Edwin Malila vs Oflo Titos Malila (PC Civil Appeal No. 101B of 1997) [1999] TZHC 374 (19 November 1999)

t :'' .,-~~ - ;"-.,tr,}=,r.r ... , . ./ ... • - '. ··-... . -- ... - . ~ ,, - ... -.,p- ,, MOSHI, J. .. ' IN THE_HIGHCOURI' OF TANZANIA -; -r Ar.t' MBEYA .·.S,i r ·•'(p 1 c) b1vi1 APPEAL No.101B OF 1997 . (From the: dJdik{o :if. the D.istrict Court of Ml:>Y,'§1· _c3:t· Ml;>,.-eya;·4n, Civil Appeai No. 63 of· 1997 Before: , L.A. Mtiginjola - District Magistrate) .. EDWIN·MALILA 0000•000000••-oooo APl?ELLANT Versus OFLO TITOS MALILA 000000000000 RESPONDENT JUDGMENT This is a second appeal. The dispute between the parties centred on a house and its.surrounding land (mji na nyumba)o The following material facts were established in evidence. The parties were brothers of same father but different mothers. The,- a.ppellant was the elder while the respondent was the younger. There were other· ,, •' ·-· children as well. In 1974 the father left Uyole for Mangula where the repondent . was born. The father-. th~ respond-nt and the respondent's mother, Sindifushwe d/o· Mbwanji, returnd back to Uyole and settled on the land in disputeo -They • 1_,·· lived in i'i house built by their father and Sindifushwe on the land. Th-~:,ap,pellant :·:: .. ir·.:1 ... \ ! . and •his ··mother also had land and house where they lived with the other children -: -bf their father. This was confirmed by the trial court on visit to the area. : (: ':'.{f:·) ~!j)~J.·'• . . In. 198'5 the father of respondent and Sindifushwe separated. Sindifushwe .. :•• • I • ~ • ,' told the trial court that she was chased awa:y. The respondent and his father continued to sta:y on the land and to live in the house. Then the father of the -_. :.· ···-···· parties died on 21 ,;3.97. The respondent raised claims that he 4ad inherited : the house and the land from his deceased father. The appellant, in. turn., :was· . , I. intent on evicting.the respondent from the lando The respondent, in consequence, filed the suit against the appellant before the primary court of Uyole claiming that the land and the house were his property. o o .• o o o o o • o/2

The appellant ciimed thy, were fcirtlil} property which were e;ubject to diVison by administfa.tor ;t t'heir fathet 1 s estate when apointecio I It w common guud that at the time of the suit on 16o4l'97 np administrator had been appointed on account of that cian council had not met. ±he position was the same when the district . court is judgm'eht was delivered on 30. 9. 97. The primary court unan:iipously decided in favour of the rspondent hoiding that ··,. ''¾ he was entitled to the iuiuse d the land ih dspute. The appeilant felt aggrieved and preferred his first appeal to the district court of Mbeya hich dismissed the· appeal. 'The district court held. that each part;r had to stay or live in the house f,1.}._:i· .. \r. his mother lived till the appointment of the este adm;i.nistrator was made. In . . ·.·· tl:. ·::- . . . , actual fact, therefore, the district court did no't uphold the decision of the primary court·that the-respondent was the rightful owner of the house an:ci lan~ he was occupyihgo · What the district court said was that the respondent's occupation of the land and the house should not be disturbed pending the appointment of an administrator., The decision of the district court aggrieved the appellant, hence this second appeal. With respect, I find this second appeal devoid of meriti The district cotlrt was righo The property involved was clan oi:- family property, and the parties in the the dispute were no-e::,only persons who stood to gain fo'!l the estate of their z deceased fathero Th!:L:r.es,pondent 1 s claim that he inherited the land and•house from his deceased father was unsubstantiated. The father had died intestate. In any event, it would have been .for an administrator to divide the esta:te of the deceased father of the parties to those. entitled to inherit from him ih consultation wi;th clan or family members and according to need and custom and wishes of the. de,ceased, if any~ Whoever would have felt aggrieved by the division would then have sought ,, a remedy in the courts as the law provides. So the district court was right in its decision that the status quo should be maintained pending the .appbintment of an administrator of the estate of the· deceased father of the parties. stands dismissed, and I award the ~ BoPo MOSHI AT MBEYA. JUDGE.