Costa Yanilenga vs Tabia Robert ((PC) Civil Appeal No. 49 of 1996) [1999] TZHC 222 (16 July 1999)

• IN THE HIGH COURT OF TANZANIA _AT tVIBEYA (PC) CIVILAPPEAL NQ 49 OF 1996 (From District court of Ivibeya Civil Appeal No. 140 of 1994 - Original Civil Case No. 99 of 1994 of Ibalizi Primary Court BEFORE: E.J. Mwakibete - P.D.N. I) COSTA YANILENGA • . . ... . . as APPELLANT VERSUS TABIA ROBERT •... e ... .. . w.RESPONDENT JUD'GEIENT T'1WIPOPO,_J. The appellant Costa Yanilenga has appealed against the decision of the learned 1r wakibete (PDM) which held that the respondent Tabia d/o Robert was the owner as the beneficiary of the plot and partly built house (pagale) at 1tha1izi suburb., He has prayed for the decision of the primary court to be reinstated and the decision of the District Court to be quashed with costs. In the memorandum of appeal the grounds raised include that he has been in effective occupation for over 20 years and therefore that he acquired good title by the operation of the Doctrine of adverse possession. This contention is defeated by the testimony of PW.4 Iwiga s/o Yanilengawho is the real brother of the appellant. He testified that he was the upkeeper of that plot and partly buIld house assigned to keep watch of it by the late mother of the respondent who was called Onesi d/o testified I4ianagamba who owned it. He j thatit was only recently •. . . /2

-2- (in 1990 See P.21 PW.l's evidence) wherj.the appeflant sold it without his knbwledge. So, the p],qt in dispute was the ffective jil t occupation of PW.4 who ud even to cultivate it on invitationof its owner his sister in law Onesi d/o 1wanagambà whows the ifefthe elder brother of PW.4 and the appellant. The fact that the owner of the suit premises lived in Zambia for many years did not coiifer any right of owner ship upon the appellant. In his defence the appellant testified to have Fiad conflicting claims of ownership over the land in dispute with PW,4, who dug pits f or throwing rubbish in the plot in dispute and that PW.4 wanted to allow his male children to build their houses on it. That is why he decided to sell it and kept the moneyfor the late Onesi d/o I'wanagamba. With this., evidence the, appellant conceded the true ownership of the plot in dispute by Ones! d/o IV.wanagarnba for whom he sold the plot and • kept the money for her with her permission, PW.2 Charles, Wang'ombe testified partly in support of the appellant to the effect that the owner of the plot Ones! d/o !wanagamba used the services of the appellant to. built the half-finished house. But that didn't niie•an that the house belonged to the appellant. That is why PW.4 was ultimately invited to keep watch of the disputed plot from whom the ppei1ant without knowledge or permissiQn o± P.4 sold it to another person. The ownership of the house was .estab1ished correctly overwhelmingly as belonging to Qziesi 4/0 Fanagarnba asLheld by the 1st, appellate Court. I upho]d these f.ndirgs of facts of the Distrir't Court as against t'ie findings of fact ...13

' -3- of the trial court of ?balizi Primary Court which were erronepus assessed, The respondent sued in 1994 in court claiming for ownership of the plot while her mother was still alive in Zambia and without proving that she had a power of attorney to sue on behalf of Onesi d/o Mwanagamba or that the same owner had transferred that plot to her own ownership. Somehow, though the locus standi of the respondent in this suit was not challenged both in the lower court and 1st appeflate court, That didn't automatically give a right to the respondent to sue as the owner of that house. But, • as a daughter of the Onesi d/o 4wanagamba she could ciaLm regarded back the ptopertof her ndther if she it to be her mother's clan property. Any member Qf a clan can sue or defend on clan property, question • For the time being thiáis no longer relevant for the same original owieof the plot in dispute Onesi •d/o Iwanagamba died in Zambia in June 1997 as explaine4 by the respondent while arguing this appeal. So now, being rights the daughter of the late her mother she has inheritari•e judicially -: over the plot in dispute and can properly PnrsueLher beneficiary interests in the plot in dispute, The holding of the District Court was that the appellant' unlawfully sold the house of the late mother of the respàndent. The appellant has never revealed to whom he sold the house and the same buyer has never come up to obje.t to these proceedings. The respondent though aware that the house had been .-" " -' '- 'eone else has never bothered to find out who is the same new buyer and, to join him as a 2nd defendant. So, now, the same buyer of the plot and house in dispute which fact is conceded by both sides to have '1 .../4

