salma kisukari rashidi administratix of the estate of the late rashidi ally kisukari vs rukia jumanne kisukari 2019 tzhclandd 51 20 september 2019

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 68 OF 2017 SALAMA KISUKARI RASHIDI (Administratrix of the Estate of late RASHIDI ALLY KISUKARI)............................ ............PLAINTIFF VERSUS RUKIA JUMANNE KISUKARI (Administratrix of the Estate JUMANNE KISUKARI).... ....................................... DEFENDANT JUDGMENT Date o f Last Order: 11/09/2019 Date o f Judgment: 27/9/2019 MALLA BA, J The plaintiff Salama Kisukari Rashid, in her capacity as the administratix of the estate of the late Rashid Ally Kisukari, has sued Rukia Jumanne Kisukari, in her capacity as the administratrix of the estate of the late Jumanne Kisukari. The plaintiff seeks to be declared the lawful owner of the Page 1 of 12 suit premises, as the administratix of the estate of the late Rashid Ally Kisukari. The plaintiff, Salama Rashid Kisukari, was the only witness for the plaintiff's case, testifying as PW1. She testified that, she was a daughter of the late Rashid Ally Kisukari, who died in 1983. She was appointed administratix of estate by the Magomeni Primary Court. She claimed that, the disputed Plot No. 261, Block 45 "C" Kijitonyama, Dar es Salaam, belonged to her late father. She tendered an Offer of Right of Occupancy in the name of Zahama bin Abdallah, which was admitted as exhibit PI. She also tendered copy of a letter which was written by the Magomeni Primary Court, to the Land Officer for Kinondoni Municipality, inquiring on the owner of the disputed property, and the same was received as exhibit P2. She claimed that, the reply indicated that, the land belonged to Rashid Ally, her father. The plaintiff (PW1) testified knowing Jumanne Kisukari, as her half-brother. They share a father. She was also aware that, Jumanne Kisukari died in 2013. She also knows the defendant as being a daughter of the said Jumanne Kisukari. The plaintiff asked this court to recognize her as the Page 2 of 12 administratix of estate. She asked this court to order that, she be paid compensation because of the defendant making it difficult for her to collect rent from the disputed house. She also prayed to be declared the lawful owner of the disputed premises. For the defence, there were two witnesses. The defendant testified as DW1 and stated that, she is the administratix of the estate of the late Jumanne Rashid Ali, who was her father and that, the said Jumanne Rashid died on 29/01/2013. DW1 testified further that, the disputed house was originally owned by Rashid Ali, who died in 1983. In 1976, through a Will, the disputed house was bequeathed to the defendant's father. A copy of what was alleged to be the respective Will was tendered and admitted in court as exhibit Dl. She testified further that, the late Rashid Ali bought the land on which the disputed house is, in the 1970s. There were just a hut at the land and that, he bought the land from one Zahama Bin Abdallah. After being bequeathed with the land, the defendant's father built a house at the site, in 1986. Page 3 of 12 One Aisha Yusufu testified as DW2. She was the wife of the late Jumanne Rashid, the defendant's father. She testified that, the disputed premises were formerly owned by Rashid Ally, who bought the land in 1975. In 1976, Rashid Ally made a Will in favour of her husband, Jumanne Rashid. DW2 claimed to have been informed by Jumanne Rashid that, the said Jumanne Rashid was given documents pertaining to ownership of the disputed land. DW2 also claimed that, Jumanne Rashid later constructed a house at the disputed premises. She also testified that, Jumanne Rashid was paying land rent Copy of "Notisiya Malipo ya Kodi"was admitted in court as exhibit D2. In cross-examination, DW2 stated that, she had no evidence to show that Rashid Ali bought the land in 1975. She also stated that, being given "Notisi ya malipo ya Kodi" does not necessarily show that one is the owner, but it only recognizes such a person to be a resident at the premises. In this matter, two issues were framed as follows: 1. Who is the lawful owner o f the suit premises between the parties. 2. To what reliefs are the parties entitled to. Page 4 of 12 As regards the first issue, the evidence from both sides is agreeable on three aspects. It is agreeable that: One, the disputed piece of land, Plot No. 261 Block 45 "C" at Kijitonyama, Kinondoni in Dar es Salaam City and Region, has its origin from a person by the name of Zahama bin Abdallah. Copy of the offer of a Right of Occupancy was admitted in court as exhibit PI, showing that, the land was registered in that name. Two, the said piece of land was later bought by one Rashid Ally Kisukari, the plaintiff's late father. Three, Rashid Ally Kisukari bought the land from the said Zahama Bin Abdallah. As part of exhibit PI, there is a document titled "Transfer o f a Right o f Occupancy"signed by both Zahama Abdallah and Rashid Ally on 30/9/1977, to transfer the land from the former to the later. Parties have differing account as to how each of them is entitled to the suit premises. The plaintiff claims that, the premises remained in Rashid Ally's hands till his death. As such, they form part of the estate of the late Rashid Ally. Because it is not disputed that the plaintiff is the administratix of the estate of the late Rashid Ally, then she is entitled to the premises in her capacity as the administratix of the estate of Rashid Ally. Page 5 of 12 On the other hand, the defendant claims that, the late Rashid Ally Kisukari, during his lifetime, bequeathed the suit premises to her father, Jumanne Kisukari. Copy of what purports to be a Will dated 25/06/1976, was tendered and admitted in court as exhibit Dl. There is also copy of "Notisiya malipo ya kodi"requiring the late Jumanne Kisukari to pay land rent for the year 2005, It was also admitted in court as exhibit. The defendant also claims that, the late Jumanne Kisukari developed the premises after inheriting the same from the late Rashid Kisukari, because originally there were only a hut (banda). The said Jumanne Kisukari is alleged to have constructed a house on the disputed land. The defendant, in her final submissions, referred to a document titled "Had ya Kuuziana Bandd’ between Zahama Abdaliah and Rashid Aliy dated 24/03/1975. This court will not consider that document, because it was not tendered as an exhibit in