Maimuna Abdallah vs Jumanne Masele (PC Civil App No 7 of 1997) [1998] TZHC 2422 (27 November 1998)

MWIPOPp, J4 IN THE HIGH COURT OF TANZANIA Kf MBEYA (PCC OI10(L APPd 7 OF' 1997 J-::", . '•-t(• (From D/C Mbeya Civ(' App:, No 1/!u) f. • ./fi':. ·"1 ~ MAIMUNA ABDALLA.Hoo o • ·• ., c • o ~ ,. e • • ., o e • • • • • .PLAINTIFF VERSUS JUMANNE MAS.ELE~ ... •. • o . o. ~ ~ .. o." .. o •.,.·•.DEFENDANT JUDGEMENT . . . . ' . . : The a'.E)pellant Maimuna of-, Abdallah 1 had a son 01!.e Huruma.s/o Kosamu who died in February 1996 while in prison on 11/2/1996~ Before he died he sold a house on ,i6M+ 9ta h·e respondent Jurnanne Masaie,, The same house is claimed by the appellant 'ta hav.e bee11;built. by the·allant an'.ct'o.;td illegally by her son Hu to the responde?t• The·. appellant is represented y the learned Mr. Mbis e (Advocate)• whereas ithe respondent is represerite'd· b/ tl}e }earned Mr. Mushokorwa (Advoc/3.te)~ The evidence of DW2 Edward' H-wasandulle the. ten cell leader and DW3 . -- ;;. .. ,.. ... . Paul Songo that the deceed Hururna the vendor :of thfhouae bought the plot from one Ndaga was mere heare-aji' fot the same Ndaga if xistent did not testify to that . . effect and the <leceased h:i.m!€lf Hururna died befor telling anybody so and he did not indicate so in his ·::sale· greement. . • - .. .- : • ~ • < ' The sam·e defenle witpe&?S TJJ2. andDW3 ~tilied tt halie seen the late Huruma .. ,, •·· when he built the house in dispute,: At the -~~e tie-PW1 testified to the contrary to have built it many -:fears _q.go. She was stpported by:·:-M Laiti s/o Mwanjisi and ~ .. ~ • • -t" : • .. 1;1 Fvl3 AmbakisyiKyenge 'to·have 1:>een the 6~~tof' that. h~ f~ many years after she got help from iliidU~t;r ~on hers iri. hu'ilding ·that house. ' .. ,i·,i.,: #'. ~- ,- .· .J>, .... ,., . • ::- As to who was telling the·•-truth bet wee• N1 "'and IW2 arid DW3 about the person • who built the house being the mother Maimuna or the on Huruma it appears that it was the mother who was me credible bea.aus.G soo ~rtw by independent witnesses who testified M'N2 who was k!·;ietevant ten cell leader at the during of building the 1iouse;,where as W2 and bW3_ became ten cell leaders only in 1993 after the house had alr'=:ady been built long time ago. Moreover DW2 and DW3 are interested party all out to vindicate th_eir action of witnessing the sale agreent of the hol.ljie p,etween the deceased Huruma ~tl the _respondent., The third sale

agreement witness Jail.as Hayaweza ( in :the sale agre.ement) did not sign it and he di1 not testify in cort., a, f1: Furthermore, <JW2· gpv. .different stories to Nt to whom he agreed to have , ,witnessed the sale i-f the hous.:, .because the deceased told him that his.,.=mother had bought it for him ( the deceed) that was why :Lt - his house which be could sell, where as in tburt J:l.e testified d;tfferitiy that the deceased--built it himself ·. ·. . ..,'I;" ... -· -· . after r,urportadly buying it from Nflo..· .• '.L'o H/2 the sarne·t};J2 aJp.- .,,,,~ · (

