seif seleman rashidadministrator of the estate of the late zuhura salum hemed vs halima seleman rashidadministratix of the estate of the late seleman rashid 2021 tzhcl

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 32 OF 2018 SEIFU SELEMANI RASHID as Administrator of the estate of ZUHURA SALUM HEMED PLAINTIFF VERSUS HALIMA SULEIMAN RASHID as the Administratrix of the estate of SULEIMAN RASHID DEFENDANT JUDGEMENT Date ofLast Order: 28.09.2021 Date ofRuling: 15.10.2021 0PIY0,3: The dispute involves siblings sharing the same father. At its center is a house, located at Narungombe Street at Kariakoo Area, within Dar Es Salaam Region, registered as ''Plot No.103 Block E", with letter of Offer No. 00140659, here in after called as the suit land/property. Essentially, the suit property was owned by their late father, Seleman Rashid. The late Seleman Rashid died in 2014 and was survived by his two wives, each with her children including the plaintiff and the respondent respectively. Zuhura Salumu Hemed, who was the 1^' wife to the late Seleman Rashid and a mother to the plaintiff and his siblings also died in 2015. Thereafter, the plaintiff obtained letters of Administration for the estate of his late mother while the defendant was granted letters to administer the estate of their late father. The dispute started when the defendant included the suit property (house) into the estate of her late father and wanted the same to be disposed and the proceeds distributed to all legal heirs of the late Seleman Rashid. Following that event, the plaintiff moved to file the instant suit alleging that the suit property was not part of the estate of the late Seleman Rashid. The plaintiff insisted that their late father transferred the said house to his wife Zuhura Salumu Hemed since 2004. He therefore prayed for the following reliefs:- 1. An order for permanent injunction restraining the defendant, her agents and workmen from entering, selling, attaching or in any way dealing with the suit property. 2. A declaration that the suit premises belongs to the late Zuhura Salumu Hemed. 3. Costs of the suit. 4. Other and better reliefs as the court may deem fit to award. When the suit was called for hearing the plaintiff was represented by Advocate Steven Msuya while the defendant enjoyed the legal services of Advocate Abdul Aziz. The following issues for determination were agreed; i. As between the late Zuhura Salum Hemed and the late Seleman Rashid, who was the lawful owner of the suit premises. ii. To what reliefs are the parties entitled to? The case was heard in terms of order XIX of the Civil Procedure Code, Cap 33 RE 2019 in which the proof was done through affidavits of relevant parties. The Plaintiffs case opened with the testimony of Self Seleman Rashid who stated through his Affidavit that the late Zuhura Salum Hemed is a registered owner of the suit property. The same is still inhabited by her children, Salum Seleman Rashid, Karim Seleman Rashid, Khadija Seleman Rashid and Haji Seleman Rashid. He tendered the letters of Administration and a letter of offer and both were admitted as exhibit PI and P2 respectively. When cross-examined by Advocate Abdul Aziz, PWl confirmed that, the late Zuhura died in 2015 and their father died in September 2014. He was sick since 2012 and was undergoing treatment in different hospitals including Ocean Road Cancer Institute (ORCI) in Dar Es Salaam. He agreed that their late further was once admitted in 2013 at ORCI for further treatment. PWl went on to say that their late father died intestate but he was always insisting that they should never sell the suit land and they should live together as a unified family under the leadership of PWl. That, their late father also talked about giving the suit land to his wife since 2002. He completed the transfer of the same in 2004. PWl said he witnessed his father signing the deed of transfer along with his mother and the Advocate who prepared the documents. PWl went on to say that, by then his late father had two wives and that he was supposed to inform the other wife before transferring the suit property to his wife. That, when the suit property was included in the estate of their late farther, PWl told them that the same was not part of the said estate as it belonged to their late mother,following the transfer of the same to her back in 2004 by their late father. PWl tendered a copy of Land Form No. 30(Application for Approval of Disposition), Land Form No. 35 (Transfer of Right of Occupancy) and an Affidavit of Seleman Rashid, all admitted as exhibit Dl, D2 and D3 respectively. PWl Insisted that he do not know If the deed of gift exists but there Is an affidavit relating to the transfer. On re-examlnatlon, PWl rfialntalned that, the tittle documents are In the name of his late mother Zuhura Salumu. That there Is no sale agreement In the exhibits received and the defendant has already served them a notice to vacate the suit land, exhibit P6. His evidence was well corroborated by that of PW2, Salum Seleman Rashid, PW3, Karim Suleiman Rashid, PW4 Hadija Seleman. All these witnesses like PWl filed their witness statements which were adopted to form part of their testimonies In chief. They all stated not being part of the transfer but heard about It at different times. On the other hand, the case for defense started with the testimony of DWl, Hallma Seleman Rashid. She also filed