CIVIL APPEAL NO 463 OF 2021 SEIF SULEIMAN RASHID VS HALIMA SULEIMAN RASHID

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NPIKA, J.A., GALEBA. 3.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 463 OF 2021 SEIF SULEIMAN RASHID (As an administrator of the Estate of the late ZUHURA SALUM HEM ED)..................................... APPELLANT VERSUS HALIMA SULEIMAN RASHID (As an administratrix of the estate of the late SULEIMAN RASHID).............. ............................ RESPONDENT [Appeal from the Decision of the High Court of Tanzania (Land Division) at Dar es salaam] (Opiyo, J.) dated the 15th day of October, 2021 in Land Case No. 32 of 2018 JUDGMENT OF THE COURT 22nd October, & 15th November 2024 GALEBA. J.A.: In this matter, Seif Suleiman Rashid and Halima Suleiman Rashid, the appellant and respondent respectively, are siblings, both having been born of one Suleiman Rashid, now deceased, (the deceased father). The deceased father had two wives; Zuhura Salum Hemed, also now deceased (the senior wife), and Tatu Sultan Mege (the junior wife) who testified as DW2, at the trial. The appellant's mother was the senior wife, and the respondent's mother, the junior. During the lifetime of the deceased father and his two wives, his mother passed on, leaving a surveyed parcel of land known as Plot 103 Block 'E' Kariakoo in Dar es Salaam (the disputed property). Being the only surviving child of the said mother, the deceased father assumed ownership and control of the property. Undisputed too, was the fact that the deceased father lived in that house with his senior wife and her children, together with some children of the junior wife. However, the junior wife never lived in the disputed property; she had a permanent residence in another family house in the country side at Mkongo Village in Rufiji, Coast Region. Nonetheless, on 14th September, 2014 as ill luck would have it, the deceased father passed away at the age of 92, leaving behind the 2 wives and 20 children surviving him. Close to a year later, his senior wife, Zuhura Salum Hemed, the mother of the appellant, also died on 18th July, 2015. Consequent to the two deaths, the appellant applied for letters of administration in respect of the estate of his mother, whereas the respondent successfully sought and obtained letters of administration as regards their late father's estate. In seeking to administer the deceased father's estate, the disputed property inclusive, the respondent demanded vacant possession of the property in order to include it in the estate of her late father and deal with it in terms of her mandate as an administratrix of the estate. This attempt was bitterly resisted by the appellant, maintaining the position that before the death of their father and his mother, the former had transferred the disputed house to his senior wife, Zuhura Salum Hemed. To have his position authoritatively affirmed once and for all, the appellant lodged Land Case No. 32 of 2018, from which this appeal arises, moving the court to issue an injunction in perpetuity, restraining the respondent from seeking to exercise any administrative powers over the disputed property and, to declare that, before his death, their father had lawfully transferred the house to his mother, Zuhura Salum Hemed. The case was heard, but was eventually dismissed, on grounds; first, that the disputed house was a matrimonial home of the junior wife, such that any lawful transfer of it, would necessarily require her consent before effecting it. Second, the transfer was not approved by the Commissioner for Lands in terms of section 37 (5) of the Land Act, therefore the alleged transfer was inoperative. That decision aggrieved the appellant, who lodged this appeal predicating it on the following six grounds of appeal, which be paraphrased as follows: 1. That the tria l Judge erred in iaw by holding that the disposition o f the su it property was inoperative as it was not consented to by the Land Authorities. 2. That the tria l Judge erred in law by holding that Tatu Sultan had interest in the disputed property without p ro o f o f any contribution towards acquisition or im provem ent o f the property. 3. The tria l Judge failed to appreciate that, Zuhura Salum Hemed was presum ed to be owner o f the su it property in term s o f section 61 o f the Law o f Marriage Act, Cap 29 R.E. 2019. 4. The Trial Judge erroneously m isapplied the principles guiding contributions by house wives towards acquisition and improvements o f m atrim onial properties hence wrongly invoked section 59 (1) o f the Law o f Marriage A ct and section 161 (2) and (3) (b) o f the Land Act, Cap 113 R.E. 2019. 