HAMOOD

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA LAND CASE NO. 5 OF 2023 HAMOOD MOHAMED HAMOOD (administrator of the estate of the late mohamed hamood ally) ……………………………………….... PLAINTIFF VERSUS 1. SOUD MOHAMED, 2. MOZE MOHAMED SOOD 3. MOHAMED SALUM MOHAMED 4. SHINYANGA MUNICIPAL COUNCIL ……………………….. DEFENDANT 5. REGISTRAR OF TITLE 6. COMMISSIONER FOR LANDS 7. THE ATTORNEY GENERAL JUDGMENT S.M KULITA, J. The plaintiff herein namely HAMMOOD MOHAMED HAMOOD, adult person, residing at Busulwa Street, Kitangiri Ward in Shinyanga Municipality, who is the Administrator of Estate of Late MOHAMED HAMOOD ALLY appointed by Shinyanga Urban Primary Court on 21st January, 2022, lodged this Civil Suit against the Defendants herein claiming for ownership of the landed property, to wit, a house located on Plot No. 20, Block “F” Shinyanga Central/Town area. In his plaint the Plaintiff claims for judgment and decree against the Defendants jointly and severally on the following reliefs; (i) That, the disputed property be declared part of the estates of the Late Mohamed Hamood Ally. (ii) That, the disputed property be handled to the Plaintiff by changing the ownership of Plot No. 20, Block “F” Shinyanga Central/Town area into the name of HAMMOOD MOHAMED HAMOOD, the Administrator of Estate of Late MOHAMED HAMOOD ALLY. (iii) That, the Defendants to compensate the Plaintiff at the tune of Tsh. 10,000,000/= per month as a mesne profit from January, 2014 to the date of vacation from the disputed property by the trespassers. (iv) Costs of the suit. (v) Any other relief that this court may deem fit and just to grant. In entertaining this matter the court ordered for the amendment of the plaint regarding death of Mohamed Salum Mohamed who was the 3rd Defendant in the original plaint, whereby one Haroon Ally Salum who was petitioning for administration of the deceased’s estates was appointed to be his legal representative under the provision of Order XXII, Rule 4(1), read together with section 3, both of the Civil Procedure Code [Cap 33 RE 2022]. However, it happened that the 1st, 2nd and 3rd Defendant didn’t comply with the court’s order to file the amended pleadings within the time that was framed for that purpose. The case was thus ordered to proceed ex-parte against them. While the Plaintiff was represented by Mr. Frank Samwel, Advocate, the said 1st, 2nd and 3rd Defendants were represented by Mr. Paul Kaunda, Advocate. The 4th, 5th, 6th and 7th Defendants were under the service of Mr. Mussa Mpogole, Senior State Attorney from the Office of Solicitor General, Shinyanga. In proving their case the Plaintiff had two witnesses including himself while the Defendants Page. 1 who had a venue to defend their case that is, the 4th, 5th, 6th and 7th Defendants had one witness. The Plaintiff one HAMOOD MOHAMED HAMOOD and his witness one MAHSEN MOHAMED who testified as PW1 and PW2 respectively had almost the same testimony which can be summarized as follows; That they are brothers and sons of the deceased, Late Mohamed Hamood Ally @ Mohamed Hamood @ Mohamed Hamood. That, their father passed away on 16/08/2021. PW2 tendered to court the deceased’s death certificate which was admitted as exhibit P4. They said that in 2004 borrowed money amounting Tsh. 8,000,000/ (eight million shillings) from Soud Mohamed (1st Defendant) in order to settle the debt that he had at NBC bank of which by that time was about to be privatized. The witnesses testified that their father and Soud Mohamed agreed orally that Soud Mohamed should take over and use the property that their late father was holding, that is a house located on Plot No. 20, Block “F” Shinyanga Central/Town area for 10 (ten) years. They further stated that the said Soud Mohamed used the suit house for renting it to various people. PW1 and PW2 further narrated that after the expiry of the agreed period of 10 (ten) years in 2014 their father approached the said Soud Mohamed for his property and its relevant document, that is the title deed, which was handled to him as security during the time of getting loan. However, Soud Mohamed never returned the property nor the said title deed. They said that in 2015 Soud Mohamed told their father that the property had been transferred to Mohamed Salum, the 3rd Defendant herein. That led their father to institute a land case against the two at the District Land and Housing Tribunal at Shinyanga which was registered as the Land Application No 57 of 2016. T he said case was entertained and decided ex-parte against the said 1st and 3rd Defendants on 13th January, 2017. PW2 tendered to court the copy of the said ex-parte judgment. The same was admitted as exhibit P7. It is the testimony of those witnesses that the said ex-parte judgment was then set aside by the DLHT on 15/06/2017 through the Land Application No. 52 of 2017 lodged before the said Tribunal by Mohamed Salum (3rd Defendant). They said that, thereafter, their father, Mohamed Hamood Ally started to suffer from various deceases to his death on 16/08/2021. That, on 21/01/2022 Hamood Mohamed Hamood (PW1) was appointed the Administrator of the estates of the late Mohamed Hamood Ally. PW1 tendered to court a letter of Administration for the said deceased’ estates. It was admitted as Exhibit P4. The said witnesses narrated that, in the cause of administering the deceased’s estates PW1 visited the file at the District Land office of Shinyanga for the suit premise, Plot No. 20, Block “F” Shinyanga Central/Town area where he discovered that the suit property was already transferred to Moze Mohamed Soud (2nd Defendant) since 23/08/2004. PW1 tendered to court the copy of transfer deed and the same was admitted