19981127 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA

AT MBEYA (PCO CIVIL APP.i 7 OF 199'7 (From D/C Mbeya Civ~ App. No. :1-~~) . . . ,· ' -~- ~ . i· ·'-· .. VERSVS JUMANNE MAS.EL!:.·.. a• e e :0 0 :t.·. O 8 0 0 • Q D t O t ; . · . ~-~ANT ·1.; .... ~~?: ,_ J U D'·G E M'E N i1 MWIPOPO, J~ The appellant Maimuna dlt Abdallah had a ~a.n. ..~e~·. .Hu?'\lma s/o Kosamu who , ·••;..• died in ,February 199~. while ~ PJison on 1~~/1996, Before he died he sold a house on !/6/94 . t~'the·-. respapdent . '• Jumanne f,\asale·, . '£he s~e 'house is claimed by the appellant t~ ha'll"e been built by the appellant ano. sold illegally by her son __ •,,, ' Huruma to the respondent. 1he appellant iS: reprei5ented' by the learned Mr. Mbise (Advocate) 'tW.ereas. th~ 're.'s~ctent i!s r<::preeented by· the learned Mr. Mushokorwa ,.. • . I . , . (Advocate) l The· evidence of DW2. ~p_,.,ard Mwesandu~e th.e ten cell leader and DW3 '"'. ::,.-··.,,- . :"': ·•. -.4.· .. ~ _;; .. · ~ Paul Songo that the deceaaed Huruma_ the irendor of the houae bought the plot from . . ;.: . .. ~~;" . one Ndaga ~ mere· hearSQY :fo:a tpe same Ndaga if existent did not testify to that 4 •• - • ' effect and the dec~e<l ·himself Huruma diea.befor~ telling anybody so and he did ,., : '·""·"i:;, ..!..:-- ... t1-ot indicate S<l in his sale agreement. , J The ~arne cief~~e.wifn~e'.s "'JJvJ2 and D\tr.1 t.estitied to"1.'ta"e seen the late Huruma when he built the ho1:5~< in iE.put.er, At

the ,same J·tme :i?tf1 _testified to the contrary to have built it many ••• .,- ,earo ~o •..She wa.,s,-s.u.ppo~e<l ltJ ~~ taiti s/o Mwanjisi and #' • ;~.. • . • • ·'.. • .. .., ·• Pd3 Ambakisy~ K:iienge to have lieen ·the;owner of. that h ~ for many years after '• . ' . • .. ·. .:..:·· J . ~\· :;it· • ..• she got help from !nether ~on he:rq :µ1 buil-d.ing that hous,e. 1 : - . •,, - , -~--~._.,. ,. " . As to wha was telling the truth behieel;t ?1.11 and lW2 and DW3 about the person who built the house being the., ·-. _!11~.ther _Maimuna_ -ar the -~on Huruma it appears that ~- \ . . -... --.· II • . f it was the mother who was more cred:i,ble beo.a 11 ~ ~pport-&d. by independent -, .. .;,.Pt - ·-' .. . . witnesses ."· ........:..... who testified as N2 who was the r-,levant. ten cell leader at the during ' ,·. of building t~e house where as DW2 and DW3 became ten cell leaders only in 1993 .. . , , after the house had already been built long time ago. Moreover DW2 and DW3 are interested party all out to vindi,?ate their actiOI), of witnessing the sale ag~e.rnent of the house bet\lPeerl· the d.ec~e<l Huruma and th; respor:dento The third sale agreement witness Jailos Hayaweza ( in the .sale agreement) did not sign it and he did not testify in court. ~ • . .. . Furthermore, 1M2 gav-e different stories to P.v1 to· whom he agreed,_ to have . ~· witnessed the sale f"f the house because

the deceased told him that his mother had bought it for him ( the de~;~ed) tha_t..:_1oas wb¥ it',·•- his--hous~ which be could •• • ,. • ,,. ""c•,' •, sell, where as in court- he testified ·differently that the deceased built it himself - . a rpf'\ Tu!? +h,~ ,:,,,:,m·o ·"Pl,T'l c,n·, ,-,,~,_-._,. { • .r, - 2 - • ·.,4,. in dealing with the problem of tho sale of this house ·(?nap:iga chenga). There is orie'-DW4 Ezekiel,El.ia . iiC:b.c;, is the ane who had employed the. deceased for three years from 1988 - 1990 who knew the deceased as a person who had no house and who was a .t~'it~d ... ~ •, :~. •... . . did ~ot . know. that ... ho. the deceased had ever built ~ a house. This being·a witness for the respondent as a defendant then his evJ4en•e \ ' ~- is contrary and contradict the stories of DW2 and l)W2 about the deceased Huruma having ever built a house of his own. Testimony of PW1 as appellant is quite more verdible _then the respondents witnesses that she built that house and later on allowed her son Huruhlato live there while she w~ living-'in another housef"')f h~ in Chimalq_ where she used to cultivate. Her .witneSS€S Pw2 and Fw3 gi:ve a:.cre~ble account of the life ·\ ,._ l t..- -b . of the deceased until wh~n-she got imp:risoneo.~ -~ assaulting k/.i~•wife and died in prison. • ,V· ... ~ The decision of the ···1~t c;1ppellate court that\th,e~ of the appellant in Usangu'

