20170807 TZHC Mbeya

0 INATHE HIGH COURT OF TANZANIA '1 ATMBEYA ( kLAND APPAL NO. 48 OF 2015 (From Distct Landnd Housing !bunal for Mbeya Application No. 201 of2012) DAIN..A .1 ...................................... . ..APPELI_,AN'j' VERSUS MICHAEL MWAXGOKA (Administrator of the Estate of the late Anyosisye Mwangoloka) ....................... . ...... RESPONDENT JUDGMENT Date of last Order: 2010612017 Date of Judgment: 0710812017 The appellant Daina Mwamboma is aggrieved by decision of District Land and Housing Tribunal dated 06/07/2015. Her six (6) grounds of appeal are that:- The learned Chairman never considered the fact that the applicant (respondent now) did not prove ownership of the disputed house. There were doubtful and controversial testimonies of the witnesses at the tribunal. The tribunal did not consider the evidence gathered at the locus in quo. The trial tribunal disregarded the evidence of the seller of the disputed house one Betwel Sanga. Page 1ofl5 The trial tribunal failed to address the location and address of the disputed house that was not revealed and; The learned chairman failed or wrongly evaluated the evidence which ultimately made him arrive at a wrong decision. Mr. Mwabukusi, the learned advocate submitted in support of the Appeal. He averred that PW1 one Michael Mwangoloka the then key witness gave contradictory averments in respect of the number of the disputed house. PWI mentioned house AR/687 located at Soweto Mbeya and later that the same was House No. 15 AR! 187. PWI tendered a receipt with No. RA/ 187 for property tax. Mr.. Mwabukusi argued these discrepancies are serious as they touch the credibility of the witnesses. In support of this argument the case of Jeremiah Shemweta v. Republic (1985) T. L. R. 288 and that of Lukas Kapinga v. Republic (2006) T. L. R. 374 were cited. He insisted that the evidence of a witness must be assessed by its intrinsic value. Mr. Mwabukusi submitted further that the trial chairman failed to record what transpired at the locus in quo. The Register book showed that there were two properties. This fact was not disclosed in the findings of the court at the locus in quo. Amongst the two properties one house belonged to the appellant as an administratrix of Jestina Kifumbwa, her deceased mother. It was not numbered. Mr. Mwabukusi contended that the trial chairman failed to appreciate that the claim by the respondent was hopelessly time barred as Anosisye Mwangoloka died in 1984. The 1St administrator Page 2 of 15 of his estate was appointed in March, 2012 alter the lapse of almost 18 years. According to the provisions of Sections 9 (1) and Section 35 of the Law of Limitations Act [Cap. 89 R. E. 2002] read together with Section 42 of the Land Disputes Court's Act [Cap. 216 R. E. 20021, the said land dispute purported to be over deceased's estate should not have been entertained by that tribunal. Mr. Mushokorwa, learned advocate for the respondent contended that Section 35 (1) of the Law of Limitation cited by the counsel for the appellant is wrong. The right of action accrues when a cause of action arises that is when the parties come into conflicts. If the parties were at peace from the death of the deceased, the owner of the property under dispute is inapplicable. There was no conflict between the parties after the death of the original owner hence the right of action cannot be considered to have accrued from the date of his death. According to Mr. Mushokorwa, the cause of action arose when the appellant was required to move from the suit premises by the respondent and she resisted. Mr. Mushokorwa insisted that the mother of the appellant was an invitee in the disputed house who invited her daughter the appellant who lived there in with her late mother. The disputed house belonged to Anyosisye Mwangoloka the father of the respondent. The disputed house was purchased by Anyosisye Mwangoloka (deceased) and not the mother of the appellant. Mr. Mushokorwa further argued that an invitee remains to be an invitee regardless the length of time. Thus an invitee cannot plead the doctrine of adverse possession as proposed by appellant's counsel. The case of Samson Mwambone Page 3 of 15 v. Edson James (2001) T. L. R. 1 was cited to support this contention. Mr. Mushokorwa went on submitting that though there is no clear evidence on record when the appellant was required to vacate from the disputed house; however it appears that the dispute arose when the appellant resisted to do so alleging that the house belonged to her mother. Mr. Mushokorwa argued that since the appellant came to settle in the disputed house in 2007 the question of limitation of time cannot arise. Section 35 of the Law of Limitation Act was ambiguously interpreted by Mr. Mwabukusi. According to Mr. Mushokorwa then Parliament can hardly make an ambiguous legislation. Mr. Mwabukusi's contention could hold water if there was a cause of action before the death of the owner, the late Anyonisye Mwangoloka, but the dispute arose some years later after the death. The suit therefore has nothing