Hamad Omari v. Yusuph Issa Civ no 2 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 2 OF 2007

HAMAD OMARI ……………………………………      APPLICANT

VERSUS

YUSUFU ISSA ……………………………………….  RESPONDENT

(Application for leave to appeal to the

Court of Appeal from the Decision

of the High Court of Tanzania

at Tanga)

(Longway, J.)

dated the 30^th day of April, 2004

in

(DC) Civil Appeal No. 21 of 2002

-------------------

RULING

25 August, 2008

MROSO, J.A

The respondent Yusuf Issa, as administrator of the estate of late Siwamwe d/o Ally, successfully sued the applicant, Omari Hamadi (sic) (Hamadi Omari?), in the District Court at Tanga, for a declaration that a house on Plot No. 11 Block 100 on Street 15 in Tanga Municipality, was part of the estate of late Siwamwe and, therefore, a transfer of the title relating to the house to the applicant be nullified.  The applicant appealed in vain to the High Court at Tanga, Longway, J., against the judgment of the District Court.  His application to the High Court, Mkwawa, J., for leave to appeal to the Court of Appeal was thrown out.  He has now resorted to this Court for leave to appeal.

This application was to be heard in Tanga during the last sessions there but because the respondent needed to file an affidavit in reply and there was not enough time for him to do so while the Court was still in Tanga, both parties agreed that the hearing could be done in Dar es Salaam.

The proceedings in the trial District Court, including the judgment of that court, are not in the record but from the judgment of the High Court and an elaborate decree of the District Court and also from the filed affidavits, the following position is apparent.

According to the applicant, late Siwamwe Ally was the aunt of his late father Omari Hamad.  During her lifetime she gave absolutely her house referred to earlier in this ruling to the applicant’s father out of love and affection.  She manifested her intention in writing on 16^th June, 1988.  She put her thumb mark on the document which was also signed by the donee and three witnesses, Sefu Sudi and a ten cell leader one Yusuf Mssangi and one Batuli Hamadi.

On 20^th June, 1988 late Siwamwe also signed by a thumb mark another similar document (Exhibit D2).  This latter document was also signed by the donee Omari Hamadi, as well as by the same witnesses who had signed on the earlier document.  This time, however, the signing was before a Primary Court Magistrate and the document bears the signature of the magistrate and a court seal.

On 12^th July, 1988 a document titled “Transfer of Right of Occupancy” relating to the same house was issued by one O.E. Mzava, a Land Assistant of Tanga Land Office.  The transfer certificate was issued to Omari Hamadi, the applicant’s father.  The stamp duty on the document was apparently paid nine years later, on 2^nd June, 1997.  That was a day before “Hati ya haki ya Ardhi” was issued to the said Omari Hamadi on 3^rd June, 1997.  According to that document Omari Hamadi was granted a Right of occupancy of the plot comprising Siwamwe’s house for a period of 33 years.

When Omari Hamadi died on 2^nd January, 2000 the applicant was appointed administrator of the estate of his late father and he considered the house on Plot No. 11 Block 100 in Ngamiani, Tanga as part of that estate.

It is not clear to me from the materials that are before me when Siwamwe died, but it appears her death preceded that of Omari Hamadi.  The respondent was appointed administrator of her estate.  He claimed that the disputed house on Plot 11 Block 100, Ngamiani, Tanga had remained the property of Siwamwe until she passed away and formed part of her estate after she died.  The two courts below agreed with the respondent.  The   applicant thinks that with all the evidence which showed that the property had been transferred to late Omari Hamadi during the lifetime of Siwamwe, those two courts below must have erred and it is now his attempt to go to the Court of Appeal to have his claim indicated.

The High Court, Mkwawa, J., which as already mentioned, heard the applicant’s application for leave to appeal to this Court, was of the view that the judgments of both the High Court and the trial District Court to the effect that the transfer of the title to the disputed plot to Omari Hamadi was done fraudulently, was proper.  That was because the decision in the case was based on the credibility of witnesses as assessed by the trial court and that an appellate court was not entitled to fault a decision of a trial court which is based on credibility of witnesses.  Since a second appeal to the Court of Appeal was only on a point of law and the learned judge could not find “any material that will warrant the second appellate court to reverse findings of facts that were made by the trial court”, he found no merit in the application and dismissed it.

It seems to me that since the decisions of the two courts below on the finding that the transfer of the disputed plot was fraudulent, it is a point of law worth investigating by the Court of Appeal whether those courts were correct in their finding that the facts as were before the trial court showed that there had not been a valid transfer in law of the plot by Siwamwe Ally to Omari Hamadi, so that the property would form party of the estate of late Omari Hamadi.

I, therefore, allow the application and grant leave to the applicant to appeal the Court of Appeal.  The applicant to get his costs.  It is so ordered.

      GIVEN AT DAR ES SALAAM this 26^th day of August, 2008

J.A. MROSO

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

(F. L. K. WAMBALI)

REGISTRAR

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