FARAH MOHAMED v FATUMA ABDALLAH 1992 TLR 205 (HC)

 FARAH MOHAMED v FATUMA ABDALLAH 1992 TLR 205 (HC)

Court High Court of Tanzania - Arusha

Judge Mrosso J

18 August, 1992

Flynote

Land law - Disposition of land - Registration of documents purporting to transfer D

right/title to land.

Land law - Inheritance - Inheritance of a right of occupancy - Requisites.

Evidence - Admissibility - Of secondary evidence. E

-Headnote

The original owner of disputed property had died intestate, leaving the property in the hands of caretaker. The caretaker who did not have letters of administration sold the property to another person upon whose death, the property was again sold to the respondent. This was a suit by respondent (then plaintiff) against the Appellant, (the original defendant) for trespass occasioning loss.

The trial court found for the respondent that the disputed land belonged to her and the appellant was a trespasser. The appellant appeals to High Court. G

Held: 

(i) A right of occupancy or an offer of a right of occupancy cannot be inherited by the mere possession of documents of title; 

(ii) he who doesn't have legal title to land cannot pass good title over the same to another;

(iii) documents purporting to transfer ownership of a right of occupancy must be registered otherwise those documents are invalid and ineffectual;

(iv) transfer of a right of occupancy without consent of the President is ineffective and unenforceable. I

Appeal allowed.

1992 TLR p206

MROSSO J

Case Information

Minde for Zeffer Ali, for appellant A

Shayo for Jonathan, for respondent

[zJDz]Judgment

Mrosso, J.: The respondent, Fatuma Abdallah, was the successful party in a suit she had filed in the Court of the Resident Magistrate at Moshi against the appellant Farah B Mohamed. The suit was in respect of Plot No. 15, situate at Sanya Chini, in an area commonly known as Somali Minor Settlement, in Hai District. The respondent, then plaintiff, had alleged that the plot belonged to her and that the appellant, then defendant, had trespassed onto it and in doing so, caused the respondent to suffer a loss of a C finger millet crop from which she would have earned shillings 352,000/=. She sought a declaration that the appellant was a trespasser, damages in the sum of shillings 200,000/=, an eviction order against the appellant and costs.

The trial court found that the plot belonged to her and, therefore, the appellant was a trespasser. It is not, however, clear from the decree if an eviction order was granted as prayed. The prayer for damages was refused, and there has not been any cross-appeal on that. The appellant was dissatisfied with the judgment and decree of the trial court and has appealed to this court. Mr. Zaffer Ali, learned advocate who prosecuted the defence for the appellant in the trial court, has filed eight grounds of appeal to this court and, with the leave of the court, has filed Written arguments. The respondent who was duly served did not appear at the hearing of the appeal. She wrote a letter seeking F adjournment but for the reasons given in a ruling, the application for adjournment of the hearing was refused.

Before I deal with the grounds of appeal, let me attempt a summary of the facts, as I understand them. One Abdallah Farah obtained an offer of a Right of Occupancy G over the suit land on 1st July, 1954, for a term of 99 years. The land commonly known as Plot No.15, measured 23.5 acres. Apparently Abdallah Farah did not live on the plot nor was there clear evidence if he developed it except by building a house on it.

Subsequently he died in a year which was given in the evidence by the appellant as 1957. Even so, up to the time the suit came for trial, he remained the registered owner of the plot, according to the evidence of one Tadeo Simon Mwakilema (D.W.3), who was an Assistant Land Registry Officer.

After Abdallah Farah's death a close relative, allegedly an aunt, one Gurman Mohamed, I took possessions of the plot. Some witnesses said she inherited it. She does not appear to have applied for any letters of administration nor appointed administrator of the estate of Abdallah A Farah.

According to the respondent's case, Gurman Mohamed sold the suit plot to one Awadh Abdi and when Awadh Abdi died his wife Hadija Awadh (P.W.3) applied for and was granted letters of administration in respect of the estate of her deceased husband. By a B written agreement, a copy of which was tendered in evidence despite objection, the suit land was sold by Hadija to the respondent and one Oreson Shuma jointly, that was in 1979. In the following year Shuma surrendered his half share to the respondent who became the sole owner until in 1985 when the appellant allegedly trespassed onto it.

