Rashidi Abdallah vs Fatuma Mohamedi S. Ally Bawazir (CIVIL APPEAL NO. 4 OF 1997) [2000] TZHC 213 (4 September 2000)

IN THE HIGH COURT OF TANZANIA . T MTI'-'.17,RA CIVIL APPEAL NO. 4 OF 1997 ORIGIHAL MTWARA DLS'I'RICT COURT CIVIL CASE NO. 42 OF 1996 RASHIDI ABDALLAH ••••••• APPELLANT versus: FATW1A HOI-IJU'i:EDI S. ALLY BAWAZIR ••• RESPONDEi1fr The appellant in this appeal is RASHID! ABDALLAH. The respondent is ,__. a ~ .... -;; ATUMA MQHANEDI SAID. ALLY BAWAZIR. The subject mattei- is a house situate- -on Plot No. 23 Block MC 144 Hikindani. It is in the record that the house in dispute belonged to the late t'IOJi!il'iEDf SAIDl iLl._B! who died in or around ·1967 at Hildndani. The late Mohamedi Saidi Ally Bawazir t-ro.s the father of the respondent :Fat-wna Mohrunedi Saidi Ally Bawazir. When the late Mohei.medi died,. the respond.e11t Fe.turne. was resi.d in Yemen. She was his only surviving child. Mohamedi 1 s elder brother in the name of fiWIg_,§Jgl?..,3?J.1S. who was residing at !•lL'l(indani took over supervision anti possession of the said house under what would appear to be hin trust for the i·0spondent Fatuma. 0 Awadhi Saidi Bawazir had a do.ughter called SALl1MA AW/J)~

• •·---- .. BAWI\ZIR (DW2) • She was married to the appellrult Rashidi. Awadhi Saidi Be.wetZir invited the appellant and his wife to live in the said house. It would appear the said house was in o. bad conditio.... requiring extensive renovations. It is in the record that the appello.nt carried out the required repairs and moved into the said house with his wifee He lived there with his family ad his father-in-law Awadhi until 1983 when his father-in-law Awad.hi died. After the death of Awad.hi, the respondent Fatuma intimated that she wanted to take possession of the said house. In or around 1986 she served the appellant with (an oral?) notice to quit but the appellant refused to do so. According to his written statement of defence and his testimony . before the tricl. court, he gave the reason for refusing to vacate. He said he refused to do so because he was not the proper person to be served with that notioe. According to him the proper person should ·have been his wife Salama because,,he said 1 she was tho one who was invited into that house by her father Awad.hi. When efforts for free vacant possession proved fruitless the respondent took the matter to Court through representative with o. Power ••• /2 ••••

2 of Attorney and prayed for the following reliefs:-· (a) For a declaration that the said house is her sole and lawful preperty. (b6 For. an order that the appellant and his family and dependants living in that house be evicted. (c) For an order that the appellant should po:y her shs. 2,000,000/~ as drunes/compensation. (d) Costs. (e) Any other r.elief the Court could deem fit and just. At the trial the appellant who was the defendant resisted thG .cla.itn mainiy on the ground that he was not the proper person to be sued 1 and that• according to him; the proper person should have been his .,zife DW2 Salama. After evaluating the evidence the trial Court found as a fact that the said house was the sole and lawful property of the respondent Fatuma., It also found as a fact that it was the appellant who had been invit6d into tha.t house by his late father-in-law Awadhi whereby he moved with his \•sife Salama. For that reason the Court held that he was the proper party o be sued. The raspondentje/ll,laintiff's claims wero. cons04uentl.y ted as prayed with costs. The appella.,t was aggrieved and lodged this appeal. In his former memorruu:i.unt of ;,ipp,ea.1. he chall.Gnged the suit to have been tioe barred• He also .alleged that the said house had been bequeathed to him by his late father-in-law Awadhi. He also found no basis upon which the payment of ~ 2,<Xn,ooo/- was based. Lter he -engaged the legal servicos of t'!LS H~~C_O_iili!_vo_c2:) who applied for and was ~~ted leave to file an amended memorandum of appeal. advocate In the amended memorandum of appeal the learned raised seven (7) grounds of appeal chcllenging the I.OCUS STANDI of the respondent and the one who represented her with a Power of i .. ttorney, the validity of the Power of Attorney itself which had not been registered and was in Arabic with a Swahili translation instead of English, the jurisdiction of the trial Court as well as the jurisdiction of the trial Magistrate who had not.been appointed as a District Delagate. Like the appellant, he also raised the question of time limitation. All these were elaborated further in his written submission. The respondent's advocate IvlR KUr-1WEHBE who had represented her even at the trial submitted a written submission where he elaborated the reasons to justify the locus standi of the r8spondent and her representative, the validity of the Power of Attorney which in his view did not require •••• /3 •••

