Wambele Mtumwa Shahame v. Asha Juma Civ no 44 of 2002

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CORAM:        MUNUO, J,A, MSOFFE, J, A,  AND KILEO, J,A.

CIVIL APPEAL No. 44 OF 2002

WAMBELE MTUMWA SHAHAME……………………………APPELLANT

VERSUS

ASHA JUMA…………………………………………………….RESPONDENT

(Appeal from the Judgment of the High Court

of Tanzania at Dar es Salaam)

(Kaganda – PRM Ext. Jurisdiction)

Dated 18^th February, 1998

in

Civil Appeal No. 100 of 1996

JUDGMENT OF THE COURT

7^th  & 28 February,2007

MSOFFE, J. A.:

        This is an appeal against the concurrent findings of fact by the courts below that the respondent is the owner of house No. 4 on Plot No. 82 Block M in Twiga Street along Kariakoo area in Dar es Salaam. The courts below were satisfied that the respondent acquired the house by inheritance from her deceased father.

        The background of the matter may briefly be stated. In Kisutu Resident Magistrate’s Court, Civil Case No. 277 of 1995, the respondent successfully sued the appellant in a claim of the house in question. Briefly her case, which was supported by her witnesses, was that her father died in 1966 leaving behind her mother, her sister and the house in question. She paid off her mother and sister and remained the sole owner of the house in issue. The appellant is her cousin and at one stage she had thought of bequeathing the house to him. Before she could do so, the appellant laid claim to the house and in the process, he brought to her transfer documents in which, being illiterate, she signed thinking, that they were lease agreements.

        On the other hand, the appellant’s case was briefly that he acquired the house from the respondent out of natural love and affection. Thereafter, he processed transfer documents which were duly signed by the respondent. According to the appellant, the respondent was not all that of an illiterate person as not to understand and appreciate what she was doing.

        As already observed, the Kisutu Resident Magistrate’s Court decided in favour of the respondent. The appellant was not satisfied, he appealed. In exercise of Extended Jurisdiction, Kaganda, Principal Resident Magistrate (as she then was) dismissed the appeal. Still dissatisfied, the appellant sought leave from the High Court of Tanzania at Dar es Salaam in order to appeal to this Court in terms of Section 5 (1) (c ) of the Appellate Jurisdiction Act, 1979.  The High Court (Bubeshi, J.) dismissed the application holding that no point of law worth considering by this Court was disclosed. The appellant made a similar application before a single judge of this Court (Ramadhani, J. A.) who dismissed the said application. The appellant made a reference to this Court whereupon in Civil Reference No. 2 of 2000 he was granted leave to appeal, hence this second appeal. In granting leave this Court observed as follows:-

“On appeal, the Principal Resident Magistrate, Extended Jurisdiction addressed the issue of the legality of the transfer of title from the respondent to the applicant. She held that the applicant had not established that the transfer was a result of an absolute gift. With this view, the trial court’s decision was upheld. Dealing with the application for leave, the learned single judge also addressed the issue whether the ownership of the house was transferred to the applicant. Refusing leave, the learned single judge was of the settled view that the applicant had failed to prove his claim that transfer of property had changed as neither witness was called nor was title deed produced. However, it is to be observed that the learned single judge’s view of the matter is different from that of the trial magistrate. As already observed, the trial Court found that there was evidence on record which was fraudulently obtained. For instance, according to the trial Court documentary evidence showing transfer of property and the search from the Registrar of Titles indicating the Certificate of Title in the name of the applicant was forthcoming from the record. This, in our view, notwithstanding its evidentiary value, was evidence in support of the applicant’s claim. On the other hand, with respect, the learned single judge was of the view that no such evidence had been shown to support the applicant’s claim. These are diametrically opposed perceptions of the evidence on record. In the circumstances, we think the matter is not free from difficulty, it raises a legal problem, namely that while the trial Court held that there was evidence which, in the view of the trial Magistrate was fraudulently obtained, the learned single judge was of the view that there was none. In this situation, we are not in a position to tell what the decision of the learned single judge would have been had he addressed the fact that there was such evidence. For this reason, we are respectfully of the view that this is an aspect which could be looked into on appeal to the Court.”  

        It will therefore be observed here that leave was granted on the basis of the legal problem arising from the perception or understanding of the evidence by the trial Court and the single Judge. Henceforth, the decision in the appeal will turn out on the findings of fact based, as they were, on the evidence on record.

        The appellant filed a memorandum of appeal containing four grounds of complaint. In substance, the grounds crystallize on one major point:-  That the Principal Resident Magistrate with Extended Jurisdiction did not properly analyze the evidence on record. According to the appellant, if the Magistrate had done so she would have found in his favour.

        On the other hand Mr. Magesa, learned advocate for the respondent, was of the general view that the evidence on record established that the respondent was, and indeed still is, the owner, of the house in question.

        As mentioned before, this is a second appeal. It is an appeal brought under the provisions of S.5 (1) (c) of the Appellate Jurisdiction Act, 1979. As a matter of law, it was to be expected that the appeal to this Court would only lie on a point or points of law. However, on the authority of this Court in DPP versus Jaffari Mfaume Kawawa (1981) TLR 149, in cases where there are misdirections and non – directions on the evidence, a court of second appeal is entitled to look at the relevant evidence and make its own findings of fact. The issue before us is whether there were any misdirections or non – directions on the evidence by the courts below.   

        To start with, as already stated, in their concurrent findings of fact the courts below found in favour of the respondent. The question is whether there is anything to fault those findings. With respect, after carefully going through the evidence on record, we find nothing to fault the courts below in their respective and concurrent findings of fact.

At the trial, the main issue really was whether or not the respondent gave the house to the appellant at the material time out of natural love and affection. In our respectful opinion, there is nothing to fault the courts below in their findings of fact that the respondent did not do so. We are fortified in this view by the fact that it was highly unlikely, and doubtful for that matter, that the respondent could do so at that particular time when she had already indicated earlier that she was to leave a will in which she was going to bequeath the house to the appellant. So, if the appellant had been patient he would, no doubt, have got the house eventually, any way. He is to blame for his own impatience. At any rate, it was very unlikely that the respondent could have decided to part with her only property at the material time when she had no other shelter to resort to.

        Having said so, it will follow that the transfer documents were fraudulently obtained. We say so for two main reasons. One, the appellant did not disprove the respondent’s assertion that she signed the transfer documents thinking they were lease agreements. Two, a close look at the transfer documents will show that they were highly suspect. The first one was a document of a transfer of the property from the administrator of the estate of Mwaisa Mwijuma to the respondent and was stamped on 22/11/ 1988. The other one was a transfer document of the property from the respondent to the appellant and was also issued on 22/11/ 1988. In our view, it was highly improbable that the two documents could be stamped and issued on the same day.

        In the event, for the reasons stated, we find nothing to fault the courts below in their findings of fact. We accordingly dismiss the appeal with costs.

DATED at DAR ES SALAAM this day 28^th of February, 2007

E. N. MUNUO

JUSTICE OF APPEAL

J. H. MSOFFE

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

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

I.P. KITUSI

AG.DEPUTY REGISTRAR

View other posts for your benefit...