20141022 TZHC Mbeya

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IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

ATMBEYA LAND APPEAL NO 4 OF 2013 (From the Decision of the District Land and Housing Tribunal of MBEYA District at MBEYA In Land Case No 150 of 2009) JAI'IES ........ APPELLAN1

VERSUS STURIDA NGA.JILO.............. ...................................... RESPONDEFIF

JUDGMENT 17.07.2014 & 22.10.2014 CHOCHA, J. James Mwigani and Sturida Ngajilo are the appellant and respondent. They are both represented by Mr. Mwakolo and Ms Mgaya respectively. The appellant was aggrieved with the Mbeya District Land Housing Tribunal directions to the effect that he should pay to the respondent rental arrears for the period he has been using the suit premises; and that the suit premise should be left to the respondent. The appellant's complaint is that there was no proof of tenancy agreement between the respondent and himself and therefore there were no basis for the District Land Housing Tribunal to condemn him to pay rental arrears. On another lane, the appellant through his lawyer contended that there was no proof of ownership of the suit premise by the respondent. After hearing the parties' submissions and evaluation of the court record I find the issues: (I) Whether the suit premise was or not sold; (ii) Whether the appellant occupied it, and (iii)To whom does it belong, are still burning. They require answers. For consistence and chronology purposed, I will begin looking at why parties are involved in this dispute. That requires revisiting the background, at least by restating the trivial facts. The suit premise once belonged to Ben Ndelwa. He was married to the Respondent. The two cohabited since 1985 to 1998 when the former died. According to the

applicant (respondent), the appellant occupied the suit premise as a tenant in 2005 at a monthly rent of Tshs 30000/= to be deducted from the Tshs 180,000/= renovation costs. The appellant refused to pay the rent following the expiry of renovation costs. He is still resisting any such claim on ground that he has never been the respondent's tenant and besides, that the respondent had not established ownership of the suit premise. The appellant contends that although there was no link between the respondent and himself in his individual capacity, but he knows that the suit premise was sold to Maziwa group to which he was a secretary. That group wound up. What is the status of ownership of the suit premise? Truly, going by the record, no party established by documentary evidence, their claim of ownership of the suit premise. There is however uncontroverted congent evidence to the effect that the suit premise was Ben Ndelwa's property. It is not disputed that the suit premise was acquired during the Ben/respondent marriage existence. It is settled law WTI that a property acquired during the subsistence of the marriage is presumed to be the matrimonial property. [See s.60 of the Law of Marriage Act Cap 29 RE 2002]. That being the position, it is upon the person who detaches such a property from being a matrimonial asset, to support his claim with sufficient evidence. [S. 110 -

Tanzania Evidence Act]. So the appellant's assertion that Ben sold the suit - premise to the Maziwa group which claim if it is true, delinks it from being a matrimonial asset, has a budern to prove that fact. The appellant's budern of proof is higher than the respondent's, whose duty is to simply show, which she did in my view, that the same was acquired during the subsistence of her marriage with Ben. Unlike the respondent, the appellant has not done enough to delink the suit premise from being the respondent's matrimonial property. The trial District Land Housing Tribunal was right when it found that the suit premise is the respondent's matrimonial property. Perhaps that shall have disposed of the issue whether the same was or not sold. If I may add only a little, like I said, it was up to the appellant who contends that there was a sale to establish the said sale. In fact being a Maziwa group secretary, he was better placed to assist the court to a proper solution of the issue. His failure represents, and the court is justified to find as I do, that the stall was never sold. Now, did the appellant at all occupy the suit premise and if yes, in what capacity? The appellant is denying the fact that he was in occupation thereof, and in effect the claim for rental arrears which he says it is not supported by a contract. It is true. In the absence of a tenancy agreement no

commensurate awards can flow. The respondent never established the tenancy terms 3 JW between the appellant and herself. An award for rental arrears was wrong for not being supported by sufficient evidence. The award is quashed. Now, to whom does the suit premise belong? • I am seing the appellant's calculated efforts aimed at dispossessing both the respondent and or the Maziwa group (if any exists) a stall. The appellant who was the Maziwa group secretary informed the District Land Housing Tribunal that the group collapsed. He did not say when, why and how. It means, the purpose for which the group was intended is no more. However, interestingly, the appellant quickly converted the milk business in his own stall which is next to the suit premise. No sober mind can accept such a simple story. The appellant was the defunct Maziwa group's Chief Executive Officer. He must be responsible for the group's death as he was responsible with its day to day operations. The Maziwa group experience is common to most of the public entities in the country whose capital investments are siphoned for individual use. Much as there is lacking tenancy agreement, justice demands this court to find as I do, that the appellant was in occupation and use of the suit premise for milk business in his individual capacity. I want to make it clear that he had no any stall of his own nearby or elsewhere for

that purpose. The stall he was using is the now suit premise. In his capacity as the group's secretary, the appellant seem to have spent some money for renovations perhaps without members' knowledge or consent. If the group had suffered any damages, it would constitute a good beginning of the inquiry against the appellant. Whatever the case, the suit premise was in use. It is beyond imagination that the owner and the neighbours would fail to see and 4 recognize the user as they amply testified. The appellant has two options. ele- EITHER to vacate from the suit premise forthwithly, OR to negotiate with the respondent on better terms of tenancy if he desires to still occupy the stall. On this aspect the appeal is demerit. The appeal is otherwise meritorious with regard to the award of rental arrears. In the absence of proof of tenancy terms it would not be easy to calculate the arrears. To that end, the appeal is partly allowed and partly dismissed. Each party to bear his costs. N. Pi ~ ho a Judge 22.10.2014 Date: 22.10.2014 Coram: N.P.Z. Chocha, J. Airellant: Absent For the Appellant: Mr. Mwakolo Advocate Respondent: Absent For the Respondent: Mr. Mwasubila Advocate R/A: Mwandambo Court: Judgment delivered. Order: Right of Appeal Explained. N.P.Z. ChRa Judge 22.10.2014 5