her Affidavit which was adopted In lieu of her testimony In chief. She stated that, she was called together with her relatives to visit the house of the plaintiff at MbezI Beach for a meeting. On reaching there, the plaintiff told them that, their late father disposed the suit property to the plaintiff's mother through a deed of gift. That, the plaintiff Informed them that he himself and his siblings were not aware of the disposition. Therefore, the said property should not be Included In the estate of their late father. The next day DWl and her siblings were shown the transfer documents In presence of their lawyer. They did not trust what was shown by the plaintiff. Due to that Incident, DWl proposed to other family members that they should seek for letters of Administration of the estate of their late father to be able to settle the matter legally. In the course of attempt to find solution to the matter she took the matter to the Kadhi's Court on the October which ruled in favour of DWl and her siblings as shown in exhibit Dl. Later on, she was successful in her probate cause and was granted letters of Administration on the December 2017. When cross-examined by Advocate Msuya, PWl insisted that, she knows that she has been sued as an administratrix of the estate of her late father. Their father had two houses, one at Rufiji and the other at Kariakoo. That, when they met at the plaintiff's house, the plaintiff told them that the suit house belonged to their mother who was given by their late father, but they were not aware, as their late father did not tell them that fact. She stated that even their late stepmother (plaintiffs Mother) never mentioned to them that she owned the suit land. It is only the plaintiff who knew that the suit property belonged to his late mother. That, after DWl got the letters of administration for the estate of her late father, she notified her relatives staying in the suit property to vacate the house so that it can be sold, and the proceeds be distributed to all heirs of their late father. That, for now the house is rented but defendant, her siblings and their mother do not have any share in the rent. That, her brother (plaintiff) refused to administer the estate of their late father. He chose to administer the estate of their mother. That, the suit property was inherited by their father from their paternal grandmother in 1997. DWl went on to say that, when their mother was married in 1970, the suit property was still in the ownership of their grandmother. It is in 1997 when it came in the hands of their late father. In re-examination, DWl insisted that, they do not believe that their father transferred the suit land as he never mentioned that to any of them. After all, at his sick bed he insisted that they should not sell any house, neither the house at Kariakoo nor that of Rufiji, instead they should hold together as a family. The foregoing position was reproduced in a similar tone by the testimonial account of DW2, Tatu Sultan who is the 2"^^ wife of the late Suleman Rashid who also disputed being aware of the transfer or giving consent as a spouse of the late Selemani Rashid. And that marked the end of the defendant's case. On the totality of the evidence above from both parties and their witnesses, coupled with the exhibits submitted in support of their oral testimonies, there is no dispute that the suit property was originally owned by the late Seleman Rashid, who inherited the same from her late mother in 1997. The main question for determination however in this case is that, between the late Zuhura Salum Hemed and the late Seleman Rashid, who was the lawful owner of the suit premises. In other words, was there a valid transfer from Selemani Rashid to Zuhura Salum Hemed? As I have observed herein earlier, the land in question was owned by the late Seleman Rashid since 1997. It is also an undeniable fact that at the time of acquiring the suit property, the late Seleman Rashid had two wives namely Zuhura Salum Hemed and Tatu Sultan. He lived with them both at Mkongo-Rufiji. It is therefore undisputed that, both wives had interest in the said property although they did not contribute financially to its '5' acquisition. There was not any evidence to that effect that was advanced. However, by virtue of them being the legal wives of the late Seleman Rashid at the time he inherited the said property, the interest of both cannot be alienated from the said property. Their contribution in terms of their services, the upkeep of the suit land is obvious through taking care of the late Seleman Rashid and his family at large as so provided under section 161(2) of the Land Act, Cap 113, R.E 2019. For easy reference, the same states as follows; - 161-(2) "Where land held for a right of occupancy Is held In the name ofone spouse only butthe otherspouse orspouses contribute by their labour to the productivity^ upkeep and Improvement ofthe land, thatspouse or those spousesshall be deemed by virtue ofthat labour to have acquired an Interest In that land In the nature ofan occupancy In common ofthat land with the spouse In whose name the certificate of occupancy or customary certificate of occupancy has been registered. Now, it has been alleged by the plaintiff that, their late father did transfer the suit land to his wife back in 2004. However, there is no evidence as to whether the other wife consented to the said transfer. The