SELEMANI LUHENGA SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 21426 OF 2024 (Originating From Application No. 8 of 2023, Temeke District Land and Housing Tribunal) SELEMANI ALLY LUHENGA................................................................ APPELLANT VERSUS SOPHIA JUMA NANDONDE................................................................ RESPONDENT JUDGMENT 20th to 29th November, 2024 E.B. LUVANDA, J The Appellant named above is aggrieved by the decision of the Tribunal which decreed in favour of the Respondent as the lawful owner of the suit property described as House No. 80 situated at Mtoni kwa Azizi Ally, Bustani Street, Temeke Municipality in Dar es Salaam. In the memorandum of appeal, the Appellant grounded that: One, the learned Chairperson erred in law and facts by entering judgment in favour of the Respondent without assessing/considering the strong evidence adduced by the Appellant concerning the ownership of the disputed house; Two, the learned Chairperson erred in law and facts by holding that there was valid marriage between the Respondent and one Yusufu Sumar Jafari who was the husband of one Habiba Salum Masud (deceased) without considering the strong evidence adduced by the Appellant; Three, the learned Chairperson erred in law to hold i that the Respondent is the lawful owner of the disputed house basing on a will tendered by the Respondent without proof of the death of the one Yusufu Sumar Jafari who purported to be the husband of the Respondent; Four, the learned Chairperson erred in law and facts by assuming the jurisdiction which does not have; Five, the learned Chairperson erred in law and facts by considering weak evidence and contradictory document tendered by the Respondent. The Appellant combined ground number one and five, he submitted that while the Tribunal was aware that there was no proof of the death of Yusufu Sumar Jafari, still proceeded to enter judgment in favour of the Respondent. He submitted that in order for the will to be valid and applicable there must be proof of the death of the one who issued a will, argued it is missing herein. He submitted that the Respondent tendered nothing to prove ownership rather than a questionable will. He submitted that the Appellant proved under standard of probability that the disputed house belongs to Habiba Salum Masud (deceased) and Yusuf Sumar Jafari, citing section 110(1) and (2) of the Evidence Act, Cap 6 R.E. 2019; Hemed Said vs Mohamed Mbilu [1984] TLR 113, for a proposition that the person whose evidence is heavier than that of the other is the one who must win. 2 For ground number two, the Appellant submitted that the Respondent was only a tenant to the suit house, argued she was no married to Yusufu Sumar Jafari. He submitted that the Tribunal considered the contradictory evidence and document tendered by the Respondent which is the affidavit titled 'HATI YA KIAPO CHA UMILIKI" together with a marriage certificate which shows that she married Yusufu Sumar Jafari while in her affidavit she stated that she married one Sumar Jaffer Bachu who is the father of Yusufu Sumar Jafari, and not Yusufu Sumar Jafar who is the husband of the deceased. He submitted that the Tribunal considered (sic, ruled) that there was valid marriage despite of the contradictory evidence and documents produced by the Respondent. He submitted that there is no any relative of Yusufu Sumar Jafari who was aware about the marriage of the Respondent, argued that there was no marriage between the Respondent and Yusufu Sumar Jafari. Ground number three, the Appellant submitted that for a will to be applicable there must be a proof of the death of the one who issued the will. He submitted that the Respondent did not adduce evidence to prove the death of Yusufu Sumar Jafari, argued there was no death certificate or proof that he was buried. Ground number four, the Appellant submitted that the Tribunal assumed jurisdiction which it does not have to reach into judgment that the will was valid 3 and the disputed house belong to the Respondent based on a will tendered. He submitted that the issue as to whether the will is valid or not, was supposed to be determined by a court with competent jurisdiction, argued the Tribunal had no such jurisdiction. In reply, for ground number one and five, the Respondent submitted that the learned Chairperson was not biased, argued he summarized and analyzed the evidence of both parties and considered the evidence of the Appellant's and Respondent's witnesses, citing page ten paragraph three of the impugned judgment. She submitted that there was good reason that there was clear evidence for the Tribunal to make a declaration that the Respondent and Yusufu Sumar Jafari are the owners. She submitted that the Respondent had strong evidence compared to the Appellant, citing Hemed Said (supra). Ground number two, the Respondent submitted that the Tribunal was correct when held that Habiba Salum Masud was not married to one Yusuf Sumar Jafari. She submitted that the burden or proofing lies on the Appellant, citing section 111 Cap 6 (supra). She submitted that the Appellant failed to tender marriage certificate that proves marriage between Yusuf Sumar Jafari and the late Habiba Salum Masudi. 