arafa issa suleimani another vs tawfiq mohamed another 2021 tzhclandd 6991 20 september 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEALNO. 143 OF 2021 (Originating from Appiication No. 302 of2018 ofthe District Land and Housing Tribunaifor liaia District atIlala) ARAFA ISSA SULEIMAN ....IST APPELLANT ISSA SULEIMAN HAMED. 2^° APPELLANT VERSUS TAWFIQ MOHAMED I^t RESPONDENT FATUMA RASHID MOHAMED 2"° RESPONDENT Date oflast Order: 30/08/2022 Date ofjudgment: 20/09/2022 JUDGMENT 1. ARUFANI,J The appellantsjointly filed Application No. 302 of 2018 in the District Land and Housing Tribunal for Ilala District at Ilala (hereinafter referred as the tribunal). The application which was filed against the respondents jointly and severally was about a claim of a house with Residential License No. ILA 017474 situated at Mchikichini Ward within Ilala District in Dar es Salaam Region. It was stated in the record of the matter that, in 1997 the second appellant purchased a land from one Edwin Alowice Ng'amba and built the house in dispute thereon in the same year. It was stated that, in early 2010 the first respondent unlawfully invaded the suit property and in 2017 the second appellant with love and affection transferred the house in dispute to the first appellant who is his daughter. The respondents strongly denied the claims of the appellants and stated the house in dispute is a matrimonial house between the second appellant and the second respondent and the first respondent is the issue of the second appellant and the second respondent. After hearing the application, the tribunal dismissed the application of the appellants. The tribunal declared transfer of the house in dispute to the first appellant was illegal as there is a matrimonial proceeding between the second appellant and the second respondent pending in court. The tribunal prohibited the first appellant to disturb the first respondent in the house in dispute. The appellants were aggrieved by the decision of the tribunal and appealed to this court basing on the grounds of appeal listed hereunder: - 1. That the trial Chairman erred in law and fact in deciaring as Matrimonial property the house registered with Residential Licence No. ILA 017474, parcel of land No. ILA/MCK/MZB31/24 situated at Mchikichini Ward within liaia District while the first (sic) appellant and the second respondent had never been husband and wife and exhibit01 ought not to have been reiied upon by the trial tribunal. 2. That the thai Chairman erred in law and fact in declaring as matrimonial property the house registered with residential licence No. ILA 017474, parcel of iand No. IIA/MCK/MZB31/24 situated at mchikichini Ward within liaia District while respondent' evidence is hearsay and contradictory. 3. That the Trial Chairman erred in law and factin nullifying the transfer ofResidential licence No. ILA 017474, parcel ofiand No.ILA/MCK/MZB31/24 withoutconsidering thatliaia Primary Court vide Madai No. 25 of 2018 between Fatma Rashid Mohamed versus Issa Suleiman Mohamed has neither pronouncedjudgment nor issued decree that the suit house is matrimonial property. 4. That the trial Chairman erred in law and factin assuming that transfer ofresidential licence No. ILA 017474, parcel ofiand No. ILA/MCK/MZB31/24from the second appellant to the first appellant was pre mature and the evidence adduced by the second appellant was deceitful. 5. That the trial Chairman erred in iaw and fact for recording in the judgment opinion of a member who did not take part during proceedings ofthe suit. 6. That the trial Chairman erred in iaw and fact for failure to determine issue no four which was framed during proceedings. 7. That the trial Chairman erred in iaw and fact for granting orders which he had no jurisdiction to grant and was not prayed. When the matter come for hearing, the appellants were represented by Mr. Nixon Maganya, learned advocate and the respondents were represented by Mr. Allgawesa Syllvester, learned advocate. By consent of the counsel for the parties the appeal was disposed of by way of written submissions. In arguing the appeal, the counsel for the appellants dropped the fifth ground of appeal' and argued the rest of the grounds of appeal. He argued the first and second grounds together, third and fourth grounds together and sixth and seventh grounds together. He stated In relation to the first and second grounds of appeal that, the proceedings and judgment of the tribunal shows there was no judgement or decree adduced before the tribunal to show the second respondent had Instituted Matrimonial Cause No. 25 of 2018 before Ilala Primary Court for dissolution of marriage between the second appellant and the second respondent and distribution of matrimonial properties. He stated that, the tribunal erred In law In assuming the second appellant and the second respondent were husband and wife while there was no decision from Ilala Primary Court adduced to establish the said allegation. He went on arguing that, a letter from Wakala wa Usajlll, Uflllsl na Udhamlnl (RITA) with Kumb. Na. AC. 236/136/01/C/143 dated 12/12/2018 addressed to Ilala Primary Court Magistrate Incharge denied existence of Cheti cha Ndoa No. 0259105 which is the basis of the claims of the second respondent. He stated that, the appellants proved the case to the balance of