20141029 TZHC Iringa

. ,.. ; ;"\>··t·-~.··.- .~--·::;-~--~ '' ' IN THE HIGH COURT .. ·t OF _. TANZANIA. AT-IR1NGA .., · .. (DC) CIVIL APPEAL NO. 8 OF 2013 . . . I (Originating from Civil. 1 ase No. 15 of'.12011 · of the Resident Mag.isfrJte.'s Court of rtnga . . . . •t 1 '· ·. . . ·1 . .. ._ ....·- ~t Iri~·&a) ·· ·• . . . . . . . ·1 . - . . . :· . . ' MAHMOUD G. SHAMBE.; ...... APPELUANT . . ,,, .:. :. . VERsbs .• . ' .. ~~:;-..'"- · .. . .. ~ . . . . . ; ~ r_; • ,. ) }t ' / ·. .; l ·1 J . ' <.- ' I•~ I I • •• ZUHlJRA SHAMBE ............ RESPONDENT ' t-•''" 9/9/2014 & 29/10/2014 • • -·~. : "I \ ' JUDGEMENT MADAM SHANGALI, J. ·.; - · Thi_s is an appeal filed by; he appellant AHMOUD G. SHAMBE (the administrator of' the estate of the Deceased GULLAM MOHAMED SHAMBE)"- : against the dlcision of the Resident Magistrate Court of Idnga in Civil Gase No. 15 of -1 I 2011 which was pronounced ii favour of the respondent ZUHURA SHAMBE. In that civil case, the res ondent sued the appellant 1 I • . . . ... --. . ...... ·~ ·. ,:. . -~,, . '. ;'.;.·/..·...:~ ·. ,. '_, ,' 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 forar:i 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 Sh~be _and the· respondent were indeed husband and wife lawfully· married on 6 th 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 respon·dent 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 · a-wried between the ·husband anq wife, upon death of. one 2 spouse, the property devolves on the surv1v1ng spouse. Therefore it concluded that, upon the death of thJ late Gullam Mohamed Shambe the respondent ias his wife is entitled to the I I devolution of.property jointly acqui~ed and owned. The trial I court ordered the devolution of the remaining shcire of the late Gullam Mohamed Sham.be to full: and sole ownership of the respondent who is the surviving joint owner of the share in. I 11 that suit house. i To strengthen its decision the trial court cited Section 159 (4) (b) of the Land Act, Cap. 113 and the c~ses of Juma Rahisi Nayange Vs. Shekhe F~risi (1999) TLR 29 and '!. Constantino Mhaluka Vs. Pius Lupala, HC - Mbeya (PC) 1 1, Civil Appeal No. 1 of 1999 (unreported). 1 I As I have pointed above the trial court ruled in favour of the respondent. . I The appellant was not satisfied with that decision. He has preferred this appeal based on two grounds, !namely; I 1. I I That, the trial Magistrate erred in law and fact when failed to grant an order of equal ~hares to matrimonial property oni Plot No. 225 Block 'I B' . I , WILOLESI AREA within• Iringa Municipality to both parties. 3 . ..., ' .. ,- ....., y 2. · ·That, the trial Magistrate erred in la\v 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 · perm1ss1on 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 l:: 1.- I On the second ground of appeal M:r. Dand£I submitted '. I that during the hearing of the P;obate and Adrninistratio·n . -· ·r I Cause No. 24 of 2009, the adrilinistrator (appellant) did ' . I include the alleged .. house among the , list of properties I to be 1 distributed to the heirs but the re spondent never raised any objection meaning that she consenJed to the move! of including the suit premises~. He further con~ended that thJ respondent . I I should now be estopped to deny w~at she consented.· · 1 l I I I I, In response, Mr. Rwezaura submitted to ttle effect that I .. the contention by the appellant ;'that the suit :premises· be ·· divided into two equal shares and., one share to temain I in the i ownership of respondent and the; other to be bequeathed to I I'. ; the survivors of the deceased hav:e , no merits. He I contended I that the crucial issue in this matter is whether t~e _respondent . I . is entitled to the devolution of the property upo1 the death of her husband. He argued that ithis issue war intelligently resolved by the trial court bi applying the doctrine · of • .. I "jusaccrescendf' which is a right: of survivorship that a joint I tenant enjoys. He explained that ~he right of survivorship is "a I joint tenant's right to succeed t6 the whole estate upon the I death of the other joint tenant. I Mr. Rwezaura contended that the I doctrine of i I ,· "jusaccrescendf' which i~ appli?able in this ?ase and duly I - ~ ·• reflected under Section 159 (4t (b) of tlie Lfnd 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 ~ppointment 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 t4at 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 distributior:i of her matrimonial house. Mr. Rwezaura, further contended that the ap;pel~ant's . denial to transfer the suit property into sole proprietorship of . 6 .,.. . . ., . ' .respondent and further claims ·that the ·other bedeficiaries ar·e entitled _to the. share in the suit premises is drivrn by malice because all children (beneficiaries) of the deceased have their 1 . l homes and the suit premises which was legally devolved to the I respondent is the only house where she (respondent) is now I living as a widow. Mr. Rwezaura added that the respondent has lived in that suit premises with her late husband for 23 years before his death. · That, after that sad death, the 1 respondent continued living in that suit premises for about six years now as she have no other . alternative ~csommodation. 1 The leaned advocate retorted that: it is very disheartening and I injustice that the appellant as an administrator of the estate of I the respondent's husband is ·intending to ta.Ke away that I • I. matrimonial suit premises from the respondent f11d leave her with no fixed abode. He -prayed the appeal to I be dismissed I with costs. Having thoroughly gone through th~ record of proceedings and decision of the trial court, and having passionately digested the submission made by the learned ,, advocates, I have noted that the crucial issue, as stated by Mr. I Rwezaura is whether the respondent is entitled to the devolution of the suit property· following the I death of her husband. It is a pity that in his ,submission the appellant's I .