to do with the Law of Limitation. Regarding the contention that the suit land possessed different numbers, the learned counsel for the respondent argued that PWI referred to house No. AR 187 and not No. AR/687. The disparity or inconsistency in numbering of the house by his witnesses was a mere typing error on the part of the trial Chairman who was recording the evidence. These errors observed in legal proceedings can be corrected as held in the case of Jewel and Antiques Ltd v. National Shipping Agency (1994) T. L. R. 107. The tribunal in reaching its decision relied on the receipts for property tax Page 4 of 15 payments done by the respondents and the registers of the local government that showed the suit house belonged to Anyonisye Mwangoloka and not Jestina Kifumbwa the appellant's mother. The discrepancies noted in the proceedings by Mr. Mwabukusi are in consequential. On the issue of credibility of the witnesses, Mr. Mushokorwa submitted that there is more than abundant evidence to show that the suit house was purchased by the late Anyosisye Mwangoloka and not Jestina Kifumbwa the appellant's mother. The appellant did not lead evidence to show how her late mother bought the disputed house. Furthermore, it was argued that even if there were contradictions here and there, still the trial tribunal managed to reach at a conclusion that the disputed house was bought by Anyonisye Mwangoloka and not Jestina Kifumbwa. On the evidence that the late Anyonisye Mwangoloka purchased the said house for his mother, Mr. Mushokorwa submitted that mere allegations did not mean that Anyonisye purchased the house on behalf of his mother. If that was the contention then there should have been clear evidence that the money came from his mother, the words that he bought a house for his mother, to Mr. Mushokorwa did not mean that the house remained the property of his mother. Regarding the register books at the local government offices, Mr. Mushokorwa argued that even if there existed those two registers, neither of the two showed No. 87 which the appellant contended belong to her mother. At law the appellant has no right to assert Page 5 of 15 inheritance over the suit house which is proved to have been exclusively purchased by Anyonisye Mwangoloka who was not her putative father. For these reasons Mr. Mushokorwa prayed that the Appeal should be dismissed with costs. In rejoinder Mr. Mwabulcusi submitted that Mr. Mushokorwa was wrong as there is no Section 35 (1) regarding limitation. Regarding his interpretation of Section 9 (1) of the Law of Limitation Act Mr. Mwabukusi the case of Tanzania Fertilizers Company v. National Insurance Tz. Ltd and another 2006 T. L. R. 55 is elaborated. The Law of Limitation serves two major roles; one, to set time within which to institute proceedings in courts of law. Second, to prescribe the consequences where proceedings are instituted out of time without appropriate leave of the court or relevant authority. Sections 9 (1) and 35 of the Law of Limitation Act therefore are proper and relevant sections to lead this court to determine the suit at hand in accordance with the pleadings before the court by what was actually pleaded or claimed by the appellant. The appellant stood as the administratrix of the estate of Jestina Kifumbwa (her mother). Mr. Mwabukusi contended that stepping into the shoes of the deceased person does not necessary mean stepping in the minds of the deceased person. The testimony of DW5 was not contraverted and it remained intact as he was the eye witness who categorically stated that Mwangoloka purchased the house for his mother. Page 6 of 15 Concerning the two structures as contended by the counsel for the respondent, the said structures were not seen and found at the locus in quo. The house at the locus in quo had no number but the name of Jestina Kifumbwa. The appellant claims on the property stands on the foots of Jestina Kifumbwa as the administratrix of her estate. The appellant started living in the disputed house since 1981 and not 1987. A fact which was never controverted by the adverse party during trial. In view of submissions by both the learned counsels for the parties to this appeal and the records of the trial tribunal there is no dispute that the appellant was appointed the administratrix of the estate of the late Jestina Kifumbwa on 11/04/2012 by Iyunga Primary Court. Jestina Kifumbwa died on 27th day of February, 2009. This was after the family meeting held on 01/04/2012 with reference or Kumb. Na. SW. 1/RA/ 19. Exhibit Dl showed that the appellant Daina Mwambomba is the legal administratrix of her late mother's estate. In his submissions Mr. Mushokorwa never questioned the appointment of the appellant as the administratrix of the estate of her late mother. Her appointment was never objected by the respondent. No reasons have been given that she is unfit to administer the estate of the late Jestina Kifumbwa, her mother. For this reason the appellant is entitled by law to step into the shoes of her late mother. The argument that the disputed house