evidence from both sides shows that, the said transfer was unknown to all family members until the death of the wife. In other words, the other wife (Tatu Sultan) never consented to the transfer of the suit property in question. This fact brings us to the question as to whether it was proper to transfer the suit property to only one wife and without a consent of the other? It is provided under section 161 (3)(b) that:- (3) Where a spouse who holds land or a dwelling house for a right of occupancy In his or her name alone undertakes a disposition of thatland or dwelling house, then- (b) where that disposition assignment or a transfer of land, the assignee or transferee shall be under a duty to make Inquiries ofthe assignor or transferor as to whether the spouse or spouses have consented to thatassignment or transfer In accordance with section 59 of the Law of Marriage Act, and where the aforesaid spouse undertaking the disposition deliberately misleads the lender or, as the case may be, the assignee or transferee as to the answers to the Inquiries made In accordance with paragraphs(a)and (b), the disposition shall be voidable at the option ofthe spouse or spouses who have not consented to the disposition. Based on the above quoted provision, because there is no tangible evidence as to the consent of the second wife as far as the transfer of the suit property is concerned, the alleged disposition of the suit property between the late Seleman Rashid and the late Zuhura Salum Hemed is voidable in the eyes of the law at the option the 2"^ wife, Tatu Sultan. The law has given her a choice to validate, or invalidate the same. If she chooses to invalidate the transfer of the suit property as she does now, it is in my view, a correct and safe road to drive for the interest of the defendant and her siblings. It is correct to say in clear and concise words that the alleged transfer was and is still void for want of her consent as a legal Wife of the late Seleman Rashid since the transferred property was a matrimonial property (see section 59(1) of the Law of Marriage Act, Cap 29 of R.E 2019 and the case of Zakaria Barie Bura v Theresia Maria John Mubiru [1995]TLR 211, CAT. I would have penned off here, but there is another issue posing a challenge as to the legality of the alleged transfer of the suit property between the late Seleman Rashid and the late Zuhura Salum Hemed, the plaintiff's mother. The evidence does not show if prior to the alleged transfer, the Land Commissioner approved the same as required under the provision of sections 39 (5)(a) and (b), also subsection (6) of the Land Act Cap 113, R.E 2019. According to sections, it is settled that, the commissioner for Lands after receiving the application for approval of disposition of the right of occupancy (Land Form No. 30 Exhibit) shall give his or consent with conditions attached to it in a form of certificate (Land Form No 33). For easy reference I will reproduce the said provisions as follows:- (5)"The Commissioner shall- (a) grant approvai, subject to any conditions which may be prescribed which appiy to that disposition; (b) grant approval, subject to the conditions referred to in paragraph(a)and any other conditions which he may determine to impose:- (6) A consent under subsection (5), in this Act referred to as a "certificate approvai"shaii- (a)be personal to the applicant; (b)not be assignable; (c)be valid for one yearfrom the date on which it wasgiven." In absence of such certificate of Approval of Disposition (Land Form No 33), this court is of the view that, the said transfer was, if at all, made without a prior approval of the authority concerned as I have observed here in above. It is the approval form ((Land Form No 33)that would have shown the mode of disposition. This necessity of this approval form is increased by the fact of absence of alleged deed of gift. That being the case, the application of section 37(5) of the Land Act, Cap 113 R.E 2019 is of essence in order to pin down the status of the disposition in question. Under the said provision, it is stated that a disposition which has been carried out without first obtaining the approval of the Commissioner shall be inoperative. In short, the alleged disposition of the suit property from the plaintiff's late father to his late mother is nonfunctional for want of necessary compliances, see Abualy Alibai Aziz versus Bhatia brothers Limited, Misc. Civil Appeal No. 1 of 1999,(2000), TLR 288, CAT and also Registered Trustees of Holy Spirit Sisters Tanzania versus January Kamili Shayo and 136 others. Civil Appeal No.193 of 2016, Court of Appeal of Tanzania,(unreported). Having so said, the first issue is answered that the ownership of the disputed property rightfully remained with the estate of the late Seleman Rashid not the late Zuhura Salum Hemed,for there being no valid transfer from to the later. To what reliefs are the parties entitled to. Since the plaintiff failed to prove his claim against the defendant owing to weak evidence from his part, on balance of probability, the defendant's side overweighed the plaintiffs 10 evidence see Said Mohamed Mbilu (1984) TLR 113. Hence the plaintiff is not entitled to any of the reliefs sought. In the event, the court is of the findings that the plaintiff's suit against the defendant lack merits and it is hereby dismissed. No order as to costs. o M.P. OPIYO, H JUDGE 15/10/2021 11