Athuman Amiri & Another vs Ally Faki (Civil Appeal No. 101 of 2016) [2017] TZCA 207 (12 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MJASIRI, J.A.. MWARIJA, J.A.. And MWANGESI, 3.A.) CIVIL APPEAL No. 101 of 2016 ATHUMAN AMIRI ....................................... 1s t APPELLANT HAMISI AM IRI...........................................2n d APPELLANT VERSUS ALLY FAKI..................................................RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania at Arusha) (MoshLJ.) Dated the 12th day of June, 2015 in Land Case No. 46 of 2013 JUDGMENT OF THE COURT 4th & 12th Dec, 2017 MWANGESI, J.A.: According to the plaint that was jointly lodged by the appellants at the High Court of Tanzania Arusha District Registry on the 22n d day of October, 2013, the first appellant is the legal representative of the late Alii Amiri. They both claim to jointly own with the respondent in equal shares, a house described as Title No. 10137, Plot No. 92 Block "X" Area "F" situated at Makao Mapya, Levoslosi ward within Arusha City. They did

however complain that, they were not benefiting from such joint ownership with the respondent, who is in actual occupation of the suit property. As they have failed to resolve this problem peacefully, they did lodge the suit in Court praying for the following reliefs, that is; (i) Declaratory orders that the plaintiffs are lawful owners o f the disputed land and are entitled to a share o f TZs 300,000,000/= from the defendant, being their shares to the suit premises, or: (ii) In the alternative, an order for sell o f the suit premises described as Title No. 10137, Plot No. 92 Block "X" Area "F" situated at Makao Mapya Levolosi ward within Arusha City. (Hi) Specific damages not less than TZs 450,000,000/= (iv) General damages as would be assessed by the Honourable Court. (v) Costs o f the suit and any other reliefs deemed proper by the Court. Upon the learned trial Judge hearing the evidence from both sides, as well as going through the final written submissions that were filed by both sides, she was of the view that, the case by the appellants was not established on a balance of probabilities. The learned trial Judge did therefore, dismiss the suit with costs. The appellants felt aggrieved with 2

such decision and have come to this Court to challenge it armed with six grounds of appeal that read verbatim thus:

1. That the trial Court erred in law and fact, in entertaining the issue o f recovering o f the land\ which was not among the issues framed.
2. That the trial Court erred in law and fact, in deciding the recovering o f land, while our case was not relating with the recovering o f land rather it was about the issues o f non enjoyment o f our shares in the suit premises.
3. That the trial Court erred in law and fact, in deciding the issues o f declaratory order, which was not claimed and/or was not among the framed issues.
4. That the trial Court erred in law and fact, in holding that we failed to prove our case on the balance o f probabilities without clearly showing which issue we had failed to prove.
5. That the trial Court erred in law and fact, in holding that the suit is hopelessly out o f time while the law o f limitation is not applicable for a registered land and the records are very dear that the suit premises is registered vide Title No. 10137.
6. That the trial Court erred in law and fact, in relying on the wrong authority o f Zakaria Barie Bura Vs Theresia Maria John Bura [1995] TLR 212, which relates to matrimonial property while our case was on non enjoyment o f our shares. 3

On the date when the appeal was called on for hearing, the appellants did enter appearance in person legally unrepresented, and fended for themselves, whereas, the respondent had the services of Mr. Ezra Mwaluko learned counsel. Before we could proceed to hear the appeal, we had to dispose of the preliminary objection, which had earlier on been raised by Mr. Mwaluko learned counsel. The basis of the preliminary objection was to the effect that, the appeal was incompetent before the Court as the order for leave to appeal as reflected at page 180 of the record of appeal, was not granted under the mandatory provision of section 47 (1) of the Land Disputes Courts Act, Cap 216 R.E 2002. Relying on the decisions of unreported cases of Bavon John Mrema Vs Sylivester Paul Mrema, Civil Appeal No.54 of 2015 and Nuru Omary Ligalwike Vs Kipwele Ndunguru, Civil Application No. 42 of 2015, Mr. Mwaluko learned counsel, did contend that, since leave to appeal in the instant appeal was granted under section 5 (1) (c) of the Appellate Jurisdiction Act, Cap 141 and not section 47 (1) of the Land Disputes Courts Act, the appeal was incompetently before the Court and the only

remedy available, was being struck out. He did however, not press for costs. In reply, the appellants did argue that, their application for leave to appeal was made under the proper provisions of law that is, section 47 (1) of the Land Disputes Courts Act and that is why, it was never resisted by the respondent. The anomaly that has been pointed out by the respondent was occasioned by the learned Judge in her order wherein, in the order granting the leave, she did omit to name section 47 (1). In their view, such an omission which was not of their own making was not fatal. Besides supporting the first respondent, the second respondent did add that, he was an employee working in Dar es salaam whereby, it could be a bit difficult for him to get any other permission from his employer, to come and prosecute his appeal. He strongly urged us to dismiss the preliminary objection, and permit them to argue the appeal. After having heard the arguments on the preliminary objection from both sides, we did reserve our ruling, and invited the parties to submit on the appeal with a view that, in case the preliminary objection would be 5