• 2 - in dealing with the problem of th9 sale of this house (anapiga chenga). There is one ·ntv4 "1!:;2.,iel ·EJ!±c.1 who ·is the one who had employed the deceased for three years from 1988 - · 1990 who knew the deceased as a person who had no house and who was a .t\tand he did not kno:w that t}J.e :deceased had ever built ! • , :'',.! L' ·f • •·. • - • • •• •• o • l : • ' • .,,, a house. This being; a' w'itnee,s for the respondent as a defendant then his eviden-•e is contrary and contradict the stories of DW2 and DW2 about the deceased Huruma having ever built a house· of his ovm. · Testimony of P,/1 as appellant is quite ·more verdible then the respondents . ' witnesses that she built that house and later on allowed her son Hurtima.·-to ··1ive there while she was living in andther ·house o·has•::;,in Chimala where she used to-;cultiva.t:J. Her wtft.he N2 and FvJ3 give ~ c-tible account of the life of the deceased un;i.1 ¥hrn'ehe·got imprisoried Fi•.as5aultinghis'·wife and died in prison. .·. The decision of the. Jt appBllate court that the._ of the appellant in o - • • ! ,1_4 ·- .... •· .• • • · - ' Usangu for 5 yea:ra was a long tim(3 far her o · to ha1Te. eecided:, to sell the house was against the bond for th:r:;9· shold have been an,elapse of ·12 years before • • ''l,i,,' such on inference eould be drawn .arid the appelt used to come often to visit

• . her son who lived in. the'. eame house. so. he _kept her control of the house' some . . , . · .:... . , ,. ' , ".. . . . . ,. ·. how by her visits. , The fin::;t appellate court al.so· orr-e_d to hold that he appellant never cilallenged the sale ol the hu,ee. She did by filling this suit. l • Before that she chenged the--.respondent '11.d the ten cell leader why the/ ·negotiated the sale with her son instead .Qf hiraelf the owner of the house. The buyer of the h0ill!!0 himself lernti to.·h,ie- :ten ·aware of the t":71rn' .. ' ., .:. . ,.. . .. . . • .·. . ·. . - . . '1 ownership of hoU&e as belonging to the ~ppellant for he is also a neighbour • ·:·: ~- l:,i, • -,., living just in the .5th hoUAe fram the appellant .. There appears to have been . . a conspiracy to·buy tlfe h_e behind the back <il'. the appellantc The owner of the house was estab,:lished to· he that of the' appellant. The late Huruma· Kosamu therefore had no o,wnersnip .,r title right·~ &ell to the respondent over a house . ~ . , which was not his. r . The holding of the .learned Mr,. Rornany:i.ka Cm) that the appellant; should . .. redeem the house for sh•hX,,== presuppo,,-ild that the appellant had the original ownership rights over the house. If she had n~ proi..e4:.ary rights over the house she cannot have any right to redeem it later Ol'.J.• The judgement of the triai court was proper for each gentlemen assessors Nkosole and Musa unarnously. e_igned against his v"erdict a11•t:ihe' ownership of the house having properly belonged to the. appellant, the gistrate too learned ~ , . Mrs. Mtikita (PPC:M) signed-her own verdict The 4i.ecision. of the PCT. was quite ~ . ~ proper. In is reins;l;qted. The decision of':..the D.CS. on '.1st a1:ipeal was erronous, it is quashed. The hoe belongs to the appelt Ma:i..muna s/C: 0 Ab~;aJ.lah. The .. . . .. _ _ • . : · .. ~ . • .. ... . ':r · · · · --·-: .. ,;-·,-: decased Huruma s/q,K,os.¥lu.~:.P.<?- rights of o-wnership of -the house to sell to the respondent,. The sle was null anViai.d.. The purprice of shs.85,000/= shall .;.

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• 3 - be refunded by the appellant to the respondent for she was her own son who wrongly sold it and used the money for benefit. She shall refund the 85,000/= • purchase price within 90 days from today to 28/2/1999 in default of which the deemed respondent is allowed to be given first prio:rity to buy the house from the appellant at the previously appellants offered price of shs.200,000/= be paid within 90 days inclusive the shs.85,000/= he will be entitled to set off from the same shs.200,000/= so that he pays only shs,, 115,000/= within the said 90 days from 28/2/1999 up to 29/4/1999 in default of which the appellant shall take custody of and take permanently her ownership of the house and the respondent shall execuse his entitlement of the shs.S5,000/= refund through the normal execution of this courts decree. This o.pp~ is allowed with costs. EoL.K. MWIP0PO JUDGE 27/11/1998 Date:_ 27/11/'8 Coram:: ,]_:or ~ppellant:. Mr-,. Mbise Advocate present Maimuna Abdallah absent - in p 7 rson Respondent: Absent •. Jumanne Masele absent in person! Also holding the brief for the learned Mr. Mushokorwa advocate • for the respondent-. Court:., Judgement deliuered. Learned M:r,.'. Mbise to inform learned Mr .. Mushokorwa ac cordingl;y e;i 1- ,r . r /. (: . ;· Certified ~L .. K., MWIP0P0 JUDGE 27/11/1998 the original Judgement ..