Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE)

AT TEMEKE MISC. CIVIL APPLICATION NO. 16609 OF 2024 {Arising from the Probate and Administration Cause No. 215 of2022) MANCA SIRILI MSHANGA..................................................T SALMA MOHAMMED AHMED SOMO............... ................. APPLICANTS

VERSUS NURU SHENI............................................................................. RESPONDENT

RULING 23rd October & 20th November 2024 BARTH Y, J.: By way of chamber summons, the applicants, Manca Sirili Mshanga and Salma Mohamed Ahmed Somo, moved this court to review and set aside part of its proceedings in Probate and Administration Cause No. 215 of 2022. The application was brought under Order XLII Rule 1(1) and section 78(l)(b) of the Civil Procedure Code, Cap 33 R.E. 2019 (the Civil Procedure Code). The application was supported by a joint affidavit from the applicants. The application was contested through a counter-affidavit filed by Aidan Mutagahywa Kitare, advocate for the respondent, asserting that the matter should be referred to the court with jurisdiction i The genesis of this matter stems from the ruling of this court in Probate and Administration Cause No. 215 of 2022, following an objection raised by the respondent regarding a landed property with a house located in Ukonga, Dar es Salaam. Among other claims, the respondent asserted that the property belonged to her and, therefore, did not form part of the estate of the late Mohamed Ahmed Somo. Upon hearing of the said objection, this court ruled that neither party had sufficiently proven ownership of the disputed property. Consequently, the court directed the parties to refer their dispute to the appropriate forum for determination of the ownership of the said landed property. At the hearing of this

matter, this court ordered the matter to be disposed of by way of written submissions. However, only the applicants filed their submission in chief, while the respondent failed to file any reply without providing notice or an excuse. It is a settled principle that failure to lodge written submissions after being ordered by the court is tantamount to failure to prosecute or defend one's case. This principle was reinforced in the cases of National Insurance Corporation of (T) Ltd & Another vs. Shengena Limited, Civil Application No. 20 of 2007, Court of Appeal and Patson Matonya vs. The Registrar Industrial Court of Tanzania & 2 Another, Civil Application No. 90 of 2011, Court of Appeal (both unreported), the Court held: "Failure by a party to lodge written submissions after the Court has ordered a hearing by written submissions is tantamount to being absent without notice on the date of hearing." Similarly, in Godfrey Kimbe vs. Peter Ngonyani, Civil Appeal No. 41 of 2014, the Court of Appeal at Dar es Salaam observed that failure to file submissions amounts to failure to prosecute or defend one's case. Despite the respondent's failure to file submissions, the court has a duty to determine whether the application for review has merit. The applicants, in their submission, adopted the contents of their joint affidavit, claiming that the dispute centered around a house located at

Ukonga with a residential license registration number ILA013671, which the respondent claimed to own. The applicants submitted that they had discovered new evidence in the form of a residential permit (annexure C) titled "Leseni ya Makazi Na. ILA013671, Ardhi Na. ILA/KPW/MOG39/1, Kata ya Kipawa, Mtaa wa Mogo", registered under the name of the deceased, Mohammed Ahmed Somo. They cited David David Mbunda vs. Stanley Joachim Mmanyi, Civil Appeal No. 80 of 2013, High Court Labour Division to reinforce their argument. (j 3 The applicants prayed for this court to rule that the house forms part of the deceased's estate and be subject to distribution. They further argued that the respondent failed to provide evidence of ownership of the property and that the court should review its earlier decision. Although the respondent has failed to file her reply submission as required, this omission does not automatically entitle the applicants to a favorable ruling. The court has an inherent duty to evaluate the merits of the application for review independently, based on the evidence and legal arguments presented. The absence of a response from the respondent does not absolve the appellants from the burden of demonstrating that ' their application satisfies the legal requirements for review. Section 78(l)(b) of the Civil Procedure Code allows for a review of judgments or orders from which no

appeal is permitted, provided there is a discovery of new and important evidence, an error apparent on the face of the record, or any sufficient reason. For easy reference Order XLII Rule l(l)(b) is quoted below it states: "Any person considering himself aggrieved by a decree or order from which no appeal is allowed and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, may apply for a review 4 — of judgment to the court which passed the decree or made the order." The applicants submitted that there is residential permit as new evidence to support their claim. However, in probate matters involving land disputes, the court does not determine ownership but may consider who appears to own the property based on documents such as title deeds. In Amina Maulid Ambali & 2 Others vs. Ramadhani Juma, Civil Appeal No. 35 of 2019, the Court of Appeal held: "When two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained." In the present matter, the court observes that the residential permit submitted by the applicants as evidence of ownership does not equate to a certificate of title, as stipulated under sections 35 and 40 of the Land Registration Act, Cap 334 R.E.

2019. These legal provisions clearly establish that ownership of landed property must be evidenced by a certificate of title, which serves as the primary and legally recognized proof of ownership. In this case, neither the applicants nor the respondent possesses a certificate of title for the property in question. As a result, the status of ownership remains legally uncertain and unresolved, despite the residential permit tendered by the applicants. A residential permit, while indicative of occupancy rights, does not confer or establish ownership rights to the extent required under the law. The court further notes that the conflicting claims of ownership between the applicants and the respondent constitute a land dispute. Such disputes need to be addressed in the proper forum to resolve the ownership claims. In light of the above, and consistent with the court's earlier ruling, the parties are advised to take their competing claims to the appropriate land tribunal, where issues of ownership can be fully and properly determined in accordance with the relevant legal framework. The application is therefore dismissed for being devoid of merit, with no order as to costs. It is so ordered. Dated at Temeke this 20th November, 2024. advocate for the respondent and Ms. Bernadina Tayari, RMA. 6