OMARY MOHAMED v AWADH ABDALLAH 1992 TLR 35 (HC)

 OMARY MOHAMED v AWADH ABDALLAH 1992 TLR 35 (HC)

Court High Court of Tanzania - Tanga

Judge Kyando J

28 February 1992

Flynote

Land law - Co-ownership - Division of the house in terms of its value and option to B

purchase the other's share.

-Headnote

The plaintiff and the defendant, who are cousins, jointly owned on equal share, a plot

and a house located in Ngamiani area in Tanga municipality. They both lived in the

said house with their relatives. After some time a sharp disagreement arose between

them C and the plaintiff sought for and got alternative accommodation. The plaintiff

brought this action requesting the court to either sell the house and have the proceeds

divided equally between them or any of the parties should purchase the share of the

other. D

Held: (i) In the circumstances of the case the defendant was not responsible for the

conflict which arose in relation to the occupation and use of the house;

(ii) the fairest method, for which the parties also agreed, was the division of

the E house in terms of its value and to give the parties an option of purchasing the

other's share.

Case Information

Order accordingly.

[zJDz]Judgment

Kyando, J:. The plaintiff and the defendant in this case are cousins. Their mothers F

are full sisters. They jointly bought Plot No. 8, Bloc 46, Barabara ya 8, Ngamiani,

Tanga Municipality and constructed, jointly, a house on it. There had been an old

house on the plot, which had belonged to their mothers. They demolished the old

house and G constructed their present house in its place. Construction commenced

in 1974 and was completed in 1979. It is apparent that in the house which was

demolished their respective parents and other relatives, such as their mothers' sisters

and an uncle lived in, together with the parties hereto. On completion of construction

of the new house H the plaintiff and the defendant divided between themselves

rooms in the house and they each had equal portions in the house. They continued to

share their respective portions with their relatives, e.g. on the part of the defendant,

with both his parents, and on the part of the plaintiff, with his mother, his mother's

sisters and an uncle of the parties. I

1992 TLR p36

KYANDO J

They (the parties) are now involved in a wrangle over the house. The plaintiff in his

A plaint prays that it be sold, at a public auction, and the proceeds be divided equally

between them, or, alternatively, any of the parties purchase the share of the other by

paying him shs. 750,000/= and any one party whose share is purchased should vacate

B the house "the soonest."

The plaintiff alleges that what brought about the conflict over the house was the

defendant's breach of their agreement whereby the (the defendant) let into the house

"his relatives other than his families, to wit he let in one (1) Addarahman Abdala with

his C wife and 2 children (2) Ramadhani Abdalla with his wife and 2 children." (See

para 7 of the plaint). In paras 8 - 14 of the Plaint, the plaintiff states that:

8. That because of this influx of this large number of people and whose

character and D behaviour was quite unbearable, the plaintiff found the said so he

protested against this move by the defendant but the latter took no positive step to

rectify the situation.

E 9. That finding that he could not reside at the house with his family, the

plaintiff decided to and rented his part of the house.

10. That the plaintiff's tenants who were sociable people could not stay in

the house for F long due to molestation and annoyance by the defendant and his

relatives.

11. That since the end of 1983 to date the plaintiff has not been able to use

his part of the house and so the same has remained idle. G

12. That the plaintiff has made proposals to the defendant that because the

purpose of acquiring the house and rebuilding it has been defeated, the same should

be sold by H public auction or one party purchase the other's share in the said house,

the defendant has been unreasonably resisting any of these alternatives.

13. That the current market value of the house according to offers made by

prospective I buyers is shs. 1,500,000/=.

1992 TLR p37

KYANDO J

14. That the plaintiff is willing and ready to buy the defendant's share in

the house by A paying him shs. 750,000/=.

In his defence the defendant stated that it is not true that he let into the house people

other than members of his family. He said the people concerned are his full brothers

B Abrahaman Abdalla and Ramadhani Abdallah.

In paper 5,7,8, 9 and 10, of his written Statement of defence the defendant states:

5. The defendant denies para 8 of the plaint for the reasons that there

were not large C numbers of people as stated by the plaintiff more than my young

brothers as mentioned in para 4 of this written statement of Defence.

7. Paragraph 10 of the plaint is completely denied, there were not any

molestation and D annoyance to his tenants. Further more he reached (sic) this

matter to the police and hence to court complaining that I threatened his tenants

Criminal Case No. 508/86 in the District Court Tanga refers. Those tenants called to

court to give their evidence E about the complaint of the plaintiff, but they told the

court that there were no any trouble or molestation or annoyance made by the

defendant to them.

8. Paragraph 11 is also denied as nobody prevented him to use his part, he

is living in F his house at Street No. 7 that is why he locked his rooms.

9. The defendant denies para 12 of the plaint, first of all I lived in that

house since 1970 until now, and I have no other house to live in. I agree to purchase

the share to the G plaintiff, but not by (sic!) black market as this matter has reached

to the Resident Magistrate - in - charge, Tanga and he wrote a letter with Ref. SRM

CONF/CIV/3/12 of 27/3/1987 to the Regional Valuation Officer to visit the house and

make his value H (sic!) but to date no reply effected.

