Kaundime

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO. 10 OF 2023 KAUNDIME RAMADHANI NYEMBO (Administratrix of the estate of the late Ramadhani Rashid Nyembo)............................................................. APPELLANT VERSUS RASHID SALUM LUPALA (Administrator of the estate of the late Alhaj Rashid RamadhaniNyembo) .................................................................. RESPONDENT JUDGMENT Date of Last Order: 29/05/2024 Date of Delivery: 23/07/2024 KADILU, J. In October 2017, the appellant petitioned in Tabora Urban Primary Court to be appointed an administratrix of the estate of her late father, Ramadhani Rashid Nyembo who passed away on 27/01/2017. She told the court that one of the properties left by her deceased father was a house situated on Plot No. 17 Block 'F', Manyema Street Gongoni area, within Tabora Municipality. The application was objected to by Tatu Rashid Nyembo and Amina Rashid Nyembo (the respondent's mother). The ground of objection was that the said house belonged to their late father, Alhaji Rashid Ramadhani Nyembo and he donated it to them and their brother, Ramadhani Rashid Nyembo (the appellant's father). They contended that Ramadhani Rashid Nyembo was not the sole owner of such a house. After hearing both sides, the primary court found that the dispute about ownership of that house was a pure land matter that had to be determined by the land disputes courts. It, nevertheless, appointed the appellant to administer the estate of the late Ramadhani Rashid Nyembo. In i September 2018, the respondent acting as administrator of the estate of the late Alhaj Rashid Ramadhani Nyembo, filed a land dispute against the appellant in the District Land and Housing Tribunal for Tabora. He claimed that the late Alhaj Rashid Ramadhani Nyembo was a lawful owner of the disputed house, and before his demise, he gave it to Ramadhani Rashid Nyembo, Tatu Rashid Nyembo, and Amina Rashid Nyembo through a gift inter vivos. By the year 2018 when the dispute was filed in the tribunal, Ramadhani Rashid Nyembo and Tatu Rashid Nyembo had already passed away. After the trial, the tribunal decided the dispute in favour of the respondent. Among other things, the tribunal declared the respondent a lawful owner of the disputed house under the administration of the estate of the late Alhaji Rashid Ramadhani Nyembo. Aggrieved, the appellant preferred the instant appeal praying for this court to allow it with costs, quash and set aside the tribunal's decision, declare the appellant the lawful owner of the disputed house, and any other relief the court may deem just and fit to grant. The grounds of appeal are that: 1. The trial tribunal erred in law by holding that the matter before it was not res judicata. 2. The trial tribunal erred in law by entertaining the respondent's application which was time-barred under Section 9 (1) and item 22 of Part I of the Schedule to the Law ofLimitation Act [Cap. 89 R. E. 2019]. 3. The trial tribunal erred in law and fact for failure to consider that the respondent's suit was incurably defective for failure to join the Commissioner for Lands and Registrar of Titles as necessary parties to the application. 4. In the absence of the allegation of fraud or forgery against the appellant, the trial tribunal erred in law and fact to impeach the 2 genuineness and authenticity of the appellant's certificate of occupancy, exhibits DI & D3. 5. The trial tribunal erred in law and fact when it failed to consider that a person with a certificate of occupancy is the lawful owner ofthe landed property. 6. The trial tribunal erred in law and fact when it failed to evaluate the evidence on record and reached the wrong conclusion that the respondent is a lawful owner of the suit property. 7. The trial tribunal erred in taw and fact to decide in favour of the respondent in disregarding the appellant's cogent evidence on record which carries more weight compared to that of the respondent. 8. The trial tribunal erred in law in issuing a decree which is not executable. The appellant herein was represented by Mr. M.K. Mtaki, Mr. Saikon Justin Nokoren, and Mr. Akram William Magoti, the learned Advocates whereas the respondent enjoyed the legal services of Mr. Hassan Kilingo, also the learned Counsel. When the matter came up for necessary orders on 29/05/2024, Mr. Akram prayed to add a ground of appeal to wit; the Chairman of the tribunal erred in law and fact in entertaining the respondent's application while he had no locus standi to institute the suit On his part, Mr. Kilingo prayed for the appeal to be disposed of by way of written submissions. The court granted both prayers. In conformity with the scheduled order of the court, the appellant was required to file a written submission in support of her appeal on or before 11/06/2024. The respondent was ordered to file a reply on or before 25/06/2024, and the appellant was to file a rejoinder (if any) by close of 3 business on 02/07/2024. The