REGINA A. KATUKWA v ZUBAIL KATUMWA 1988 TLR 85 (HC)

 

REGINA A. KATUKWA v ZUBAIL KATUMWA 1988 TLR 85 (HC)

Court High Court of Tanzania - Bukoba

Judge Munyera J

23rd June, 1988 H

Flynote

Land Law - Inheritance - Land bought by wife - House built on it by wife - After

death of I husband brothers of the deceased seeking to inherit the land - Whether

proper.

1988 TLR p86

MUNYERA J

-Headnote

The appellant was the wife of respondent's deceased brother. It was in evidence that

the A appellant bought the piece of land in dispute and built a house on it. After the

death of her husband the respondent sought to disrupt her long occupation of the

shamba arguing that the shamba belonged to his brother. B

Held: (i) On the evidence, the shamba belonged to the appellant.

Case Information

Appeal allowed.

No case referred to. C

Rweyemamu for the appellant

[zJDz]Judgment

Munyera, J.: The respondent was the plaintiff in Rubale Primary Court. He sued the

D appellant for vacant possession of a shamba and a house in it then occupied by her.

It is agreed the appellant is a widow of one Andrea Katumwa who passed away on

16/5/85. The respondent is the deceased's brother. The appellant and the deceased

were married many years ago and lived together in the suit land till his death, he was

intered in this E same shamba. After his death his widow the appellant continued to

live in there. In 1986 the respondent filed this suit. His plaint averred:

Mnamo 1971 marehemu Kaka Andrea Katumwa alinunua shamba la shauri,

1976 akajenga F mle nyumba ya matofali, mwaka 1978 aliolea mle, 16/5/85 alikufa

akazikwa mle, baada ya matanga mjane wake Regina ambaye hakuzaa na marehemu

amejimilikisha shamba na nyumba, naomba mahakama imtoe G

To begin with it is not true that the appellant "amejimilikisha baada ya matanga." She

has been living in there with her deceased husband, she did not enter the shamba

after the death. It was the respondent who sought to disrupt her long occupation of

the H shamba. In her defence the appellant argued the shamba did not belong to her

deceased husband, she bought it with her own money and built the house also

through her sweat. For that reason the property was not the subject of inheritance by

the deceased's clan. So the issue before the court was whether the suit shamba

belongs to I the deceased or to the appellant. The respondent stated the deceased had

bought the shamba from one Ahmad Omari Katundu for Shs. 7000/=. He

1988 TLR p87

MUNYERA J

called three witnesses who supported his case. It should be noted that he did not call

the A vendor Omari (DW5). In her evidence the appellant stated she bought the

shamba from Omari for Shs. 8550/=. By then the deceased and herself were living

elsewhere. With the help of her relative she built a house in the shamba. In 1971 she

entered into occupation but her husband remained in another shamba at Izimbya and

used to visit her B occasionally. On his death the clan decided not to bury him in

Izimbya but brought him in the suit shamba. She called the vendor Ahmad but he

turned hostile. In cross-examination he replied he in fact gave the key of the house to

the appellant and not C to the deceased and it was the appellant who occupied the

shamba and the house. The trial court by majority vote (one assessor dissenting)

found the shamba belonged to the appellant and dismissed the respondent's claim. He

appealed to the District Court which reversed the decidion of the trial court and gave

judgment for the respondent. The appellant appealed to this court and Mr.

Rweyemamu argued the appeal for her. D

The question before the court was the ownership of the suit property as between the

deceased and his widow. The key witness was Ahmad Omari from whom the

property was bought. Some months before this suit was filed, probably the appellant

guessed E something sinister would befall her, she went to Ahmad and told him she

had lost the sale document concerning the shamba; she wanted something to protect

her. Ahmad agreed to accompany her to Bukoba town and there he swore an affidavit

before an advocate F (Rutakelezibwa) to the effect that on 15/5/71 he sold the

shamba to the appellant for Shs. 8550/=. She produced the affidavit in the trial court

as Exh. B. Ahmad repudiated the affidavit as false. The trial court was not duped, it

held the affidavit a genuine document if it were not, then Ahmad should have

produced his own genuine document on which the sale to the deceased was recorded.

I am inclined to agree with the trial G court. The fact that the respondent did not

call Ahmed to give evidence on his side suggests that he feared the witness would

speak the truth as to whom he sold the shamba. It did not matter that Ahmad turned

hostile to the appellant, his affidavit and his admission in court that he handed the

shamba to the appellant not to the deceased H supported the appellant's case. For

that reason I disagree with the decision of the District Court.

I allow the appeal, set aside the decision of the District Court and restore that of the

trial court in its entirety. I

Appeal allowed.

1988 TLR p88

A