4 Ground number three, the Respondent submitted that the Tribunal was correct when it declared the Respondent to be the legal owner, citing page ten paragraph four and page eleven of the impugned judgment. She submitted that the Respondent's evidence was strong and credible compared to the weak and contradictory evidence presented by the Appellant. Ground number four, the Respondent submitted that in the judgment of the Tribunal, it is very clear that nowhere the Tribunal discussed the issue of the will, argued are just planted words from the Appellant. She submitted that it is clear from the proceedings and judgment the said Yusuf left one wife and departed to France, argued nowhere it was stated that he died, arguing those are just cooked words from the Appellant to mislead this Court. She submitted that there was no discussion concerning a will, as there was no proof that Yusuf is died, arguing it's a surprise for the Appellant side trying to force that Yusuf is died, while the witnesses and Respondent stated clearly that Yusuf departed to France and left the disputed house to the Respondent The Appellant did not file a rejoinder. What I have grasped and discerned from the submission in chief for the Appellant, in particular when arguing on ground number one, three, four and five, the main complaint and concern by the Appellant was hinged on the fact 5 that the Tribunal considered and somehow relied on the questionable will tendered by the Respondent without its validity being determined by the court of competent jurisdiction. With due respect to the Appellant and as echoed by the Respondent, the alleged will was not tendered to form part of the Tribunal's proceeding. Going by the impugned judgment, nowhere the learned Chairperson made reference, considered or discussed on the alleged will. Arguably, when the Respondent was testifying as DW1 at the Tribunal, in her testimony in chief, she asserted that in 2022 she appeared at the Serikali ya Mtaa where she was sued by Mwajabu Sultani Selemani (PW3) who is the step daughter to one Yusuf Sumar Jafari who married Habiba Salum Masud PW3' mother, asserted that she handed over all of her documentation to the hamlet chairperson who made photostat and availed it to the Appellant along PW3. In the pleadings in particular the application filed by the Appellant and Respondent's written statement of defence, the following documents were attached: a document titled MKATATA WA HIARI07/02/2018 YAHUSU HUSIA depicting that Yusuf Sumar Jaffer bequeathed a suit house to the Respondent (pleaded in both the application and written statement of defence); MKATABA WA MAUZO between Asha A. Kingaje (vendor) and Yussuf Sumar Jafar dated 23/07/1991 for sale of a house No. MMI/S/406 located at Mtoni Bustani Temeke Dar es Salaam (pleaded in the application); HATIYA KIAPO CHA UMILIKIsworn 6 on 23/03/2020 by Sophia Juma Nandonde (Respondent) deposing that she is the lawful owner of house No. 80 Mtoni kwa Azizi Ally, Mtaa wa Bustani (pleaded in the application). But surprisingly, neither the Appellant nor the Respondent tendered these documents. Had these documents tendered could had a serious repercussions and devastating effects to the Respondent's case and defence. In the application, the Appellant pleaded that the late Habiba Salum Masud married Yusuf Sumar Jafari in 1991 and in the same year a suit house was purchased from Asha Kinyanje. In his testimony, the Appellant who testified as PW1 twisted and backdated the fact relating to the date of marriage and asserted that Habiba Salum Masudi contracted marriage with Yusuf Sumar Jafari (Indian) in 1990. This formed a departure to his pleading. In law, departure from the pleadings, render the fact unproved. In the case of James Funke Ngwgilo vs Attorney General [2004] TLR 161, it was held, 'The general rule is that a party is bound by his pleadings and should not be allowed to succeed on a case not made out in his pleadings' PW1 did not tender any marriage certificate to vindicate marriage between the late Habiba Salum Masudi and Yusuf Sumar Jafari, nor tendered any evidence to prove that Habiba Salum Masudi is the owner or is having any share to the suit house. A fact by PW1 that Habiba Salum Masud and Yusuf Sumar Jafari 7 jointly purchased a suit house in 1991, was a bear assertation not supported by any tangible evidence. No wonder the Appellant was attempting to backdate the date of marriage. Arguably, PW2 Beatus Beno Kambanga (74 anos) asserted that Habiba Salum and Yusuf Sumar Jafari were cohabiting as spouse. However, PW2 asserted that later they divorced, where the Indian man married the Respondent. A combination of these facts, render a claim by the Appellant untenable, for reasons that it lacks legs to peg on. As to whereabout of the purported Yusuf Sumar Jafari, pose a serious dilemma. PW1 asserted that Yusuf Sumar Jafari is alive and that he was told by PW3 that the Respondent visited at the suit house and evicted Yusuf Sumar Jafari and relocated to unknown destination. According to PW1, sibling and kindred of Yusuf Sumar Jafari were unknown to them, on explanation that after Yusuf Sumar Jafari (Indian) had contracted marriage with Habiba Salum Masudi (African), the former was ostracized by his family and fellow Indians. PW2 who introduced as Mjumbe wa Shina Na. 2r stated that the Indian man is died. PW2 stated that after his death, a suit house was placed under his custody (as caretaker), but could not tell as to who invited him to take a responsibility of supervising it. On cross-examination, PW2 changed a story that the Respondent and Indian man relocated to Tegeta and later he was told the Indian man resumed to his place or domicile (homeland). PW3 asserted that Yusuf Sumar 8 Jafari has not been heard or seen for the past six years. All these facts, were not cross-examined by the Respondent. In her defence, the Respondent (DW1) on