fa~ 5 Jiea.r= was a long time for t)e:r ~~; to ~ve iecided to sell the house was against the bond fo~ 'tlie:r~' should hav·i b~en M elapse·;;f '12 years before , . ~ . ' such on inference eould be drawn/and the appelThnt used to come often to visit her son who lived' in" the eame hQuse. so, h'e kept her' control· ·of the house some how by her visits~· The firift appellate court· aleo . ~r1'ed to hol'd' tbii't the appellant ne1'er challenged the sale• of the h~uee. Sl.\e did by .filling this suit. Before that she challenged-the te.spondent lmd the ten cell-lea~r.why they negotiated the sale with her son instead·~- heraelf the owner of· the house. The buyer of the""hauee· hi.rnEwlf ~eemt. ~·· ha~e ~en aware .of the take ownership of ,)101JSe 6.'; belonging to the appellant for lw i.s a:tso a' nei'ghbour living just in l.he 5th .houae fr~ th~ app.elJ,.,witft -"· "~N1e'Pe~ appears to have been a conspiracy to· bu;, tl)e h.o«Ja• behind the ·'bscl¢· of the a.ppel~ant. The owner of the house was est~ifhe_d t~ Qe that af,:1the appellant. The late Huruma Kosamu " therefore had ·~ ~ n i p ~ title. rig~. ~.a.Gill to the respondent over a house which was not his, ,. . ; ,.. The holding of th~ learned Mr. Roma.n7;:ika (R-1) that the appellant should redeem the house for.·~== p r e s ~ ~ that the appellant had the original • ownership rights over the house. If she~ ~:Letary rights over the

house she cannot have any right to redeem it lati~ <lil• The judgement of the trial court was proper for each gentlemen assessors Nkosole and Musa unamously eigned against his ·verdkt. ·al:x>llt_t:i!he ownership of . · the house having prope:r'-ly belonged to the appel:lant t1ie magistrate too learned Mrs. Mtikita (PPGH) signed her own verdict. ~he tie~ision of the PCT. was quite proper. In is. rtlnstated. The decision of the D.O.·T. ~.;- 1st appeal was erronous, it ~it; ~u~hed. · The house belongs to the appellzult Maimuna s/6 1 Abdallah. The decased Huruma s/ :> Kosarm;i. hM no l'ightl"l of' ownership of thl'tiou..s'e to sell to the • . µ . respondent. ~ The sale·was.null an~vai.£i. ~ The p. ~ price of shs.85,000/= shall ~ - 3 - be refunded by the appellant to the respondent for she was her own son who . wrongly sold it and used the money for benefit.. She shall refund the 85,000/= purchase price within 90 days from today to 28/2/1999 in default of which the deemed respondent is allowed to be given first prioility to buy the house from the appellant at the previously appellants offered price of shs4200,000/= be paid within 90 days inclusive the shs.• 85 ,000/= he will be entitled to set off from the same shs.200,000/= so that he pays only shs.115j000/= within the said 90 days from 28/2/1999 up to 29/4/1999 in default of which the appellant shall take custody of and take permanently her ownership of the house and the respondent shall execus0 his entitlement of the shs.85,000/= refund through the normal execution of this courts decreeo This appeal is allowed with costs. E.,L.K. MWIPOPO

JUDGE 27/11/1998 Date: 27/1'1/,8 Coram: Hon. , E.LoK, Mwipopo,J .. For appellant: .Mx. Mbise Advocate present Maimuna Abdallah absent - in person Respondent: .Absent. Jumanne Masele absent in person. B/c. Kosam: ' Mr. Mbise: Also holding the brief for the leai'.'hed Mr~ Mushokorwa advocate for the res19sndent .• Gou.rt.:, Judgement delillered. Learned M~. Nbise to inform learned Mr., Mushokorwa accordingly. · · ];LL,,!\. MWIPOPO

JUDGE 2V1171998 the original Judgement.,