Agnes Bakari vs Julius P. Mnong'one (PC CIVIL APPEAL NO. 17 OF 1996) [1998] TZHC 2254 (6 October 1998)

IN THE HIGH COURT OF TANZANIA AT MTIARA. PC CIVIL APPEAL NO. 17 OF 1996 .NACHINGWEA DIS.TRICT COURT CIVIL APPEAL NO, 7 OF 1996 ORIGINAL NACHINGWEA URBAN PRIMARY· COURT CIVIL CASE Nb. 9 OF 1996 AGNES BAKARI,. o o • o o •••• APP&.J..ANT .versus: JULIAS P MNONG'_ONE ••• • .pESPONPENT JUDGMENT ,., This is a se~ appeal ♦ The ase originated from Nachingwea Urban Primary Court wher the appllant AGNES BAKARI who was the plaintiff sued t,he responde4l1ULIUS MNONG•ONE for declaration of 0-lllershiD and repossession of a b.oiUoe si:tu.9J:.ia.d. [ill. .an. ,ium.UJDbered Plot at lllamatul.a . . ' ' . ' ,' lfillage lfachingwea District• : : · · ,. In that case the appellant was the successful party. The respondent was aggrieved; His appeal to the District .C:O-drt was partly al1 l'he appellant was rie. n&rli th:is .appeal. ' ' I The parties are. very· ¢1. .telated• The appellant is· the sist·er . . .. - . of the respondent born by the same parents Both of them are reiatively old.: At the hearing-£ this _the a;>,pe.1J.ant was 65 ye old and the respondent 70 years old, The house in dispute has a lng history behind ito It is in the record that many years ago the appellant was employed by the.Ministry of Education as a teacher and the respondent by the Ministry of Health ElS a patient attendant (~esi), The appellant was stationed within Hasasi District Mtwara Region and the respondent within Nach:ngwea District Lindi Regiono At Masasi the appellant had a house in which their parents were living. As the appellant was being transferred to different Primary Schools, it was felt that their parents were lacking close careo It was • then agreed that they should move to Nachingwea where the respondent was. The appellant purchased a grass-thatched h;use from one Mwadac:c1i for them. She purchased that house at 4oo/-. Their parents moved there and

2 settled. Later it came to light that their ailing mother would not be in a position of !'.e-thatching that house from·year to year. It was then greed ' thdt the corrugated iron sheets and oth,er building materials from the appllant 9 s abandoned house at Masasi should be transported to Nachingwea for thatchin-that Naching,,tea ho-use~ This was done ad the once gra.st..thatched house became corrugted iron sheet thatched. The old parents settled comfortably. But later it was discO\tered that whenever they needed the respondent 1 s help at night they were facing.many problems du~ to a long distance from their house to his house, It was therefore agreed that ·they should move ' . . close tb the respondent. The Tespondent offered a portion from his plot where a new house was built• .It is this- house which is in dispute. According to the appellt• · tat hous~.,. 'las constructed using the very same buiJ.ding mat.arials h -were ~ from her. Masasi l:o to the Nachin.gwea house. .,· But according to the respondent he said he built that house from a loan of shs. 15*000/- he obta3..i:ied from the th.en an.zania. Housing Bank whereby the appellant was his j...dbaroini. 51 :.!iY)• I will oom to this later in xtenso. · .. •·,1, ... , .. \ When that new hol.ise was r.eadSt .teir parents moved in. Later their ailing mother paralysed on one -side of her body. It was then agreed that the appellant shoul · seek for transfer from Hasasi - Nachingwea to take car.e of her ~opri.atel.y· th.an the respo.ndent·:·.\IUlo ~as a man who could not manage some of the female affairs. · The appellant· moved there and lived with them. She lived in a small hut in the fence yard while they lived in the main (disputed) house. In 1986 their mother died. Their father died in 1987. The appellant continued living there till around 1992 when she left for Masasi where she had another house. She let the house in dispute to Mama Mbinga (Emile) who was the Mratibu Elimu Kata of that area at a monthly rent of around 5000/_.;.. Later the respondent served her with a notice to quit alleging the house was his and that he was getting nothing from the rent which was being paid to the appellant. It was this notice to quit which sparked the matter. The 8ppellant resisted that notice on her tencJ.Ilt alleging that that house was hers and ••• /3. ••

