jason tinkazaile katalihwa vs halima balthazar ngaiza 2006 tzhc 186 20 july 2006

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR-ES-SALAAM LAND APPEAL NO. 8 OF 2006 (From the Decision of the District Land and Housing Tribunal of TEMEKE District at TEM EKE in Application No. 60 of 2005) J ASON TINKAZAILE KATALIHWA ................ APPELLANT versus HALIMA BALTHAZAR NGAIZA .................. RESPONDENT JUDGMENT * 20/0//2006 --------------------------- -*20/07/2006 Before E . A . Kileo,.._JL This is a very sad case. The dispute centers on a house situated at Yombo Kilakala in Tcmeke District. This house was part of the estate of the late Almachus Theodory Kalumuna who died intestate on 07/02/1999. The deceased Almachus was the respondent's child. A widow and a child called Aron survived Almachus. The widow also died but prior to her death the respondent l lnlima Ngaiza was appointed administrator of the estate of Almachus. There was evidence, which was not controverted in the trial tribunal that when the respondent was appointed administrator she distributed the house to the child 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 application in the District Land and Housing Tribunal of Temeke to challenge the sale of the house to the appellant. The decision of the District Land and Housing Tribunal (DHLT) is the subject of this appeal. May be I should point out at this juncture that central to this dispute is the child Aron who is, according to what is on r e c o r d ;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 drawing the inference that the house was hurriedly sold, may be on the belief that the child 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 appellant- (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. &. 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 interests of the child. 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 DLH T upon which judgm ent 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 child 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 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 still the administrator of the estate under which the property fell. The property belonged to the child 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 entirely with costs. The decision of the DLHT is conf irmed. For the welfare and interests of the child 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 child. 4 E. A. Kilek JUDGE 20/07/2006 Court: J udgm ent is delivered. Assessors are thanked and discharged. Er A. kil6o JUDGE 20/07/2006