mahmoud g shambe vs zuhura shambe 2014 tzhc 2154 29 october 2014

IN THE HIGH COURT OF TANZANIA AT IRINGA (DC) CIVIL APPEAL NO. 8 OF 2013 (Originating from Civil Case No. 15 of 2011 of the Resident Magistrate’s Court of Iringa at Iringa) MAHMOUD G. SHAMBE.......... APPELLANT VERSUS ZUHURA SHAM BE............ RESPONDENT 9/9/2014 & 29/10/2014 JUDGEMENT MADAM SHANGALI, J . This is an appeal filed by the appellant MAHMOUD G. SHAMBE (the administrator o f the estate o f the Deceased GULLAM MOHAMED SHAMBE) against the decision of the Resident Magistrate Court of Iringa in Civil Case No. 15 of 2011 which was pronounced in favour of the respondent ZUHURA SHAMBE. In- that civil case, - the respondent sued the appellant l claiming for a declaratory order that since the late Gullam Mohamed Shambe, who was the lawful husband of the respondent died without bequeathing his share in the house on Plot No. 225 Block '1 B’ Wilolesi area to any other person, the property in the house devolved upon the respondent as joint owner and wife. She also claimed for an order compelling the appellant as an administrator of the estate of the late Gullam Mohamed Shambe to transfer the said property in the house into the sole proprietorship of the respondent. She also asked for the costs of the suit. % Having heard the evidence from both sides the trial Resident Magistrate Court found that there was sufficient evidence to establish that the deceased Gullam Mohamed Shambe and the respondent were indeed husband and wife lawfully married on 6th February, 1987 as shown in their certificate of marriage No. 00441706. Secondly, the trial court found that the house in dispute on Plot NO. 225 Block ‘1 B’ Wilolesi area was acquired by the deceased and respondent through joint efforts and during the subsistence of their marriage, hence jointly owned in equal half shares. Indeed, on 24/08/1998 the spouses were registered the joint holders of the suit house in the title No. 3974 MBLR. The trial court also found that where the property jointly owned between the husband and wife, upon death of one. 2 spouse, the property devolves on the surviving spouse. Therefore it concluded that, upon the death of the late Gullam Mohamed Shambe the respondent as his wife is entitled to the devolution of property jointly acquired and owned. The trial court ordered the devolution of the remaining share of the late Gullam Mohamed Shambe to full and sole ownership of the respondent who is the surviving joint owner of the share in that suit house. To strengthen its decision the trial court cited Section 159 (4) (b) of the Land Act, Cap. 113 and the cases of Juma Rahisi Nayange Vs. Shekhe Farisi (1999) TLR 29 and Constantino Mhaluka Vs. Pius Lupala, HC - Mbeya (PC) Civil Appeal No. 1 of 1999 (unreported). As I have pointed above the trial court ruled in favour of the respondent. The appellant was not satisfied with that decision. He has preferred this appeal based on two grounds, namely; 1. That, the trial Magistrate erred in law and fact when failed to grant an order of equal shares to matrimonial property on Plot No. 225 Block ‘I B’ WILOLESI AREA within Iringa Municipality to both parties. 3 2. That, the trial Magistrate erred in law and fact when he did not consider that the respondent did not make objection against the proposal of including the said property in dispute as matrimonial property in Bomani Primary Court on Probate and Administration Cause No. 24 of 2009. In the conduct of this appeal, the appellant was represented by Mr. Danda, learned advocate while the respondent was represented by Mr. Rwezaura, learned advocate. On the request of the learned advocates, and permission of this court, the appeal was argued by way of written submission. In support of the first ground of appeal Mr. Danda submitted to the effect that the available evidence and the certificate of Right of Occupancy indicate that the suit premises is owned by the respondent and the late Gullam M. Shambe by half share which means 50% by 50%. Therefore the appellant as an administrator of the estate of Gullam M. Shambe is entitled to that 50% share in order to distribute the same to the lawful heirs of the deceased. He argued that the trial court was supposed to declare the right and shares of the spouses on the said suit premises as shown in the certificate of Right of Occupancy. % 4 On the second ground of appeal Mr. Danda submitted that during the hearing of the Probate and Administration Cause No. 24 of 2009, the administrator (appellant) did include the alleged house among the list of properties to be distributed to the heirs but the respondent never raised any objection meaning that she consented to the move of including the suit premises. He further contended that the respondent should now be estopped to deny what she consented. In response, Mr. Rwezaura submitted to the effect that the contention by the appellant that the suit premises be divided into two equal shares and one share to remain in the ownership of respondent and the other to be bequeathed to the survivors of the deceased have no merits. He contended that the crucial issue in this matter is whether the respondent is entitled to the devolution of the property upon the death of her husband. He argued that this issue was intelligently resolved by the trial court by applying the doctrine of “jusaccrescendf which is a right of survivorship that a joint tenant enjoys. He explained that the right of survivorship is “a joint tenant’s right to succeed to the whole estate upon the death of the other joint tenant. Mr. Rwezaura contended that the doctrine of “jusaccrescend? which is applicable in this case and duly reflected under Section 159 (4) (b) of the Land Act, Cap. 5 113 strongly affirms the findings of the trial court. The learned advocate submitted that there is no dispute that the deceased died intestate without bequeathing his held shares in the suit premises to any person; and therefore the trial court had no other option in dealing with the deceased share other than to rely on the operation of the law which automatically direct for devolvement to the surviving occupier who is the respondent. On the second ground of appeal Mr. Rwezaura submitted to the effect that, that very ground of appeal was the base of the respondent’s objection which was raised and the essence of this appeal. He submitted that in the Probate and Administration Cause No. 24/2009 the matter was the appointment of the administrator of the estate of which was not contested by the respondent. He argued that after the appointment of the appellant as the administrator the respondent directed her grievances to him knowing that he was responsible person to solve the problem but when the appellant failed and turned her down she visited the court of justice and filed the Civil Case No. 15 of 2011. That means the respondent has never consented to the distribution of her matrimonial house. Mr. Rwezaura, further contended that the appellant’s denial to transfer the suit property into sole proprietorship of 6