Anchila P. Rukwerere vs Stephano P. Rukwerere (PC Civil Appeal No. 119 of 1984) [1985] TZHC 472 (5 December 1985)

ki IN THE HIGH C CURT OF TANZANIA AT MWLINZA (P)viL .PEL NO4, 119 OF 1984 (From the decision of the Disrict Court of Muleha At Muleba in Civl Appeal No, 76 if L83 - Original Iiuhutv'e P/Court Civil Case I\o.5/83) NC1ftLL P RUKRLE ,.. APPELLANT \rersus ,. SPHJNOP.RflWEI'RE MWALUSANI The respondent Stepiiano P. Rukwerere lost in the suit he had filed against his sister now appellant AnQhila P. Ru véree at Muhutwe Primr Court whereof he al1egd that the said sister df4.his had trespassed nto his house and shanba. He also claimed shs.l6,500/=.as compensation for.the crops he had reaped while in the illegal occupation of the shamba. The trl. court held that tha earlier distribution of the d e c ea sedts estate 'of thiir father wa null an-7 . void because some male children of the deceased like the principle hei' Paskali P, Rukwerere were not present when the distribution was made by the clan council in 1973 And so respondent was held to have no title to the house and shamba in dispute until such time a proper distribution is made. . When respondent appealled to thO. " Di ~ , trict Court he was successful. The District Court held that the deceased estate was pro'ê'r1ydThtruted by the clan council in January 1$3 in the presence of all heirs including the principal heir Paskali P., ...ukwerere. The District Court further held that since n6 one has challenged the alleged distribution in any court of law then the house and sham'ua which were given to respondent Stepheno P. Rukwerere in that distribution, should not be disturbed and her sister be regarded 5i3 a tresp&sser. The lady Anchila P. Rukwerere has now app ealled to this court.... She ubmitted that the trial court correctly decided the case as there had been no proper distribution of the deceased's estate. ta my part I associate myself with the finding of the District Court. if there had been no proper distribution of the estate, appellant would not have kept quict from 1973 to 1983 when she allegedly committed the trespass. If appellant was not satisfied with the distribution she should have challenged it in a court of law instead of trespassing into the land allocated to one of the heirs by the clan council. In any case in my view even if Paskalj s/o P, Rukwerereas not present during the distribution, that does iot perse nullify the distributionz The important point is that the distribution should be according to law A it would apear Paskali

2 Rukwrere and other heirs for that mttor found the distribution in accordance with the law and that is why they did not challenge it in a court of law. Therefore the brevu menu action of the appellant was illegal and patently unjustified. She is at liberty to challenge the I distribution in àoour± of law if she is not yet timebarre". As for. th.Vm'ensdtion of Shs. 16,500/= for crops r.eapedVby the • appe11ant' T think the mattr vs not adjudicated at all by the trial court. Perhaps because the ourt was engulfed or swallowed up in the main issue. And sc' I direct 'that the matter be properly adjudicated V by the Primary Court if the respondent'i stil1 interested to pursue it. V In the event therefore the appeal is dismissed with costs. The V V V appellant is ordered to vacate the house and shambe. .indispute' S V immediately. V MWVNZA. . J L0 WàLUSJYJi . ' V VS . P' 'V Court A •er1ified .py of the judnen± be read over to the parties by the District Court. 'Mr1JiNZA I J L. MWALUSANYA V JUDG.E V . 5 .' V•VV V 5 •' ' V S •: V' - .,... VS 5 , V .S , • '' ' V V' V , V

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