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IN TBE HIGH COTJRT OF TANZANIA -· -····-···--- ro· •. C !VIL APPEAL MO 1r.;/99 (OR'L PROBATE AND DM CAU~ NO 5/98 NYASA P/COURT & crvn .. APPEAL MO 1/98 NZEGA D/COURT NURU RAMADHANI ••• • • • ••• APPELL.!UfT ALLY RM:UUD SAL UM • • • • •• ••• RESPONDENT --------- ..... 1!1:lQJ.;. .?..,• This appeal by Nuru Ramadhani against a decisioJ:? of tbe District C·ourt Mzeg1:; ha.s somewhat .!-fil.E§_qtl facts. It is a probate matter. The case started in the primary Court of Nyasa in Mega District as Probate and .. ., Administra.tio_n Cause no ~ of 1998. There, a person called Ally Re.shidi Salum opened a probate matter asking the primary Court to declare him both an administrator· and . . ... heir to a house on Plot 19 in Nzega: township·.. The plot and. the house had blonged to a: lady ca.lled. Joha Kbalfani , ... who died on 15/3/98'. •. The respondent Was granted bo.th . . prayers. He was granted. these pra.ers on 2."1/4/98. Howe·ver, ~ 8 days later, the present appellan emerged and filed an objection in the same primary Court·. The present appellant " " Muru Rama.d.hani, had asserted that Joha being her mother, he Oruru Ra.mad.bani} was the one who owtht o- have· been both _ ~ .. the administrator and heir to tba.t house. His objection was

2 ,, "· however, thrown overboard·. It ia interesting to note that the two a.sse Asors were divide do It was the casting liiote . ... of the ma?istrate himself that t"J.iled the scale. Whereas· one asseasor said that as long a;3 Joha was the rightful , owner of the house and N"uru was 1;er son, - in fac·t, her only ., ... son, Nuru was the one to inherit. The other assessor said that the respondent was the rightful person to both , administer the whole estate of John., a.nd own the house,. The objector~ Nuru, appealed to the District <rourt of n JI Nkega at IfZeg:r, and here the District MaiRtra!e, Mr Nkombe; has andorsed the dec;sion of the primary c·ourt'.. Nuru is ,, now' on second appeal· • . Before I narrate the facts of this proba.te· ce.se, as JI r have understood them, from the record, let me say one thing: This is a second. appeal: The-re is an established. principle of laW' that "where there are concur.rent findings ,, of facts b:r two C-ourts, tbe Court of apneal Cthe way I am ,l::a"' sitting now.:.L as a wise rule of practice, should not disturb them unless it is clearly shown on record that , there bs.r:1 been a .trni!iapprehcnsion of' tnddence, a miscarriage , of justice, ?r viola.tion of some principle of law· or -----... ------ -- ·-·----- A .H·. Jariwalla £19807 TL.R n. 32.) ,.. ..... -=-.- ........... - --;•· • .-.. - .,_.. ,,; What then, are the facts of this probate ma.tter; descent'. She ha.d got married to a person called Ramadha.ni , , Abdallah, and here she mothered two children, the present appellant JJuru namad.hani Abdallah alias -~_thuman Ramadhi:rni , •.•. JI . . . '. ~ • o o/3 tJ -·

3 Joha Khal:ran then got divorced. S'he la.ter went to get .. man-i1'd to Abdallah Salimu a· Tanzanian of Arab a.e scent e The toe.card shows· that at this s,-1cond marriar;e of heres, .she ·-- ... never produced cbild"ren·. Later, t"t;e second. husband of

,,

Joha died, and Joba became a widow·~ She, however, became-- . lucley to be looked af'ter by the resnondent .. a Tansa.nian with Arab descent. ,". fr.>tever, while this Joha and Abdallah s·a.1imu (now· ,, all. de.ctd) were cohabitinR together, a house was built on . ,, .. Plot. 19'. in Nzega township., be ·house that is now the .. subject of this probate mattero It is said tha.t the house first stood as a El. • house., but later it we.s converted into , ~ .. a cement block house. The house, after it got.built, then

got registered in the name of Joha a/ o Khalfan " I must -· ~ .,,..,._ • ..,,.,., .._ ..... ,.., .• -,., t: ••• -.-..-----.~ ....... __, '1.:: • .-:."""""'2- point out here promptly, tb2.t there is n<? doubt that the house in law be~ongs to Joha d/o Kbalfan'. No one disputes if that legal fa.ct. In fact, we are told that the file

number at the Land Offico> 5.n l'fzegA. is .knOWI]e It is LD/Ml/1351 and it got reisterea. on 19/'3/74• BUt, and this is a biR but, the one who furnished material into building the house ws.s the late husband. Abdallah alimu 1 and tbe respondent called Abdallah Salimu .. The big issue tb.erefore was, whether one cold ii legitimately or wisely say tba.t the house, al though in the , name of the lady Joha, belonged to the husband Abdallah , Salim, the uncle of the present respondent Ally Ra.shid. ; Abd.a.llah. The house the two c--ourts ha.ve held, got registet>ed in the name of the lady, but in rea.lit:1 W8.S lw.ilt with greatest assistance from the uncle of "respond.ento