as exhibit P8. PW1 said that there were elements of forgery in the purported transfer. PW1 and PW2 said that the Land Officer who had attended them at the Land Office, one Leila Chipanya, took the respective file and upon reading it she told him that there was a deed of transfer of right of occupancy in it, which shows that their late father, Mohamed Hamood, transferred it to somebody Moze Mohamed (2nd Defendant). PW1 and PW2 said that they were given the said document to read and saw it but they had a doubt with the transferor’s signature as the same was looked different to that of his late father. He purported it being forged. PW1 and PW2 succeeded to get a copy of the said transfer deed and went to report the matter at Shinyanga Police Station. It was registered as SHY/RB/934/2022. He said that the 2nd Defendant, Moze Mohamed, was called at the Police Station and upon been asked about the said transfer of Right of Occupancy, she replied that it is her brother, Soud Mohamed (1st Defendant) who had given the property to her. It means that it was false that there was a transfer of the said property to her. They said that in their investigation, the police noticed the presence of forgery but they advised them to deal with it civilly instead of criminal as the claim based on the right of ownership of the house. The witnesses said that the said Moze Mohamed Soud had left for Oman where she lives todate. The witnesses said that they consulted a Lawyer for this matter and agreed to prepare a 90 Page. 2 days’ notice to sue the Government as it also played role in occurrence of this issue. PW1 tendered the said document to court and the same was admitted as exhibit P2. PW1 stated that the notice’s copies were supplied to the Commissioner for Lands, Commissioner for Lands, State Attorney’s office Shinyanga, and Attorney General’s Chamber Dodoma. PW1 also stated that he had affirmed an affidavit, deed poll (exhibit P3) to prove that his father had been using three different names interchangeably. He mentioned those names being Mohamed Hamood Ally, Mohamed Hamood and Mohamed Humood. The Plaintiff herein, Hamood Mohamed Hamood (PW1) who is the Administrator of estates for the late Mohamed Hamood Ally concluded his testimony by praying for the suit house to be returned to him. He however opted to waive the costs claims. In the cross examination by the State Attorney, PW1 stated that by 2015 when he started to deal with this matter in court, he was unaware of the transfer that had been done for his property. He also stated that the 4th, 5th and 6th Defendants wrongly conspired to change ownership in the title deed, hence they should all be responsible. In the cross examination PW2 said that his late father’s signature had been forged by the persons who had intended to make a transfer of the right of occupancy. That was the end of the plaintiff’s case. As I had stated herein before that the Defendant’s side had one witness to call. A Land Officer namely, Mussa Makungu who appeared as a witness for the 4th, 5th, 6th and 7th Defendants testified as DW1. His testimony is to the effect that he had appeared to testify on the issue of ownership for Plot No. 20, Block “F” Shinyanga Central/Town. He said that he has 8 (eight) years’ experience in job. The witness stated that among the duties that he has is dealing with transfer of the right of occupancy between the people and to prepare the title deeds. He said that in transferring the right of occupancy the applicant (transferor) should submit to the District Land Office the original Title Deed, Contract of Sale if the transfer involved sale, Notification for Disposition (Land Form No. 30), Transfer of Right of Occupancy (Land Form No. 35) and a Receipt for Tax Payment. Upon being shown Exhibit P5 which is the title deed held by Mohamed Hamood, DW1 said that the same is read in exhibit P6 which is Deed of Transfer of the Right of Occupancy that the property has been transferred to Moze Mohamed Soud since 23/08/2004. He said that the Transferor was the said Mohamed Hamood, who was the previous holder. The witness admits that the holder’s signatures seen in the title deed (exhibit P5) does not tally with that seen in the transfer deed (exhibit P8). It is the further testimony of DW1 that if this happens the Land Office use to do either of the two; one, by calling the transferor so as to verify if he is the one who had signed the document whereby he can be ordered to sign on a separate sheet of paper so as to verify it. DW1 Added that, otherwise, they use to order the said person to swear affidavit. The witness said that in the plot’s file there is no affidavit nor any document to prove that the transferor had signed the document on separate sheets for verification of his signature. However, DW1 added that from the date that the holder/transferor of the title deed had signed the title deed on 07/01/1974 to 23/02/2004 when he affected the transfer, a period of 30 (thirty) years had passed. He said that, under such situation there is a great possibility for the signature to change. He further narrated that, the issue of age may also cause such a defect, that by the time the holder was signing the title was young and healthy, contrary to the time that he came to sign at the 30 years later. The witness further alleged that, the said transfer having been blessed by the Commissioner for Lands and Registrar of Titles implies that what had been done was accordingly proper. The witness stated that, since the Plaintiff alleges to have reported the matter at the Police Station and that forgery was actually observed, he had to prove it by evidence instead of mere oral words. As for the Plaintiff’s