sustained, then that would mark the end of the business. And in case the preliminary objection would be rejected, then we would proceed to consider the merits of the appeal. Arguing the appeal wherein they did adopt their joint written submission which had been lodged earlier on in terms of the provisions of Rule 106 (1) of the Court of Appeal Rules, 2009 (the Rules), the appellants did start with the first four grounds of appeal which were argued jointly. In the same, they did challenge the holding of the trial Court in which it was held that, they did fail to establish their case on balance of probabilities. They did fault such finding because, the learned trial Judge did not deal with the issues that were framed at the commencement of hearing the suit and instead, it did make its findings basing on an improper exhibit Dl, which was referring to different people, who were not parties to the suit before the Court. Citing the decision of Omary Mohamed Vs Awadhi Abdallah [1992] TLR 35 in reliance, the appellants did submit that, since there was evidence to establish that, they did jointly own the suit property, the trial

Court ought to have considered the options of the reliefs, which they had presented in their plaint that included, one the respondent to buy their shares in the property and own the whole of it. Two, the jointly owned property, to be sold and the proceeds shared equally by all of them. And three, the appellants to buy the shares of the respondent in the suit property and own it in his exclusion. With regard to the fifth ground of appeal, it was the averment of the appellants that, since they are the registered owners of the suit premises, the trial Court did misdirect itself in holding that, their suit was hopelessly time barred because there was no question of limitation. And, on the sixth ground, the appellants did challenge the learned trial Judge in pegging her decision on the holding in the case of Zakarie Barie Bura Vs Theresia Maria Bura (supra), because the said decision was in respect of matrimonial property, which was not the case in their suit against the respondent. They did thus conclude their submission by requesting fhe Court to reverse the holding of the trial Court with costs.

The response by Mr. Mwaluko learned counsel, which was made orally because he did fail to file his written submissions in reply to the written submissions by the appellants, he did in the first place, challenge the sixth ground of the appeal that, it was erroneously made a ground of appeal, because it was not among the grounds of appeal, which had been listed by the appellants in their application for leave to appeal. He did therefore request the Court to disregard it. As regards the remaining other grounds of appeal, Mr. Mwaluko learned counsel, did respond to them in general without following the sequence used by the appellants. While conceding to the fact that, the appellants were indeed owners of the disputed property, he did however argue that, they were time barred in asking the Court to declare them that, they were owners of the suit property. And when he was asked as to when the alleged limitation period started to run, he did opine that, it started to run from the year 1993 when the right of occupancy was granted to the appellants, a time from when the appellants did complain to have started not to benefit from the suit property.

On the complaint by the appellants that, the learned trial Judge did abandon the issues that were framed for consideration, and considered the issue of limitation period which was not among them, Mr. Mwaluko did defend the stance which was taken by the learned trial Judge by stating that, she did so, after discovering that, the claim by the appellants was time barred after he had raised such an issue in his final written submissions. He did argue further that, he was justified to raise the question of limitation of time in his final submission because it was a question of law, which could be raised at any stage of the proceedings. The learned counsel for the respondent did conclude his submissions by arguing that, in case we would be of the view that, the learned trial Judge did indeed stray, in refraining from considering the issues which were formulated, he did implore us to be pleased to use our revisional powers under the provisions of sections 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E 2002, by quashing the proceedings of the trial Court and* directing the suit to be heard de novo . He did not however press for costs.

We will start to determine this matter before us, by first looking on the submissions which were made on the preliminary objection of which we had reserved its ruling. Much as the record of appeal could disclose at page 150, the application by the appellants for leave to appeal, was made under the provisions of section 5 (1) (c) of the Appellate Jurisdiction Act and section 47 (1) of the Land Disputes Courts Act. As the application was never resisted by the respondent, the learned Judge who entertained the application did simply proceed to grant the application. However, in the order granting the leave, instead of citing both provisions which had been used in the application, the learned Judge did cite only one of the provisions that had been cited in the application, which unfortunately happened to be improper in its isolation. The question which we had to ask ourselves is whether under the circumstances, the omission invalidated the granted leave. We answer the question in the negative. In our considered view, the authorities which were cited by Mr. Mwaluko learned counsel, in reliance to his submission are distinguishable to the circumstances of the appeal at hand in that, while in Bavon John Mema Vs Silvester Paul Mrema (supra), there had been no application

for leave to appeal under section 47 (1) of the Land Disputes Courts Act, in Nuru Omary Ligalwike Vs Kipwele Ndunguru (supra), the application for leave to appeal, was not made under section 47 (1) of the Land Disputes Courts Act. In the circumstances, we hold that the anomaly occasioned in the appeal at hand was not fatal, and we hereby dismiss the preliminary objection, and proceed to consider the merits of the grounds of appeal by the appellants. From what could be noted from the grounds of appeal by the appellants, there are some which are interrelated and as such, for avoidance of being repetitive, in our determination, we will group them into three. The first group concerns the first three grounds, while the second group consists of the fifth ground, and the third group is in respect of the fourth and sixth grounds. In the first group of the grounds of appeal, the appellants are challenging the learned trial Judge in refraining from considering the issues that were framed, and basing her decision on the question of limitation of time which was not among the issues framed. This fact is evident from the judgment of the trial Court that, and it was from

