tatu ibrahim vs salim ibrahim 2002 tzhc 2036 20 august 2002

tw THE HIGH COURT OF TANZANIA

AT PAR ES SALAAM PC. CIVII APPEAL NO, 58 OF 2001 TATU IBRAHIM ... ...... •• APPELLANT Versus SALUM IBRAHIM *.... ...... RESPONDENT

J U D G M E N T K3MAB0. J: This appeal is simple. It originated from Probate No. i26 of ^999 vhich wos filed at Meoaeee Primary Court. Tatu Ibrahist'nho the appellant in t h i s - p e t i t i o n e d for eppointn»nt of letters of administration in respect of proposetiee of his deceased father — one Kibwana Ibrahim. She was gjuajtod letter® of administration. 3he appointment has no problenw Among the properties which were said to hnve- ©oraparis-ed the taA- of the deceased is a house at Mztneeee. Ibe house If the one which prompted appeals in the probate proceedings. Ihe appellant contended that the house is the property of her late father. Eatuma Abdallah, Fatumn Rashid, Rashid Aikosi and Athuman Aikosi on the other hr«nd alleged that the house was the property of one Aisha Mwikulo. Evidence was led to the effect thr’t Kibwr.no Ibrahim hoc! fraudulently registered the hows®' in his nrme when he was sent by his mother -the l?te Aisha Mwikula. Those who gave such testimony axe grand daughters and grandsons of the late Aisha Mwikula. 'Die appellant is also a granddaughter of Aisha Mwikula* After taking evidence the Prinrry Court held th-t the house was the property of Kibvwtf IUtrabi* \ibb**»+ <iommendts*y *vid*nce proved ao and there wos no other evidence which could disapprove the documentary evidemce. Hiat it was the children of Kibwona Ibrahim who were entitled to inherit fend

not those who had faised objection* Those who had rri^ed objection were aggrieved. They appealed to the District Court. On evaluation of the evidence, the District Court believed thrt the ownership of the house which formed the dispute in the probate proceedings was changed from Aisha Mwikula to Kibwana Ibrahim by Kibwana . Ibrahim fraudulently. H© allowed the appeal. The appellant wos aggrieved and she filed this appeal, There is only one ground of appeal* Diet the appellate magistrate erred by not making a proper evaluation of the evidence which was given and as a result he arrived at incorrect decision* 2 I have carc-fully gone throi 'h the proceedings in the trial court os well as in the District Court and thr Tonnes of appeal, Die Judgment of the Prlurry Court gave very good reasons wh; the house i.?- the property of Kibwana Ibrahiss and not Asha Mwikula. There was documentary evidence which showed that Kabwojm Ibrahim was the owner • It is only Ashr Mwikula who could h^ve eaid that the house die1 not belong to Kibwonts Ibrahim but to her# Thin was not done* The court was informed that she had knowledge that the ownership was in the n a e of Kibwana Ibrahim. If she relingushed her right in pursuing the mattert someone else can not come forward and pursue it for her after her death* The Primary Court was quite right in saying that the hou^e was the property of Kibwana Ibrahim and that it was only his children rtio could inherit and not any body else • The appeal is allowed with costs. N.P.Kimaro

JUDGE 20/ 08/2002