ABDILLAH GIDA DAREMA 222 edited J kamuzora

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 17732 OF 2024 (Originating from Land Application No. 21 of 2021, District Land and Housing Tribunal for Babati at Babati) ABDILLAH GIDA DAREMA (As an administrator of the estate of the late BONIFACE HAMISI SIIMAY)....................... APPELLANT VERSUS HALLO HAMISI (As Administrator of the estate of the late HAMISI SIIMAY)................................... Ist RESPONDENT ADOLF BERNAD MAMAYDA................................................2nd RESPONDENT JOHN SADI KI EL................................................................. 3rd RESPONDENT SALMA JUMANNE............................................................... 4th RESPONDENT FRAWERA MASAWE........................................................... 5th RESPONDENT SALIM HAMIS..................................................................... 6th RESPONDENT JUDGMENT 9th October & 11th December, 2024 KAMUZORA, J. Before the District Land and Housing Tribunal for Babati (hereinafter referred to as the trial tribunal), the appellant sued the respondents for Page 1 of 10 recovery of a house in Plot No. 21 Block C, Katesh urban area at Hanang district (the suit property). According to the appellant, the suit property belongs to the late Boniface Hamisi Siimay who acquired it from his younger brother, Ally Hamisi Siimay. On his part, the 1st respondent claimed that the suit house is the property of the late Hamisi Siimay and the same has never been distributed to anyone. That was supported by the 4th, 5th and 6th respondents but the 3rd respondent supported the plaintiff's claim that the suit property belonged to the late Boniface Hamisi. After hearing the parties, the trial tribunal dismissed the appellant's application and held in favour of the 1st respondent. The appellant was aggrieved with the trial tribunal's decision and preferred the instant appeal with two grounds of appeal as follows: - 1. That, the District Land and Housing Tribunal erred in law and in facts for its failure to analyze and consider evidence on record. 2. That, the District Land and Housing Tribunal erred in law and in facts for misdirecting itself on the issues pertaining to ownership of land and probate matters. By parties' consensus, the appeal was disposed of by written submissions. The appellant was represented by Mr. Festo Jackson learned advocate while the respondents appeared in person and while Mr. Paschal Peter assisted the 1st, 2nd, 4th and 5th defendants in drafting the written submission, the 3rd defendant filed his own drafted submission. Page 2 of 10 In his submission in support of appeal, Mr. Jackson argued that, the appellant was required to prove his claims, the burden which he and his witnesses discharged. He submitted that, the appellant tendered documents which were sufficient to prove how ownership moved from Hamis Siimay to Ally Hamis and then to Boniface Hamis. That, the earlier distribution of the suit property by the 1st respondent herein who was the administrator of the estate of the late Hamis Siimay back in 1993, was never disputed during the hearing of the matter. That, the appellant tendered the title deed to establish that, the suit property was owned by the Boniface Simay. He referred the case of Salum Mateyo vs Mohamed Mateyo [1987] TLR 111 and the case of Nacky Ester Nyange vs Mihayo Marijani Wilmore & another Civil Appeal No. 2017 of 2019 [2022] TZCA 739(24 November 2022) to support the argument that a certificate of tittle is a conclusive proof of ownership of land. The counsel for the appellant further submitted that the suit property moved from Hamisi Siimay to Ally Hamis through the distribution supervised by the 1st respondent, the administrator of the estate of the late Hamis Siimay in 1993. That, the fact as to how the suit property moved from Ally Hamis to Boniface was never disputed or challenged through cross examination by the respondents. He referred the case of Page 3 of 10 Mary Agnes Mpelembwa in her capacity as administratrix of the estate of Isaya Simon Mpelembwa vs Shekha Nasser Hamad Civil Appel No. 136 of 2021 [2021] TZCA 667 (5 November 2021) on the standard of proof and insisted that, the appellant was able to prove his claims on the balance of probabilities thus, the matter be determined in appellant's favour. He urged this court to allow the appeal with costs. In reply, the counsel for the 1st, 2nd, 5th and 6th respondents submitted that the suit property belongs to the late Hamisi Siimay. He argued that the respondents adduced stronger evidence as compared to that of the appellant. That, they even present documentary evidence and managed to establish that the suit property falls within the estate of the late Hamisi Siimay and the 1st respondent was appointed as the administrator of his estate. He prayed for this court to dismiss the appeal with costs for lack of merits. On his part, the 3rd respondent supported the appeal for he claimed that the suit property belonged to the late Boniface Hamis whose estate, is administered by the appellant. He referred the case of Mary Agnes Mpelembwa (supra) and prayed for this court to allow the appeal. Having gone through the record and parties' rival submissions, the issue for determination is whether the trial tribunal properly analyzed the evidence on record. In his decision, the learned trial chairman reasoned Page 4 of 10 that the suit property was previously owned by the late Hamisi Simay and his estate has never been distributed to his heirs due to the dispute caused by the late Boniface Hamisi. While the appellant contended that the certificate of title sufficiently proves that Boniface Hamis is the legal owner of the suit property, the trial chairman disagreed with such contention. He reasoned that, ownership of the suit property was never transferred to the late Boniface Hamisi and the certificate of title was illegally obtained since, neither the late Hamisi Siimay nor his family members consented to the issuance of the certificate of title in the name of Boniface Hamisi. Since there is a complaint on the analysis of evidence, I took liberty to re-evaluate the evidence on record. The proceedings before the trial tribunal shows that, two issues were framed; who is the lawful owner of the suit house and reliefs entitled to parties. Being the claimant before the trial tribunal, the appellant was expected to lead evidence to establish on balance of probabilities that he is the lawful owner of the suit property. From the evidence, the 1st respondent and the late Boniface Hamis are blood brothers among many other children of the late Hamis Siimay. There is no dispute that after their father's demise, the 1st respondent was appointed as administrator