Edwin Malila vs Oflo Titos Malila (PC Civil Appeal No. 101B of 1997) [1999] TZHC 419 (19 November 1999)

j 1· .:. ••. ·J L,, i'" ]'10SHI 1 J • .q•1·; ;: :-:::''-:'. ;' '"'-..;;s::. ,, .··1: ,;t:. '"I •· • (, .f" • I · . .' .' IN THE· HIGH COURT OF TANZANIA L. ·, . A1' MBEYA. . (PC) CIVIL APPEAL NO. 101B OF_ 1997 (From the decision of the District Court of Mbeya at Mbeya in Civil Appeal Noo 63 of 1997 · Before: IA. Mtiginjola - District· Magistrate) . ,EDWIN MALILA ooo•••••ooo•••o•o APPELLANT Versus · OFLO TITOS MALILA . ~ ' . . . oeo1oooooooe 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. . : : ' 1 •.• Th~. parties were }?rother 9 . C>;f pame father but different mothers. .. ·. • . . ., . . ! . .' The appellant was the elder wJle tlle respondent was the younger. There were other children as well. l .. In 1974 th_e father left Uyole for Mangula 'Where the respondent w born. The father,· the .rspondent and the respondent •s mother, Sindifushwe. I . . . I d/.o Mbwanji, returned.back to Uyole and settled on the land in dispute. They \ . . . lived in a house built by their father and Sindifushwe on the land. The appellant l . ~~ his mother also h4 land~~ house where they lived with the other children of\their father. This was confirmed by the trial court on visit to the area. ·. I In 1985 the fathe:, o;·:espo~~ent and Sindifushwe separated. Sindifushwe tol 1 ~ :th~ trial court· that she, was chased away. -.The respondent. and his father . \ . coninued to _stay on the land- and to live in the.house. Then.the father of the parJies died OIJ. 21-.3.97. The· respondent raised claims that he had inherited · · the louse and the land from his deceased father. • The appellant, in, turn, was intelt on evicting the respondent from the land. \ fhe respo,.n.dent, in consequence, filed the suit against the appellant before the pimary co-~t:.t of Uyole claiming that the land and the house were is .propey •. •.

f i' Th~ appellant claimed they were q.ich were bject to division by \ '. ,·' administrator of their fath_e• s etate when apj)Ointed. It wa,s .common und that • ' . .· : ·, . .- ' . '., '"' . •. . ·.r,; ' . \ ·. at, the time of the suit on 16.4.97 nc>', administrat'b:r had een ippointed on account • I . of that clan council ,had not met . t',he position was the same when the district court's judgment was delivred on ,30.997. The primary court urianously decided in favour of the rspondent holding that • j he was entitled to the house and the land in dispute. The appellant felt aggrieved ·'·"' . ''1 and preferred his first appeal to th district court of Mbeya which dismissed the appeai. The district court held that _each partj' had to stay or live in the house his mother lived till the appointment of the este administrator was made; .. -t/'.'.. actual fact, ther,for,<r,. h,e •. district court did not uphold 'the decision of the .i',. . . primary court h?,t the. respondent was the rightf1 ow.net- of the house and land he was occupying. What the district court said was that the respondnt'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 respebt, I find this second appeal devqid of merit The d1strict court· was right. The property involved was clan or family property, and the parties in . the the dispute were no:!only persons who stood to gain from the estat·e of their deceased father. The resp?ndent: 9 s claitn that he inherited the land and house from his deceased father was unsubstantiated •. The father had died intestate. In any event 9 it wouid have been for an administrator to divide the estate of the deceased father of the parties to those ehtitled to inherit from him in conf?ultation with clan or family membes d·, according to need fd custom and wishes of the deceased, if any~., Whoever would have felt aggrieved by the division would t1!,en 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. appc>intment of an administrator of the estate of the deceased father of the parties. stands dism~~ed 1 an~ I award the .·~· ~5 BoP• MOSHI JUDGE.