judgment was set to be delivered on 23/07/2024 at 9:00 hrs. When I was composing this judgment, I realized from the appellant's rejoinder that the respondent did not comply with the court's scheduling orders. The records show that the appellant filed a submission in chief on 11/06/2024 as ordered, the respondent filed a reply on the Judiciary electronic case management system (e-cms) on 27/06/2024 and submitted a hardcopy at the court's registry on 28/06/2024. Nevertheless, the appellant filed a rejoinder on 02/07/2024 in compliance with the court's order. Nothing was heard from the respondent on why the court's order was not complied with. I wish to state at the outset that it is a settled legal principle that failure to file a written submission as ordered by the court is a manifestation of failure to prosecute the case. It is as good as non-appearing on the date fixed for hearing. See the case of Godfrey Kimbe v Peter Ngonyani, Civil Appeal No. 41 of 2014, Court of Appeal of Tanzania at Dar es Salaam. Regarding the date and time of electronic filing, Rule 21 (1) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 stipulates that a document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted unless a specific time is set by the court or it is rejected. Since the respondent was required to file a reply on 25/06/2024, the 27/06/2024 electronic filing was invalid and the submission of the same to the court's registry on 28/06/2024 served no meaningful purpose. As hinted, failure to file a written submission has a similar effect as the party's non­ 4 appearance to a hearing as provided under Order IX rule 2 of the Civil Procedure Code (CPC) [Cap. 33 R.E. 2022]. In National Insurance Corporation T. Ltd v. Shengena Ltd, Civil Application No. 230 of 2015, the Court of Appeal held: "The applicant did not file submission on the due date as ordered. Naturally, the Court could not be made impotent by the party's inaction. It had to act... it is trite law that failure to file submission(s) is tantamount to failure to prosecute one's case." Based on the above authorities, the court considers the respondent's failure to file a reply to the petition of appeal within the time frame as failure to appear on the date fixed for the hearing of the appeal. In the premises, I expunge from the court's records the purported reply to the petition of appeal and the hearing proceeds exparte against the respondent. The appellant's rejoinder is also expunged from the records for having been based on an invalid reply to the petition of appeal. Therefore, this judgment is composed based on the records in the case file and the appellant's submissions. Starting with the added ground of appeal, the appellant complains that the Chairman of the tribunal erred in law and fact in entertaining the respondent's application while he had no locus standi to institute the suit. The basis of this complaint is that the respondent instituted Land Application No. 63 of 2018 in the DLHT as the administrator of the estate of the late Alhaji Rashid Ramadhani Nyembo. Nonetheless, he tendered a letter of appointment as an administrator (exhibit Pl) which indicated that the deceased was one, Rashid Ramadhani Nyembo. To be precise, the title, "Alhaj" is missing in exhibit Pl. To the appellant, Alhaji Rashid Ramadhani 5 Nyembo and Rashid Ramadhani Nyembo are two different persons hence, the respondent lacked the legal stand to institute the case in the tribunal. In the appellant's written statement of defence to the tribunal, she never questioned the respondent's administration of the estate nor did she raise it in evidence. When the respondent was testifying, he prayed to tender a letter of appointment as the administrator of the estate. The tribunal Chairman asked the Advocate for the appellant if he had an objection, to which he replied negatively. Generally, this issue was neither in the appellant's pleadings nor adjudicated upon by the trial tribunal. I, thus, consider the appellant's submission which purports to challenge the difference in the deceased's name an afterthought. With the advent of the Overriding Objective principle which requires the courts to focus on substantive justice rather than procedural technicalities, I find that the omission of the prefix "Alhaj" in the legal name of the deceased did not occasion any failure of justice to the appellant. This ground of appeal has, therefore, failed. The other complaint by the appellant is that the trial tribunal erred in law by holding that the matter before it was not res judicata. The appellant contends that the suit land subject to this appeal is substantially identical to the previous Land Case No. 29 of 2017 which was dismissed by this court for being time-barred. The principle of resjudicata \s provided under Section 9 of the Civil Procedure Code (CPC) which stipulates: "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such 6 subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court." The