abeed hatibu sengo administrator of the estate of rehema sultan kiguni 2021 tzhclandd 6691 22 january 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) DAR ES SALAAM LAND APPEAL NO. 55 OF 2017 ABEID HATIBU SENGO (As the administrator of the estatg of the late Rehema Sultani Kigumi) APPELLANT VERSUS JUMANNE LYOZIA (As the administrator estate of the late Rehema Salum) RlSPONDENT J U DG M E NT Date ofLast order: ll/1^^02Ui Date ofJudgment:22/0W4§2^ MANGO,J. The I against the decision of the District Land and Trlh^gaR^Kinondoni in Land Application No. 188 of 2013 on the foil^ing groun|| 1. That th'^mmiorable Chairman erred both in iaw and fact for » faiiing to consider and examine the appeiiant's evidence to the effect that, the Suit premises/ House was bequeathed to one REHEMA SULTAN KIGUMU, the appeiiants wife by one REHEMA SALUM and that the appeiiant was the appointed Administrator of the estate of the iate REHEMA SULTAN KIGUMU and erroneously derived at a decision that the house in dispute belongs to the respondent; 2. That the honorable chairperson erred in both iaw and factfor neglecting to consider the appellant's evidence to the effect that the house in dispute was transferred by way of gift by REHEMA SALUM to REHEMA SULTAN KIGUMU (the wife of the appellant -now the administrator of^e estate of the late REHEMA SULTAN KIGUMI) ikmna tE^ife time of REHEMA SALUM and erroneous^^dermedaMhedec^mn that the house in dispute has ^^n^^^^Merred and erroneously reaching a ct^^^on^ that ^mhouse belongs to the Respondent; 3. That the HonouraMe chair^^^^^^d in both iaw and fact for failing to recogni^^nd^c^sider that the House in dispute ha^^£^^ptjai l^^^se in the name of REHEMA SULTA^^^.^^i^^^ffi^Snt's wife) in absence of any eviden^^Dr(S.uced b^he Respondent indicating that the REHEMA SALUM and thus reaching to wn erro^3iU^%lecision that the House belongs to the ^^^nderArithoutgiving sufficientjustifications. The appellai^^S^represented by Mr. Haji MIosi learned advocate while the respondent had no legal representation. On 15^^ July 2020 this court granted the prayer to have the appeal argued by way of written submission. The respondent had his submission drawn in gratis by Ms. Irene Felix Nambuo from the Legal and Human Rights. Submitting on the first ground of appeal, the appellant's counsel argued that, the Trial Tribunal did not consider the appellants evidence regarding ownership of the suit house. According to him, the appellant's evidence before the Tribunal was to the effect that the owner of the house in dispute is REHEMA SULTAN KIGUMU, the appellant's wife. He argued that the original owner of the suit house was one REHEMA SALUM who was the grandmother to the appellant's wife. Before her d^h^he said REHEMA SALUM bequeathed the house to the a ppellaftfe.wife^HiHEMA SULTAN KIGUMU. After the death of REHEMA SULTAN M^Mi^the ap^^it was appointed to be the administrator of he^estat^JI^^Sned counsel argued that, the Trial Tribunal ^^sider this piece of evidence in determining the djsp^^ef^ihii^^^ Submitting in the secon^^and ^iid gTiu^s^f appeal, the appellant's counsel reiterated K^^b^^io^n tlM first ground of appeal. He added that, it was w^^SI^ declare the respondent who was merely actin^^he^min^^or of the estate of the late REHEMA SALUM to be Jl^^iier in dispute. And that, the residential licence inres&t of issued in the name of the REHEMA SULT/^^GUMI, ® appellant's wife. Responding appellant's submission, Ms. Nambuo began with the introducing centre of the dispute. She submitted that, this appeal concerns ownership of the suit house located at Mwananyamala KIsiwani area which was the property of the late Rehema Salum. She highlighted further that, the late Rehema Salum had only one daughter namely Kessy Salum who passed away in 1991. Rehema Salum passed away in 2006 living behind two granddaughters and three grandsons including the respondent and the late Rehema Sultan Kigumi. The grand children of the late Rehema Salum found out about the transfer of the suit house from neighbours. The grandchildren who are the heirs of the late Rehema Salum were not involved in the transfer of ownership of the suit premises. They instituted Land Appiication No. 188 before the District Land and Housing Tribunal for Kinondoni through the administrator of their gran^^her's estate. The said case was decided infavour of the qrandchililen hen(Jtbis appeal. Submitting on the grounds of appeal she^bmitte^^iPi^^of disputed that the suit house was declared ^^be p^mof estate of the late Rehema Salum. She argued th^^^^^^rib^^^^Bjustifiably held so because the appellant fail^^Pj3ro\^^g^ged transfer of the suit house. She argued further that,fc appellant fal^^^^prove whether the alleged transfer of the suit^tee^^m Rehenfe Salum to Rehema Sultan Kigumi was by wav^Mil^c^lr^^fekdgdft gift. She argued that, evidence produced by ti^ppellant be^re the Tribunal did not establish the aiieged transfelSWlBvr^^^^tSi.