20060720 TZHC Dar es Salaam

.,. .. IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR-ES-SALAAM LAND APPEAL N01 8 OF 2006 (From the Decision of the District Land and Housing Tribunal of TEMEKE District at TEMEKE in Application No. 60 of 2005) J ASOl'J Tit\lKAZAILE KAT ALIHWA ............................ APPELLANT .. versus HALIMA BALTHAZAR NGAIZA ................................. RESPOND EN~ JUDGMENT ~ 20/07/2006 ----·---------------------~20/07 /2006 Before E. }\: . . K.ileo....,_ J. •· This is a very sad case. The dispute centers on a house situated at Yombo l<ilnknlo in Terneke District. This house was part of the estate of the late A lmachus Theodory Kalumuna who died intestate on 07/02/1999. The deceased Almachus was the .. respondenf s chi Id. A widow and a chi Id col led Aron survived Almachus. ·rhe widow also died but prior to her death the respondent l··ktlima Ngaizn was appointed ndminis-trator of the estate of Alrnachus. There was evidence, which was not " controverted in the trial tribunal that when the respondent was appointed administrator she distributed the house to the chi Id Aron and to the widow a m/v and other household items. The trouble began when Joyfully Jonathan Ngaiza who was appointed the administrator of the estate of the widow sold the house to the appellant secretly. The respondent was not involved and she .... filed the applicot·ion in the District Land and Housing Tribunal of Temeke to chollenge the sale of the house to the appellant. The decision of t·he. t)istrict Land and Housing Tribunal (DHL T) is the subject of this appeal. May be I should point out at this juncture that central to this dispute is the chi Id Aron who is, according to what is on record,an HIV victim. This is the child to whom the house was distributed by the respondent. The case that was filed in the District Court was filed against both the seller of the house and the purchaser. The seller never appeared in court. One can be excused I think, from the turn of events for cfrnwing the inference that the house was hurriedly sold, may be on the belief that the chi Id would not survive to enjoy its fruits. The appellant filed three grounds of appeal - (1) That the Honorable Tribunal erred in law and fact by not taking into account the evidence produced by the appellont- .. 2 (2) That the Honorable Tribunal erred in law and fact by declaring the respondent the administrator at the time of sale. of the property under dispute (3) That the Honorable Tribunal erred in law and fact basing its decision on hearsay evidence. The third ground of appeal was abandoned and no submission on it was made. The appeal was argued by way of written submissions. Mr. M. G. Kalage made the submission on behalf of the appellant while Mr. Nathaniel Issa made submission on behalf of the respondent. Mrs. Bukuku and Mrs. Manzi assisted the court in the determination of this appeal as assessors. Both opined that the appeal should be dismissed. They were particularly concerned with the i nterc~sts of the chi Id. I have given due consideration to the submissions of both counsel - Amani Law Associates for appellant and Nathaniel Issa for Respondent and have to say that I entirely agree with the opinions of the lady assessors. There was ample evidence in the DLHT upon which judgment was entered for the applicant in that Tribunal. She was the administrator of the estate of the late Almachus. She assigned the house in issue to the chi Id Aron. The house did not form part of the widow's estate. It had already been distributed to the child Aron. The submission that after preparation of the 3 .. inventory the respondent handed over the house to the widow cannot hold water. If any one were to dispose of the house then it would have to be the child's guardian. The appellant's counsel suggested that the seller of the house was the child's guardian but there was no evidence to that effect and the seller has never appeared in court to defend what he did. Evidence show that the house was indeed sold hurriedly and secretly and the child was completely neglected. This was very sad! As for the second ground of appeal I must say that it has no merit whatsoever. At the time the property was sold the respondent was sti II the administrator of the estate under which the property fell. The property belonged to the chi Id anyway. His interests were not at all considered. The seller was greedy and the buyer was willing to participate in the oppression of the child. This was very bad and this court will not allow it. In the circumstances I find the appeal to be hopeless. I dismiss it in it's entirety' with costs. The decision of the DLHT is confirmed. For the welfare and interests of the chi Id the appellant is ordered to forth with give vacant possession of the house to the respondent who, apart from being the administrator of the estate under which the house falls also now has custody and care of the chi Id. 4 • , ' _j__ _,.,./~. ~'---" -~ -E. A. Kile~ JUDGE 20/07/2006 Court: Judgment is delivered. Assessors are thanked and discharged. -. .. I --t.-~.--~ ,KIi~ ,I JUDGE 20/07/2006 5