5. The Trial Judge erred in iaw in failing to acknowledge the principle o f "individual ownership o f properties acquired during the subsistence o f m arriage" and therefore wrongly applied section 59 o f the Law o f M arriage Act. 6. The evidence tendered by the Appellant overwhelm ingly established beyond a ll probabilities that the su it property belonged to the late Zuhura Saium Hemed. In pursuing the appeal, Mr. Elisa Abel Msuya who appeared for the appellant assisted by Ms. Irene Mcharo both learned advocates, adopted his written submissions filed earlier on, and opted not to add anything. On his part, Mr. Abdul Aziz who appeared along with Mr. Nehemiah Nkoko also learned advocates, for the respondent, like his counterpart, adopted his written submissions, and prayed for dismissal of the appeal with costs. In this appeal, the above grounds will be determined in the context of two issues which are; one, whether the disputed property was a matrimonial home, such that it could not be legally disposed of without the spousal consent of Tatu Sultan Mege, and; two, whether the transfer of the disputed property was legally approved by the Commissioner for Lands as required by section 37 (5) of the Land Act. It is logical that before discussing the approval by the Commissioner for Lands, we start with a discussion on the spousal consent of the junior wife, which issue is corresponding to grounds two, three, four, five and six. To determine that issue, we need to ascertain whether the disputed property was a matrimonial home of the junior wife, in view of sections 59 (1) of the LMA and 112 (2) of the Land Act. The latter section of the Land Act provides for a definition of a matrimonial home, and it states: "Matrim onial home" means the b u ild in g o r p a rt o f a b u ild in g in w hich th e h u sb an d a n d w ife o rd in a rily re sid e to g e th e r and indudes- (a) where a building and its cartilage are occupied fo r residential purposes only, that cartilage and any outbuildings thereon; and (b) where a building is on or occupied in conjunction with agricultural land or pastoral land, any land allocated by the husband or the wife, as the case may be, to his or her spouse for her or his exclusive use." [Emphasis added] The catch phrase is "the building in which the husband and wife ordinarily reside together". That too, is the position of this Court, see for instance the case of the National Bank of Commerce Ltd v. Nurbano Abdullah Mulla, [2020] 1 T.L.R. 531, where this Court held that: "0) From the provisions o f section 2 o f the Law o f Marriage A ct Cap 29 R .E 2002 and 112 (2) o f the Land A ct Cap 113 R.E. 2002, a p ro p e rty w ill be term ed a m a trim o n ia l hom e w hen th e sp o u se s o rd in a rily o ccu p ie d it a s th e ir fa m ily re sid e n ce . (ii) ...The p h rase m a trim o n ia l hom e th e re fo re sh o u ld [b e co n fin e d ] to th e house w here th e sp o u se s o rd in a rily re sid e ." [Emphasis added] As to whether Tatu Sultan Mege was residing with Suleiman Rashid in the disputed house at Kariakoo, the said junior wife herself during cross examination at page 105 of the record of appeal gave the answer. She stated: "Se/eman had two wives, th e se n io r w ife w as liv in g in K a ria ko o w ith h e r ch ild re n an d som e o f m y ch ild re n ." [Emphasis added] Indeed, we have thoroughly perused the entire record, specifically seeking to trace any information suggesting that Tatu Sultan Mege, at any point in time, lived in the disputed house at Kariakoo with the deceased father, but were unable to find any such place. That finding leaves us with only one conclusion, that, unlike the senior wife who was residing in the disputed property with her husband, Tatu Sultan Mege never lived in the disputed house with her late husband in a family setting. That means, in terms of section 112 (2) of the Land Act and the above case of National Bank of Commerce Ltd (supra), to the junior wife, the disputed property did not constitute a matrimonial home. We venture to add that, her matrimonial home was a family home at Mkongo Village in Rufiji, according to the evidence on record. This distinction, of which matrimonial home belonged to which wife, is the aspect that the trial court did not appreciate and accord it the attention it deserved. Therefore, section 59 (1) of the LMA and section 161 (3) (b) of the Land Act were not of any applicability in favour of the junior wife as for the Kariakoo house. The other aspect which would have necessitated seeking of Tatu Sultan's consent, would have been her acquired interest in the disputed property in terms of section 161 (2) of the Land Act. According to the evidence on record, Suleiman Rashid inherited the property from his late mother. That means, there is no one who spent any resources, in acquiring the property, not