in t), Having done so, I must nw confess that th is m atter is n ot at a l l f r e e .f^om d i f f i c u l t y , It .- w ill be r e c a lle d that on February '22, 2005 I had d ire c te d th at Pa,T„2 be r e c a lle d so th at through a d d itio n a l ... evidence be recorded as production of,.an th en tic documents showing -who is the owner o f the s u it property "was lacking,, Most o f- th e documents. that were annexed f■ to the pleadings . had •> fo r reasons beyohd . . my . comprehension n ot been j tendered as e x h ib its during the t r i a l i t s e l f * • -> . As a r e s u lt, most o f them,, i f not a l l o f them? could not beused in a r r iv in g at a le g a l d ecisio n . In order to a r r iv e at a ju s t decision i t was necessary to c a l l f o r a d d itio n a l evidence. (Sees MJInC-I V. (IIAPILu. (1971 HCD no* 123), It is , however, no gain saying th a t though a d d itio n a l evidence was recorded there was very l i t t l e l i g h t that was shed on the m atter, thus g iv in g a very narrow base fo r d ecision making. I fin d i t hardly necessary to p oin t out th at fin d in g s o f fa c t and oonolusion o f a court must bo based on the evidence adduced in court* N eedless to say, it would be extrmly dangerous to approach a case oth erw ise. In">the in sta n t ease there is uncontroverted evid en ce. that one' Ji^3KjJ)I*TxaI>..appar€£.itly now dead, 'had p reviou sly owned -the house-in qu estion* Oix.October 25? 19^7 'the .suit p rop erty•was transfeTed to one 'J0S2PK J03N («Seei i£:h*P,5 form erly Annexture Po-1 to the p la in t ). The -instant-Appellant averrs that h e -is the- said- J0H2PE :l f is , however, '-Getmab. ground that the A ppellan t was bom sometime in 1966* I t fo llo w s -a s n igh t fo llo w s day that o n ‘O ctob er: 25, 19^7 the a p p ella n t was/' i f anything, ju st one y ea r old." He could have n ot had the cap acity to con tra ct (See? S ection 11 ( 1 ) o f the Law o f con tract Ordinance — Cap.433)* The a p p ella n t, however, vigorou sly a sserts that h i s mother, apparently one o f the former wives 9 f the la t e JOLHI IhJilS GiluKA, had purchased i t lo r him. But, iHe m atter is b ed w illed by the absence o f a document to su bstan tiate the said, s a le transaction th a t in d ica tes th at the A p p e lla n t's another had purchased the house on b eH alf o f h is son (a tru s te e ) who a t the m a teria l p eriod was a minor. . ... I t is fu rth e r common ground, that the, l a t e J0IB»: ILifylSl CIIUI’A who is the fa th e r o f both the A pppellant and jiespondent used the house in' gtiestion' fo r h is bar uand guest house businesses fo r a Con'siderable number o f //ears u n til' he Passed away. I t :is , "however, ........ / > d isqu etin g th at, tlie fo reg o in g nowithstanding th ere is not a s in g le document th at in d ica tes o r esta b lish es iiia t the l a t t e r vac the owner o f the house now in question* I t is on the basis o f the fo reg o in g th at I am in c lin e d tc accede to the Appellant* s stance, in fa c t major prong o f attack again st the Respondent th a t as the la t e CLUtf**,1s ownership over the s u it property is h igh ly questionable and could not 'th erefore beslow 'the same to the -Respondent* Th is fa c to r alone deals a fa t a l blow to the Respondent* s ca^e* I t is in con ceivab le w^y to -d a te the said house is not in the name o f the"‘l~S.te*CSgJ«Vv» 1± is th e re fo re , not a t a ll suprising th at the Respondent's o f f e r o f a r ig h t of.occupancy (Exh«D*2 form erly Annexture JD1 to tho iC.S.D) which was obtained on July 15,-2003 as t e s t i f i e d by K U 2 } -was u ltim a te ly n u l l i f i e d by h is o f f i c e f o r having been erroneously given to himc This e x cercise, in candid end s e t t le d view, ±reve the I.ast n a il in the Respondent's c o ffin , if I may say so* In the upshot, having given- th.Q_matter anxious and, I hope, c a re fu l con sideration and f o r the reasons I Have endeavoured to g iv e , I am w ith g re a t resp ect unable to accede to fcr, Msakamari's novel suggestion th at 'the l a t e JOHN IIAM1SI CHUfc’A at the t i i e o f h is death was a bonafide owner o f 'Jhe house in question and could bestown i t to the Respondont,, I wish a t th is juncture., b efo re I pen o f f , to say one o r two things* In uxjan areas, the basis o f t i t t l e to land is a gran t o f r ig h t o f occupincy, In " h e in stan t case the o f f i r ° r i^ h t o f occupancy o v e r P lo t No*4 Block 84, Nga^iani area, Tanga is in the name o f JOSBPIi Jom; and not JOhl. luu-JS CLUUA o r JDOKAT JOEM CIOTn. Besides, to—date th ere is no revoca tion ord er th at has been made on that o f f e r and/or the dis.puted P lo t, There is also un con tro v e r ted evidence that severa l r e c e ip ts have been issued in the name o f JOSEPHJ0I2J as from October 1967 todate and Lonies being paid in h is favour in resp ect o f the ownoiship <. ver the s u it property now on dispute* I t is on 'Che basis o f the fo re g o in g that I am s a t is fie d th at the t r i a l court shculd have r o t adjudged the Respondent as 'the owner o f the s u it pro per-ty-* In the r e s u lt, I hereby allow the appeal and set aside the t r i a l D i s t r i c t C ou rt's decision., I do, however, fin d no m a teria l p eriod upon which I can gran t the prayer fo r damages fo r lo s s o f use o f business and/or gen eral damages^ I, th e re fo re , d e c lin e to grant that prayer* 1 do also avjard to the a p p ella n t costs o f tlx is appeal and those below. I t is so ordered# luIhD at I'Al'JGA on th is 14th day of' July, 2D05- •SgcL J. J. Liicwawa, J DHL I vT2i.tED in the presence o f the p a rtie s who are present in Person, Mr, MsaJcomari, learn ed advocate, fo r the Respondent is also present, . \jKj.rr ; v -------- ^ o •. "- ' Sgd. J ,J , Kkwawa, J 14/07/2005. 1 hereby c e r t i f y that th is is a true copy o f the o r ig in a l* -J, A disixkerMl isthah T.J'JGxt