^^ that is, on balance of probability. In this she clfc the^^^f Versus Minister of Pensions [1937]2 All ER 372 w^^describeftwhat it means by proof on balance of probability. The lea^h^^fel added that, the appellant did not produce any evidence to substantiate his allegation on the transfer of ownership of the suit house. Submitting on the second and third grounds of appeal, she argued that, the appellant conceded that the house in dispute was the property of Rehema Salum the fact which is not disputed by the respondent either. She argued further that, the deed of gift produced by the appellant was ambiguous as it does not state the location of the house and the house number. She added that, the Trial Tribunal observed as it appears in its judgment that, the alleged deed of gift was not introduced anywhere before the death of Rehema Sultan Kigumi. The said Rehema Sultan Kigumi was present during a family meeting in which the said house was mentioned as part of the estate of the late Rehem^^m but she never disputed the same nor produce the alleged dee^^^ift.^^also submitted that, failure of the appellant to summon ^itnes^^%tiQ.u^^%;^^)n the existence of the deed of gift increas^%febe l^iej^ff^febts on the genuineness of the deed of gift. To cement her argumen^pffe cit^Me of Hemedi Saidi versus Mohamed Mbilu [198^aTLR IM i^^^ic^failure to call a material witness to the cas^^g^^^d b^^reason for the court to draw an inference that£ifgi^witniss^feiies.call:m they would have given evidence contrary to t^party'Sinter^^ She ®cludealto sibmissiOT by arguing that, the purported transfer of ownersto of th^fcputetl house to the late Rehema Sultan Kigumi was obviousl^^^ frau^ent arrangement between the Appellant and his deceased wife. §he then prayed for dismissal of the appeal with costs. I have considered the submission by both parties and court record. From the submissions and court record the following facts are not disputed; that the original owner of the.suit house was the late Rehema Salum, that the late Rehema Salum passed away in the year 2006 leaving behind five grandchildren that the respondent and the late Rehema Sultan KIgumI are among the grand children of the late Rehema Salum, that the residential licence Issued Inrespect of the suit land bears the names Rehema Sultan KIguml. The only Issue In this appeal Is whether the late Rehema Salum, before her death, had transferred ownership of her house to l^^ma Sultan KIguml. Evidence produced by the respondent who v^s the ^^^nt before the Tribunal was to the effect that the late Rehem^^fcn^had Mitra^ferred ownership of the suit house to any bod^gd afEtr^ he^feath^ie house was considered to be part of her Estfi Due to the fact that the lss.u,^o^^isfei^as all^^pP by the appellant, he had the duty to prove the^me asj;eqli^ b'^^ctlon 110 of the Evidence Act,[Cap 6 R. E. 20;^]. In proving tr^^^^^the^^^s^^i^rate from Rehema Salum to Rehema Sultan KIgumi^^ajiil^nt pi^uced a document purported to be written by th^^^fe,tona^^^^^e document together with land rent receipts for th^^ears l^^y.^^|^2001 were collectively admitted as Exhibit D2. He also tei^rgd a re^entlal licence Inrespect of the suit premises which was admitted as ExIliirDS. The document which was relied upon In effecting transfer of ownership of the house from Rehema Salum to Rehema Sultan KIgumI dates 20^'^ May 1995. The document bears the following words:- "MIMIREHEMA SALUM, NIMEAMUA KUMPA NYUMBA YANGU MJUKUU WANGU REHEMA BINTI SULTAN KWA RIDHAA YANGU MWENYEWE ASITOKEE MTU YEYOTE WA KUMSUMBUA, AKFTOKEA MTUBASI NAMPA RUHUSA REHEMA BINTI SULTANIAKAMSHTAKIMBELE YA HAKI, NA Mil NDIO USHAHIDI WANGU HATA KAMA NIMEFARIKIHUUNI USHAHIDI WANGU. NA TOWA MBELE YA MJUMBE WA SHINA" The document bears the stamp of the ten cell lea^^^ signatures of two witnesses, Rashid Mohamed Mkola and Rajab^Kufun^mtogether with a thumb print of Rehema Salum and siqnatu^^^Eghe^mSuLtfi. The document shows that copies of the sam^^s se^ko^^iyteiWell leader and one Mzee Twiga. This is the Q:fe%eyiden!ie. re^S^inq the transfer of ownership of the suit house fron^.^hem:^^Wrii^^e^ma Sultan Kigumi. As correctly highlighted byjjplNamb^, fl^^ocument does not describe the house that is beingSven t^^^%a^^ema Salum. It does not describe even the 1%ati(^^f the saM l®se. And the persons whose names apoear^^s-^wimes.s^^we.re,.^Bt summoned to testify on its genuineness.^^e n^e of^l^tencell leader is not indicated and he was not caliBli^tesfFl^prth^MJoSment he witnessed. Most important, the respo^^nt wh'^tad^^ the document as evidence of the alleged transfer testifi^te the ef® that he does not know if the document is genuine or not. Acc^iiq..tQiPs testimony, he does not know the persons named in the document as witnesses nor was he involved in the preparation and execution of the transfer document. Failure of the appellant to prove genuineness of the document which was used to effect transfer of the suit land from Rehema Salum to Rehema Sultan make the owner of the house to be Rehema Salum as it was correctly held by the TrialTribunal. I understand that the suit house has a residential licence issued in the names of Rehema Sultan Kigumi, however, validT^of the residential licence No. KND 017605. issued by KinondonkMunicioal^ounciI on 20*^^ October 2006 is solely dependent on the ge^^iiess ofMhe^lleqed transfer document. As there is no evid%|ig es^Jisl^^g^uineness of the transfer document, I find no r^^^to^^^tt^pecision of the Trial Tribunal that the suit house for^^par^J^fe^^l^ w the late Rehema Salum. In upshot, I uphold fc d^yon€f^Wy"ria1iiribunal and order rectification of Land Reqister^for l^fcind^k^unicip^ Council by inserting the name of the administr^r e^t« ^^^^te Rehema Salum as the owner of Plot. Appeals hereb^lsmismd with costs. OF T. O C 5^/ o w V MA JUDGE iss: 22/01/2021 O