probability that the first appellant acquired ownership of the house in dispute lawfully in 2017 after being given as gift by the second appellant, who is the father of the first appellant as evidenced by exhibit P2. He argued that, as the tribunal was informed of the matrimonial cause which its status was not disclosed to the tribunal, the tribunal ought to have granted the appellants' application. He argued that, the respondents' evidence was worthless for being hearsay and contradictory. He contended that, while DWl testified she started construction of foundation of the house in dispute in 1998, DW2 testified that DWl started construction of the house in dispute in 1990. He added that the testimony of the second respondent is cooked, flimsy and worthless for being hoax. He added that, as stated in exhibit PI the land where the house in dispute is built was purchased in 1997 but DWl said the land was purchased in 1996. He stated while the said, exhibit shows the land was purchased at the price of Tshs. 750,000/= DWl said the land was purchased at the price of Tshs. 600,000/=. He argued in relation to the third and fourth grounds of appeal that, there was no encumbrance that was hindering transfer of the house in dispute from the second appellant to the first appellant. He stated that shows the house In dispute was solely owned by the second appellant and it was passed to the first appellant after following up the required procedures. He submitted that, In absence of judgment or decree from Ilala Primary Court where the second respondent stated to have instituted matrimonial proceedings the tribunal had no power to nullify the transfer of the house In dispute to the first appellant. As for the sixth and seventh grounds of appeal the counsel for the appellant stated that, the record of the tribunal shows four issues were framed for determination In the matter but in the course of deciding the dispute the tribunal did not determine the fourth issue which was about the reliefs the parties were entitled. He referred the court to the case of Sosthenes Bruno & Another V- Flora Shauri, Civil Appeal No. 81 of 2016, CAT at DSNl where it was stated that, a judge Is obliged to decide each and every Issue framed. Failure to do so constitutes a serious breach of procedure. He also referred the court to section 33(1)(a) and (b) of the Land Disputes Courts Act, Cap 216 R.E 2019 and stated It established the jurisdiction of the District Tribunal which is empowered to adjudicate all matters relating to land. He stated the tribunal nullified transfer of the house in dispute by basing on flimsy evidence tendered and admitted in the case as exhibit Dl. He submitted that, the tribunai had no jurisdiction to order maintenance of status quo of the property which was subject matter of distribution before Ilala Primary Court. He prayed the appeal be allowed with costs and the decision of the tribunal be quashed and set aside. In reply the counsel for the respondents submitted there is no tangible reason to move the court to grant the prayers made to the court by the appellants. He argued in relation to the first and second grounds of appeal that, the appellants wrongly challenged the evidence adduced by the second respondent in the tribunal in ascertaining to have been the wife of the second appellant as well as the evidence that the house in dispute is a matrimonial house. He argued that, as when exhibit Dl was being tendered before the tribunai it was not challenged by the appellants and their counsel, they cannot say it is a hearsay. He stated that. Exhibit Dl shows the second appellant and the second respondent contracted Islamic Marriage at Manyema Mosque and it shows how the second respondent purchased and paid costs of building two rooms in the house in dispute in 1998. He stated the said evidence was neither disputed nor challenged by the appellants when it was being admitted in the matted as evidence. He stated the second appellant issued to the second respondent an Islamic Divorce according to BAKWATA Rules and Regulations. He stated that, if there was no marriage between the second appellant and the second respondent how could have that happened. He argued that, the issue of existence of marriage between the mentioned persons was proved by the evidence adduced by Mariam Abdallah who testified In the matter as DW2. As for the argument that there Is hearsay evidence and the evidence adduced by the second respondent is in contradiction on the date of purchase and construction of the house in dispute the counsel for the respondent stated they do not see any problem. He stated the second respondent stated she started constructing two rooms in 1998. As for the year of purchasing the land he stated exhibit PI shows the land was purchased in 1997 and that cannot relinquish the fact that the money was given to the second respondent in 1996. He stated further that, there Is no contradiction in the evidence of the second respondent and stated they, started building the house In dispute in 1990. With regards to the third and fourth grounds of appeal the counsel for the respondents argued that, the tribunal was right in finding the transfer of the house from the second appellant to the first appellant was done when there was a matter pending in the Primary Court mentioned hereinabove. He