• i advocate has been arguing this:-, appeal as if it is a case of dist~ibution of matrimonial properties following! dissol}ltion of 7 :;... . :-.:_ ~~-~~ ":::'.: _: ~ ~~.,;, <l /~ ,. '. i. - J ' i ,' ••cj marnage between spouses. ·This is a case where the administrator of the estate of one spouse (husband) is intending to grab the property jointly acquired by the spouses during the subsistence of their marriage on pretext of distributing the same to the lawful heirs as if the wife (widow) is not one of the lawful heirs. In my considered opinion the wife (respondent) 1s both a joint shareholder and principal benefi.ciaiy. '- There is no reason whatsoever for the court to order for the--division of two equal shares in the suit premises in order to bequeatl?- one share to the survivors of the late Gullam Mohamed Shambe. The suit premises is still a matrimonial home of the respondent and her late husband. The untimely death of the late Gullam Mohamed Shambe did not nullify his marriage with the respondent. The respondent is a widow, entitled to enjoy the fruits jointly acquired together with her late husband without any interferenc~. On the other side, the law is in defence of the respondent , for the following reasons. One, there is sufficient evidence to establish that the suit premise was jointly acquired and owned by the spouses in equal half shares._ 8 I ,! 1 'i ! 1.-' i I Two, the evidence is also clear that the deceased I r , died intestate without bequeathing his share in the ' I I ' suit premises to any other gerson. Then, Section 1 159 (4) (b) of the Land Act, ·cab. 113 provides:- ' "Where the land is oc+piedjointlYulder a right of occupancy or lease, no occupiJr is . I : entitled to any separate share in the lland and, consequently on the death of a Joint I • I occupier, his interest $hall vest in the I surviving occupier'. I That means the occupation of land held unper a right of _occupancy by tw~ or more undi~ided shares may be either . - I ' I joint occupancy or occupancy in common. I agree with Mr. ,1 I Rwezaura that the respondent aiild her late husband had a I , joint tenancy on the suit premises and the trial court was perfectly. correct to apply the doct~ine of 'jusaccr scendi' which ' I 7 is a right of survivorship that a jbint tenant enjbys. In· short .1 the doctrine of 'jusaccrescendi' giyes the survivdr the right of , I devolution of the property upon fue death of one I of the joint occupiers. The important feattire of the joint owners 1s survivorship, by which the entir~ ownership ori the death of I I any Joint occupier remains to the survivor siuch that the I interest of each 9ccup1er 1s identical 1n extent nature and I 9 . il ' ,c • .,,· "'., . .• ,~-. . ' duration which forms· the .unity of possession, ·interest and . 1 title. In the case of Juma- Rahisi Nayange Vs. Shekhe Farisi (Supra) it was held that; (i) ........ ;· .............. ',.· (ii) Since Farisi. Mbwana and his late wife, the ,, mother of the respondent, were joint owners .of th~ house d,=1.ring her lifetime then, .upon her ' .,; .. death, and in the absence of evidence that she had bequeathed her share in it to some other person, property in the house devolved upon the husband. (iii) Since upon the death of the wife property in the house devolved upon the husband, he could deal with it as he wanted, and, therefore, he could dispose of it by sale." It is also the position of the law that, the right of devolution or inheritance of the' prop·erty by the surviving spouse is not limited only on properties which were jointly owned by the spouses; it also extends on the surviving sp~use even where the property was not jointly owned. In tl;ie case of 10 • .,. J • -·. • .: ., • I. f - . . I . r Co.nstantino Mhaluka (Supra) it was held that; r. 1 "In my judgement where a ma n dies intestate and he leaves behind a widow, . thl widow acqu~;es her husband's interest in. land _inlthe same manl/-er as if. the spouses were joint tenan,s. A customary rule Ii . : I which holds otherwise is ~epugnant to justic.e; ··.. I . • . : l . .· cannot be allowed to take a7ray just interests from widows" (Emphasize mine). ' Therefore, with such profouna decisions, _I agree with Mr. Rwezaura when he commented th1t the respondept could have even claimed for other properties w,hich were acquired together :1• ! with her la~e husband but whichj-were taken and distributed by the appellant. to the so called peneficiari~s of the estate of I .. I . the late Gullam Mohamed Shambe. In my consiclered opirtion it is high time that the legal rightsj of widows and• widowers are openly pronounced and· protectea. I also con cur with Mr . 1 . Rwezaura's final remarks to the! effect that tqe appellant's refusal to transfer the suit property into sole proprietorship of • I respondent and claims that other: beneficiaries are entitled to the same in the suit premises wa!s driven by m~ice and total I I disregard of the widow's legal rights. In conclusion, there is no Jeason whatsoever to depart from the correct decision of the trial court. THat decision is ~ I 11 ..... .1.· . . hereby approved· and upheid.: -• The· appeal is devoid. or merit and it is hereby dismissed with costs. It is so ordered. M. ·S. SHANGALI . ·JUDGE · 29/10/2014 - -.··Judgement delivered 1n the presence Mr. Rwezaura learned advocate representing the respondent and presence of· Ms. Zainab Gullam Shambe representing the appellant who is on safari.- M. S. SHANGALI JUDGE 29/10/2014 12