I that the respondent had no powers to evict her tenant. The respondent ·insisted on the notice saying _tpat that ,house was his which he built from his T.H.Bo loan. When efforts to reconcile them failed the appellant.took the matter to the trial Court praying for declaration that she was the ovme~ of that ho1:1se •. The respondent resisted the claim. However at the end of the trial the trial Court declared the appellant to be the owner. It was satisfied · that that house was built from the building materials of the appellant which were-removed from her Masasi house. The rspondent was agg:riv¢• He appealed before l)lachingwea Di!:$i;rict Court which1held, and I quote:- 'iT4at house belongs to the loan holder. But because there is eidence that the t-es½xmdent has her share there, I find she cdntributed in kind and money. Therefore both have a share ' • \ JI ' \ in the housel I pu.tp decide that the ho~se be valued by the I . . . . • government Valuer. Theh the respondent pay the appellant half of the value of the house. At the same time tb.ey share the loan and interest a.cctued. 1 i It was against this deli:i.S1on that the appellant lodged this appeal .• . Before this Court each claimed that house to be his or hers just as ·they did before the lower courts. : In short that is the gist of the matter. Before going into the merits and demerits of this case I would just like to point out one important fact which the trial Primary Court failed to observe. The plaint did not disclose the value of the house in dispute. The value, would have helped the trial ·court on two things. Firstly to determine the proper fee. Secondly to determine whether it had pectmiary jurisdiction as the matter does not appear to fall under customery law. However according to the nature of the house itself as described in the·record, I am satisfied that its value did not exceed the pecuniary jurisdiction of the trial -court. Coming to the merits and demerits of this case, there is ample evidence that the house in dispute was.built through the joint efforts of both the appellant and the respondent. The respondent admitted in his evidence that he used the proceeds from the building materials of the appellant to erect the framework (boma). He admittea this in his evidence at the trial by using the following words:- ••• /4 •.•••

11 Mwaka 1-979 mkopo ulikUbaliwa na fedha zikaja hikajenga nyumba. Nami nilijenga boma la nyurnba hiyo kwa malipo ya bati kutoka Masasi.••• .·Kenchi ya nyumba hiyo nilipasulisha kutoka miti ya mninga mitatu kutoka-shambani mwungu. 11 But with the little evidence available, it is not easy to know how much ec3.ch of them contributed towards the construction of that house. The only .equitable solution is to assume, the first appellate court did, that each of them contributed half of the costs/value of that house. It must be remembered that these parties are brother and sister and at that time they were in good terms, Therefore they mght have done many things upon trust· and brotherly love which cannot be proved in court-. The appellant said she.did almost all her construction activities at Nachingwea through the respondent as a 1 lMsimamiziil (Supervisor), and that whatever mo.ey she paid she did so through the respondent whom she said she trusted as her brother. The truth or .falsity of all this is within their hearts, After holding that each of them contributed in money and/or in kind half of the costs/value· of that house, the crucial·issue is as to how they will share it. Under normal circumtclllces the answer would be simple, that is, each of them,to take half of its value. But in this case the matter is a bit complicated. There is a third 11 silent clainiant,n that is, the Liquidator . 9 of the then Tanzania Housing Bank. This man can only be phased out by payment f the outstanding loruJ/debt, Otherwise that house wj]:l suffer from encumbrance. The first appellate court found a way out• It ordered the parties to pay the debt (including interest) equally. Again, in my view, ths is a rational and equitable solution to this prolemo It is upon the above reasons that I do hereby·hold; find and direct as follows:.- 1, Each party has an equal share in the house in disputeo 2s· Each party has an equal liability on• the debt created by the loan from the then ToH.B. However this·is only for the purpose of this case. If later on the Liquidator who is not a party in this case will decide to sue the borrower (respondent) or the surety/mdhamini (appellant), the matter will be dealt with accordingly. 3. The disputed house to be evaluated by a Government Valuer to determine its value so that each party may know his or her share • ••• /5 ••.•• '

4. Valuation-costs to be borne by both parties-equally• 5, After the vaiue has been detrmined, ·each party will be free to buy off the other so that h can remain the sole owner of that house. But in exercizing that option the respondent will be given first p preference/priority because the ·said house is_on his plot, and in the yes ' ;, , .. of the Liquidator he is the holder of the loan and that house is in· their books for a possible atachment and stle~ their cwn costs. ,,11· --,.· s. Na K.AJI JUDGE 2.10.98. Judgment delivered this 6th day of October, 1998 inth3 presence of the appellant and in tha nce...t: Respondent. B/C: G., Nanyanga is present. --/. . 1/ !·\ ; ·-:--- \ ; ' . ' ' \ A. 'A ,NCHIMBI ; ·c, .. DISTRicf REGISTRAR 6.10.9.8.