20240624094751

IN THE HIGH COURT OF TANZANIA j (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 3 OF 2023 (Originating from Appiication No. 496 of 2018, Kinondoni District Land and Housing Tribunal) HADIJA OMARI APPELLANT VERSUS PILI DODO (Administratrix of the Estate of the Late Omari Mwaulanga) RESPONDENT JUDGMENT 28/05/2024 to 21/06/2024 E.B. LUVANDA,3 The Appellant above mentioned is challenging the judgment of the Tribunal decreeing that plot No. 46 Block 20 located at Manyanya Area Kinondoni District Is part of the estate of the late Omary Abdallah Mwaulanga. In the memorandum of appeal, the Appellant grounded that: One, the trial Chairman erred in law and fact by misdirecting herself that Omary Mwaulanga (deceased) has right to sale the property in the name of the Appellant to the Morovian; Two, the trial Chairman erred in law and fact by disregarding and not taking into consideration the written statement of defence by the First Respondent in its judgment; Three, the trial Chairman erred in law and fact by 1 relying on less sufficient evidence which does not prove ownership; Four, the ■ trial Chairman erred in law and fact in disregarding the weight and substance of grounds advanced and evidence adduced by the Appellant together with her witnesses; Five, the trial Chairman erred in law and fact by constituting her new facts which were not part of the evidence recorded during the hearing of the case; Six, the trial Chairman erred in law and fact by making the decision through irrelevant case law which is not pari materia with the case at hand; Seven, the trial Chairman erred in law and fact by making a poor reasoning with insufficient reasons which made her to arrive at unfair and unjust decision in favour of the Respondents. Mr. Idd Mussa Msawanga learned Counsel for Appellant submitted that in the testimony of PWl stated that the suit property is registered in her name and known as Plot No. 46 Block 20 Kinondoni. Fie submitted that the said plot was given to the Appellant as gift (inter vivo) by her late father one Omari Mwaulanga and all the time the Appellant used it for cultivating of seasonal crops and sometimes renting it to farmers. He submitted that the evidence of PWl was supported by PW2. He submitted that DWl, DW2, DW3, DW4 and DW5 admitted a fact that the suit plot is registered in the name of the Appellant. He submitted that DW5 stated that they purchased the suit plot from the late Omari Mwaulanga without involving the Appellant and failed to effect transfer 2 at the office of Registrar (sic, Registrar of Titles) which entailed them to sue the deceased and eventualiy entered into a deed of settiement. He submitted that the title couid not pass to the Moravian while the seller has no title, arguing the iate Omar Mwaulanga had no title over the suit plot for reason that was not a real owner and there was no consent by the owner. He cited section 23 of the Sales of Goods Act, Cap 214. Ground number two, the learned Counsel submitted that the First Respondent at the trial filed a written statement of defence only that was not attending a trial. He submitted that in his defence the First Respondent admitted a fact that the suit plot is owned by the Appellant. He submitted that failure to consider this defence resulted to unfair decision on the part of the Appellant. Ground number three, the learned Counsel submitted that the Respondents at the trial admitted a fact that the suit plot was registered in the name of the Appellant, arguing was in support of exhibit P2 and P3 tendered by the Appellant. He submitted that exhibit D1 and D3 nowhere mentioned Plot No. 46 Block 20 Msisiri Area, Kinondoni Municipality as estate of the late Omar Mwaulanga, arguing it was given as a gift to the Appellant since 1988 and was supplied with the offer and certificate of title. He submitted that the trial Tribunal offended the provision of section 64(2) of the Land Act, 1999. 3 Ground number four, the learned Counsel submitted in replica to what he submitted above, that the suit plot was registered in the name of the Appellant as per exhibit P2 and that it was given to her as a gift. Also reiterated the same version that DWl, DW2, DW3, DW4, and DW5 admitted a fact that it was registered in the name of the Appellant. Ground number five, the learned Counsel faulted the Tribunal findings that the Appellant was given a suit plot in 2012, arguing she was given in 1988. Ground number six, the learned Counsel submitted that the decision cited by the Tribunal concerned un-surveyed/un-registered land, while the suit land in surveyed with a certificate of title/offer. He submitted