conditions for the application of resjudicata were laid down in the case of PenielLotta r. Gabriel Tanaki& [2003] TLR. 312: (i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or privies claiming under them; (iii) the parties must have litigated under the same title in the former suit; (iv) the court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and finally decided in the former suit. The court elaborated that the conditions mentioned above must be met cumulatively. In Kamunye & Others r. The Pioneer General Assurance Society Ltd, [1971] E.A. 263, it was held that the tests to be used in determining whether a suit is res judicata are: "... is the Plaintiff in the second suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon? If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time..." I have carefully considered this doctrine and related it to the facts of this case. First of all, I have keenly examined Land Case No. 29 of 2017 and noted that the parties were Amina Rashidi Nyembo v. Kaundime Ramadhani Nyembo (Administratrix of the estate of the late Ramadhani 7 Rashid Nyembo) whereas in Land Application No. 63 of 2018 before the District Land and Housing Tribunal for Tabora, the parties were Rashid Saiumu Lupaia (Administrator of the estate of the late Aihaj Rashid Ramadhani Nyembo) Kaundime Ramadhani Nyembo (Administratrix of the estate of the /ate Ramadhani Rashid Nyembo). It is apparent from the above that the parties in the two cases were different. Second, it is on record that Land Case No. 29 of 2017 was dismissed for being time-barred. As such, it cannot be ruled that the said case was heard and finally decided by the court of competent jurisdiction. For the foregoing reasons, the finding of this court is that Land Application No. 63 of 2018 was not res judicata as claimed. Consequently, the second ground of appeal is dismissed for being devoid of merit. The appellant alleges further that the trial tribunal erred in law by entertaining the respondent's application which was time-barred under Section 9 (1) and item 22 of Part I of the Schedule to the Law of Limitation Act [Cap. 89 R.E. 2019]. She argues that since the late Aihaj Rashid Ramadhani Nyembo passed away on 26/10/1987, the right of action accrued on that year. She concludes that when the respondent filed Land Application No. 63 of 2018 in the District Land and Housing Tribunal, the twelve-years limitation period had already expired. According to the appellant, the trial tribunal lacked the requisite jurisdiction to hear and determine the time- barred case. The respondent was appointed as the administrator of the estate on 13/07/2018 as evidenced by exhibit Pl. The exhibit shows that the late Aihaj Rashid Ramadhani Nyembo passed away on 26/10/1987. Indeed, on 8 05/09/2018 when the respondent filed Land Application No. 63, it was about 31 years after the death of the said Alhaj Rashid Ramadhani Nyembo. However, the respondent indicated in paragraphs 6 (a) (v) and (vi) of the application that the dispute arose in 2017. It is undisputable that the limitation period for a suit for recovery of land of the deceased person is 12 years counted from his death. In the case at hand, the disputed land was allegedly the property of the late Alhaj Rashid Ramadhani Nyembo who passed away in 1987. Section 9 (1) of the Law of Limitation Act [Cap. 89 R.E. 2019] provides as follows: "Where a person institutes a suit to recover the land of a deceased person, whether under a will or intestacy and the deceased person was, on the date of his death, in possession of the land and was the last person entitled to the land to be in possession of the land, the right of action shall be deemed to have accrued on the date of death." A pertinent question is thus, when did the right of action accrue in the instant matter? Section 5 of the Law of Limitation Act clearly states that the right of action in respect of any proceeding accrues on the date the cause of action arises. It is common ground that the cause of action arises when the complained act or omission comes to the knowledge of the complainant. The respondent herein pleaded that the dispute arose on 27/09/2017 when the appellant included the disputed house in their deceased father's estate while the said father was not the sole owner of that house. Moreover, Section 35 of the same Act provides that an administrator of the estate of a deceased person is considered to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration or the probate. In my view, Section 9 9 (1) of the Law of Limitation Act should be read together with Section 35 as they both provide a presumption which may be rebutted depending on the facts of each case. As shown, the respondent stated that after the death of the late Alhaj Rashid Ramadhani Nyembo, the disputed house became a residential home for his children who used it peacefully until September 2017 when the appellant petitioned before Tabora Urban Primary Court to administer