afisa msaidizi mkuu wa mtendaji kamisheni ya wakfu another vs rashid hemed nassor others 2015 tzhc 2065 19 february 2015

10 HELD AT CHAKE CHAKE-PEMBA CIVIL APPEAL NO. 12 OF 2013 FROM ORIGINAL IN CASE NO.61 OF 2011 OF THE LAND TRIBUNAL AT MACHOMANNE CHAKE CHAKE- PEMBA 2. AFISA MSAIDIZI MKUU WA MTENDAJI KAMISHENI YA WAKFU 2. KARANI MDHAMINI K/WAKF MKOANI V/S RASHID HEMED NASSOR RESPONDENTS NA WENZEKE KUMI (10) JUDGMENT This appeal arises from the decision of the Deputy Chairman of the Land Tribunal, Salum H. Bakar (RM) in Civil Case No. 67 of 2011 at Machomanne, Pemba. The bachground to the case is that the 1st Respondent Rashid Hemed Nassor filed a suit against the present Appellants, Afisa Masaidizi Mkuu wa Katibu Mtendaji, Kamisheni ya Wakfu na Mali ya Amana Pemba, and Karani Mdhamini Kamisheni ya Wakfu na Mali ya Amana Wilaya ya Mkoani, Pemba, together with Respondents No.2 to 10 namely, Moh’d Ussi Sheha (Salmini), Nassor Hemed Nassor, Hamida Hemed Nassor, Khadija 11 Hemed Nassor, Moza Hemed Nassor, Harith Hemed Nassor, Mkubwa Khamis Ali, Othman Juma Mustaf, Ame Ali Bakar and Halim Makame Moh'd. The 1st Respondents is living in Tanzania and together with 3rd to 7th Respondents are blood brothers and sisters. The 3rd to 7th Respondent is living, in Tanzania and sisters. The 3rd to 7th Respondents are living in Oman and it is alleged that the have Oman nationally. All these brothers and sisters are owners of various properties including shamba and houses which were left by their parents who are now deceased. The father died in 1995 and the mother died soon there after. 6 The 3rd to 7th Respondents are , living in Oman and they left all properties in the care of the 1st Respondent. The 2nd Respondent, Mohammed Ussi Shehe was appointed by six brother and sister of the 1st Respondent to look after their inheritance of their property as the 1st Respondent A started to sell same of the property Mohammed was given power of attornies by the following brothers and sister to look after their property. 12 1. Nassor Hemed Nassor (3rd Respondent) 2. Hamida Hemed Nassor (4th Respondent) 3. Moza Hemed Nassor (6th Respondent) 4. Harith Hemed Nassor ( 7th Respondent) 5. Samir Hemed Nassor were not involved in the case 6. Salim Moh’d Nassor Following there power of attornies the 2nd Respondent approached the 1st and 2nd Appellants and according to the authority they have they took over all the properties and stated the process of in hesitance of the properties. The 8th to 11th Respondents are people who were allowed by the Appellants to harvest the crops in those shamba after entering into an agreement. The 1st Respondent was aggrieved by these actions and he instituted a suit against all of them claiming that they have trespassed in his properties. His brothers and sisters have no right as they are not Zanzibaris, and the attorney they appointed is not a lawful attorney. The learned deputy chairman after hearing the case delivered his judgment on 5.2.2013 infavour of the 1st Respondent and ordered the Appellants to remove their hands on the disputed properties. The Appellants were 13 aggrieved and they appealed to this Court. They filed a memorandum of appeal which contained five grounds of appeal which are summarized as follows. 1. That the learned deputy chairman eared in law by putting those shamba in the hands of 1st Respondent knowing that the dispute is regarding the property which was left by deceased and have not been inherited by his heirs. 2. That the learned deputy Chairman erred in his judgment by failing to give those properties to the commission of Wakf and Trust Property which is an. organ created to took after the inherited by his heirs. 3. That the learned deputy Chairman erred in his judgment when he wanted the theirs who are not living in Zanzibar to come to Pemba to confirm their identify as Zanzibaris as a condition for inheritance when he knows sthat citizenship is not a condition for inheritance. 4. That the learned deputy chairman erred in law by ordering the Appellants to remove their hands on the disputed shambas when he knows the hands of the Appellants are kept by law and not a will of a person. 14 5. That the learned deputy Chairman erred in law when he ordered the rent received for those “shamba” to be handed over to the 1st Respondent when he knows that the 1st Respondent is not the only heir. Therefore he failed to consider the rights of other heirs. When this appeal was called for hearing, the Appellants were represent by Mr. Assaa Jaffar and Masoud Ali who are legal offices from Wakf and Trust commission. The 1st Respondent was present, but unrepresented. The 2nd to 11th Respondents were all absent. With respect to the first ground of appeal Mr. Assaa submitted that the properties in question belonged to Nassra Rashid who left behind several sons and daughters. Hence the Court cannot hand over the properly to one heir only. With respect to the second ground of appeal he submitted that the learned deputy chairman erred by failing to hand over the properties to the commission, an organ responsible for % 15 J handling inheritance matter. He cited S.4 (1) (a) (3) of Act No. 2 of 2007 which stipulates the works of the commission which includes supervision of Islamic estate of deceased Muslim, and all the. deceased’s were Muslim. * Regarding the third ground of appeal, he submitted that the learned deputy chairman asked the heirs to come to Zanzibar and prove