belonged to Anyosisye Mwangoloka as a person, who bought it, does not necessarily mean that he is the owner of the property depending on facts. To buy something is one thing and to use or own the same Page 7 of 15 is another thing. This fact is pertinent in the circumstances of the instant appeal. By use of common sense a person who buys something for the purpose of being used by another person, such other person becomes the owner if there is no express term indicating that the later will own it and after sometime shall return the same to the buyer. In the instant appeal, the relationship that existed between Anyosisye Mwangoloka and Jestina Kifumbwa (both deceased) was that of mother and son. The evidence in record show clearly that Anyosisye Mwangoloka bought house in 1970s for his mother. Anyosisye left it for his mother occupation. Her mother owned the house. This is according to testimonies of Li and L2 respectively and who are the neighbors of Anyosisye Mwangoloka. This relationship of mother and son who bought the house for her mother formed the doctrine of transfer by way of gift. That is to say Jestina Kifumbwa was given the said house by her son as a gift. I hold so because there is no scintilla of evidence on record to show that the disputed house belonged to respondent's father. The respondent himself had never stayed and or lived in the disputed house with his father Anyosisye Mwangoloka. This is the reason that he did not know the exact number of the house. It is a trite law that in order for a gift to be valid, the donor must intend to give something to the donee. The gift must actually be delivered and accepted by the donee. The available evidence on record is an affirmation to the above conditions. The house given to Page 8 of 15 the late Jestina Kifumbwa was a gift inter vivos. That is the life time gift. Section 25 (2) and (3) of the Law of Contract Act [Cap. 345 R. E. 2002] is to the effect that consideration in gifts is love and affection. The Section provides:- "25 - (2) Nothing in this Section shall affect the validity, as between the donor and donee, of any gift actu ally made. (3) An agreement to which the consent of the pro misor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the court in determining the question whether the consent of the pro misor was freely given." It is in my considered view that once a property is given to another person as a gift without any condition such property becomes absolutely the property of the donee. In the case of Salumu Mateyo v. Mohamed Mateyo (1987) T. L. R. 111, Mroso, J. held that:- "An qualified gift sui juris out of love and affection passes property absolutely." The Court of Appeal of Tanzania insisted the position in respect of Section 25 (2) of the Law of Contract Act (supra) in the case of Mkamangi Elifuraha v. Mwinyisheikh (1991) T. L. R. 191. The argument that there are some receipts of property tax payment in the name of Anyosisye cannot suffice to hold that the disputed house proceeded to remain his property after he had given it to his Page 9 of 15 mother. The late Anyosisye never lived in that house with his family. The disputed house is situated in un surveyed area. Paying property tax in the name of Anyosisye only cannot defeat the fact that the said house was given by a son to his mother. The fact that the appellant's mother (deceased) lived there for her entire life suggests that her son Anyosisye Mwangoloka gave the said disputed house to her mother as a gift, free of any condition. Mr. Mushokorwa, learned counsel for the respondent argued that the provisions of Sections 9 (1) and 35 of the Law of Limitation Act (supra) cannot be invoked in the present matter. For the purpose of this appeal, the said Sections of the law are hereby reproduced. "9 - (1) where a person institutes a suit to recover land of a deceased person, whether under a will or intestacy and of the deceased person was, on the date of his death, in possession of the land and was the last person entitled to the land to be in possession of the land, the right of action shall be deemed to have accrued on the date of death." This provision is clear and unambiguous in interpretation on the date of accrual of right of action. The intention of the legislature is also clear under Section 35 that reads:- "For the purposes of the provisions of this Act relating to suits for the recovery of lands, an administrator of the estate of a deceased person shall be taken to claim as if there had been no interval of time between the death of Page 10 of 15 the deceased person and the grant of the letters of administration or as the case may be, of the probate." Much as Mr. Mushokorwa has attacked the submission by the appellant's counsel on the cited Sections to battle in his submission on the interpretation of the cited provisions in the Law of Limitation specifically that of Section 35 (1), generally the position is clear that even if it could be proved that the disputed house belonged to Anyosisye Mwangoloka, still the respondent is barred by the law of Limitation, specifically