Makame, J.A. read the following considered judgment of the court: In the Primary Court of Temeke the present appellant Asha Mohamed sued the respondent Zainabu E Rashidi, her niece, for half the value of the house she said she had jointly built with her deceased brother, the respondent's father, and which the respondent wanted to treat as being entirely part of her father's estate. The appellant succeeded in the trial court and the decision was affirmed by the District Court of Temeke on appeal. The present F respondent was still aggrieved so she appealed, further, to the High Court where she eventually succeeded. In the course of his judgment the learned Judge Kiongozi observed:
The issue in this case was not one of a debt of money owing from the appellant to the defendant as the lower courts seem to have thought. The issue before the court was who as G between the parties was the legal heir of the deceased`s property.
Mr. El-Maamry, learned advocate for the present appellant in the High Court obtained a H certificate to come up before us on the basis that the learned Judge Kiongozi misconceived the issue, the real dispute being whether or not the appellant had a share in the house in her own right as a partner. Before us Mr. Lubulira, learned counsel holding I the brief for Mr. El-Maamry, conducted the appeal on behalf of the appellant, while the respondent was unrepresented.
Briefly, Mr. Lubulira argued that the learned Judge Kiongozi proceeded on the wrong A basis and made a decision on the wrong issue, the appellant was not claiming a share of the deceased's estate, not in the particular suit giving rise to the present appeal. There was, further, the question as to whether the matter was in any event justiciable in the Primary Court in view of section 14 of the Magistrates' Courts Act. Cap. 537. Now the B said section 14 provides inter alia:
...No Primary Court shall have jurisdiction in any proceedings-(A) affecting the title to or any C interest in land registered under the Land Registration Ordinance..., Cap. 334.
The other question was as to whether section 57 of the Magistrates' Courts Act was applicable. The relevant portion of that section is to the effect that no civil proceedings D relating to immovable property on a piece of land held on a Government lease or right of occupancy granted under the Land Ordinance may be held in the Primary Court.
In reply the respondent merely reiterated that she had all along denied the existence of a E partnership in the house, between her deceased father and the appellant.
We propose to start with the question as to what the real issue was. With great respect, we are of the firm view that the learned Judge Kiongozi got it wrong. There had been earlier proceedings on who should inherit what portion of the deceased's estate. The F matter reached right up to the High Court where the learned Chief Justice pronounced all the proceedings below, null and void, and ordered a trial de novo. In the present proceedings there were passing references to the earlier Administration Clause but this was merely by way of providing a background: Inheritence never features as an issue G per se. The matter was contested on the basis of whether the present appellant had made some contribution to the construction of the house in dispute. We must take that as we find it. We agree with Mr. Lubulira, therefore, that the learned Judge Kiongozi did not base himself correctly. H
The other matter was the one regarding jurisdiction. So that the matter may not be tried in the Primary Court the title to or any interest in the land must have been registered under the Land Ordinance. What the respondent apparently produced before the high Court, incidentally at the eleventh hour, was merely an offer conditional upon the offeree I accepting it by paying the necessary
fees, in this case Shs. 56/=. The fees had not been paid, therefore the offer had not been A accepted and there had not yet been registration by the time the suit was filed, sometime in November 1978. The respondent has conceded before us that payment was not made until March 1980. There may be proof that the plot had been surveyed B but there had been no registration under the Land Ordinance. It must follow therefore that the Primary Court had powers to try the suit.
We now come to the substantive issue: Whether or not the appellant had proved her assertion that she had built the house jointly with the respondent's father. The first two C courts below were satisfied that she had, while, as pointed out, the High Court did not at all consider the issue. The learned Judge Kiongozi remarked:
The respondent may have helped the deceased financially in constructing the house but that D fact does not necessarily support her claim in the lower courts that she is entitled to the inheritance of deceased property". (The emphasis is ours).
Going through the proceedings before the Primary Court, we are satisfied that there was E enough convincing evidence to justify the concurrent finding by the two courts below. The trial Court was clearly influenced by the evidence of Asha Musa, the respondent's aunt and apparently the appellant's half sister, and by the testimony of Zaina Omari, the F respondent's mother's co-wife, both of which supported the appellant's claim that she used to sell things to raise money to help in building the house. We do not think we have any good grounds to upset the concurrent findings of the first two courts. We accordingly allow the appeal, with costs, and affirm the decision that the appellant is entitled to 50% of the house. G
We wish to conclude by anticipating, and dispelling, a possible confusion. This appeal decides the question of partnership only. It does not concern the inheritance of the deceased's estate which consists of 50% of the house and any other inheritable property the deceased may have left. The respondent will have to apply for administration, afresh, H the earlier proceedings having been declared null and void, whereupon the appellant will probably claim a share therein as sister of the deceased. In that event it will be for the trial Court to determine whether or not the appellant would be entitled. No fresh fees Ishould be paid. We order the offer to be returned to the respondent.
Order accordingly.
A
