Omary Mohamed vs Awadh Abdallah [1992] TZHC 6 (28 February 1992)


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

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/=.

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

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

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

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.


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