that it is trite law that the best evidence in proving ownership in land case is a certificate of title or offer. Ground number seven, the learned Counsel submitted in replica to the same facts argued repeatedly over and over again regarding a suit plot being registered in the name of the Appellant. In reply, the Respondent submitted that the issue at hand is who is the lawful owner of the suit property between the Appellant and the late Omari Mwaulanga. She submitted that the issue of ownership was well determined and discussed by the Tribunal, argued that it properly evaluated the evidence and reached to the proper decision as per the judgment which speak for itself. She submitted that the act of DWl, DW2, DW3, DW4, DW5 admitting in their 4 testimonial to have known of the fact that the said plot was in the name of the • Appellant and it was a registered property, does not make the Appellant the lawful owner unless evidence in support is produced before the Tribunal. She cited section 110(1) and (2) of the Tanzania Evidence Act, Cap 6 R.E. 2022. Also cited section 33 of and item 22 Part I in the Schedule to the Law of Limitation Act, Cap 89 R.E. 2019. She faulted the Appellant who challenged the sale of the suit land by the late Omari Mwaulanga, for the explanation that she had no such a right for an argument that she was not the lawful owner. She submitted that the Appellant had knowledge that the late Omari Mwaulanga sold the suit plot to Moravian in 1988, but since then no any legal steps were taken by the Appellant to challenge the same. For ground number two, the Respondent submitted that the First and Second Respondent at the Tribunal were served to appear before the Tribunal, but the First Respondent failed to appear hence the matter proceeded ex parte him. For ground number three, the Respondent submitted that the obligation of proving the ownership of the land in dispute was on the part of the Appellant, citing section 110 Cap 6 (supra), argued that it was not for the Appellant to rely on the weakness of the Respondent's defence. She submitted that the Appellant should have made search to the proper authority that is the Registrar of Titles 5 and come up with proper documentation to produce the same as the proof of • her aiiegation of ownership. For ground number four, the Respondent submitted that the Appeiiant aileged was given by her father the suit piot as a gift, argued that there is no any document of deed of gift or whatever that the Appeiiant had produced showing that the iand in dispute was given to her by her iate father one Omari Mwauianga. She submitted that cuitivation of seasonal crops on the suit land, land rent assessment and a copy of certificate of occupancy and oral evidence by witness have no weight and substance ground in accordance with the law. She cited Hemed Said vs Mohamed Mbilu, [1984] TLR 113 (HC). Ground number five, the Respondent submitted that going by the impugned judgment at page five, in the year 2012 was when the father one Omari Mwauianga died and the family members conducted a meeting with regard the estate of the deceased. Ground number six, the Respondent submitted that the case that was cited by the Tribunal is relevant to the case at hand, for reason that they share the same facts in the sense of the use of the name of another person in the purchase of the piece of land. She submitted that the same issue happened in this case where the name of the Appellant was used by her late father one Omari Mwauianga in purchasing the suit plot. 6 For ground number seven, the Respondent submitted that it is failure of the * Appeilant in proving her ownership over the suit plot by providing strong and sufficient evidence before the Tribunal, arguing it resulted to the decision that the Chairperson along the assessors entered in favour of the Respondent. She submitted that the records of the Tribunal show no document or evidence and original document of registered property from the proper authority under the name of the Appellant and that the only document is a copy of a certificate along land rent assessment. She cited the provisions of section 27 and 2 of the Land Registration Act, Cap 334 (supra). On my part, I will start with ground number one. As alluded by the Respondent the argument of the learned Counsel for Appellant regarding the transaction of sale of the suit land between the late Omar Mwaulanga and the Registered Trustees of Kanisa la Moravian Jimbo la Kusini, was irrelevant. This Is because the question in issue is who is having a better and good title between the Appellant or the late Omar Mwaulanga. Importantly, in the impugned judgment, nowhere the Tribunal ruled to the effects that the late Omar Mwaulanga had a right to dispose the suit plot to the Registered Trustees of the Kanisa la Moravian Jimbo la Kusini. Therefore, this ground is without substance. Ground number two. According to the Tribunal records, the Appellant sued Obby Omar Mwaulanga as the First Respondent and Kika Omar Mwaulanga as 7 the Second Respondent. The First and Second Respondent at the Tribunal were sued under a capacity of administrators of the estate of the late Omar Mwaulanga. The duo were appointed to be co-administrators of the estate of the late Omary Mwaulanga vide Probate Cause No. 245 of 2013 as per the judgment and proceedings exhibit D1 and D3, respectively. Surprisingly each one filed a separate written statement of defence, where Obby Omary Mwaulanga admitted and supported a substantive claim by the Appellant for ownership of the suit plot, save for the claim for general damages. Kika Mwaulanga dispelled a claim by the Appellant on the explanation that the suit land is part and parcel of the estate of the late Omar Abdallah Mwaulanga. After filing the defence on admission, the First Respondent (Obby Omar Mwaulanga) defaulted to appear and the case proceeded in his absence. Arguably the Tribunal did not make any direction regarding the fate of the admission made by the First Respondent. Presumably, the Tribunal was entangled by the fact that the First and Second Respondent could not be regarded as several Defendants or Respondents within the strictly meaning of Order IX rule 11 of the Civil Procedure Code, Cap 33 R.E. 2019. This is for obvious reasons that the duo were not sued under personal capacity rather as administrators of the estate of the late Omar Mwaulanga. 8 Section 100 of the Probate and Administration of Estates Act, Cap 352 R.E. 2002, provide 'An executor or administrator has the same power to sue in respect of aii causes of action that survive the deceased, and may exercise the same powers for the recovery of debts due to him at the time of his death, as the deceased had when iiving' Therefore, it was expected for the joint or co-administrators to have a common position regarding the estate of the deceased. Unfortunate, the iearned Counsei did not ampiify his argument or make suggestion as to what ought to be the consideration to the defence or consideration on which terms. As such it is taken to have been raised as a mere compiaint, which will end up there. For ground number three, it is true that the suit piot was registered in the name of the Appellant as reflected in the offer of right of occupancy exhibit P2 and land rent assessment exhibit P3. Kika Omari Mwaulanga (DWl) asserted that a suit plot was merely registered in the name of the Appellant by their father (deceased) but the deceased never handed over to the Appellant. According to DWl the deceased paid a sum of Tsh 100,000 to the Appellant in the presence of Hanji Omary Mwaulanga (DW3) for registering the suit plot in her name. This fact was supported by DW3, who asserted that a sum of Tsh 100,000 was handed over to the Appellant in 1997. However when was cross examined by 9 Mr. Idd Msawanga learned Advocate, DW3 was recorded to had said the following, 'Moravian watikuwa na WakiH wasingesainin mkataba, kama kungekuwa na utofauti kwenye nyaraka. Baba aliongea na Hadija before, akanituma nikamuangalie Hadija halafu tukaenda, baba akampa nyaraka Hadija akasaini. Walichozungumza sijui, Ha nilipokuwa pale Hionyesha kuna jambo walishazungumza, walichozungumza sikijui' A fact that a sum of Tsh 100,000 was handed over to the Appeilant due to a reason that the deceased used her name in registering the suit plot, seems was not directiy communicated by the deceased to DW3, rather it was due to a fact that DW3 out of curiosity asked the deceased such a question. I reproduce a version of DW3, 'AHvyompa pesa laki moja, mimi nikasema mbona unampa pesa yeye tu mimi nimekaa hapa, akasema nimempa laki moja sababu jina la kwenye hat! hi! Hmetumika jina lake, nikasema basi baba, tukaondoka' Therefore, it is not the deceased who initiated that agenda, rather DW3's quest. The combination of these facts, do not suggest a proposition by the Respondent that the name of the Appellant was merely used in registration and that did not mean actual handing over. This is for reason that in a letter dated March 1999 part of a bundle in exhibit D4 which was addressed to the Commissioner for 10 Lands being an application for transfer of Plot No. 45 and 46 Block 20 KInondoni to the Kanisa la Moravian Usharika wa KInondoni, the deceased did not clarify that he merely used