under Section 9 (1). The aims of the Legislature when they enacted the same is clearly elaborated by his Lordship Massati, J. in the case of Tanzania Fertilizers Company Limited v. National Insurance Corporation of Tanzania Ltd and Another, Commercial Case No. 71 of 2004 which is reported in TLS Law Report 2006 at page 55 that:- "It is a basic principle of statutory interpretation that when a question arises as to the meaning of a certain provision in a statute, it is proper to read that provision in the context of the whole statute and the mischief that it was intended to remedy." The other issue that was strongly attacked by Mr. Mushokorwa, learned counsel for the respondent is the credibility of the witnesses as discredited by Mr. Mwabukusi for the appellant. In his submission, Mr. Mushokorwa admits that there is evidence in record that reveal that the late Anosisye Mwangoloka bought the disputed house for his mother now the deceased. The testimony of Page 11 of 15 DW 1 at trial as shown at page 24 of the typed proceedings is that the disputed house was built by his late father Anosisye Mwangoloka, when he was of the age of 15 years in 1999. He insisted this fact during cross examination at page 26 of the typed proceedings that the disputed house had No. 15AR 187. Surprisingly this is contradictory with the testimony of PW2 the brother of the respondent, at page 28 of the typed proceedings testified that his father Anosisye died in 1992 and that the appellant did not participate in building the said house, but his late father had a residential house No. RA/ 187 and that the said house was there when he was born. Considering the evidence of PW1 and PW2, it is crystal clear that they never knew how the disputed house came into existence and how the same fell in the hands of the deceased Jestina Kifumbwa the mother of their late father. There is evidence that the house existed before they were born. This is corroborated by the testimony of PW3, the respondent's witness at the tribunal (District Land and Housing Tribunal). That being the case the respondents could not exactly state if the disputed house was either built or bought for their grandmother. In their testimonies, no one told the tribunal that at different times they happened to be told by their late father that the disputed house was theirs and their grandmother was only invited to live therein. The respondent and his mother were separated from Anonisye, the husband of her mother in 1990. (PW3) does not know when the appellant's mother started to live in the disputed house. Page 12 of 15 Having observed and properly evaluated this evidence the trial tribunal's Chairman, would not have come up with such findings. This is so because what the respondent's witnesses allege is full of hearsay and contradictions. They are not conversant with the where about of the disputed house. The appellant's evidence was clear on preponderance of facts and balance of probabilities that she had defended the claims against her as per evidence on record. The respondent never lived in the said house. It only came into his knowledge to claim the disputed house after the death of the appellant's mother (his grandmother). The respondent and his witnesses do not have a clear picture of the disputed house. The mere fact that a person is a son of a deceased without proof of ownership of never witnessed a disputed house by the deceased cannot entitle him right over the disputed land. The respondents and his mother who during the life time of the appellant's mother could not claim the suit premises cannot claim a right which in law does not exist. The death of the appellant's mother cannot be a free way to the respondent to claim the house that does not belong to his deceased father, the son of the appellant's mother. There is no scintilla of truth to show that the respondent at the time of death of his late father Anonisye Mwangoloka lived and or occupied the disputed house. The evidence on record clearly shows that their mother had separated from their father for a longtime during the life time of the deceased. The respondent lived with his mother (PW3) and he knew nothing concerning the disputed house. Page 13 of 15 For the foregoing, this Appeal has merit. It must succeed. Accordingly the decision of the trial tribunal is quashed. The appellant is entitled to the disputed house as the legal representative and or administratri.x of the estate of her late mother. Accordingly the appeal is allowed with costs. Order Accordingly. A44 - .F. Ngwala Judge ) 7/08/2017 * Page 14 of 15 Date: 07/08/2017 Coram: A. F. Ngwala, J. Appellant: Present For Appellant: Mr. Mwabukusi (advocate) assisted by Catherine Ngimbamileni Respondent: Present For Respondent: Mr. Mwambukusi for Mr. Mushokorwa (Advocate) Court: Judgment delivered in the presence of the parties and Mr. Mwabukusi for the appellant who is also holding the brief of Mr. Mushokorwa, senior counsel. Court: Right of Appeal to the Court of Appeal of Tanzania explaijçd. CJp.\ % 4~ V4 F. Ngwala Judge \: I /08/2017 Page 15 of 15