even Suleiman Rashid himself. The next question to ponder, is this; in the aftermath of inheriting the house, did Suleiman Rashid spend any resources in upgrading or renovating the house? The clear response to that query is also traceable from the evidence of Tatu Sultan Mege at page 105 of the record of appeal, where she stated: "The Kariakoo house contains five bed rooms. When it was with his mother, it was not brick house, I t w as re n o va te d b y o u r [h u sb a n d 's] c h ild ." [Emphasis added] So, the house was modernized by Suleiman Rashid's son, whose identity is not ascertainable from the record, but the point relevant to us, is that, as there is no evidence that Suleiman Rashid or any of his wives spent any money on either acquisition or renovation of the house, Tatu Sultan Mege could not have acquired any interest in the disputed property. The major point we want to make here is that, there was no proof of the slightest magnitude to suggest that Tatu Sultan Mege contributed to the improvement of the disputed property, A very notable point for emphasis, and which we cannot afford to skip, is the position of the law that not every property of one of the spouses, automatically belongs to the other spouse. That remark harmonizes with the provisions of sections 58 and 60 (a) of the LMA providing for a clear line separating ownership of property by one of the spouses to the exclusion of the other. For clarity, those sections provide as follows: "58. Subject to the provisions o f section 59 and to any agreem ent to the contrary that the parties may make, a m arria g e s h a ll n o t o p erate to change th e o w n ersh ip o f a n y p ro p e rty to w hich e ith e r th e h u sb an d o r th e w ife m ay be e n title d o r to p re v e n t e ith e r th e h usb and o r th e w ife from a cq u irin g , h o ld in g a n d d isp o sin g o f any p ro p e rty. 60. Where during the subsistence o f a marriage, any property is acquired- (a) in the name o f the husband or o f the wife, th e re s h a ll b e a re b u tta b le p resu m p tio n th a t th e p ro p e rty b elo n g s a b so lu te ly to th a t p erson , to th e e x clu sio n o f h is o r h e r sp o u se ." [Emphasis added] The above position of sections 58 and 60 (a) of the LMA, blends well with the reality about marriage as a covenant between two independent personalities. Although a holy matrimony, the relationship does not fuse a husband into his wife or vice versa to form a single unitary indivisible entity. Marriage, though of a very unique nature, is a commitment to live together as husband and wife, but it is not a merger of the spouses' identities, or a dissolution of their distinctive beingness acquired at creation. Briefly, to answer the first issue we framed, we conclude that, the disputed property was not a matrimonial home, so it was not at all necessary for the deceased father, to seek consent of Tatu Sultan Mege, his junior wife, before he could legally grant the disputed property to his senior wife, Zuhura Salum Ahmed. Thus, we allow the second, third, fourth, fifth and sixth grounds of appeal. Next for our discussion is the second issue which is the subject of the first ground of appeal. The complaint in that ground, is that the trial Judge erred in law to hold that section 37 (5) of the Land Act was breached, for the transfer (disposition) was not approved. That section provides as follows: "(5) A disposition which has been carried out without first obtaining the approval o f the Commissioner shai! be inoperative." The first ground of appeal of whether an approval of the Commissioner for Lands was procured, has to be resolved by a thorough consideration of exhibits D1 and D2. Although the issue of granting or refusing to grant approval to a disposition is a matter of law, that is section 37 (5) (c) of the Land Act, proof that the approval was procured is a matter of both mixed law and fact. Thus, from this point on, we will thoroughly study the substance of exhibits D1 and D2, contained at pages 70 and 71 of the record of appeal. Exhibit D1 is an Application for Approval of a Disposition. At line 16 on page 70 of the record, exhibit D1 states the nature of the disposition to be "transfer". At line 27 of the same page, item (a) has a phrase "approved/refused." In this case, ''refused" was crossed out and neatly cancelled, leaving "approved" clearly legible without any cancellation on it. That means that the disposition in the nature of the transfer was approved. Further, the document at line 30 is signed and below the signature it is written; "COMMISSIONER FOR LANDS / AUTHORIZED OFFICER," and dated at line 31. In our view, the act of the Commissioner for Lands or the authorized office to cancel the word "refused" leaving the word "approved", attests to the fact that the disposition was duly approved under the law. Further, page 71A of the record of appeal which is a reverse side of Land Form No. 35, (exhibit D2) confirms further that the approval was duly given. On that page it is written in free hand the following; "Consent fee paid Tshs. 2,000/= on ERVNo, 128056 o f 11/05/04. Stamp duty fee, Tshs. 180,000/= on ERV No. 22530931 o f5/04/2005. ES/A/O. 25/04/05." Below those words, there is affixed a rectangular stamp with the following words inscribed in it: "IN EXERCISE OF THE POWERS TO THAT EFFECTt; VESTED IN ME UNDER SECTION 37 OF THE LAND A C T 1999,1 [first name inserted in free hand but not clearly legible] MARKO [surnam e inserted though not clearly legible] AUTHORIZED OFFICER, H ER EBY A PPR O V E TH IS D ISPO SIT IO N (signed) AUTHORIZED OFFICER DATE: 31/10/2-05" The above material on record is sufficiently informative upon which we could have pronounced our conclusive decision in resolving the first ground of appeal, but we think we withhold it for a moment, and address Mr. Aziz's six other points that he raised, in challenging the transfer. The first is the issue of the absence of Land Form No. 33. This land form is issuable under section 39 (5) (a) and (b) of the Land Act. The approval which was procured in this case, is grantable under section 39 (5) (c) of the Land Act, and does not require any certificate of approval unlike approvals which are grantable under section 39 (5) (a) and (b) of the Land Act. By looking at the body of Land Form No. 33, the same must list the conditions upon which the consent has been granted. The operative part of the form states: "CERTIFICATE OF APPROVAL OF A DISPOSITION (Under section 39) CT NO...... LO NO....... LD NO...... I ......................... COMMISSIONER FOR LANDS/ AUTHORIZED OFFICER, hereby approve the disposition o f the right o f occupancy under the above reference, su b je ct to th e fo llo w in g '. COMMISSIONER FOR LANDS/AUTHORIZED OFFICER, Date............ " The certificate above, is issuable only where the approval is granted subject to certain conditions like payment of prem ia or any other conditions that the applicant has to fulfil in one year, because the life span of the certificate of approval is one year as per section 39 (6) (c) of the Land Act. 14 It is our firm position therefore that, the certificate of approval would be a requirement, only if there were conditions subject to which the approval was dependent. So, we do not agree with the trial court and Mr, Aziz that the absence of Land Form No. 33 at all, affected the validity of the approval or of the transfer of the disputed property. The second is the issue of fraud. Mr. Aziz submitted that Forms No. 30 and 35 were procured fraudulently. However, Order VI rule (5) of the CPC requires a party who alleges fraud in a pleading to ensure that fact is made part of his pleading and, where necessary, give particulars of it including dates and other items, so that every thing is clear to the other party. In this case, the respondent in her written statement of defence at page 30 of the appeal record stated that "...the documents annexed as SLC- 2 are questionable." Those documents are forms No. 30 and 35. However, such an allegation made in passing without any understandable elaboration of the fraud cannot be taken seriously. The law in this jurisdiction is that, fraud or forgery is a serious allegation such that it needs clarity in the pleadings as provided under Order VII rule (5) of the CPC. In this case, there was neither clear facts in the written statement of defence pleading fraud, nor was there any evidence at the trial to substantiate such allegations. In civil cases, the standard of proof to substantiate the allegations of fraud, is higher than that on the preponderance of probabilities- see this Court's decision in International Commercial Bank Limited v. Jadecam Estate Limited [2021] TZCA 673. There was nothing like demonstrating any fraud in procurement of the exhibits. So, Mr. Aziz's submission on the issue of fraudulent procurement of exhibits D1 and D2, has no basis, we therefore reject it. The third point was that exhibit P2 (the letter of offer) at pages 63 and 64 was not stamped by the trial court and appropriately endorsed at its admission in evidence. This, according to learned counsel, offended Order XIII rule 4 (1) of the CPC. We have reviewed the original record; and have found out that the original exhibit in that record was properly stamped on the reverse side and appropriately endorsed with all necessary details. It shows the land case (No. 32 of 2018), the witness who tendered it, the date on which it was tendered (30th June, 2021), its identification mark (P2), and the signature of the trial Judge. So, the law was duly complied with, such that Mr. Aziz's complaint, was with respect, without basis. The fourth complaint was that land forms, No. 30 and 35 were tendered by the defendant's side and not the plaintiff's. Mr. Aziz's submission in this respect is not authentic. The documents, exhibit D1 and D2 (despite their naming) were tendered at page 92 of the record of appeal by PW1 who was the plaintiff at the trial and the appellant before us. It was on 30th June, 2021, when the defence case had not been opened, because the latter case opened on 28th September, 2021. So, Mr. Aziz's point that the documents were tendered by his client's side of the case is with respect, far from what the record reflects. The fifth complaint was that the appellant's side at the trial did not tender the deed of gift. According to Mr. Aziz, the document would have shown the nature of the disposition. We do not think this point poses any difficulty to resolve. At page 71 of the record of appeal, there is a document titled " T ran sfer o f a R ig h t o f O ccu p an cy" The relevant part of that document which may sort out the complaint, to reads: "IN CONSIDERATION o f Natural Love and Affection, ISELEM ANI RASHID o f Post Office Box Mkongo R ufiji do hereby tra n sfe r to ZUHURA SALUM AHMED o f Post Office Box 72322 Dar es Salaam , the right o f occupancy under the above reference." [Emphasis added] The above quoted part of the record of appeal, particularly the word "tra n sfe r"refers to the nature of the disposition. Even Land Form No. 30, exhibit D1 shows that the nature of the disposition to have been a transfer. In brief, without the deed of gift, there was sufficient material on record to show that the nature of the disposition, was a transfer. Of course, Mr. Aziz did not cite to us any law that makes tendering of the deed of gift mandatory where a donor grants his or her property to the donee in consideration of natural love and affection. So his contention had no basis. The sixth and we recall it to be the last issue, was that the name of the transferee, in the pleadings was ZUHURA SALUM HEMED but in exhibits Dl, D2, D3 (Land Forms No. 30 and 35 and the Letter of Offer for the land), the name changed and became ZUHURA SALUM AHMED. Mr. Aziz's point was that there was no affidavit showing that both names were referring to one and the same person. First, this point was supposed to have been raised by way of the written statement of defence because the documents were attached to the plaint as SLC-2. If that had happened, the trial court would have made an issue out of the contention and resolved it. Secondly, at the trial, although it was Mr. Aziz himself who procured presentation of exhibits D l, D2 and D3 during cross examination of PW1, it would be expected that such issues of the names appearing on the documents would have been raised with PW1 at that time, so that he could state his position on it. In other words, this issue was never raised at any time before the trial court. Even before this Court, when served with the memorandum of appeal, the respondent did not file any notice of cross appeal under rule 94 of the Tanzania Court of Appeal Rules 2009, that there is a point he wished to address the Court. The point was raised after all had been done and settled; it surfaced for the first time in the written submissions of the respondent in this appeal. In the case of Kisanga Tumainiel v. Frank Pieper & Another [2016] TZCA 735, this Court stated that a party cannot be permitted to take up a new plea or contention on appeal, unless, it was pleaded in the plaint or written statement of defence and canvassed. That said, we refrain from entertaining the complaint for the same is an afterthought. In fact, the issue being the one of fact, we take it that parties knew that both names were referring to one and the same person, that is why no one made an issue out of it at the trial. The above said, we uphold the first ground of appeal, that the transfer of the disputed property from the deceased father to his senior wife, was a valid transaction for the same received approval from the land authorities under section 39 (5) (c) of the Land Act thus, compliant with section 37 (5) of the same Act. In the upshot, we find this appeal meritorious. We therefore allow it, but with no order as to costs since the parties to it, are siblings. DATED at DAR ES SALAAM this 15th day of November, 2024 G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 15th day of November, 2024 in the presence of Mr. Eiisa Abel Msuya, learned counsel holding brief for Ms. Irene, learned counsel for the Appellant and Mr. Abdul Aziz, learned counsel for the Respondent, is hereby certified as a true copy of the original.