the name of the Appellant for registration purposes. Rather it envisages that the deceased recognized the ownership by the Appellant. Importantly, it appears the intended transfer sought vide a letter dated March 1999 part of a bundle for exhibit D4, which was signed by the deceased solo, was ineffectual. Seemingly thereafter The Registered Trustees of Kanisa la Moravian Kusini Tanzania sued the deceased for refund of purchase money Tsh 10 million on account of fraudulent sale. All these facts erode a proposition that the name of the Appellant was merely inserted in the offer of right of occupancy which alleged the deceased redeemed it upon paying the Appellant a sum of Tsh 100,000. In the judgment of Mirathi No. 245 of 2013 before Kinondoni Primary Court exhibit D1 and its proceedings exhibit D3, among the properties which form the estate of the deceased Plot No. 46 Block 20 located at Manyanya Area Kinondoni District (suit plot) was not mentioned in the list. A mere mention of three plots at Kinondoni near the court (anonymous) does not suffice to say it meant the suit plot. Equally an argument that the Appellant when testifying before the probate court in exhibit D3, she made the statement, I quote, 11 'Mimi ninafahamu kuwa kuna viwanja vitatu Kinondoni ambavyo vina matatizo. Tunaomba wasimamizi wa mirathi waendelee kufuatiHa' To my view this statement is not in favour of the Respondent either. It is too vague, does not make reference to any specific plot, importantly it connotes the three plots are encumbered. To my view encumbrances it can be any, wrangle in the suit matter being inclusive. It is surprising that all sibling brothers and sisters or family members did not bother to make a specific mention on a list of assets forming the estate of the late Omari Mwaulanga, irrespective of the fact that all of them including DWl, Risasi Omary Mwaulanga (DW2), DW3, Chengo Omary Mwaulanga (DW4) had a knowledge that among the three plots numbered 44, 45 and 46 one was registered in the name of their sibling (sister). But for reasons best known to themselves they listed a house at Kawawa Road with specific description to wit Plot No. 188 but the three plots remained in bracket or parenthesis. The Respondent and siblings are to blame for themselves. The Appellant is benefiting for their laxity. On the same spirit, the Tribunal slept into error to hold that the suit plot was mentioned in a list of the assets of the deceased. The Tribunal did not say specifically as to where it was mentioned or listed. 12 In totality, the evidence in records tilt in favour of the Appellant. This is for reason that the general rule on the torren system of registration of titles is that registered title under surveyed land is indefeasible. Nowonder the Commissioner for Lands did not honor or act on a letter dated March 1999 where the deceased sought to transfer the suit plot which was not in his name, with eventuality of being sued by Moravian Church Kinondoni Parish for fraudulent sale. On the similar vein, the case of Abdulhaman Hassan Litoki vs Hamis Shabani Litoki, Civil Appeal No. 113 of 20(sic), this Court speaking through Shangwa, J (as he then was), is easily distinguishable to the facts herein. because therein this Court was dealing with un-surveyed land. Regarding an argument that the Appellant was given the suit plot as a gift. It is true that in her testimony at a preface the Appellant asserted to have been given the suit land as a gift in 1988 and alleged that it was formerly handed over to her in 2010 along the title deed and a letter. Indeed, a title deed was tendered by the Appellant and admitted as exhibit P2. A letter was withdrawn at the verge of tendering. Meaning that there is no proof for the alleged letter for handing over as a gift. Unfortunately, the Tribunal did not make any specific findings regarding the alleged gift. Therefore, this ground was taken up without sufficient ground of complaint. 13 Again, nowhere the Tribunal made a finding that the Appellant was given a suit plot in 2012. Therefore, the Tribunal is faulted for nothing. In view of the above adumbration, the findings of the Tribunal cannot stand. I alter the verdict of the Tribunal and set aside its award. I hold that Plot No. 46 Block 20 located at Manyanya Area Kinondoni District is not part of the estate of the late Omary Abdallah Mwaulanga, rather is a personal property of the Appellant. The appeal is allowed. However I spare the Respondents to foot costs. E.B. LUVANOA jyi^GE ,^06/2024 Judgment delivered in the pr^ehca of the Respondent and in the absence of the Appellant. E.B. LUVAN 3VD 21/06/2024 / V / 14