of the estate of their father and among the properties to be administered was the suit property in this case. It is also Page 5 of 10 not disputed that Boniface Hamisi passed away and his son Abdillah Darema (the appellant herein) was appointed as administrator of his estate. The application form filed by the appellant before the trial tribunal does not show how the late Boniface Hamisi came into ownership of the suit property as the facts at paragraph 6(a) (i) only shows that, after Boniface Hamisi Siimay died, his wife Anna Adolph (now deceased) took the responsibility of the estate of her late husband including the suit property. In his evidence, the appellant (PW1) narrated that after being appointed as administrator of the estate of the late Bonifasi Hamisi, he was handed with certificate of title (Exhibit P2) over the suit property which was in the name of the late Bonifasi Hamisi. He explained that, the administrator of the estate of the late Hamisi Siimay one Hallo Hamisi (the 1st respondent herein) distributed the suit property to the late Ally Hamisi who gave the same to Bonifasi Hamisi who made some improvements thereon before he decided to register it and obtain a certificate of tittle. His evidence was supported by PW2 and the 3rd respondent (DW7) who claimed that the suit property has been under the supervision and control of the late Boniface Hamisi. PW3 claimed to participate in the dispute with the tenants but was not aware as to who is the owner of the suit property. Page 6 of 10 The 1st respondent disputed the distribution and claimed that, the estate of the late Hamisi Siimay was never distributed. He explained that he was unable to distribute their father's properties because of disputes that were triggered by the late Boniface Hamisi. Such evidence was supported by DW2 and his two brothers; DW4 and DW6 who claimed that the suit property belongs to the late Hamisi Siimay and was never distributed as it is still under the 1st respondent's administration. DW2 claimed further that 1st respondent has been sending him to pay land rent of the suit property referring the receipts which were admitted as exhibit. DW3 is a tenant in the suit house who supported the fact that the suit property was under the administration of the 1st respondent and she has been paying rent to the 1st respondent. DW5 is the wife and administratrix of the estate of the late Ally Hamisi but she denied the fact that the suit property was distributed to her husband. She supported the fact the suit property belonged to her late father-in-law one Hamis Siimay. There is no doubt that a certificate of tittle was issued in the name of the late Boniface Hamisi and the property to which the tittle was issued was prior owned by the late Hamis Siimay, the father to the late Boniface Hamis and the 1st Respondent Hallo Hamis. The appellant's claim that the suit property was distributed to Ally Hamis, is based on the minutes for the family meeting dated 14th October, 1993 (Exhibit P3) but such minutes Page 7 of 10 in my view, cannot stand to prove that the suit property was distributed to Ally Hamis. I say so because the said document was just minutes of the family meeting and not an account (Form No. 6) made by the administrator to the court to confirm distribution. Apart from that, the said document contains contradictory statements. On one hand, it shows that all properties of the late Hamisi Siimay including the suit property were left in the administration of the 1st respondent and the late Boniface was tasked with the duty to supervise development of the suit property and rent collection which was to be distributed among seven beneficiaries listed. On the other hand, it shows that the suit property was to be left to one Ally Hamisi. With such contents, there cannot be a conclusion that the suit property was distributed to Ally Hamis based on that document unless there is Form No. 6 evidencing distribution. It should be noted that even DW5, the wife of the late Ally Hamisi who claimed to be the administratrix of the estate of her late husband claimed that the suit property was never owned by the late Ally Hamisi but the late Hamisi Siimay. Unless the evidence proves otherwise, it remains that the suit property was never distributed as required by the law. There is no proof that the suit property was distributed to pass good tittle to Ally Hamis and there is no evidence proving that Ally Hamisi gave the suit property to Boniface Hamis. The appellant admitted during cross Page 8 of 10 examination not to have tendered any evidence proving that the late Ally Hamisi owned the suit property and agreed to give it to Boniface Hamisi. Part of his evidence during cross examination, reads; "nyumba ya mgogoro kwenye mirathi He alipewa Ally Hamisi. Nyumba Hiingia mikononi mwa Bonifasi Hamisi kwa makubaiiano yao. Mimisikuwepo nilisikia. [Emphasis added]. From the above statement and the evidence generally, there is no proof on how the late Boniface Hamisi came into ownership of the suit property for him to have the right to apply and be granted a certificate of tittle. The appellant was unable to prove that the suit property was distributed to Ally Hamisi by the 1st respondent as administrator of the estate of the late Hamisi Simay. The appellant never tendered the inventory or final accounts evidencing that the suit property was distributed to Ally Hamisi by the administrator of the estate of the late Hamisi Siimay. The appellant was also unable to prove that there was an agreement between the late Ally Hamisi and Boniface Hamisi for the transfer of ownership of the suit property. While I am very much aware of the settled principle that possession of title ipso facto is sufficient proof of ownership, that is a presumption which can be rebutted upon proof that such title was obtained fraudulently. In the instant matter, the appellant could not establish how Page 9 of 10 ownership of the suit property shifted from the late Hamisi Simay to Ally Hamisi and finally to Boniface Hamisi for him to have the right to process the certificate of title in his name. As well discussed above, the appellant was unable to demonstrate the legal process he followed before obtaining the certificate of tittle for the property which originally belonged to the estate of the late Hamisi Siimay. In that regard, I find that, having certificate of title in the circumstance of this case, was not ipso facto sufficient proof of ownership. I therefore find no reason to fault the learned trial chairman's findings that the appellant failed to prove his claim for ownership. From the discussion above, I find the appeal without merits and I proceed to dismiss it with costs. DATED at BABATI this 11th day of December, 2024. D. ZORA JUDGE Page 10 of 10