• 4 "1'/bd-:i,J.ec.· .Sal u..'T 1 ikuwa. n i Mwarabu enzi za mkoloni . . . - mtu ambaye alikuwa si-yo re.Ia.. Ilikuwa si-yo rahisi kiwanja na akajenga. n-yumba kwa jina la ;q_h~~~f.9.·.!,qal.f.!1 .. ~ lkini ililruwa ni maJ,i ya murne" r the primary c·ourt :Z' " The second issue is to lmow whether tbe house in dispute was the propert:.r of the deceased Abdallah .. or Joha. There were witnesses who sa.:i.d. that they were informed the.t the house be1onped to John and there were t-1:itnesses who sa.id. t1:rn.t the-y saw Abdallah contructin~ the said house ann it belonged to him. 'J:'here j::i evidence to the fe.ct that the certificate o-t occupancy of the sa.id housE! bears the ns.me of Joha Khalfan and this is true" There is also evidence to the fact tho.t although the said the property of Abdallah who bT then being a non-citizen of thj_s country, it could have not been possible t app1.;1 for and isue e. plot forc1-hiftruct;ing a house:· This ms.:v be quite true because there are instances· that :ror be.sic reasons a. person uses a n~1me of' . . . . -..,

5 bis son,, or father, ryr any other -pe-r.son to aPr.>ear .. on a certiftcate of occunanc-y or s. caah sa.le. , Then, if this ha:ppens, it does not Rive right or title of ownership of the propert:v under the said. n2me. It follows therefore that it is possible tba.t . the na.me of Joha was used for the said. reason but the propert~ 1 was of Abdallah." I reproduce those two passaRe s to show the concurrent .. holding of facts of the two Courts be-low • ., , There is, e.,pdn, another concurrence of facts in the ., ~ two Courts bel01i. It is said that ,Joha, before she died, spoke words to the effect tha.t tbe anpellant should not be ., seen at her funeral, and. th9t tbe house was, indeed, te property of Arabs ( meaning· A.bd.a.llah e.l im a.nd his clan.) , After na.rra.tinr,- the facts, wbrit is tbe outcome of the appeal! The appellant has given some eip.bt grounds of " • 9:-•a,.,=-,._,..-,,.. appeal'. I have rea.d- them all. All these can be summ.rized to be that as long as Joba wa.s the re~i:=itered owner of the , I house, and he appellant is her -first son, he ( appellant) .. is the he it•·• Th le.w on matrimonial nropert:v is simple and straight reads: " A married woman sbal 1 have tbe· same riRht as -.,..,...,-,. . ,, has a· man to acquire, hold, and. a ispose of propert:,, whether movable or immovable and. the same right to , contract, The same right to sue and the same liability to be sued in contract or in tort or otherwise" ••• /6 ...

... 6 Section 60 rea.ds: "Where during the- subsistence of a. marriage any · property acquired ('a) in the name of t·~1e husband or the wife, there shall !:le h:; rebuttable presumption that the property belongs absolutely to that

person, to the exclusion of bis on her apousen In other words., the law is sa::vinf'-' tba.t if a house or a. car is . :i.n the ne.me of one of the sPouse a, the presumption is that it belon_P.'.s to tha.t one wboRe nA.me i~ on the document, unless evidence c<:>f!!es, that perhans, the name found its wa;-. 1 ~ there f~aud.ulently., In other words, the certificate of title to the house in dispute belongs to thnt one whose ne.me is

.. there on tbe document, and that is ,Joha alim,. It does not matter who built it. There :ls a case - the case of . Bishop[!a.te I-1otor F"inance Corp Ve 'rransport Bra.kes Ltd Winsor e::c.c-:::a .• .:·"•• "". •. • • .·,111·.·•· ,r...-r.-,-.,·-. -..- ,...,-.,:,,•··'"'·a.·--·:•• t:--,.•'-~.,. 40 .,., ·''•'· :.;:•• o:- ••-'·"""' e.:-.,..,..,,11t-.-,,-.::.- • ..- •.• ,,. ... - ..... ;""',-,.a,...-,:·T.-;-r> •-- .,,......__ r·.· ~~ • e··.t