• 3 registration, the validity of the Swahili translation and the jurisdiction of the trial Court and the trial Magistrate. He also elaborated as to how the suit was not time borred. I have earefully considered the evidence on record, the appell-:mt•s grounds of appeal as elc·,borated by his advocate in his written submission, the respondent's submission, together with the overall circumstances surrounding this case. The following matters a.re not in dispute. Firstly, that the house in dispute belonged to the late Nohruned Sa:Wi .Ally Bawazir before his death in or around 1967. Secondly, that after his death the supervision 3.lld possession of the .said house fell into the hands of the late J.wndhi Saidi Bawazir. Thirdly, that the aaid Awudhi Saidi Bawazir was the elder brother ~ the late Mohamed SElidi Ally Bawazir,. Fourthly, that the respondent Fatuma is the sole surviving ild 0£ the late !·1o.luuned Saidi AJ.l.y Bru-1azir. With all these it is obvious that the respondent was a legitimate heiress. Since she W8S the sole eJViving child of the late Mohamed, she was automatically the sole heiress/beneficiary of the house in dispute, especially that so far nobody else has come up claiming interest in that house through inheritance. In fact even the appellant's wife DW2 Salamc... and his brothe.l'-in-l.!l.w DW} NURU Av/ADHI, confirmed the respondent to be ......- .. .__.. __ ... ._ the. sole l.egi:timate heiress of the house in di.c;pute. Therefore the trial Court was right in declaring the said house to be the lawful property of the respondent. Now, dealing with the other appello.nt•s grounds of appeal. I h.all'o the followfog to say:- VALIDITY OR ]1!.Y}L._9! THE POv_5)..f_M.~£~fil1.- I have read carefully the Swahili trc:mslation of the Pm·1er of Attorney in issue. In that Power of [ttorney the respondent appointed PW1 Sfi.l,IMU J:MADHI SAIDI ALLY BAiAZIR as her reprcsenta.tive in collecting and receiving ru.l property which rightly belonged to her from her lc.te father's estate on her bahalf, and to represent her in Court proceedings in respect of such property. That being the case, it is rrry view that it did not require registration under S. 8(1)(a) of the RGgistration of Documents Ordinance Cap 117 which says:- 8 (1) The registration of the following documents if executed or -made after the commencement of this Ordinnce is compulsory:- (a) non-testamontary documents, including decrees of any Court nnd awards which purport or operate to create, confer, declare, limit, assign, transfer ••• /4 •.•