her testimony in chief, stated that Yusuf Sumar Jafari departed to his homeland France. Later DW1 asserted that she led the Chairperson of the Ward Tribunal to Rafiki and Azimina who are sibling of Yusuf Sumar Jafari. DW1 stated that Azimina recognized DW1 as a wife of Yusuf Sumar Jafari. DW1 stated that Rafiki is not murdered rather travelled to unknown destination. DW1 alleged that Rafiki told them that Yusuf Sumar Jafari has a tendance of departing to unknown destination/place or staying at large and went missing for quite long without relying information. On cross-examination by the Appellant, DW1 stated that in 2016 she (DW1) and Yusuf Sumar Jafari they relocated to Mbezi Msakusi. DW2 stated that the duo relocated to Mbezi In view of the above narration of facts, it is certainly that the testimony of DW1 was unreliable either. DW1 tendered a marriage certificate exhibit Pl. But could not summon any of the witness to the said marriage. When DW1 was asked question by member of the Tribunal (Rutami Masunsu) stated that the Sheikh to their marriage is alive, and that she saw him a week before she appeared to defend. But DW1 did not bother to summon the alleged Sheikh. Again, DW1 asserted that Rafiki and Azimina recognized her as wife to Yusuf Sumar Jafari adding that Rafiki conformed that DW1 was given that house by Yusuf Sumar 9 Jafari. When SW1 asked question by the second member of the Tribunal (I. Makota) as to why did not summon Rafiki and Azimina, DW1 stated if the Tribunal is interested with them should summon them for the duo to appear at the fiat of the Tribunal. DW1 instead summoned Juma Zuberi (DW2) who merely appeared to state as to what he used to see when these parties were appearing before DW2's father one Mzee Sundi who was Mjumbe. DW1 also summoned Richard Mohamed Nyangasa (DW3) who was a mere tenant at the suit house between 2010 to 2019. To my view, failure by the Respondent to summon material witnesses to her case and defence (Rafiki and Azimina) and avoiding to tender the documentations mentioned above, to my view, the Tribunal was entitled to draw an adverse inference against the Respondent that had the said material witnesses summoned and appeared to testify, could had testified on unfavourable facts to the Respondent or against the Respondent's interest. Sequel to that, the Respondent deliberately avoided to tender documentations annexed to her written statement of defence, which on the face of it had a devastating effects on her own defence case. That said, it is my view that, having declined to rule in favour of the Appellant who had a very weak evidence, the Tribunal slept into an error to rule in favour of the Respondent who had unreliable and wanting evidence. In that regard, 10 the Respondent is dispossessed a suit house as well. My undertakings are grounded on a fact that the Tribunal had no jurisdiction to determine the question of ownership of the suit house, whose on the face of it suggest it belong to Yusuf Sumar Jafari, without ascertainrng the status of the latter whether is dead or alive. Regard being to the contradictory testimony adduced by DW1 regarding the whereabout of Yusuf Sumar Jafari. At a certain point, DW1 was suggesting to have been apprehended on account of mysterious disappearance of the said Yusuf Sumar Jafari. For appreciation, I reproduce the testimony of PW1 when was explained on ownership and whereabout of the Yusuf Sumar Jafari, 'Ninadai nyumba iiiyopo Mtoni Mtaa wa Bustani, Na. 688.Hinunuiiwa na Yusuph Sumar Japhari. AHnunua toka kwa Asha Kinyanje. Habiba Salum Masudinimke wa Yusuph... Ninaomba Yusuph arudhishwe na Sofia' This adumbration will take into board ground number two as well. I therefore rule that ground number two is meritorious to the effect that the Respondent is equally disposed ownership of the suit house. This matter is borderline matrimonial, probate proceedings and at a certain point, PW1 made a somewhat prayer for habeas corpus where he stated that "Ninaomba Yusuph arudishwe na Sofia" 11 According to the provision of section 161(1) of the Law of Marriage Act, cap 29 R.E. 2002, provide, 'Where in any proceeding, whether civil, matrimonial or criminal, under this Act it is proved that a person has not been heard of for five years by those who might be expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead' Also, under the provision of section 117 of The Evidence Act, Cap 6 R.E. 2019, provides, 'When the question is whether a man is alive or dead and it is proved that he has not been heard of within the preceding five years by those who would naturally have heard ofhim ifhe had been alive, the burden of proving that he is alive is on the person who asserts it' It is compelling and imperative to presume Yusuf Sumar Jafari is dead. In such situation, it is likely for the property subject for this litigation will fall ownerless. In that regard, the Deputy Registrar of this Court to communicate this order in view of notifying the Attorney General, regarding existence of the property described as House No. 80 situated at Mtoni kwa Azizi Ally, Bustani Street, Temeke Municipality in Dar es Salaam, which is likely to fall ownerless, for the 12 Attorney General to consider acting under the provisions of The Public Trustee (Powers And Functions) Act, Cap 31. That said, the decision of the Tribunal is upheld to the extent of dismissing the Appellant case but is quashed on the aspect of declaring the Respondent as the lawful owner of the suit house. In the resultant the appeal stands to be dismissed. Each party to shoulder owner 13