Lord Denning is reported. to hnve SB.id Lon re~istration Ca.rd~ 
but I woulc1 extend this to a certificP.te of Occupanc-yJ· 
"The registrF:<.tion book of a. ca.r or the leg 
book as it is called, may not in itself be a 
.tttl.~. ( un<:ler scoring mine) 
• 
At home, here, the Court of Appeal for Tanzania in the 
1990 (DSM) 0-1n2:.avas JA) has categorical 1-y said. that when n 
house· is in the sole name of a. ::mouse, a.ncl there is title 
---~,-=- ,# 
deed to tlw.t effect, that house, on dis~olution of mt:irrie.p.;e,, 
does not become a m8 trimonial Property. The facts in tba'c 
.. -:- .. ;•.:;s

7 
case were that parties ha.d. been married• and while the 
marriage 1-:c.s subsisting, the woman built a. house. or a house 
got errected on- Plot No 15 Mbamba Ba:v Road. Sonf!ea. Wben the 
.. 
marriage bece.me sour the~ sent each other to Court for divorce. 
TbeN were many issues discussed., but one of the issues was 
whether the house was a matrimont~l proTJert".1,1 al tbough tbe 
.. 
title deed. was in the name of ·the wife. Two Courts below 
.. 
held ths.t ·the house was matrimonial nropert:v. The Court of 
. 
Fbr, 
it said: 
"As f'oi." the quest ion of ownership of the house on 
plot lTo 15 along Mba.mba Bay Road t'here we.s 
tmm..sr,uted evidenee tbat tbe plot is re giRt-e-red in 
the name of the appellant; and a title deed in the 
name of the appellant was produced in Court --" 
The -Court tben cited Section 100 of the Evid.ence .Act wbieh 
reads: 
"Where the terms of a contract or of a grant 
.-~ ............. ....-: .. 
·or~~ any other disposition of Property have been 
j 
reduced to the form of a. document and in all eases 
in wbj_ch any ms_tter is required by law to be reduced 
to the form of a document ,no evioence shall be given 
. -=-- ,_,_ ...... .,., .... ,.,* ., .. _ ....... ~..:• .- .... ,---··-···'--• .. , . ...,_ ··---=-- ... ,-e;;.:,-,.;-- ~ .. ,...-= .. 
-----·-·· ---·-··- ... ··. ··- -··--·•··- -------··----------------··-----------------··------- 
in proof of the terms except the document itself· 
..-~ ..... c I• ••·••.,r·,t- .. ._., •... ..- •. ,.,. ,. .. .,_. __ .__.,._,,..,, ••···•··.,.. ..,._., •· .,.·,.,, .. .._, • .,,,..,__,,,_., ..• ~. 1' •• -..-:••~•-,-:.-.,.,__,-.:~:...~·•._..:...~--·~A· 
. ~ 
or a secondary evidence of its contents, in cases 
in which second.a.r:1 evidence is a.d.missj_ble (emphasis 
mine) 
in the case of Simoni Kawindi v. 
S",~ •• .,...,_ ... _ _.,.-c.....,......,_ .... _, . ..,.,.., . ...,...,_ ....... ~ 
(P.C} Civil Appeal No 47 of 1985 (TTodoma 
Re gist~,) has also pointed. out thn.t:

- 
8 
•fue law of ma.ni-iage A•t provides for the doctrine 
of separate property e£ the speuses even during 
the subsistence •f marriage• 
I have also read ·a. .paper by W.B.L Kapinga. •f the Faculty 
-o.f Law.University of Dar ~s Sa.la.am - paper titled •Division i,.f 
~trimonia! Assets in ~n~apia. A Case for Leg;&sla.tire Interven:Y:,n 
published in Tanzania Law Ref•rm Bulletin Volume I Number 1 July 
1987, where the author suggests, ebservations which I agree, that: 
"clearly, where the rights •f the spouses are sufficiently 
defined, the ordinary pr:tneiples of law apply. And, where 
the Court can vividly see that the parties intended that a 
j)a.:rticula.r property should belong to one or both of them 
jointly, whatever happened, there is no discretion in the 
Ceurt to ever - ride that intention 
11 
So, the title ·deed;. being in the. name- of Joh.a., and the 
appellant being the only sen 'ef_Joha, surely, the lagitimate 
person to inherit the· house is the appellant and n2.! the 
respondent •. It does net matter where the inputs ·into building 
the.house came .fr~m. 
,,. 
of her life on earth, was say~ng that the appellant be barred 
from attending her funeral~ · That assertion cannot be taken 
seriously. ·For ene thing we_know"'- Joha·in her last days, ·was 
a mental case. That asserti•n dOes not, theref9re, hold,water. 
. I am satisfied,: the appellant has a case. As. I said before, 
I see.: som~ · 
11 
misapprehensien" •f evi·dence here, "a misoarriage" 
of justice and "a violation" •f soae prinoiple of law~ 
,. 
,t;.

•J 
I allow the appeal with costs. The appellant is declared 
ewner ef the house on Pl•t 19 Nzega - a house that bad 
belonged to Joha., his mother. 
At Shinya.nga. 
11th October 1999 
Appellant: present 
Res:pondent: Present,.