consolata majula vs leokadi kokulengya rwehumbiza 2018 tzhclandd 59 16 march 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 57 of 2017 CONSOLATA MAJULA................................................ APPELLANT VERSUS LEOKADIA KOKULENGYA RWEHUMBIZA.................RESPONDENT Date o f Last Order: 27/02/2018 Date o f Ruling: 16/03/2018 JUDGMENT S.A.N Wambura, J Aggrieved by the decision of the District Land and Housing Tribunal of Kinondoni, the appellant Consolata Majula filed three grounds of appeal being;- 1. That the Chairman misdirected him self in law and fact by entertaining and making orders on Probate and Administration o f Estates matters for which he had no jurisdiction. 2. That Chairman misdirected himself in law and fact by making contradicting orders in relation to the Appellant by, on one hand granting to her the occupancy o f three rooms, and yet allowing the Respondent (Applicant) to collect rents from the same rooms. 3. The Chairman misdirected himself in law and fact by ordering the Respondent (Applicant) to collect rents from house No. KUN/MTN.4571 and KND/6/6/290393 located at Kunduchi Mtongani, within Kinondoni Municipality, the properties which the tribunal had expressly stated that they belonged to Vedasto Rwehumbiza (deceased) and not to the respondent (Applicant). i She thus prayed that the said decision be quashed and the appeal be upheld with costs. The respondent Leokadia Kokulengya Rwehumbiza challenged the appeal and filed a cross appeal on the following grounds; 1. That the Honourable Tribunal erred in law and in fact in directing that the appellant should continue to hold three rooms in the house for dwelling despite having found as a fact that the late appellant's husband was given the rooms on humanitarian grounds and that this did not warrant them to exercise the right of ownership. The Tribunal should have found that the appellant was asserting adverse possession o f the premises against the respondent and thus disqualified herselffrom continuing to possess the rooms. 2. The Honourable Tribunal erred in law and in fact presuming that the appellant's husband had an interest in the suit property that could devolve to the appellant's upon the death of her husband. WHEREFORE the respondent prayed for the following orders; (a) The appellant's appeal be dismissed in its entirety (b) The respondent's objection be allowed and the order allowing the appellant to retain some o f the rooms in the house be set aside. (c) The appellant pay the respondent's costs o f an incidental to the appeal and the objection and o f the proceedings in the District Land and Housing Tribunal. 2 The appellant was represented by Mr. Steven Tonya learned counsel whereas the respondent enjoyed the legal services of Dr. Masumbuko Lamwai Advocate. With the leave of this court, the appeal was disposed of by way of written submissions. I thank both learned counsels for adhering to the schedule and further interesting submissions. In order to understand the decision to be issued herein I believe there is a need to give a brief historical background of this appeal. The respondent herein instituted the suit against the appellant seeking judgment and decree against the respondents jointly and severally for the orders that the appellant to issue vacant possession of the suit premises against the respondent. The appellant denied all the respondent's claims and prayed for the dismissal of the application with costs. During the hearing of the suit, three issues were framed, namely; 1. Who is the lawful owner o f the suit house, 2. Whether the 1s t 2nd,J d, 4h, $ h, 6th ,8th and 9h respondents are supposed to pay rent to the applicant or to the 7th respondent, 3. To what reliefs are the parties entitled. After hearing both parties, the District Land and Housing Tribunal found in favour of the respondent by declaring the respondent's husband Vedasto Rwehumbiza as the lawful owner of the suit property described as House No. KUN/MTN.4571 and KND/6/6/290393 located at Kunduchi Mtongani within Kinondoni Municipality. It further Ordered the appellant to continue to occupy three rooms for dwelling therein provided that rent from tenants be collected by the respondent. The other tenants were Ordered to pay rent to the respondent in accordance with the tenancy agreement. Aggrieved the appellant come to this Court. Submitting on the 1st ground of appeal, Mr. Tonya contended that the District Land and Housing Tribunal had no jurisdiction to entertain Probate and Administration of Estates matters. That it was wrong for the trial Chairman to Order the respondent to execute the Will of her deceased husband. Regarding to the 2nd and 3rd grounds of appeal, the learned counsel averred that in the absence of an official appointed administrator of the estates of both deceased father and son, the respondent had no locus standi to dispose of and evict the appellant from the properties she had been occupying during her husband's life time. He therefore prayed for dismissal of the cross appeal with costs. In reply Dr. Lamwai Counsel for the respondent submitted that the learned Chairman did not handle Probate and Administration of Estates matters, but was only attentive to the issue of ownership as framed by the Tribunal. On the 2nd and 3rd grounds of appeal, Dr. Lamwai stated that the property being a matrimonial property the owners of the disputed land were the late Vedasto Rwehumbiza and his wife. He averred that the appellant and her late husband were licensees of the respondent in the suit premises, therefore the appellant cannot deny that the current respondent has title to the property and thus entitled to rent. Now having gone through the submissions of Mr. Steven Tonya the learned counsel for the appellant, this court observed that there is an issue raised by Mr. Tonya as to whether the respondent had locus standi to sue the appellant herein. Upon careful perusal of the court records as well as the testimony of the respondent during the trial, I find that the respondent in her capacity as a wife had an interest in the disputed house which was a matrimonial property. She had locus to sue the appellant to claim ownership of the disputed house. 5 This fact was evidenced by the two sale agreements Exhibit P 1 which proved that the suit land and house were jointly purchased. The appellant herein had verbally claimed that the suit premise was given to her by her late husband, but she did not tender any evidence to prove the same. There was no evidence which shows that the respondent and her late husband one Vedasto Rwehumbiza transferred their ownership to their son the late Preston Rwehumbiza. But since the respondent admitted herself that she gave her late son rooms to collect rent in order to sustain himself and his family, then it is prudent that the appellant being the wife of her late son continues to collect rent as previously for three rooms out of 15 frames which are owned by the respondent. The appellant be allowed to collect rent from those three frames so as to sustain her life with her children unless she is no longer living with them. This does not change the fact that the respondent is the surviving owner of the suit house and the 15 shop frames. Due to the above reasons, I quash the decision of the trial tribunal and set aside orders made therein. The appeal is partly allowed to the extent shown above. 6 It is so ordered. s .a .n/ w a m #u r a ~<JIIDGE 16/03/2018