Court name
Court of Appeal of Tanzania

Saumu Mohamed Kassim vs Mohamed Haji Dau () [1992] TZCA 50 (04 December 1992);

Law report citations
1992 TLR 368 (TZCA)
Media neutral citation
[1992] TZCA 50

Nyalali, C.J., Kisanga and Ramadhani, JJ.A.: Saumu Mohamed Kassim, hereinafter called, the appellant, instituted a suit in the High Court of Zanzibar at Vuga against G Mohamed Haji Dau, hereinafter called the respondent, for a declaration that house No. T situated at Kidongochekundu in Mjini District within the region of Mjini Magharibi, Zanzibar, is jointly owned by both the Appellant and Respondent, and for an order that, that house be sold by public auction and the proceeds thereof be divided between the H parties according to their respective entitlement; or in the alternative, for an order that the Respondent pay the appellant the sum of shillings 500,000/= being half the value of the house in question. The High Court, Dahoma, J. dismissed the suit in its entirety and ordered each party to bear his or her costs. The Appellant was aggrieved by I

NYALALI CJ, KISANGA JJA, RAMADHANI JJA
that decision, hence this appeal to this Court. At the hearing of this appeal before us, A each party appeared and argued the case in person.
From the proceedings both in this Court and the court below, it is apparent that much of the primary facts in this case are not in dispute between the parties. It is common ground that the Appellant and the Respondent were married as husband and wife early in the B 1970s, and their marriage was blessed with two children that is, Mohamoud Mohamed Haji Dau (a son) and Asha Mohamed Haji Dau (a daughter). During the subsistence of their marriage, they jointly built the house now in dispute at Kidongochekundu, and agreed to own and enjoy it jointly, and they also agreed on other terms concerning its C use and disposition while they continued to be married or to be alive and also in the case of death of either or both. It is also common ground that subsequently the marriage between the parties come to an end, and that currently, the Respondent is living in the house at Kidongochekundu together with one child of the marriage, while the Appellant D is living in another house at Kikwajuni, Zanzibar. It is common ground that the Appellant got this other house at Kikwajuni from the Respondent during the subsistence of their marriage.
With regard to matters that are in dispute between the parties, it is the appellant's case E that ever since the termination of the marriage of the parties, the Respondent has denied the appellant of her right to enjoy or benefit from the house at Kidongochekundu contrary to the terms of their contract, and that under those circumstances she is discharged from the contract concerning the house, and consequently she is entitled to have her share in F the house paid to her in monetary terms.
The Respondent on the other hand contends that the Appellant is no longer entitled to claim a share in the house at Kidongochekundu for two reasons. First, it is the G Respondent's contention that the house in which the Appellant currently lives at Kikwajuni was given to her by the Respondent as compensation for her share in the house at Kidongochekundu. This is of course denied by the Appellant who contends to have got that house by buying it from the Respondent. Secondly the Respondent H contends apparently in the alternative, that the Appellant is fully compensated for her share in the Kidongochekundu house through the use of that house enjoyed by her children living there with the Respondent.
The first issue for consideration and decision in this case is whether the Appellant was given the house at Kikwajuni by the Respondent as compensation for her share in I Kidongochekundu

NYALALI CJ, KISANGA JJA, RAMADHANI JJA
house or whether she bought it from the Respondent. The Appellant produced a A registered Sale Deed at the trial, and she showed it to us on appeal. The Respondent confirmed this by showing us his own photostat copy of the same Sale Deed made on the 20th March, 1984. The Deed clearly states to the effect that the Respondent had agreed to sell the house situated at Kikwajuni to the Appellant for a sum of shillings fourteen B thousand only. How can anyone in his or her right mind, let alone this Court, construe the Sale Deed to be anything else. We are satisfied that the house at Kikwajuni has been sold by the Respondent to the Appellant and that it is a blatant lie to assert otherwise. C
The second issue for consideration and decision in this case is whether the Appellant is sufficiently compensated for her share in the Kidongochekundu house through the use and enjoyment of that house by the children of her marriage to the Respondent. We do not think that this contention is tenable. This is because the Appellant's share in that house D is distinct and separate from the children's right to use and enjoy the house in question. This is so because the childrens' right arises from their father's (that is, the respondent's) obligation to provide accommodation for them, whereas the appellant's right in that house arises from the joint ownership of the house in accordance with the contract made E between the parties when they jointly built that house. We thus find that the Appellant's share in the house is not compensated for by the use and enjoyment of the house by the children.
The third issue for consideration and decision in the case is whether the Appellant is F entitled to be treated as discharged from the contract as a result of the Respondent's conduct. Obviously, since the Respondent no longer recognised the Appellant's share in the house in question, he is no longer minded to continue to honour the contract. Under G section 39 of the Contract Decree of Zanzibar, Cap. 149 the Appellant is entitled to terminate that contract. Section 39 states:
39. When a party to a contract has refused to perform, or disabled himself from performing, H his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.
The fourth and last issue for consideration and decision in this case is whether the I Appellant is entitled to be paid or otherwise

NYALALI CJ, KISANGA JJA, RAMADHANI JJA
compensated for her share in the Kidongochekundu house, and if so how much. A Clearly, the termination of the contract between the parties removes the basis upon which the house in question is jointly owned by the parties and consequently each party is entitled to recover his or her own share. What then is the extent of the Appellant's share in the house? The Appellant annexed to her plaint a document made and signed by the B parties embodying the contract between them. However, this document was not registered as required by sections 4(1) of the Registration of Documents Decree Cap. 99 of the Laws of Zanzibar and it cannot therefore be relied upon to create a right or interest in immovable property. Fortunately for the Appellant joint ownership of the house is C admitted by the Respondent. We are of the considered opinion that where a right in immovable property is indisputably established between the parties, as is the case here, a document which is otherwise inadmissible to prove the existence of such a right may be looked at by the Court for purposes of clarification of the established right. An D analogous, though not a similar situation was dealt with in the case of Ali Bin Khatibu v Khamis Bin Omar 7 Z.L.R. 113 where it was held that the court could look at an unregistered document relating to a transfer of land not as evidence of title to land but as E evidence that the transferee had entered into the disputed land under colour of a claim adverse to ownership of the transferer.
An examination of the document annexed to the plaint of the Appellant leads one to the conclusion that the parties made equal contributions to the building of the house. This is F apparent from the opening sentence of the document which reads:
Mimi Mohamed Haji Dau, nathibitisha kwamba, kuhusu mada ya hapo juu imejengwa kwa mashirikiano na bibi Saumu Mohamed Kassim kwa gharaza zote (We have underlined the G relevant portion).
In the light of this evidence we are satisfied and find as a fact that each party is entitled to half share of the house at Kidongochekundu. H
The Appellant prays for an order for the sale of the house by public auction. She puts the current value of the house at shillings 1,000,000/=. It is in that light that she claims in the alternative to be compensated by the Respondent paying her a sum of 500,000/= for her share. I

On the basis of the facts established in this case, there can be no doubt that the trial A High Court erred in dismissing the Appellant's claim. We therefore allow the appeal with costs, and order that the Respondent pays the Appellant the sum of shs. 500,000/= or half the value of the house to be assessed or determined by the Government Valuer B within a period of three months from today, and in default, the house to be sold by public auction and the proceeds thereof be divided equally between the parties.
C Appeal allowed.

D
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