Court name
High Court of Tanzania

Regina A. Katukwa vs Zubail Katumwa () [1988] TZHC 18 (01 June 1988);

Law report citations
1988 TLR 85 (TZHC)
Media neutral citation
[1988] TZHC 18
Coram
Munyera, J.

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

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.

A