the said house as the estate of her deceased father. That was also the testimony of PW2 who informed the trial tribunal that the problem started in 2017 after the death of the appellant's father. Since this fact was not challenged by the appellant in evidence, there is no way it can be said that the cause of action arose in 1987 after the death of the late Alhaj Rashid Ramadhani Nyembo. This court finds that the cause of action arose in 2017 and the respondent filed the dispute before the tribunal in 2018 hence, it was not time-barred. Accordingly, the 2nd ground of appeal lacks the legal base and it is dismissed. The other grievance by the appellant is that the trial tribunal erred in law and fact for failure to consider that the respondent's suit was incurably defective for failure to join the Commissioner for Lands and Registrar of Titles as necessary parties. The appellant elaborated that since the respondent alleged that a certificate of occupancy (exhibit DI) issued to the appellant was procured by fraud, it was wrong for the tribunal to proceed without joining the Commissioner for Lands and Registrar of Titles to clarify the allegations. The appellant argued that the non-joinder of the Commissioner for Lands and Registrar of Titles rendered the tribunal's proceedings and decision illegal. To support this contention, the appellant cited the case of io Juma B. Kadala v. Laurent Mnkande, [1983] TLR 42 and Abdullatif Mohamed Hamisi v. Mehboob Yusuph Othman & Another, Civil Revision No. 6 of 2017, Court of Appeal at Dar es Salaam. In resolving this ground of appeal, I find it convenient to quote Order I, Rule 3 of the CPC which stipulates that: "All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact would arise." The provision infers that for two or more persons to be joined as defendants in a suit, there must be a right to relief against them which if separate suits were to be filed, the same question of law or fact would arise. In Abdi M. Kipoto v. ChiefArthur Mtoi, Civil Appeal No. 75 of 2017, the Court of Appeal held that a party becomes necessary to the suit if its determination cannot be made without affecting the interests of that necessary party. Also see Robert Mashine v. Godfrey Msoka, Land Appeal No. 16 of 2021, High Court of Tanzania at Mwanza in which it was observed that a necessary party is a party without him or her the court cannot be in a position to pass an effective decree. In the case at hand, the appellant's certificate of occupancy (exhibit DI) was allegedly obtained by fraud because it was granted during the subsistence of caveat No. REF.RD/OPT/TBR/1598 over the disputed property. To the appellant, the Commissioner for Lands and Registrar of Titles were necessary parties to this case so they could have clarified why ii the appellant's certificate of occupancy was issued during the pendency of a caveat. As there was suspicion that the appellant obtained a certificate of occupancy illegally, I believe there were two ways of resolving the issue without joining the Commissioner for Lands and Registrar of Titles as necessary parties. Considering that the validity of a document is a question of fact to be proved in evidence, the parties could move the court to order a forensic investigation of the alleged forged certificate of occupancy. Alternatively, the Commissioner for Lands and Registrar of Titles could be summoned to testify about the genuineness of the said certificate. Indeed, in the present case, the Land Officer one Vailet Javu Manyiri (PW2) testified about it. The Commissioner for Lands and Registrar of Titles were key witnesses rather than the necessary parties. The allegation of forgery had nothing to do with the parties to the case in the tribunal. In the case of Justine F. Bufure v. Haji R. Mwikaio, Civil Appeal No. 292 of 2023, the Court of Appeal at Dar es Salaam held that civil courts can determine and decide issues of fraud on the established principle that fraud must be pleaded and specifically proved and the standard of proof is higher than in an ordinary civil suit. I have examined the pleadings of this case and found nowhere that fraud was pleaded or proved. For that matter, the third ground of appeal fails too. Additionally, the appellant laments that in the absence of the allegation of fraud or forgery against the appellant, the trial tribunal erred in law and fact to impeach the genuineness and authenticity of the appellant's certificate of occupancy, exhibits DI & D3. As I have shown, none of the parties pleaded fraud or proved the same through testimony. 