Rukia Mussa Ally vs Ahmad Iddi Sungura (Civil Appeal No. 52 of 2019) [2024] TZCA 837 (30 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: SEHEL, J.A.. KENTE. J.A. And MDEMU. J.A.l CIVIL APPEAL NO. 52 OF 2019 RUKIA MUSSA ALLY ............. .........................................APPELLANT VERSUS AHMAD IDDI SUNGURA (Administrator of the estate of the late UTESHI MOHAMED SUNGURA..... ................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, Land Division, at Dar es Salaam) TNdika, J/l dated 13th day of September, 2016 in Land Case No. 319 of 2013 JUDGMENT OF THE COURT 28th May & 30th August, 2024 SEHEL, J.A.: This first appeal is against the decision ofthe High Court of Tanzania, Land Division at Dar es Salaam (the trial Court) in Land Case No. 319 of 2016 that dismissed the appellant's suit. The background giving rise to the present appeal is briefly as follows: the appellant who was the administratrix of the estate of the late Ally Hassan Kisoma Ngwengwe (the deceased) sued the respondent who was the second wife of the deceased. The appellant claimed that she had to collect and distribute the deceased's estate including the

house situate on Plot No. 84 Block "N" Twiga Street at Kariakoo (the disputed house). She further claimed that the respondent refused to give vacant possession of the disputed house thus impeding her, as administratrix, to finalise the exercise of distributing the deceased's estate to all the beneficiaries including the respondent who had to receive, as per the Islamic Law, one eighth of the deceased's estate. Therefore, she claimed against the respondent for a declaratory order that the appellant is entitled to dispose of the deceased's property and distribute the estate to all heirs; eviction and vacant possession order against the respondent and her tenants from the disputed house; an order requiring the respondent to account for the amount collected as rents from the tenants as from 15th May, 2008 till the date of filing the suit; damages and costs of the suit. The respondent refuted the claim and raised an objection to the effect that the trial court had no jurisdiction because the dispute was a probate matter. She averred that the house in dispute was jointly acquired by her and the late husband where they peacefully lived together for the past forty years, thus, not subject of probate matter. The trial court framed three issues for its determination. One, whether the appellant was entitled to dispose of the house in dispute

and distribute the estate to the beneficiaries as the administratrix. Two, what amount of the estate was the respondent entitled to and three, the reliefs parties were entitled to. In a bid to prove its case, the appellant called Riziki Ally Hassan Ngwengwe (PW1) and testified as PW2. She also tendered two documentary exhibits, namely; the letters of administration of the deceased's estate issued to the appellant and the ruling in Land Case No 231 of 2004 striking out the respondent's suit. On the other hand, the respondent called a retired police officer, Snow Hamis Mtenzi (DW1) and she testified as DW2. On the objection raised, the trial court observed that the appellant was seeking recovery of disputed house so that she could execute her duties as the estate's administratrix. It thus held that the dispute was a land matter falling under section 37 (a) of the Land Disputes Courts Act and that the trial court had jurisdiction to determine the dispute. On merit of the suit, the trial court found that the appellant did not produce any documentary proof to establish her case that the deceased was the sole owner of the disputed house, and that, the appellant was not registered as the owner of the disputed property in place of the

deceased in terms of sections 67 and 68 of the Land Registration Act (the LRA). In that respect, the trial court held that the suit against the respondent was prematurely filed as the appellant did not have the power to sell the disputed property. It believed the evidence of the respondent and held that the disputed house was a joint property as the respondent contributed to its acquisition. It therefore remarked that the appellant can only claim half of the deceased share of it. At the end, as alluded to, it dismissed the suit with costs. The appellant was dissatisfied with that decision. She has come to this Court with the following three (3) grounds of appeal: "1. The trial court erred in law in failing to properly evaluate the evidence on record thereby reaching a faulty decision. 2. The trial court erred in law in finding and holding that the appellant had failed to prove her case in the light o f overwhelming evidence on record. 3. The trial court erred in law in failing to rely on the standard o f proof applicable in civil cases thereby wrongly dismissing the appellant's case ." On 28th May, 2024 when the appeal was called on for hearing, Mr. Daniel Haule Ngudungi, learned counsel appeared for the appellant,

whereas, Mr. Abdul Kunambi, learned counsel appeared for the respondent. At the outset, pursuant to Rule 105 (1) of the Tanzania Court of Appeal Rules (the Rules), Mr. Kunambi sought leave of the Court and it was granted to replace the name of the respondent, the late Uteshi Mohamed Sungura, who passed on 2n d May, 2020 with that of the appointed administrator of her estate, one Ahmad Iddi Sungura. Arguing the appeal, Mr. Ngudungi first adopted the written arguments which were earlier on filed pursuant to Rule 106 (1) of the Rules and highlighted on whether the issue that the house in dispute was jointly acquired formed part of the respondent's pleadings. He referred us to the written statement of defence filed by the respondent appearing at page 22 of the record of appeal and argued that it was not part of the respondent's defence as the respondent only raised the issue of jurisdiction of the trial court which she claimed it did not have the jurisdiction to try a probate matter. Accordingly, he contended that since parties are bound by their pleadings, he urged us to find that the defence of joint ownership was not pleaded in the pleadings by the respondent.

Further, he argued that the trial court erred in law when it based on the principle stated in the cases of Bi. Hawa Mohamed v. Ally Sefu [1983] T.L.R 32 to hold that, the appellant had a right to administer only fifty (50) percent shares in the house in dispute. He contended that the contribution of each party in a matrimonial property is a matter to be determined in a matrimonial dispute, and that, it cannot be determined after one partner had passed on. When probed by the Court on whether the appellant who was a legally appointed administrator of the deceased's estate had powers to dispose the deceased's estate without being registered in terms of sections 67 and 68 of the LRA, Mr. Ngudungi replied that section 99 of the Probate and Administration of Estates Act (the Probate and Administration Act) recognizes the executor or administrator of the deceased's estate as a legal representative of the deceased's estate for all purposes and all the properties of the deceased are vested in him. Further, he argued that, in terms of sections 100 and 101 of the Probate and Administration Act, the administrator has all powers over the deceased's estate including selling, mortgaging, leasing or dealing with them in any manner as deemed fit. He added that the procedural irregularity on non-compliance with section 67 of the LRA cannot take

away the rights of the administrator as the same can be done at a later stage. To cement his argument, he referred us to section 47 (1) of the Stamp Duty Act where the Court repeatedly held that, its compliance can be done even at the appellate stage. He prayed for the appeal to be allowed with costs. Responding to the grounds of appeal, Mr. Kunambi argued that the trial court correctly held that the appellant failed to prove her case on the balance of probabilities that the deceased was the sole owner of the house in dispute. He pointed out that exhibits PI and P2 which were admitted in evidence did not establish proof of ownership. Exhibit PI proved that the appellant was a legally appointed administrator of the deceased's estate whereas, exhibit P2 proved that there was a Land Case No. 231 of 2004 before the High Court of Tanzania, Land Division at Dar es Salaam which was later on struck out. To support his argument that the appellant bears the burden of proof on the balance of probabilities, he referred us to the cases of Madeni Ally Mohamed & 3 Others v. Shame Ally Mohamed & Another, Civil Appeal No. 272 of 2020 . Replying on the shares to be administered, Mr. Kunambi contended that the evidence on record proves that the house in dispute was jointly

acquired by the late Ally Hassan Kisoma Ngwengwe and his second wife, the respondent. Besides, he argued that section 114 of the Law of Marriage Act recognizes property(ies) acquired by parties by their efforts during the pendency of matrimony. In that regard, he concurred with the trial court when it held that the appellant was to administer only the shares of the deceased as the remainder of the shares belonged to the respondent. Responding to the question posed by the Court, he was of the firm view that sections 99 and 101 of the Probate and Administration Act ought to be read in harmony with sections 67 and 68 of the LRA which requires that the administrator of the registered land to be registered in the place of the deceased. Having heard the submissions from the counsel for the parties and considered the record of appeal, there is no doubt that the appellant was appointed to be the administratrix of the estate of the late Ally Hassan Kisoma Ngwengwe by the Primary Court of Kariakoo at Kariakoo on 15th May, 2008. By virtue of that appointment, in terms of section 99 of the Probate and Administration Act, the appellant became the legal representative of the deceased for all purposes and all the properties of the deceased vested on her. As rightly submitted by the learned counsel 8

for the respondent, in terms of section 100 of the Probate and Administration Act, the appellant who was the administrator of the estate of the late Ally Hassan Kisoma Ngwengwe was vested with the powers, among others, to sue in respect of all causes of action that survived the deceased, powers to recover debts due to the deceased at the time of his death, as the deceased had when he was living and, in terms of section 101 of the Probate and Administration Act, she was also vested with the powers to dispose of property by way of sale, mortgage, leasing or otherwise in relation to immovable property. That apart, pursuant to section 67 of the LRA, the legal personal representative of the deceased's estate is required to apply to be registered in the place of the deceased in respect of any registered land. The section provides: "On the death o f the owner o f any estate or interest, his legal personal representative, on application to the Registrar in the prescribed form and on delivering to him an office copy o f the probate o f the will or letters o f administration to the estate o f the owner, or o f his appointment under Part VIII o f the Probate and Administration o f Estates Act or the Fourth Schedule to the Magistrates' Courts Act shall be entitled to be

registered as owner in the place o f the deceased . " In addition, section 68 of the LRA prohibits issuance of any assent to the vesting of any devises of the bequest of any registered estate or interest or disposition by a legal personal representative unless such estate or interest is registered in the name of the legal personal representative. In the case of Aziz Daud v. Amin Ahmed Ally & Another, Civil Appeal No. 30 of 1990 (unreported), the Court underscored on the mandatory requirement imposed on the legal representative to apply to be registered in place of the deceased person before disposing any of the deceased's registered estate. The Court said that: "Once an administrator o f the estate is appointed, the ownership o f the deceased property must be changed in all documents to reflect the administrator's name leaving the property at his discretion for him to administer it faithfully to the best way he can." In the present appeal, the appellant who was the legally appointed administratrix of the estate of the deceased attempted to apply to be 10

registered in place of the deceased in terms of section 67 of the LRA but her application was not completed for reasons not disclosed before the trial court. Nonetheless, she decided to sue the respondent and was seeking among other reliefs for an eviction order against the respondent from the disputed house and an order for entitlement to dispose the disputed house which she claimed to be among the deceased's estate. Having noted that the appellant did not register herself as required by section 67 of the LRA and being mindful of section 68 of the same Act, the High Court declined to recognize her as the lawful holder of the right of occupancy over the deceased estate with the power of sale. On our part, we find nothing to fault such sound findings as the appellant was mandatoriiy required to have registered herself before declaring her that she has a right to dispose the deceased's registered estate. The requirement is not a mere procedural irregularity as argued by the counsel for the appellant, it is a mandatory legal requirement that a legal representative is required to apply to be registered as owner of a deceased property in the place of the deceased. Only after having been registered, he/she becomes vested with the mandate to exercise various powers including disposition. i i

In the case of Abbas Ally Athuman Bantulaki & Another v. Kelvin Victor Mahity (Civil Appeal No. 385 of 2019) [2022] TZCA 509 (18 August, 2022; TANZLII), we were faced with almost similar situation and we held that: "In the instant case and as indicated above, Erick Peter Watcher applied to be registered as owner o f the disputed plot but neither o f the parties was forthcoming or produced any proof that he was duly registered so. Instead, it seems dear to us that it was when Erick Peter Watcher initiated the process to register himself as owner o f the disputed land in terms o f section 67 o f the LRA that he found the Letter o f Offer missing which occurrence halted the process o f being registered as owner and he instituted the present case. On the dear terms o fsection 68 o f the LRA he lacked mandate to sell the property o f the deceased (the disputed land )." In the same vein, the appellant lacked capacity to be declared that she has a right to dispose of the deceased's property. Besides, as correctly argued by the learned counsel for the respondent, there is no scintilla of evidence produced before the High Court to prove sole ownership on the part of the deceased. 12

Since this sole ground of appeal suffices to dispose the entire appeal, we see no need to canvass other grounds of appeal. In the upshot, we find that the appeal is devoid of merit and we proceed to dismiss it. In the circumstances of the present appeal, we make no order as to costs. DATED at DAR ES SALAAM this 29th day of August, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P.M. KENTE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 30th day of August, 2024 in the presence of Mr. Abdul Kunambi, learned counsel for the Respondent also holding brief for Mr. Daniel Ngudungi, learned counsel for the Appellant; is hereby certified as a true copy of the original. W/ d e p u t y r e g i s t r a r W COURT OF APPEAL D. R. LYIMO 13