20181023 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA LAND APPEAL NO. 85 OF 2017 (From the decision of District Land and Housing Tribunal of Tarime at Tarime, in land case No. 55 of 2015) DIDAS CHACHA WAMBURA ..............................................APPELLANT Versus AGNES GIMONGE MWITA.............................................. RESPONDENT JUDGMENT 23/10/2018 G. J. Mdemu The Appellant lost in 0n exparte judgment of the District Land and Housing Tribunal of Tarime on 15th September, 2017. This followed his application to that tribunal claiming ownership of a house located at plot No. 48 Block "Q" in Tarime Township. This was application No. 55/2015. The history of the dispute 1s that, the late Mwita Chacha Wambura, a husband to · the Respondent and a brother to the Appellant, constructed the disputed house in Tarime, but he and his family continued to enjoy their life at Ulyankuru in Tabora Region, where he was also blessed to own houses. The disputed house was built adjacent to their parents and that sometimes in 1999, the Appellant was entrusted to live in that house for the purpose of taking care .of the old parents from the proceeds earned in a milling machine which was also installed in that house. 1 According to the facts, sometime on 20 th September, 201 7, the late Mwita Chacha Wambura allocated that house to the Appellant and promised to transfer certificate of title to the Appellant in future. However, to his demise that came on 29 th January, 2011, the promise to transfer such a title was in vain. Following that untimely death, a family meeting was converned on 7th February, 2011, in which one Jackson Chacha Makaranga was nominated for the appointment and was appointed as an Administrator of the deceased estate. The Respondent objected to that appointment and on 23rd November, 2015, the Court in probate case No. 56/2015 appointed the Respondent as an Administratrix. In the course of administration of the estates by the Respondent, the Appellant raised a claim that, the property situated . 11 at plot No. 48 Block "Q is not the property of the deceased as it was bequeathed to him by the late Mwita Chacha Wambura. He thus rushed to the District Land and Housing Tribunal for the said claim. This was land cause No. 55/2015. The Respondent did not appear at the trial, and following proof of service through publication in Uhuru News Paper dated 7th March, 2017, hearing proceeded exparte. · After hearing four witnesses from the applicant, the tribunal entered judgment and decree in favour of . the Respondent on 15th September, 2017, hence this appeal on the following grounds:- ( 1) That, the trial District Land and Housing Tribunal for Tarime grossly erred in law and in fact by failing to decide the application in favour of the Appellant since there was no any evidence from the Respondent or from any other person to contradict the evidence adduced in support of the application. (2) That, the trial District Land and Housing Tribunal for i 1 Tarime grossly erred in law and in fact by applying the evidence in support of the application adduced by four witnesses (PW1; PW2,PW3, and PW4) to render the decision in (avour of the Respondent who did not appear to enter her defense. On the 23 rd day of October, 2018, both the Appellant and the Respondent who appeared in person, had an opportunity to address this Court on the two grounds of appeal. Submitting 1n support of his appeal, the Appellant stated that the . house 1n disputed was builf jointly by Emmanuel Chacha Wambura and Mwita Chacha Wambura so that the proceeds from the said house be u~ed to service the two old parents. He submitted that Emmanuel Chacha Wambura died in 1996 leaving Mwita Chacha Wambura who in 1999 asked the Appellant to live in that house. Later, in presence of Matiko John Mwikwabe, Berther Chacha and Martina Chacha, PW2, PW3 and PW 4 respectively, the late Mwita Chacha Wambura bequeathed the house orally to the Appellant. ~ 3 He submitted further that the title was never transferred in his name because Mwita Chacha Wambura died before effecting such transfers. it is on this evidence the Appellant prays that the appeal be allowed. The Respondent in reply submitted that, there is no evidence indicating that the house in dispute was jointly constructed between the late Emmanuel Chacha Mwita and the deceased husband. She further stated that the Appellant was never given the disputed house by the deceased husband but that the Appellant was only asked to reside in that house so that he can take care of their parents who by that hour were helpless following their old age. The Respondent further submitted to posses all documents -in respect of that house. In proving that the house is not the property of the Appellant, the Respondent observed further that the said house is listed as one of the estates of the deceased in probate cause No. 56/2015. It was her submission further that, the certificate of title is in the name of her deceased husband and there was nothing like transfer to the said title. She therefore urged me to dismiss the appeal. In rejoining, the Appellant conceded that, upon search conducted in District Land Offices, it was revealed that the titled is in the name of the late Mwita Chacha Wambura. He however maintained that he is the owner of the suit property. 4 Having heard the parties, it is not dispute that the deceased Mwita Chacha Wambura died intestate survived by a widow, who is the Respondent in this case. It is also not disputed that, todate the disputed plot is in the name of the late Mwita Chacha Wambura. What needs a determination by this Court is whether the late Mwita Chacha Wambura bequeathed that house to the Appellant before his demise. This should be a matter of evidence on record. In this, the only evidence is that of the Appellant who stated to have been given that house by the late Mwita Chacha Wambura. In his submission, he stated to have been given the house orally in the presence of PW2, PW3 and PW 4. However, in his testimony at page · 11 and 12 of the typed proceedings, PW 1 gave the following testimony:- " One of the properties is the house located on plot No. 48 Block "Q" property of the deceased Mwita Chacha Wambura and on 20 th September, 207 the late Mwita Chacha Wambura gave me the dispute house . which is on plot No. 48 Block 11 0" as my inheritance and in October, 2010 he told me that he have_ given me the disputed house plot No. 48 Block "Q" and he promised me that in 2011 he will came back from Tabora and transfer the certificates of occupancy from his name to my name." --== -= j ......, 5 As noted in that testimony, there is no where he mentioned PW2, PW3 and PW4 to witness the bequeathing transaction. It Is therefore not know how did PW2,PW3 and PW4 got information that the late Mwita Chacha Wambura allocated the house to the Appellant. What however is important in the testimonies of PW2, PW3 · and PW4 is the inconsistencies and contradiction rendered as to when PWl {the Appellant) was given the said house. PW2 said it was 15th September, 2007, the story which contradicts that of PW3 who -·! i simply said it was in the year 2011. PW 4 on his part did not mention any year but simply concentrated on the point that the house was built jointly between Mwita Chacha Wambura and one EmmanueL What is gathered in that evidence is that the three witnesses have not established that the Appellant was given the house by the late -t---~·- - Mwita Chacha Wambura before his death. Another important point to consider is an observation of the Appellant and PW4 that the house in dispute was built jointly. I think the starting point in this, is the certificate of title. Both the Appellant and the Respondent are in agreement that the certificate of title todate is in the name of the late Mwita Chacha Wambura. · In my understanding, had there been joint ownership, the title could have the names of both Mwita Chacha Wambura and the said Emmanuel. Equally, all through, there is no evidence to prove not only that there is joint ownership between Mwita Chacha Wambura and Emmanuel but also that the two jointly constructed the suit house. 6 Equany, I do not see any evidence to indicate that the Appellant was given the said house. What however I noted is that, since the late Mwita Chacha Wambura has other properties in Tabora, then the one at Tarime should be reserved for the Appellant's family. This is evidenced at page 16 of the proceedings where PW4 when cross examined by the first assessor had this to state:- "The late Mwita Chacha Wambura is having children but have three houses at Tabora which are enough for him and his family." In my view, that is not the best way to deal with administration of the estates of the deceased. What is important is whether the , Appellant is a beneficiary or not. In this, I agree with the finding_ of the Chairman at the trial in which at page 4 of the judgment he observed as follows:- "According to the applicant evidence and his witnesses they are saying that the late brother of the applicant Mwita Chacha Wambura gave th~ disputed house to the applicant but they have not tendered any document such as deed of transfered to prove that the late Mwita Chacha Wambura transfered ownership from him to the applicant. 7 Also there is no dispute that the disputed house belongs to the late Mwita Chacha Wambura and beneficiary of the late Mwita Chacha Wambura is the respondent Agnes Gimonge Mwita and his family and not the applicant. Hence the lawful owner of the disputed land and house is the respondent Agness Gimonge Mwita who is the wife (widow) of the late Mwita · Chacha Wambura." What_ I have noted all through is that the Appellant is not a beneficiary and that there is no evidence that he was given - the house by the late Mwita Chacha Wambura. In the final analysis, I do not see if I have any justification to disturb the finding of the learned trial Chairman. This appeal is accordingly dismissed. Each part to bear own costs. ,,,..1J~i'S\~@;;a@rdered. ~ -==--------- G. J. Mdemu Judge 23/10/2018 ,1' ~ •\ Gsjte¢1::6(&iW0gita this 23 th day of October, 2018. '<,-<t ·:- _, .···---:· .-__ . _-:/ \ """.:<::;_;;!..-:__.:,.:::::,;i,:~0:..~:.j).;~~· ~==~--- = . .=--=-= G. J. Mdemu Judge 23/10/2018 8