claim of Tsh’ 10,000,000/= per month from January, 2014, DW1 said that, the fact that what they had done was within the requirements of the law, the said claim by the plaintiff is unjustifiable, hence should not be granted. In the cross-examination DW1 stated that the Land Officer, Leila Chipanya is senior to him and that she could also be a right person to appear in court for this matter, That was the end of defense case. From the Page. 3 pleadings and the evidence that have been adduced, the issue to be determined is, whether the disputed property is part of the estates of the late Mohamed Hamood Ally. The evidence, as revealed by both parties to the case, there is no dispute that the suit premise was primarily owned by the Plaintiff’s father, late Mohamed Hamood Ally since 07/01/1974 as per the title deed (exhibit P5), who then secured it to the 1st Defendant (Soud Mohamed) in 2004, in consideration of Tsh. 8,000,000/=, the loan that the said late Mohamed Hamood Ally was demanding for clearance of debt at the NBC Bank. According to PW1 and PW2, the said 1st defendant was to use the said house by collecting rents for 10 years, the fact which have not been disputed as the said 1st defendant never defended his case. As far as the case is concerned, I find convenient to describe the issue of forgery on the transfer of the Right of Occupancy for the Title deed of the suit premise, from the name of Mohamed Hamood Ally to that of Moze Mohamed Soud, which looks to be the source of transfer of ownership for the said property. The Land Officer alleged in his evidence that the Land Officers at the District level acted properly, upon receiving the request from the clients and that the Commissioner for Lands and Registrar of Titles use to sign the documents without having direct access to the said clients, hence nether of the Defendants should be found responsible. My comment on this is that the transfer having been blessed by the Commissioner for Lands and Registrar of Titles does not necessarily mean that the whole procedures were absolutely followed by their subordinates or the purported transferor of the Right of Occupancy. Therefore, there is no venue to accept that there was no fault at all. The fact that, it is vivid in the document, that signatures of the transferor in the deed of Transfer (exhibit P8) and that seen in the Title Deed (exhibit P5) differ, as it has been so admitted by the Land Officer (DW1), and the fact that the said exhibit P5 was in possession of the 1st Defendant since 2004 before the said transfer had been done on that 23/08/2004, I must agree that the said 1st Defendant participated in the forgery to mislead the land office and the untrustworthy person(s) cooperated with the 1st and 2nd Defendants to make the said fake transfer deed (exhibit P8). It is doubtful for the 2nd Defendant to have purchased the said property from the late Mohamed Hamood Ally, as there are elements of doubts on that. The question that triggers my mind is that, how comes, the property which was under legal possession/ownership of the 1st defendant, Soud Mohamed be transferred by Mohamed Hamood who was not in control of the said property regarding the same being secured to the said Soud Mohamed who was in possession of the title deed? It is something doubtful for the late Mohamed Hamood to have affected the said transfer while he was not in possession of the title deed for the said property. There is no evidence that the said title deed ever been taken back to the Late Mohamed Hamood. The Defendant’s witness who is the Land Officer (DW1) said that, the issue of age and/or a long time having passed may affect one’s signature. That, it may be looked different regarding the time that they were made. As for the matter at hand DW1 stated that, by the time the holder was signing the title was young and healthy, contrary to the time that he came to sign the transfer deed, in 2004 whereby about 30 years had passed. But, the same witness admits that the holder’s signatures seen in the title deed (exhibit P5) does not tally with that seen in the transfer deed (exhibit P8). It is the further testimony of DW1 that if this happens the Land Office use to do either of the two; one, by calling the transferor so as to verify if he is the one who had signed the document whereby he can be ordered to sign on a separate sheet of paper so as to verify it. DW1 Added that, otherwise, they use to order the said person to swear affidavit. But, in the plot’s file there is no affidavit nor any document to prove that the transferor had signed the document on separate sheets for verification of his signature. It means there was no any investigation done in that respect. This situation creates a doubt on the authenticity of the transfer deed (exhibit P8). Such doubts in respect of transfer of the right of occupancy makes the court to decide for the Plaintiff as against the Respondents. From the aforesaid analysis, I find the Plaintiff has successfully proved his case against the Defendants herein. I thus grant him the judgment and decree for him as follows; 1. That, the disputed property is hereby declared part of the estates of the Late Mohamed Hamood Ally. 2. That, the disputed property should be handled to the Plaintiff who is the administrator of estates for the Late Mohamed Hamood Ally. 3. That, the 4th, 5th and 6th Defendants are ordered to change the ownership of Plot No. 20, Block “F” Shinyanga Central/Town area into the name of HAMMOOD MOHAMED HAMOOD, the Administrator of Estate of Late MOHAMED HAMOOD ALLY. 4. No order as to costs as the Plaintiff has decided to waive it. It is so ordered. S. M KULITA 30 /12/2024 JUDGE OF THE HIGH COURT