The appellant had a different story to tell. His case was that after both Adballah Farah and his aunt Gurman Mohamed died he got the plot in 1971 "through relationship", to use his own words, whatever exactly that meant. The plot has been in his possession ever since. He also had Abdallah Farah's title deed in his possession and he tendered a certified copy of it in evidence. He was paying the land rent in the name of Abdallah Farah. He therefore denied the respondent's complaint that he was a trespasser on that plot.

The appellant contended that Awadh Mohamed (sic) (Abdi?) bought only a house on the disputed plot and not the plot itself. The copy of Sale Agreement had been tendered as exhibit P.2 and it specifically mentioned the plot and not a house on the plot.

The appellant did not claim ownership of the suit plot. To quote his words, he said of the suit plot: I do not possess the land. It is not my property. I'm an agent.

He did not disclose whose agent he was. He appeared to say, however, that he was G hoping he would eventually own it - "I'm paying the rent so that I would possess the Farah's plot; It being no body's". The appellant in fact owned an adjacent plot -No.14.

From the appellant's own words, he had no ownership claims over the suit plot. He said he had possession of it only as an agent (of a principal who was never disclosed). This assertion is so vague as to be meaningless and unhelpful to himself and to the court. The court cannot be expected to give serious consideration to it. One could only say, as indeed the appellant said himself, that since he had Abdallah Farah's title documents, he paid the land rent with hope that some day he might somehow acquire ownership of I the plot.

On the other hand, the respondent's story finds some support from appellant's own A witness Mohamed Ahmed (D.W.3 (sic). He should have been numbered as D.W.4). This witness confirmed that Awadh Abdi had possession of the plot after the death of Gurman Mohamed. He also confirmed that Hadija Awadh transacted over the plot and the witness signed a document evidencing Hadija's transaction over the plot. He must have been referring to Exh. P.2 which, when given to him in court, he read and said the contents were correct. Exhibit P.2 purported to be a sale agreement regarding the plot whereby the respondent and Orison Shuma were supposed to have bought it.

It seems plain to me that the appellant's contention that Awadh Abdi had bought only a house on the plot and not the plot itself is untenable on the evidence and for the obvious reason that a house is part of the land on which it stands and it could not be sold separately from the land quicquid plantatur solo, solo cedit. The fact that the appellant had Abdallah Farah's title documents in his possession did not give him any title over the suit plot because he never applied for nor was he granted any title or interest over it. But did the respondent herself have any proprietary rights over the disputed plot?

It may be convenient to start with Gurman Mohamed. It was suggested by the respondent that she inherited the suit plot from Abdallah Farah. Assuming that was true, and there was hardly any evidence to sustain that assumption, it cannot seriously be argued that she obtained any legal title to the plot. A right of occupancy, or even an F offer of a right of occupancy for that matter, is not inherited like cattle in a boma. Even if it were, there was not a shred of evidence that any procedure under Somali custom for inheriting the property of a deceased Somali was followed to vest the plot in Gurman G Mohamed. At best she was only a kind of caretaker for the plot.

If Gurman Mohamed had no legal title to the plot, she could not pass any to Awadh Abdi, who allegedly bought it from her. The same thing would be said of Hadija Awadh, the wife of Awadh Abdi, who after the demise of Awadh Abdi, sold the plot to the respondent and one Orison Shuma, whether or not there was a properly executed sale agreement.

But even if it were assumed that Gurman Mohamed had a legal title to the plot, did she effectively pass it on to Awadh Abdi? During the trial of the suit in the lower court a photostat copy of a document I evidencing sale of plot number 15 by Gurman Mohamed to Amed Abdi (who I take is the same person as Awadh Abdi) was A tendered in evidence as exhibit P.2. There was some controversy on whether it was adequately stamped. I do not find it necessary to go into that. A more important question is whether the document was admissible as evidence. Mr. Zaffer Ali objected to its admission but he was overruled.

