19900419 TZHC Dar es Salaam

"rN THE: HIGH GOURT OF.-· TANZANIA - AT .DAR ES Sf.LAAM - CIVIL APPtAL NO. ~2 OF 1~8B (Original R.M. Civil Case No.74 of~i9e6 of the RM 1 s Court of D•s~iaam at Kisutu) YAltYA s:thUM MKOMWE • •••••• • •••• APPELL!1NT Vorsus MO.EAMED SALUM MKOMY!E •••••• • •. • RESPQNllENT .JUDG:VIEN~ .. ' MASANCliE 1 .J. The a.p,p.ellant and resp0ndent are full brothers, I am told .......~., they aro howqn their mid_ forties. The caso a~ong them cori~~rne mainly_ a house built at Mtoni here in Dar es Salaam. Thi -~iainti/f had petitioned the court so that that hou~e is declared hi~ nnd t, the dofendnnt be restrained from selling the house to anj onot ·. f. as ~e-(defendant) had attempted to do • . Briefly, before the District Court these were the e~tahlished facts: Appellant and re!pondent a~e full brother$ as r i~fi earlie~ on. Luckil1 for them, their both parents (mot~er and father) are still alive, and they they came to Court to gi~e ' . evidence before Chillonji, SRM. It was established in the District Court that the ~laintiff Yahaya Mkomwe was the ch:i,ld who studied to Standard 12, The defendant M6haoed Mkomwe never became so lucky. Hi only studied to standard 8 and the~eforc became not so succesfui in life. It was hi~ young brother, the appellant/plaintiff who gave him money for upkeep. The appellant·, th.on between 1968 and 1971 bad worked at 1 w~ ui .D~or:wnd M . d" •. L . J.Vll:ne s in sh·· . . inya:ri.ga. . e neVe h r _he got money, he 17 re pa t r fa t e d s om e t o hi s c 1 de r b I' o th-e r in Dar e s Sa 1 a am • I t w a s agre~d that the elder brother wo~ld -~ti{ld a hou•~ an~ indeed - 2 - he built not ,,only a house but houses a·nd so1;1~ of t~e • h·oJses . got sold. The elder brother Mohan1ed a1so bou'.tsht i~1A-·cfes which . . . got tur,hed irtto Taxis. All these go't bought f~om th'e -rric{ney tha-t th~ appellant sent to Dar es ·Sa'la-arn from iii.wadui. Now~ later, it seems, the respondent became extr.a\Ta·gant. :He neve~ took care of the~e assets well. The Court was told th,at the house at Mtoni got offered to one.Bakheressa for s~s.·5O,0OO/=. , Bakheressa paid this _ shs~50,000/=·but when the :~laintiff got th; news, he immediately went to red~em the hoisa; ~sit were, by paying off the shs.50000/=. , ~hat is when l~e ~ppell~n~ felt that the re~p6ndent, his elder broth~r wa~ beco~ing hopeless. He then came to Court to seek an. order that the hous~ at Mtoni be declared his property sol~ly. Before Chillonji 9 SRM it seems two is~µes were fiamed. 'They were: \ 1. Which of the two parties provided the money for the acquisition of- the suit premises and other properties mentioned in the case? 2a What other reliefs are the parties entitled to. 'After narrating all the evidence the learned Resident Magistrate decided the first issue in the following term~: "In considerinc the fa·cts at issue I made several observations, the· first obse±vation was the period the plaintitf had been in employment and the salary he received. The plaintiff was -employed by Mwadui Gold Mines between 1968 and 1970 at a salary of shs,950/= per month. For 36 months he would earn 34,200/= without any deductio~. Obvio~sly,~ :_ could not part with the whole sum to his brother. In other.words he would ~ot ~ave the whol~ ;um for he had to buy food and ~ther necessities~ He· has not told this court how he mariaged to raise the amount of shs,3O0,0OO/=. There is_ n6 evidence of any business that he was conducting or any allowances he receiv~d ~part fr.om his salary. Well he miGht have ea~tied thts money through other me~~s which fo~ reasons best known to him did'not whnt to disclose. Since .. 3 ... admit that the plaintiff had contributed ~oney for the construction of .this house. I m~st point out here that ihe evi6ence of parents is not straight forward~ Ii is based on what th~y say was told to them by either party, a fact which has been denied by the defendant. 11 That is whc.t tho learned magistrste said with regard, to the first issue. Now that passage has matters which are certaitily not born out by the evidence adduced in Court. The plaintiff, in a case of this nature, a civil sui\ had to prove no more than that he Fertt money to the tune he explained, to his brother for the later to build a house. Both parents conceed that their son, the defendant, told theo that the plaintiff has serit that money. What other better evidence would one need ·other , ·. thari this one coming from parents? The fact that tho defendant denies ever telling his parents does not necessarily mean that he (defendant) is telling the truth. In fact all along the case, the magi~trate should have got the impression that the defendant is a crook, I am sorry to say so, Here was a person who never got blessed to go further then standarrl 8. His young brother gets educatad to standard 12 and goes out to a distant place and wotks and remember~ to repatriate money home to his elder brother for him to build a house and do some other things thai ~ould advance the welfare of this family, Now, this same -~ - person embarks on selling the h0uses and even attempts to sell the onli last house at ~toni. To my mina the first issrie of which of the two parties provided money for the acquisition of the suit premises should not have been diff~cult to hold. It was obviously the plaintiff who provided the money~ The second issue of Tihat other reliefs are the parties entitled to, should also be easy to decide. The appellant should now get the house and also get it registered in his name. Hi~ elder brother is not all that trustworthy. - 4 -. I allow the appeal. I quash the decision.of the District Court orderihG for sale of the house nnd then h~ving the proceeds split half way. r.1ay be, as addendU.lll:.: It is true that in Courts of law 11 affirmanti·non neganti incumbit probatio" - the burden of pro6f is upon hiD wh3 affirms, njt upon him who denies. But-Courts s~oul~ always not forget that in Civil litigations, burd~n of proof is always on a balance of probability,'and not beyond reasonable doubt. I think in the pr~sent case the learned Senior Resid~nt Meiistrate put the burden of proof to be beyond reasonable doubt. 'That was clearly wrong. -~ •· ~ Appeal is allowed I with costs. "' J-.,,~,ge 19.1+.1990