that they are Zanzibar. He submitted that the learned deputy chairman erred in putting this condition. He qouted a both written by Sh Habib A. Kombo tilled “Msaada kwa majirani wa Mirathi where on page 6 he said there are three conditions for inheritance, which are valid marring, “nasab” decendancy and “ualaa” (slave who freed himself).Nationality and citizenship is not one of the reasons for inheritance. He added that among the heirs who sent their power of attornies, some of them have Tanzanian passports these are the 5th and 6th Respondents. Regarding the fourth ground of appeal he submitted that the Appellants are doing this work in accordance with the law of the country. The 1st Res-pondent had no letter of administration of the estate, and the land Tribunal had no power to remove the power of the commission which has been vested to it by law. With respect to the firth ground of appeal, he submitted that the money which is the proceeds of the land in dispute have not been inherited and hence, can not be handed over to one person. It should be handed over to the commission which has the legal duty to distribute to the heirs. The money were handed over to the 1st Respondent without filing an application for execution. On the side of 1st Respondent he responded by giving history of ¥ how he together with his brother and sister agreed not to inherit their properties and he was given the power to look after those property. The appellants trespassed on that land and the suit was for trespass and not inheritance. Regarding the first ground of appeal he submitted that the commission has erred in accepting power attorney which are not valid in law. It has some errors - the legal secretary in Oman are all different in the power of attornies. Regarding the second ground of appeal, the submitted that the deputy chairman was right the dispute was not inheritance, it is trespass to land, that is why he returned he land to him. 17 Regarding the third ground of appeal he submitted that the issue is living in Zanzibar, all of the Respondents are Omanis, they are not Zanzibaris and con not own land. Regarding the fourth ground of appeal he submitted that the commission had no power to enter on the land and distribute the property without calling the parties. They look over the shamba in 2009 and they have not distributed the property. Regarding the firth ground of appeal, he submitted that the commission trespassed on the land with the cooperation of 2nd Respondent. They cut down trees and they took the money. He prayed for dismissal of the appeal. After going through the preceding and judgment of the land tribunal and hear the parties on the grounds of appeal. There are certain facts which are not efc in dispute and they in worth to be stated at the. beginning. The properties in dispute were left by late Hemed Nassor and Nassra Rashid who died intestate. These properties have not been inherited and they have been in the care of 1st Respondent. The 1st Respondent, 3rd, 4th ,6th and 7th Respondents are all children of Hemed Nassor and Nassra Rashid and hence are entitled to inherit from their parents. The disputed arose when 3rd, 4th, 6th and 7th Respondents gave power of attornies to 2nd Respondents to look after the inheritance of their property and the 2nd Respondent in turn handed Over the matter to the commission of W akf and Trust Property, the Appellants who took over those properties and initiate a process of distributing the properties to the heirs. The 1st Respondent was aggrieved and challenged the take over of the parties to the land Tribunal disputing the powers of the commission, the validity of power of attornies and the legality his brothers and sister who are now living in Oman and some having Omani nationality regarding their right to inherit or own land in Zanzibar. The grounds of appeal as well as the judgment of the land tribunal was centered on these three issues and this court will focus in these issues in determining this appeal. I will start with the first issue which deals with the power and authority of the commission. There are governed by the Wakf and trust commission Act No.2 of 2007 . Section 4 (1) of Act provides:- 19 “4. (1) The commission shall have the following functions:- (a) to administer (i) Wakf Property (ii) Trust Property, and (iii) Estate of deceased Muslim. Hence, the issue of administration the estate of deceased Muslim falls in the four corners of the function of the Wakf commission. Further, Section 32 in clear terms laid down the powers of the commission as well as duties of the family of the deceased. S.32 (1) provides: - “The Executive secretary on behalf of the commission shall have the sole powers to administer all estates of Muslim deceased person in - Zanzibar who: a. died intestate; b.................. Hence, the power to administer the estates of Muslim deceased has been vested only to the commission. Even when a person is 21 Subsection (3) has been couched in a mandatory language, and the people mentioned therein have the duty to report or give notice to the commission about the death and state of the deceased. And after notice has been given or not given the commission can exercise the powers mentioned above. Coming back to this case whether the 2nd Respondent has the power pf attornies or not he can report the matter to the commission and the commission can take measures within its power. It is a fact that this Act was passed in 2007 