this matter. She should have tendered the same as an exhibit before referring to it in the final submissions. However, this court wishes to note that, the document is in respect of an undisputed aspect. In all, the defendant claims title to the disputed premises on the ground that she is the administratix of estate of the late Jumanne Rashid Kisukari. Page 6 of 12 In their final submissions, the plaintiffs disputed the Will on the following reasons: First, that there were no evidence to explain as to how the Will came into possession of DW1, who tendered the same in court. Second, that according to exhibit PI, the Offer of the Right of Occupancy, accompanied with a transfer deed, the land was transferred to Rashid Ally Kisukari on 30/09/1977. Rashid Ali Kisukari could not have written a Will bequeathing the disputed premises before the same fell into his hands. The defendant claimed to have the disputed land bequeathed to him on 25/6/1976. On the basis of the above, this court will now turn to consider and evaluate the evidence on record. This court agrees with both sides, who, in their final submissions, cited the case of Hemedi Saidi Vs. Mohamed Mbili [1984] TLR 113 (HC) to substantiate a point that, parties in a suit cannot tie. Rather, the person whose evidence is heavier than that of the other, is the one who must win. Weight of evidence is not measured by the number of witnesses. What matters is the quality of the evidence. In that regard, this court has to see which side had stronger evidence qualitatively, than the other. Page 7 of 12 In the present matter, documentary evidence of ownership is to the effect that, the disputed land is currently in the name of Rashid Ally. Infact, there were no dispute that the said Rashid Ally was the owner of the land before the aspect of a Will came in. In the case of Salum Mateyo Vs. Mohamed Mateyo [1987] TLR 111, it was stated that, in a registered land, the owner of the land has to be the one in whose name the same is registered. In the present matter, as already pointed, the same is in the name of Rashid Ally Kisukari. Thus, this court could conclude that, the land, up to now, belongs to Rashid Ally Kisukari. However, because there are allegations that the land was bequeathed to the defendant's father, this court has to look into that as well. The only evidence brought to show that the disputed land was bequeathed to the defendant's father is the alleged Will, tendered in court as exhibit Dl. The first thing to consider while looking at exhibit Dl, purporting to be a Will, is the fact that, the same was tendered in court by DW1. This witness is not one of those who were present when the late Rashid Ally Kisukari is alleged to have made the Will. She is not mentioned anywhere in the document (exhibit Dl) as a witness to the Will. She did not tell the court as Page 8 of 12 to how she came into possession of the Will, such as to be able to tender the same in court. The chain of custody of the Will does not take us to DW1. This court recognizes that, DW2 also testified on the Will, stating that, it is one of the documents which was with her husband when he died. However, a Will is not a document ordinarily kept by its beneficiary. Rather, it is kept by the executor of the Will. It is not expected that, a Will would have been in the hands of Jumanne Rashid. DW1 ought to account as to how she came into possession of the document. Also, the document has four people who are indicated to have been present when it was made or prepared. They are the witnesses to the Will. No explanation has been given as to why none of them was called as a witness, to state before the court, as to the circumstances under which the Will was made. In the circumstances, it has to be presumed that, if they came, they would give testimony against the defendant. The maker of the Will and the witnesses thereof, appear all could not read or write. They all signed by use of their finger thumbs. The person who Page 9 of 12 reduced the document into writing, should also have testified. He did not. The Will appears wanting in many respects. Also, as pointed by the plaintiffs, the Will purports to have been made by Rashid Ali Kisukari on 25/06/1976, According to other documentary evidence in this matter, specifically exhibit PI, the disputed land was transferred to Rashid Alt Kisukari on 30/09/1977. Thus, the land was not yet in the hands of Rashid Ali Kisukari by the date of the Will. In this regard, it was stated in the case of Farah Mohamed Vs. Fatuma Abdallah [1992] TLR 205 (HC), which was cited by the plaintiff, that: "he who doesn't have legal title to the land cannot pass good title over the same to another". In the said case of Farah Mohamed Vs. Fatuma Abdallah (supra), it was stated that, documents purporting to transfer ownership of a right of occupancy must be registered, otherwise they are invalid and ineffectual. The purported Will in the present matter is not registered. The same is thus ineffectual. Page 10 of 12 Generally, the authenticity of the Will is questionable. A Will with doubtful authenticity cannot be depended upon to show that the disputed land was bequeathed by Rashid Ali Kisukari to the defendant's father. Because the authenticity of the Will in the present matter is doubted, it means that, the disputed land remained in the hands of Rashid Ally Kisukari by the time he died. As such, the disputed land became part of the estate of the late Rashid Ali Kisukari, not of Jumanne Rashid. In the circumstances, this court finds the plaintiff, who undisputedly is the administratix of the estate of the late Rashid Ali Kisukari, to be entitled to the disputed premises. However, this court wishes to make it clear that, the plaintiff is not entitled to the disputed land as the owner, but rather, as an administratix of the estate, meaning that, she has to distribute the disputed land, together with other properties forming part of the estate of the late Rashid Ally Kisukari, to all those entitled to inherit from the estate. Thus, this court decides this matter for the plaintiff in the sense that, the disputed premises is part of the estate of the late Rashid Ally Kisukari and being the administratix of that estate, she is entitled to administer it as pa# Page 11 of 12 of estate. No general damages are due to the plaintiff. Considering the nature of the matter, this court makes no order as to costs. It is ordered accordingiy. 20/09/2019 Page 12 of 12