p indeed taken place is not a party to this suit. There is therefore a grave non—jointer of a necessary ay to the suit. premises who is the one who, has actually the plot develoPedLbY building a three roomed house using the bricks (about'6dO iricks) and the walls built by the late mother of the respondent (See the factual findings of the balizi Primary Court recorded in the sketch plan drawnwhen the Court visited the scene of dispute, All the property of 9000' •.' the deceased was sold for This was reflected in the record of the trial court when it visited the scene of • dispute and in the trial court 1 s judgement. The record of. the 'appellant in his testimony as DW.1 that he sold the plot indispute'for Shs.900/= . wsa.clerical' error or blatant lie for a plot and with a. half built house and bricks could ot have fetched only shs.00/= sale price unless he did © sell at this price knowing that he was doing so unlawful in order to 'steal the proceeds of sale thereof. Since the : buyer of the house was not joined as a party to this suit he cannot be condemned unheard bybeing declared an unlaw- ful buyer of the suit premises without being given a chance to defend himself. Failure to sue the buyer, was a fatal rights non jointer of a necessary party to the suit. The ProPertYL of the late Onesi d/o I';wanagamba at the time the suit was filed without joining the buyer of the suit premises as a party amounted at the most to the market value of the plot her .,. andLhaif_buiid house. . • • The' decision 1st appellate court was correct to the extend of declaring th. - Onesi d/o I'wanagamba •.. . .15

as the rightful owner of the suitS prernfes. I uphold that finding. But the. same.holding, shôuldhàé gone further to hold that the semé property interest. in the plot in dispute extend to the property value of the plot and half- built house owned by the same late mother of the Respondent. The sale price of Shs.9,000/= may not be reflective of the market value of the house and plot for it was sold unlaw- fully presumably in order to defraud Onesi d/o 1".wanagamba and her rightful heir the respondent. Nevertheless, the respondent Tabia d/o Robert can hardly be entitled to inherit any better market value of the plot and parti.y built house of Onesi d/o Iwanagamba than the sale price of Shs09,000/= realized by the appellant from the buyer who has never been revealed to the court by either the appellant or respondent. The only remedy available to the respondent in order to get a semblance of the market value of the sold property is to inose an interest on it from the time the immovable property was sold until the day of. judgement ofthe 1st appellate court. I hereby impose a moderatecommercial interest of 15% p.a. on the sale price of 9,000/=.from October 1991 when the • S half-built house wasmost likely sold (the appellant mentioned in hi r s testimony the date of 19/9/91 when he intervened to sell it whereas the respondent mention 1991 generally as the year the pagale" was sold)until the 28/2/98 when the 18t appellate court by learned I'r. E.J. Nwakibete (PDP4.I) gave Judgement in favour of the respondent. Thereafter, the samesale price shall bare (Ten) 10% p.c. Court interest until final satisfaction of the judgement debt. o . ./ 6

p -6- It is the appellant who, shall pay compensation of' the sale price of the suit premises to the respondent and the a?ove commercial interest and court interest Except for the variation that the respondent as inheritor and heir to her irother is entitled merely to be paid the sale price of the deceased pagale and plot with interest ins:tead of being given ownership and vacant possession of the suit premises, this appeal is dismissed with costs. q. n 2. ..' E. L. K. MWIPOPO JUDGE 9/7(99 9/7/99 E.L.K.wipopo, Judge Appellant: Absent . Respondent: Absent Judgenient cant be delivered today although it is ready for delivery because both parties are absent. I give bhem last chance. Judgenient on will be 16/7/99. If they still don't appear the Judgement delivered in their absence. Service to issue to them both. JUDGE 9/7/1999 . S • • / 7

S I -7- Date: 16/7/1999 Coram: Hon. E.L.K. I'wipopo, Judge Appellant: Absent Respondent: Present in person B/C e Kosarn in the presence of the respoident and COURT: Judgement deliveredLin the absence of the appellant. District Registrar to inform him accordingly. I'1\TIPOPO JUDGE MBEYA 16Th JULY, 1999 /JJM