4 or e:>..-tinguish nny right, title or interest, whether vested or contingent to, in, or over landu . t . . . d. d t rv0 1rhe Power of At orney PI in my view 1. no .. ,. ru:i.y of the above purposes, and therefore was not bound to be registored. Since the ce..se be:fore the trial Court vms for ..lecl.?.ration of Au.u11.n1strator oI ownership and not a Probate Cause for appointment ofLthe estate of the late Mohamed Said li.lly Bawaz:i.r it was not necessary for the Power of Attorney to be translated into English as required by Rule 8 of the Probate Rules 1963. 1 for Since the respondent v!as cl.:ur.iing_.:f. declaration of ownership of the house in question as the sole legitimate heiress, her locus standi did not depend on being a:epointed the Administratix of her father's estate, standi She had a locus as the sole legitimate heiress of that house. Since the case at the trial 'las not a Probate Cause but an ordinary Civil litigation,. a...'1.d since the suit house is situate on a plot surveyed by the Germans with a Right of Occupancy registered under the Rogistr.1.ti.on of Documents Or<linrui.ce Cap 117 as co..'lfirmed by the Zonal Registrar of Titles in her letter Ref. No. LR/MTW/G/1/8o of 30.3.2000, the trial Court and the trial Magistrate had jurisdiction to entertain it. A Primary eourt, as suggested by he appellr-mt's advocate, would lack ;jurisdiction by virtue of s. 18(1)(a) (proviso) and 63(1) of the Magistrates Courts Act No. 2 of 1984. Going back to the validity of the Power of Attorney, the appellant's advocate said it contravened s. 93 of the Evidence Act 1967 by not being signed by a Tanzania Foreign official in the Country where it was made. I have considered this,s But since it was endorsed by the British Embass$ which 'is a Commonwealth Country the requirement of s. 93(c)(i,) of the Evidence /I.ct, 1967 w.?..S complied with. It is upon the above reasons that I dismiss the appellant's appeal against declaration of ownership. ls far as the order for a Compensation of shs. 2 1 000 1 000/- is concerned, I think there is some unfairness in ito The appellant was not a tresspasser nor a defaulting tenant. He was an invitee who felt it was unfair to be evicted while he had spent so much money in renovating the suit premises. The respondent was awarded that amount probably on the understanding that, had the appellant vacated that house she might probably have rented it to a tenant who might have paid her a substantial amount of money as rento But all this was not made clecr, as such it is not clear whether there was a tenant who was ready to pa:y that much within that period or whether the standard of that house at Mikindani would have enabled the respondent to charge a rent of that much within that period. . .. . /5 ...

·5 Taking all these ihto consideration together with the overall circumsta:hces surrounding this casei I have been satisfied that there was no basis upon which the 2,000,000/ ... was b,15ed, and that if there was any, then it was not substantiated and was ,unreasonable. For that reason I set aside the order for payment of shs. 2,000,000/-i. As far as the order for vacant possession is c0ncerned, the appellani and his family and dependants were ordered to vacate the suit premises I iinmediatelyJ As I said earlier the appellant was not a trespasser or a defaulting tenant. It was unfair to order him to be thrown into the cold . without giving him n reasonable time to enable him secure. an clternative accommodation. According to the record; by then he w?...s aged 60 yee.rs. He should be around 63 by now. He probably spent a substantial amount of money in renovating the suit house. It was not recorded anywhere that h~ reasoo had another house where he would mov-e for shelter., He deserved a· · time to enable him secure an alternative accommodation. For that reason I set aside the order for immediate vacant possession and substitute thereat with an order for vacant possession within six (6) months from the date f delivery of this judgment. The appellant complained also that the suit was time barredo But according to paragaph 6 of the plaint, it was in 1986 when the respondent intimated her intention to repossess the suit premises whereby the appellant is nlleged to have refusedy Therefore time started running from that time. By 1996 when the respondent instituted this case the time was only ten (10) years as against the tir.ie limit of twelve (12) years. The appellant's defence of time limitation is lrune and is dismissed accordingly. Thus, save for the variation of the compensation order and the vacation order, the appeal is otherwise dismissed with costs. _,.,j , I /·~t..- - /' S. No KAJI JUDGE 4 .. 9.2000 Coμrt: Judgment has been delivered in the preence of the parties themselves without their advocates this 4th de.y of September for Fa.tu.ma) • JUDGE 4.9.2000