such reality that, it was not resisted even by the learned counsel for the respondent. Notwithstanding the foregoing position, Mr. Mwaluko learned counsel, did gallantly defend the stance taken by the learned trial Judge that, she had to abandon the issues framed after discovering that, the suit was time barred. This averment by the learned counsel, leads us to the second group of the grounds of appeal, which is in respect of the limitation period. The question for determination here is whether the suit by the appellant was time barred. It having been established that, the appellants and the respondent were equal joint owners of the suit property, a question does crop up as to whether under such situation, the issue of limitation of time could arise. On commencement of limitation of time, the provision of section 4 of the Law of limitation Act, Cap 89 R.E 2002, stipulates that: "The period o f limitation prescribed by this Act in relation to any proceeding shall, subject to the provisions o f this Act hereinafter contained,

commence from the date on which the right o f action for such proceeding accrues." In line with what has been stipulated in the above quoted provision of law, it is evident that, the time of limitation is associated with ownership of a disputed property, which is not the question here. The appellants were categorical in their suit that, their dispute with the defendant was not on the ownership of the suit property, but on the benefits accruing from the same. In the circumstances, while we agree with Mr. Mwaluko learned counsel that, a preliminary point of law may be raised at any stage of the proceedings, see: Mukisa Biscuits Manufactures Limited Vs West End Distributors Limited [1969] 1 EA 696, it is our holding that, in the instant matter, the issue of limitation of time did not arise. That being the case, with due respect, it was a misdirection on the part of the learned trial Judge, to base her decision on such legal principle. The complaint by the appellants in the third and last group of the i grounds of appeal relates to the evaluation of evidence that was made by the trial Court. It was the argument of the appellants that, the learned trial Judge did wrongly relied on exhibit D1 in holding that, they had failed to 13

establish their claim on a balance of probabilities basing its decision on the case of Zakaria Baire Bura Vs Theresia Maria John Bura (supra), the circumstances of which were distinguishable to the circumstances of their suit. On our part, upon having closely observed exhibit PI and Dl, we are inclined to join hands with the appellants. It is apparent from exhibit PI (the Certificate of Title) that, the tenants (owners) in common of the suit property are Alii Faki, Alii Amir and Hamisi Amiri. To the contrary, in exhibit Dl which bears the heading "Mgawanyo wa nyumba Plot No. 92 Block "X" Area "F"Arusha Manispaa" briefly meaning the distribution of the named house, indicates to have been made to Mwaipungu Athumani Amiri and Fatuma Bakari Khamisi, who are quite alien to the registered owners of the disputed property as well as to the suit that was before the Court. In that regard, we are of the view that, it was unjustifiable for the learned trial Judge to hold in the judgment at page 171 of the record of appeal that, even if in the alternative, it could have been established that the suit was lodged within time, the suit could still have failed on the 14

reason that, there was evidence as depicted in exhibit Dl, to the effect that, each of them had been allocated some rooms out of the suit property. The evidence from the parties corroborated by exhibit PI clearly establishes that, the disputed property which comprises of a house, is equally owned by the three that is, the two appellants and the respondent. It was as well established from the evidence on record on a balance of probabilities that, the appellants and the respondent are not in good terms. The appellants did state so distinctly in the plaint as well as in their testimonies. And on his part, the respondent did also state so specifically in the second paragraph at page 62 of the record. There is as well evidence to establish that, the efforts to resolve the misunderstanding has proved futile because, the respondent is adamantly opposed to the proposal advanced by his relatives to sell the disputed property and share the proceeds for the reason that, he is staying in it with his family. In the light of the above given situation, there is no gainsaying to hold that, the common tenancy of the disputed property by the parties is in topsy-turvy. Since the ownership is in equal shares, the opinion of every 15

member has to be given the weight it deserves. Given the circumstances, the respondent has no justification whatsoever, to dictate terms over his co owners on what should be done to resolve their conflict over their property simply on the reason that, he is occupying the same with his family. That said, we find ourselves constrained to grant the first relief sought by the appellants in the plaint which carries the majority view that, in order to resolve the dispute between them once and for all, any of the three proposed options has to be taken. The first option is that, the respondent has to buy the shares of his co- owners in the property and solely remain in it peacefully with his family. In the second option, the appellants have to buy the shares of the respondent in the disputed property and own it. And, the last option is that, in case the first two options will fail, the disputed property has to be sold and the proceeds from the sale to be equally shared by all the parties. « In their reliefs, the appellants did also ask for special damages to the tune of TZs 450,000,000/=. The position of law is that, special damages can only be granted upon being sufficiently established. See: Zuberi 16

Augustino Vs Anicet Mugabe [1992] TLR 137. In the instant matter the appellants did fail to discharge such duty as such, the claim for special damages is rejected. In the same breath, we are not in a position to grant any general damages alleged to have been suffered by the appellants. That said and done, we hereby allow the appeal and order the appellants to have their costs. Order accordingly. DATED at ARUSHA this 8th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARDA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL