19840814 TZHC Dar es Salaam

J 1'£~-~ -\-h ~tf-u;iAl IN THE ff[GH COURT OF TAN?:'ANIA 'k .\ vJ:; 1z-Pr<?-j

AT DAR ES SJLLJJEJVI CIVIL A:.?PEAL NO. 3 OF 1982 HAMISI KONDOVvE ••••••••• •H • • • • ' versus A.PPELLANT ••••. ----- HADIJ L Rl'JVU~DHilNI ••••• , • /. , ••• , ••• ,RESPONDENT

JUDGMENT JHAVERI, AG. J: This is an Appeal fro:o. i;he Ju.dgr;ient dated 7th Tucember, 1981 by M. M. J. Luguru, Resident Mc~;is:trnte in RM Civil Case No.246 of 1979 in the Court of· Resident ll'fugist::cc1.te at fur ec Salaam. . " The Appellant wns the Ik: t'endant and the Respondent was Plaintiff in the said Case and Responck 1t wns successful. Paragraphs 3, 4, and 5 c,'.' the Plaint are material and which reads as follows:- '3. The Plaintiff is the owner of. the house at Ukonga - Nfajumba Sita built between 1966 and 1967 by her own effort and a little help from he:· elders wort',. abol'.t shs. 5,000/= (nve thousand) at that tine.

4. The Plaintiff and the Tufendant married on or about 28th June, 1969 and lived together since then in the said house owned by the Plaintiff, they got separated on or about 5th February, 1979 through 'Divorce 1 • .

5. The Tufendant used the ad-vantage of the :c:iarriage and took the house under his control from the owner (the Plaintiff) and is living in the house and other part is occupied by the tenants where he is receiving a rent of Shs. 400/= (four hundred) .per :o.onth for his own benefit now about six JJ.onths, 1 rt is not in dispute that the house in dispute was built before the marriage of the parties. It is also not in dispute that both the Appellant and Respondent occupied the house after their marriage, .It is also not in dispute· that parties are divorced since February, 1979. . The crux of this Appeal is who built the house. The Respondent gave evidence -together with four witnesses in support of her clain and Appellant gave evidence and called one witness to' support his Clain, The Appellant did produce two documents for the instalation of elcctrici ty and wate:.i.' in the house after -t::ey were married and occupying . •· the ho::,;:;2., Though these documents 11ay ·0e in the ru:u;ie of the Appellant - it cannot be direct evidence as to the ownership of the house a:s these instalations ft' •.,•••••• /2. may ha·:e been carried out by the Kppellant in h1 s capacity as husband and also it would have been easier for him bei1.,.; an employee of TANESCO. Neither side hns proclucecl any docunentary evidence relating to the ownership of the house. The decision is necessarily based

on the oral evidence produced by both parties bearing in mind that burden of proof remained with each party to prove its respective clair. t The evidence of the Respondent is consistant with her claim when she states in her evidence. 1 I am the owner of the hc,use in dispute and I built in 1966. I didi not buy the house. I was eiven the plot by Omari Mzee who had given the plot to my brother Kibwana P~nri. I saw Kibwana Amiri over the Plot who allowed me to built over the plot. Kibwana Amiri had told Or:J.ari Mzee that he had allowed me to builrJ on the Plot. Omari Mzee agreed to build the house at a cost of Shs. 300/= and Kondo lifachiani who is dead now helped in the building of the said house which is made of poles.' Both Ornari Mzee - PW. 4 and Ki bwana lJJJiri supports the Respondent I s story in every material wayo. This court also holds that the Appellant has failed to discharge the burden of Proof as to ascertain his clain to the house in dispute as his evidence together with his witness is mostly negative. PW.4 has testified before the Court that he sold the plot to Respondent. through PW.5 and he denies that he sold it to the Appellant •. There is no substance in the contention that PW.4 and PW. 5 were giving favourable evidence to the Respondent as the;J ., a.re related to the Respondent • Their evidence has not been rebutted in any way. On perusal of the entire

record of the lower court - this court also finds that the house in dispute belo!l(;s to the Respondent and it was built before her marriage with the Appellant. In the circumstances, Judgment of the lower court upheld. Appeal dismissed with costs. SGD. JHli.VERI AG. JUDGE 14/8/1984 14th August, 1984 Coram: Jhaveri, Ag.. Judge Muccadam for the Appellant Mkondya for the Respondent. Judgment delivered. ~- ' --..,:·~-- \

JHAVERI -- ':":'--. c ....... \... '- ""\""' ~. AG. JUDGE i?. DAR ES SALAJU\1 ~ ::· ., ; :~:1~;( 14th August, 1984: .f