19850413 TZHC Mwanza

~ .. . .. ..,.. . . . . .. . . . · ," '.er• . j i ·, l . IN THE HIGH comrr OF Tii.l:ZANIA i).'. AT ITiiANZA ' (H/C) CIVIL APPEAL TJ0.15 OF 1982 ( From the decision of the Resident :Magistrate's · Court of Mw:::,nza District at Mw ..mza ni Civil Case No.49 of 1981 REGIT~A MABOLEO e e • "i O . e e O O e • • e e e e ~ 0 e. • e e o O •. APPELLANT versus :i? AULO C:-f Al'lrBA ••••.••...........••..•..•..•••. RESPONDZNT JDDr,LJEN'T' +++++++++++++++ \. MWALUSANYA 2 J. The respondent Paulo s/o Chamba sought a declaration from Mwwza District Court that he was a sole owner of the s:.1i t premises situated at Igogo area within r-~w&nza H1J.nicipaii ty. The s.ppellant Re 1zina d/o I'✓.raJ::J.boleo resisted th2 application at the tritl arguint, tl1c.~t the h.ouse in question was her sole property and so she should be declared to be the owner. The . respondent was only partly successful in that the court decided that the parties were .joint owners of the said house because . it was built by joint efforts. The tricll court proceeded to decree that the house in question be sold by public auction Jnd that the proceeds be divided equally between the parties. Fow appellant has sought to challenge tl).at decision on this appeaJ.. In essence what appellant states in her memorandum of appeal is that the contribution to the construction of the building by respondent wa~ minimal in that he only

contributed some nails and timber. She further asserts that on .hc~r part she provided all the other building material,s besides paying for labour and securing the plot in her name. But tha,t was refuted by _the respondent at the trial. It is COL'1ffton ground that when the· alleged construction cf the house took place 1 the parties vrnre staying in concubin:::..ge. As conceded 1:iy both parties~ no proper written records were kept as regards what each actually' contributed. towards the construction of the building. And tb~t is understandable because they were then in love. The witnesses :fo1· both sides o,t t.hc, .... /2 \ .. y ' "., ...,. ,.~. ; i:,- ,,- ,1,, ~· ' ~--, '' - 2 - trial cou_ld not tell exactly the precise nature of the contri bu_tion by each party. In the circwnstances I am not in the least persu.a.ded t.::1at the decision o:f the trial court can in 8JJ.yway be fat1l ted. ~he appellant herself admits that respondent made :Jome materiel contribt1tion. Bu.t even if there was no material contributj_on 9 as a breadwinner rGs_pondE:nt would still be regarded as 211 indirect contributor. The appellant will appreciate that i.::1 the absence of the 1Jrecise extent of contribution of each to the erection of the building 1 the cou.rt has to make the best out of a bad job by assigning a fifty to fifty percent contribution from ,3ach party. That is not a peculiar phenomenon

as the courts have done the sarne in the di vision of matrimonial assets under ~.:!l .1-_S!f _~g~-~:2-::Y_,9,!_~§!:£~.§_g~_E-2~-ES!.:..2_~!_;!;21! •. For that reason I am not persuaded the judgment of the District Cot1rt can be impt1gned. Concernin::-o the complaint against the nature of the relief granted., I ,:-.m cf the considered view that the trial cot1rt cannot be· fc:rnl tea. either. I u..,_viderstand that a house being b useful shelter 9 it is desirable to provide a place where a person can residej but this can only be done if capable of achievement withot1t danger. In this case having regard to the friction between the IJsrties 1:md the bitter relations bE3tvve,:::n themj I have nc, doubt that it would be. in the interest of justice and wou.ld possibly avoid ft1ture unsavoury quarrels if partition is avoided. Therefore sale by public at1ction and division of the proceeds in half \Vas the most appropriate order. The order vvas particularly fi ttin[: as it was decreed: r The parties are :not precluded from bidding if they have means' o So if any of the parties wants to get the house he can try his luck at the public auction. The jurisdiction of our courts to compel p.::,.rti tion or order a sale of co-ownership property deri-ves from the English Partition Act 1868 which is ap.1:,licable in Tanzania it being a statCL1e of general application. In this regard I subscribe to

tb,J view of Platt J. in H&richand. Aggari val Vrs. Dhillon~ (1969) )l-I.C.JJ. n.165 that the English Ps.rtition J,ct is a statute of general application. And by section 7 of' that Act (as amended in 1876) the cot1rts are empowered to order and r - 3 - a party may ask for sale of property simpliceter. Therefcre appellant cannot question the right of the izourts to order the sale of the property. Consequently the appeal is dismissed with costs. It is. ordered accordingly. -- . -- . . - ~ > ' _ _. ---------··1-r--f------;--- .. -- ~ . .. I \._,.~..,--c,...-•<'~.-.. . . . . :-- -----"""\ ~ 1 r/IWANZA ·; · J. L. r,TN ALUS.i-,.NYA 13/4/1985. JUDGE_ r