submitted that, the evidence adduced before the tribunal proved the second respondent was the wife of the second appellant and the first respondent is the son of the second respondent and the second appellant. He stated that, the evidence available established the house in dispute was built during substance of the marriage between the second appellant and the second respondent. He submitted that, to transfer the said house to the first appellant was illegal. He argued that, even if it would have been said the land in dispute was purchased by the second appellant in his name but as the second respondent proved she contributed to the development of the house in dispute she is entitled to have share from the said matrimonial property. He referred the court to section 114 (3) of the Law of Marriage Act, Cap 29 R.E 2019 and to the case of Ana Kanugha V. Andrea Kanugha, [1996] TLR 195 where it was stated that, as the wife contributed to the development of a land formerly bought by her husband before marriage, she is entitled to the share on it. He stated that, the tribunal has power to deal with only land matters and it has no power to deal with' issues of matrimonial cause. He stated that, the tribunal dealt with evidence adduced and admitted before it which proved there was marriage between the second appellant and the second respondent. He submitted that, under that circumstances the tribunal chairman had mandate and wisely decided the right of the parties. As for the sixth and seventh grounds of appeal the counsel for the respondent argued that, the tribunal's chairman had jurisdiction to entertain and decide the matter the way he decided it. He stated that, framing of issues of facts or law before hearing a civil matter is necessary and at the end of hearing of the matter the framed issues are supposed to be determined. He argued that, if you read the judgment of the tribunal, you will find the issue of relief was determined. He submitted that, omission to mention the number of the issues determined in the judgment is a minor thing which can be cured by a rule of slip of a pen or overriding objective. Finally, he prayed the court to dismiss the appeal with costs. In rejoinder the counsel for the appellants reiterated all what he argued in his submission in chief. He added that, the argument by the counsel for the respondents that admission of exhibit D1 was not objected is devoid of merit as the admission of the said exhibit was objected but the tribunal overruled the objection. He stated that, when DWl was cross examined by the counsel for the appellants she stated exhibit D1 collectively were subject matter in Matrimonial Cause No. 25 of 2019 which has not been determined to date. He argued that, the second appellant challenged exhibit D1 when he testified that, exhibit D1 was forged something which was corroborated 10 by the letter from RITA. He stated that, the respondents'submission that the,second appellant divorced the second respondent is devoid of merit. He argued that, contradiction appearing in the evidence of the respondents is fatal as it creates doubt as to who is telling the truth and therefore the court is not required to entertain that practice. He added that, if the second respondent was involved in the purchase of the land In dispute, she would have remembered the year the land was bought. He submitted that, the second respondent paid no single coin either in purchasing or construction of the house in dispute and instead of that she is a trespasser. He added that, the tribunal's chairman agreed at page 10 of the judgment of the tribunal that exhibit PI proved the land where the house In dispute is constructed was purchased by the second appellant. He stated that, any assumption that the house in dispute is a matrimonial property has no legal backing. He submitted that, transfer of the house in dispute from the second appellant to the first appellant was right because the house was solely owned by the second appellant. He added that,the argument that transfer of the suit property to the first appellant was intended to deprive the respondents right is devoid of merit because none of the respondents has any vested interest unto the suit property. He continued to amplify what 11 he stated in his submission in chief and at the end he prayed the appeal be ailowed with costs. Having carefully considered the submissions from both sides and after going through the decision and proceedings of the tribunal the court has found it is required to determine whether the appeal filed in this court by the appellants is meritorious. In determining the above issue, the court will be guided by the grounds of appeal as argued by the counsel for the parties. Starting with the first and second grounds of appeal which were argued jointly by the counsel for the parties the court has found that, although it was argued the tribunal's chairman erred In fact and In law in declaring the suit property is a matrimonial property but the court has failed to see anywhere in the decision of the tribunal it was declared the suit property is a matrimonial property. To the contrary the court has found the tribunal's chairman stated at page 10 of the decision of the tribunal that, as there was an allegation that the house in dispute is a matrimonial property It was dangerous to declare the second appellant was the sole owner of the house in dispute as it would have lowered the claim of the second respondent of matrimonial properties. To be more precise It is to the view of this court pertinent to quote what was stated by the chairman in the decision of the tribunal where he stated as follows: - 12 "... kwa kuwa kuna tuhuma kuwa nyumba hiyo ni sehemu ya machumo ya ndoa, ni hatari kwa Baraza hi!! kutamka kuwa mdaiwa wa kwanza (sic) aiikuwa mmiiiki pekee wa nyumba yenye mgogogro,kwaniendapo Baraza hilliitatamka hivyo, kuna hatari ya kupoozesha madai ya mdaiwa wa piiijuu ya machumo ya ndoa." The above quoted excerpt shows clearly that, the tribunal's chairman declined to declare the suit property is the sole property of the second appellant because there is an allegation that the suit property is a matrimoniai property. The court has found it is true as argued by the counsel for the appellants that, there is no any decision adduced before the tribunal to show the second appellant and the second respondent had been declared they are husband and wife. However, the court has found it was stated in the evidence adduced before the tribunal and it has been repeated in the submission filed in this court by the counsel for the respondents that, there is a Matrimonial Cause No. 25 of 2018 pending before Ilala Primary Court whereby the parties are the second appellant and the second respondent and the matter was filed in the mentioned court by the second respondent. Therefore, the issue of the second appellant and second respondent to be declared they are husband and wife or not is an issue which is pending before the mentioned court and is supposed to be determined by 13 the mentioned court as it is the court dothed with jurisdiction to entertain and decide matrimonial causes of the nature of the cause stated by the second respondent in her evidence and not the tribunal or this court. After the status of the alleged matrimonial relationship between the second appellant and the second respondent being determined is when it can be decided whether the suit property is a matrimonial property or not. The court has considered the argument by the counsel for the respondents that the appellants wrongly challenged the evidence of the second respondent she adduced before the tribunal to ascertain she is the wife of the second appellant as well as the evidence showing the suit property is one of their matrimonial properties but find that, as stated hereinabove the tribunal was not the proper forum for determination of the issue of allegation of existence of matrimonial relationship between the second appellant and the second respondent. That being the position of the matter the court has found that, even the issue as to whether exhibit D1 established there Is a matrimonial relationship between the mentioned parties or not it is the evidence which could have not been used by the tribunal to declare there was matrimonial relationship between the second appellant and the second respondent as the tribunal had no jurisdiction to make such a declaration. The stated 14 finding covers also the argument made by the counsel for the appellants that the evidence of the respondents was hearsay and contradictory. Coming to the third and fourth grounds of appeal which states the chairman of the tribunal erred in nullifying the transfer of the suit property without considering there was no judgment or decree which had been Issued to declare the suit property was a matrimonial property and In assuming transfer of the suit property to the first appellant was premature the court has found that, in the light of what has already been stated In the first and second grounds of appeal there Is merit In this grounds of appeal. The court has come to the above stated finding after seeing that, as It has already been stated In the preceding grounds of appeal that the Issue of whether the suit property was solely owned by the second appellant or is a matrimonial property between the second appellant and the second respondent could have not been determined by the tribunal before the issue of matrimonial relationship between the second appellant and the second respondent being determined by a competent court then it was not proper for the tribunal's chairman to nullify the transfer of the suit property to the first appellant or to declare the stated transfer was done prematurely or not. 15 After seeing there was an allegation that the suit property was a matrimonial property, and it was stated there is a matrimonial proceedings involving the second appellant and the second respondent pending at Ilala Primary Court whereby the second respondent is claiming the suit property is one of the matrimonial properties, it is to the view of this court that, the tribunal was supposed to end there and leave the issue of the status of the suit property whether it is a matrimonial property or not to be determined by the court vested with competent jurisdiction to entertain such a matter. It is the view of this court that, if the tribunal found there was a need of preserving anything in relation to the transfer of the suit property alleged was made by the second appellant to the first appellant, the tribunal was required to advice the parties to seek for the said redress from the court which was stated is