12 Notwithstanding, several objections were raised during the trial regarding the admissibility of exhibits DI and D3. Whether the learned Chairman of the tribunal impeached the authenticity of the said exhibits, I find the argument misconceived. The allegations of fraud were raised during the admissibility stage where the trial Chairman resolved each of them. He then found the exhibits less credible when he was analyzing the evidence. That was not, in my opinion, an impeachment of the genuineness and authenticity of the exhibits. So, the 4th ground of appeal is dismissed for lack of merit. I am unable to comprehend the 8th ground of appeal in which the appellant contends that the trial tribunal erred in law in issuing a decree that is not executable. There is no sufficient elaboration about the gist of this complaint. This takes me to the 5th, 6th, and 7th, grounds of appeal in which the appellant challenges the respondent's evidence in the trial court. Simply, the appellant is faulting the way the tribunal had weighed the evidence and reached a conclusion that the respondent is the lawful owner of the disputed house. The appellant asserts that the house in dispute belonged solely to her late father, Ramadhani Rahid Nyembo. At the same time, the respondent alleges that the late Alhaji Rashid Ramadhani Nyembo gave the said house to his children, Ramadhani Rashid Nyembo, Tatu Rashid Nyembo, and Amina Rashid Nyembo in 1984. He informed the tribunal that at the time of the trial, Ramadhani Rashid Nyembo and Tatu Rashid Nyembo had already passed away so, only Amina Rashid Nyembo (respondent's mother) was alive. He, thus, maintains that the house in dispute belongs to Amina Rashid Nyembo and her relatives. 13 The respondent did not, however, present any proof of the said donation of the house by the late Alhaji Rashid Ramadhani Nyembo. He argued that those who had witnessed a deed of gift had already passed away. He added that the appellant's father was not the owner of the disputed house but a mere supervisor thereof. To prove it, he tendered lease agreements with some tenants from 1985 to 1989. He also presented a 1977 letter written by the late Alhaji Rashid Ramadhani Nyembo to Ramadhani Rashid Nyembo directing him to vacate the house in dispute. With respect, these are not proof of ownership of a landed property recognized in law. Surprisingly, the respondent did not give any plausible reason as to why Alhaji Rashid who wrote the alleged letter in 1977 against the appellant's father failed to reduce the purported gift inter i//i/<2s into writing in 1984. In addition, it is unclear as to how a parent who, in 1977 complained bitterly about the sour relationship between him and his son Ramadhani, turned holy and donated the same house to the same son a few years later. The respondent contended more that the house in dispute was registered in the name of Ramadhani Rashid Nyembo but it was not Ramadhani who was the appellant's father. According to him, there were several members of the family named Ramadhani which is why the signature on the title deed does not resemble that of the appellant's father. He added that the late Alhaj Rashid Ramadhani Nyembo was a political leader during the Nyerere era and the Government did not permit the leaders of that time to own houses which is why the said house was registered in the name of Ramadhani Rashid Nyembo. It suffices 14 to say generally that, all these are empty words which were not backed up with any candid evidence. On the other hand, the appellant argued vigorously that the house in dispute belonged to her late father, Ramadhani Rashid Nyembo. She tendered the original certificate of occupancy issued in 1975 in the name of Ramadhani Rashid Nyembo, exhibit D3. As she is the administratrix of the estate of her late father, she also tendered a certificate of occupancy issued in her name in 2018, exhibit DI. To corroborate her evidence, she tendered property tax receipts for several years relating to the house in dispute. With these pieces of evidence, I am convinced that the appellant's evidence was more cogent compared to that of the respondent. In my humble opinion, the appellant has managed to prove that she is the lawful owner of the disputed house under the administration of the estate of her late father. I hold this view based on the legal position stated in the case of Amina MauiidAmbaH& Others v. RamadhaniJuma, Civil Application No. 173 of 2020, that where two persons have competing interests in a landed property, the person with the certificate thereof will always be taken to be the lawful owner unless it is proved that the certificate was not lawfully obtained. I have already indicated that there was neither a plea nor proof that the appellant obtained the tendered certificates of occupancy illegally. Consequently, I allow the appeal with costs. I declare the appellant the lawful owner of a house built on Plot No. 17 Block 'F', Manyema Street Gongoni area, within Tabora Municipality. I quash and set aside the tribunal's 15 decision and orders concerning the house in dispute. The right of appeal is fully explained. It is so ordered. M.J. JUDGE 23/07/2024 The judgment delivered in chamber on the 23rd Day of July, 2024 in the presence of Mr. Saikon Justin Nokoren, Advocate for the appellant, and Mr. Rashid Salum Lupala, the respondent. kADILU, MJ. JUDGE 23/07/2024 16