and the deceased’s died in 1995, but no one has been appointed as an administrator of the estate under the old law and the properties in question have not been inherited to date. Hence, this Act is applicable to this matter and the commission has the power to enter and take over the disputed property the way they did, and the learned Deputy Chairman erred in this respect. With respect to the issue of validity of powers of attornies our laws particularly the Procedure Decree cap.8 of the laws of Zanzibar recognizes three types of person how can appear in Court. These are the party himself who has a business in 22 Court, a recognized agent holding power of attorney, and an advocate duty appointed (Order III). Power of attorney has not been defined in the CPD, but according to P.K Mafumdar on “Guides to the Deeds” 2ndedn Orient Publishing company, India. A power of authority is an attorney given by a formal instrument whereby are parson, who is called the donor of principal, authorizes another*person, who is called the donee, attorney or agent to act on his behalf (p. 1398) Further on p. 1400 he sent a power of attorney to be valid must be signed and sealed as required under the law. Order III also differentiate the person of attorney made by men and women. The power of attorney made by women need to have acknowledgment made before a Magistrate or Kadhi. But our law recognizes that there will be power of attornies made outside the country and these are accepted of they are signed by the parties concerned (donor and donee) and signed and sealed before alerted persons such as notary Public, judge and British consul. The proviso to Order III Rule 6 dispense with the condition of acknowledgment. It provides. “And provided also that, in a case where the woman resides outside the Protectorate, the Court may, if it 23 thinks fit accept, in lieu of a power of attorney acknowledged in the manner prescribed by this order, a power of attorney executed before and authenticated by a notary Public or any judge, Magistrate, British consul or Vice consul”. * There is no specific authentication prescribed in the CPD, but S.85 of the Evidence Decree, cap.5 of the laws of Zanzibar provides: “S. 85. The Court shall presume that every document purporting to be power of attorney , and to have been executed before, and authenticated by, a notary public, or any court, judge, magistrate, British consul or Vice consul, or representative of her. Majesty, or of the Government of India, or Pakistan, was so executed and authenticated.” Looking at the power of attornies which have been tendered in evidence they have been executed and authenticated by the equivalent of Notary Public in Oman. Hence, they are valid in our law and the learned deputy Chairman was wrong when he held 24 they are invalid and the parties have to come to Zanzibar to execute power of attornies. Similarly the 2nd Respondent was also validly appointed as attorney of the people. Coming to the last issue of brother and sisters living in Oman together they have a right to inherit or own land in Zanziar . On this matter again I agree with the Appellants that the learned Deputy Chairman has mixed up two things. One is the right of inheritance and two the right to own land in Zanzibar. These two issue should be dealt separately. Regarding the right to inherit the properties left by their parents, it is crystal clear that they do have i right to inherit those properties. Inheritance could be in different forms; they could be given the shamba in question after * distribution or they shamba could be sold and the proceeds send to Oman for distribution to these living in Oman. Section 53 of the half and trust commission Act allows the commission to sent proceeds abroad for distribution to the heirs who are living abroad. Coming to the issue of whether Omanis can own land in Zanibar. The land tenure Act No. 12 of 1992 is very dear on this that land is owned through right of occupancy and through lease. The grant of the right of occupancy is the one which is restricted to 25 Zanzibaris (section 8 and 24). While lease can be given to any person whether Zanzibar or non Zanzibar. Section 46 provides: r “ 46. The Minister may lease any public land which does not comprise a right of accupancy to any person, Zanzibari or oun Zanzibarsi. Hence, the brothers and sisters in question who are alleged to be Omanis could be granted land in Zanzibar through lease. The learned Deputy Chairman again erred in holding that those brothers and sisters of the 1st Respondent who are living in Oman can not own land in Zanzibar. From the alone reasoning the appeal is allowed and the judgment of the land Tribunal is hereby set aside. It is further ordered. 1. That all disputed properties should be in the hands of the Wakf and Trust commission and should proceed with the process of inheritance according to law and procedure. 2. The 1st Respondent should return the proceeds of the 26 shamba which were granted to him by the court. Failure to do so the commission should deduct them from his share of inheritance. 3. The 1st Respondent should account to the commission what happened in the shamba together with all proceeds from the date the land fribunal handed them over to him till the date of this judgment. 4. There is no order of cost. It is so ordered. 4 Sgd: Abdul- Hakim A. Issa, J 19/2/2015 CERTIFIED COPY OF THE ORIGINAL. HAJI OMAR HAJI (D/R) MAHAKAMA KUU CHAKE- CHAKE PEMBA