dealing with matrimonial cause stated by the second respondent is pending before Ilala Primary Court. In the premises the court has found the tribunal erred in nullifying the transfer of the suit premises to the first appeliant and declaring the transfer of the suit property to the first appellant was premature as it had jurisdiction to make such declarations. As for the sixth and seventh grounds of appeal which states the tribunal failed to determine the issue number four which was framed 16 during proceedings and granted order which had no jurisdiction to grant as it was not prayed by the parties the court has found that, as rightly argued by the counsel for the parties, the issue number four framed In the matter was about reliefs the parties were entitled. The court is in agreement with the counsel for the appellants that as stated in the case of Sosthenes Bruno (supra), courts or tribunals are obliged to decide each and every issue framed for determination in a matter. The question to. determine here is whether the issue number four framed for determination in the proceedings of the tribunal was determined and whether the tribunal granted orders which had not been sought by the parties. After going through the decision of the tribunal the court has found it is not true that the issue of reliefs the parties were entitled was not determined in the matter. The court has arrived to the stated finding after seeing that, although It is true that there is nowhere in the decision of the tribunal stated the tribunal was determining the fourth issue but the decision of the tribunal shows the issue of the reliefs the parties were entitled was determined at the last page of the decision of the tribunal. The argument that the reliefs granted by the tribunal were not the reliefs prayed by the appellants cannot be taken to mean the fourth issue framed for determination in the matter was not decided. Although as 17 rightly argued by the counsel for the respondents It was not mentioned the,tribunal was deciding the fourth Issue but the fourth Issue was decided and the tribunal granted the reliefs and orders sought by the respondents which the appellants are claiming were not prayed by the parties. The court has come to the stated finding after seeing that, the reliefs sought by the appellants In the application they filed In the tribunal were an order to restrain the first respondent from damaging the suit property, the first appellant be declared Is a lawful owner of the suit premises, the first respondent be declared Is a trespasser to the suit premises, payment of Tshs. 50,000,000/= being special damages, payment of Tshs. 50,000,000/= being general damages and costs of the matter. On the other hand, the respondents prayed for a declaratory order that the suit property Is a matrimonial house subject to division before being transferred by the second appellant to the first appellant, declaration that transfer of the suit property done by the second appellant to the first appellant Is null and void, declaration that the first respondent Is not a trespasser Into the suit premises as alleged and costs of the matter. Those being the reliefs sought by both sides the court has found the reliefs grated by the tribunal were the reliefs sought by the respondents and there Is no any order granted by the tribunal which was not sought by the parties. 18 The court has arrived to the above finding after seeing that, after the'tribunal refused to grant the reliefs sought by the appellants it granted the reliefs sought by the respondents. The court has found the order of declaring transfer of the suit property to the first appellant was null and void granted by the tribunal was prayed by the respondents. Likewise,the order of restraining the first appellant from disturbing the first respondent was sought by the respondents and the.order of costs which was ordered each party to bear his or her own costs was prayed by both sides. In the premises the court has failed to see any merit in the sixth and seventh grounds of appeal as the fourth issue was decided and the orders granted by the tribunal were sought by the respondents. In the strength of all what I have stated hereinabove the court has found that, as the third and fourth grounds of appeal have been found are meritorious in the sense that the tribunal erred to declare transfer of the suit property to the first appellant was a nullity and the purported transfer was premature, then the appeal of the appellants deserve to be allowed. Consequently, the appeal of the appellant is hereby allowed and the decision made by the tribunal is quashed and the subsequent orders granted by the tribunal are accordingly set aside. Taking into consideration the relationship alleged is in existence between the parties 19 the court has found it is proper for the interest of justice to make no order as to costs in this appeal. It is so ordered. Dated at Dar es Salaam this 20^^ day of September, 2022 mgh Co<5^ 4^ o I. Arufani H JUDGE 20/09/2022 Court: ^0\ Judgment delivered today 20^^ day of September, 2022 in the presence of Mr. Nixon Maganya, Advocate for the appellants and in the presence of Sylvester Aligawesa, Advocate for the respondents. Right of appeal to the^^omtof Appeal is fully explained. c ❖1: bX ★ 0^. o •*1 I. Arufani H JUDGE .4^ P>. 20/09/2022 20