10. Paragraph 13 of the Plaint completely denied, the said house cannot

reach (sic!) even half the amount as stated I

1992 TLR p38

A by the plaintiff, and that is why I emphasise to be valued by value (sic)

Officers.

The Written Statement of Defence is drawn by a lay hand. This is apparent from a

mere glance of it. Nonetheless, while the defendant agrees with the proposal to have

the B house divided into shares in terms of value and that one of them, the parties,

should purchase the other's share and keep the house, he disagrees with the idea of

the house being auctioned. He prefers that it be valued by a Government Valuer and

then half of the value be paid to one who will not keep the house by the one who will

keep it. He C suggests that he should be the one to buy out the plaintiff as he, he

said, has no other house to live in while the plaintiff has the one he moved to when

he shifted from the house in dispute in this case. The defendant also denies that he is

the one who is responsible for the dispute which arose between the parties in relation

to the house. D

The following issues were agreed on by the parties:

(1) Should the house be sold by public auction or one party should pay the

other part of the amount shown in the Valuation Report? E

(2) What reliefs are the parties entitled to?

On the first issue, the plaintiff proposes sale of the house because, as shown, he F

considers that the defendant is the one to blame for the dispute which has arisen in

relation to the house. However, during the hearing the defendant contended that the

plaintiff is an over sensitive and arrogant person; he took offence at very trivial

matters which his (defendant's) relatives did. He said the plaintiff would even brag

that he was G light complexioned while the defendant and his relatives were dark

skinned (both the parties are Arabs). He bragged too, according to the defendant,

about his having money while the defendant and his kins did not have any.

In my opinion on the first issue when the house was constructed it cannot be said that

H it was meant for occupation exclusively by the parties and their families only -

families in the European or white man's sense of the word. I think it was intended for

occupation by the parties and their relatives as it now is. This is event from the fact

that each of the parties had his relatives in the house right from the time it was ready

for occupation. In I fact even before then, in the old house, the parties lived with

relatives. The

1992 TLR p39

KYANDO J

defendant lived with both his parents in the house. It would not therefore be any A

wonder if his brothers, Abdarahaman Abdallah and Ramadhani Abdallah came to the

house and joined their parents and brother, the defendant, even with their children

and wives, there. I am of the view then that the coming to the house of the

defendant'a brother was not in itself a breach of any agreement in relation to the

occupation of the B house by the parties. I am of the view, too, that the coming to

the house by the defendant's brother is not a matter for which the defendant is to be

blamed in relation to the conflict which arose. The conflict arose due to poor relations

between the plaintiff and those brothers and I think it may be true that it was because

of the plaintiff's C oversensitivity, hatred and arrogance as stated by the defendant in

his evidence. I will not therefore hold the defendant in any way to blame for the

conflict which has now arisen in relation to the occupation of the house.

The above being the position, I think it is then for this court to adopt the fairest D

method of dealing with the house as between the parties. Selling it at a public auction

would certainly render the defendant homeless, for no fault, as held, of his. The

plaintiff on the other hand has another house and does not live in the suit house. I am

of the view then that selling the house by auctioning it will result in grave injustice to

the defendant. E

There is a method which both the parties agree to. The plaintiff, of course, seems to

have developed second thoughts about it and now insists on sale by public auction.

The method is the division of the house in terms of its value, and then giving the

parties an F option of purchasing the other's share and the one whose share has been

purchased to move out of the house. The plaintiff says that if this is the option

adopted, he should be the one to be given the opportunity to buy.

I think this method is fair. As I have said the plaintiff pleads it in his plaint as an G

alternative relief. He is bound by his pleading and he cannot now wriggle out of them

as he now attempts to do. Also I do not see why he should be the one to be given the

first option to buy. As I have sid the defendant is not to blame for the conflict which

has arisen in relation to the house. Also he is the one now in occupation of the house.

I H think it would be fair therefore to let him see if he can purchase plaintiff's share

first and if he fails then the plaintiff should be given the chance to purchase

defendant's share. In the result then, the house is to be divided in two shares in terms

of value. Then the defendant is to be given the first chance to purchase the plaintiff's

share. If he fails to I do so within three months

1992 TLR p40

from the date of the delivery of this judgment, then the plaintiff is to purchase A

defendant's share. The house was valued by a Government Valuer at Shs. 2,077,440/=

on 26th June, 1991 (see his Valuation Report No. VAR/C/TAN/I/VOL.XI of 25th June,

1991) and that is to be taken as the present value of the house. The parties, or B

anyone of them, may reapply to the court for revaluation of the house by the

Government Valuer before any purchase of the shares is done. The new value will

then be the basis for dividing the house into the shares I have ordered here.

I have made the above order because I am satisfied on the evidence that the parties C

cannot possibly continue to co-own the house. They are in serious conflict over it

now, and it is best that one of them ceases to be associated with it altogether. This

will disengage them from further contacts over the house, which contacts have been

the reason for the present conflict between them.

In the decision which I have made, I do not think either party can be said to have

won D as against the other. I therefore will not make any order as to costs.

E Order accordingly.

1992 TLR p40

F