There is no doubt Ex. P.2 was secondary evidence in terms of section 65(b) of the evidence Act, 1967. The respondent said the original of the document had either been stolen or was lost or misplaced by her children. The trial magistrate appears to have accepted that explanation. While one might say the magistrate was perhaps lenient yet, it did not, I think, amount to a misdirection or error. It was therefore admitted presumably under section 67(l)(c) that is to say, the provision that secondary evidence is admissible: when the original has been destroyed or lost, ...

Mr. Zaffer Alli objected to the admissibility of that document on another ground. Since the respondent was relying on that document (and others to be discussed later), it should have been annexed to the plaint, which was not done. Mr. Jonathan for the respondent argued, inter alia, that the appellant had not been taken by surprise and that the respondent had filed the plaint in person and was ignorant of the technical requirement under Order 7 rule 14 of the Civil Procedure Code, 1966. The trial magistrate also agreed with Mr. Jonathan. F

Under Rule 18(l) of the same Order 7 of the Civil Procedure Code, 1966 the court is empowered to grant leave to a plaintiff to tender in evidence a document which ought to have been filed together with the plaint but was not. It has not been argued that the trial magistrate exercised his discretion under Rule 18(l) wrongly.

Of even greater importance is the question whether Exh. P.2 passed any title over the plot to Awadh Abdi. If that document purported to transfer the ownership of the plot, then, under section 8(1) (a) of the Registration of Documents Ordinance, Cap.117, its registration was compulsory. In the provision cited it is stated: S.8(l). The registration of the following documents if executed or made after the commencement of this Ordinance is compulsory - I

A (a) Non-testamentary documents, including decrees of any court or awards, which purport to or operate to create, confer, declare, limit, assign, transfer or extinguish any right, title or interest whether vested or contingent, to, in, over land, ... B

There was no suggestion that document had been registered under Cap. 117. That being the position the document was invalid and ineffectual. Section 9 of Cap. .... says:

C 9. No document of which the registration is compulsory shall be effectualnto pass any land or any interest therein or render such land liable as security for the payment of money, or be received as evidence of any dealing affecting such land unless and until it has been registered.

Similarly, under Section 41(2) of the Land Registration Ordinance, Cap.334 a disposition of land which has not been registered under the ordinance is ineffectual to transfer any title or right over it. The purported transfer of the land by way of sale had another serious disability. No consent of the President or the Commissioner for Lands or other public officer to whom the powers of the President may have been delegated, was obtained and therefore, the transfer was ineffective and unenforceable.

An offer of a Right of Occupancy which is usually given in respect of unsurveyed plots F is as good as a right of occupancy. Under regulation 3(l) of the Land Regulations, 1948 a disposition of a Right of Occupancy is inoperative, even if in writing, unless it is approved by the President (which term includes officers to whom the President has delegated his powers to consent) - see Fazal Kassam (Mills) Ltd. v Lawrenson and G Matzen(1957) E.A. 101 (C.A.).

As will be recalled, the plot purportedly passed from Awadh Abdi to the respondent and another when Hadija Awadh, the wife of Awadh, who had been granted by the

High Court Letters of Administration in respect of the estate of her late husband, sold it. An uncertified copy of a supposed sale agreement was tendered in evidence as Exhibit P.1, again notwithstanding objection by Mr. Zaffer Ali, who was overruled by the trial magistrate.

What I have said in connection with the sale of the plot by Gurman Mohamed and Exhibit P.2 substantially applies to the sale of the plot by Hadija Awadh to the respondent. There was no valid transfer of any title to the respondent for the same reasons as already explained A above. The document, Exh.P.1, which did not meet the requirements of section 65 of the Evidence Act, 1967 was not secondary evidence and should not have been admitted into evidence. It was not in any case registered under section ... of the Registration of documents Ordinance, Cap.117 and Concept of the President for the transfer under Regulation 3 of the 1948 Land Regulations, was not obtained. So, no title or right over the plot was ever transferred to the respondent. It follows, she had no enforceable claim over Plot No. 15 in dispute. Her claims ought to have been dismissed. The title over the plot has not, to date, changed hands.

For the above reasons this appeal is allowed with costs to be taxed both in this court and in the court below.

Appeal allowed.

1992 TLR p211

E