SAUMU MOHAMED KASSIM v MOHAMED HAJI DAU 1992 TLR 368 (CA)

 SAUMU MOHAMED KASSIM v MOHAMED HAJI DAU 1992 TLR 368 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Nyalali CJ, Kisanga JJA, Ramadhani JJA

4 December, 1992

Flynote

Evidence - Documentary - Document not registered as required by law - Right in

immovable B property indisputably established between the parties - Whether Court

may look at this otherwise inadmissible document.

-Headnote

The appellant, former wife of the respondent, was claiming for a share (50%) in a C

house which the two had jointly built. To her plaint she annexed a document which

was made and signed by the parties embodying the contract between them. The

document was not registered as required by section 4(1) of the Registration of

Documents Decree D Cap. 99 of the Laws of Zanzibar. The respondent admitted

joint ownership of the house. The Court considered whether in the circumstances it

could look at the otherwise inadmissible document.

Held: Where a right in immovable property is indisputably established between the

E parties, a document which is otherwise inadmissible to prove the existence of such

a right may be looked at by the court for purposes of clarification of the established

right.

Case Information

Appeal allowed. F

[zJDz]Judgment

Nyalali, C.J., Kisanga and Ramadhani, JJ.A.: Saumu Mohamed Kassim, hereinafter

called, the appellant, instituted a suit in the High Court of Zanzibar at Vuga against G

Mohamed Haji Dau, hereinafter called the respondent, for a declaration that house

No. T situated at Kidongochekundu in Mjini District within the region of Mjini

Magharibi, Zanzibar, is jointly owned by both the Appellant and Respondent, and for

an order that, that house be sold by public auction and the proceeds thereof be

divided between the H parties according to their respective entitlement; or in the

alternative, for an order that the Respondent pay the appellant the sum of shillings

500,000/= being half the value of the house in question. The High Court, Dahoma, J.

dismissed the suit in its entirety and ordered each party to bear his or her costs. The

Appellant was aggrieved by I

1992 TLR p369

NYALALI CJ, KISANGA JJA, RAMADHANI JJA

that decision, hence this appeal to this Court. At the hearing of this appeal before us,

A each party appeared and argued the case in person.

From the proceedings both in this Court and the court below, it is apparent that much

of the primary facts in this case are not in dispute between the parties. It is common

ground that the Appellant and the Respondent were married as husband and wife

early in the B 1970s, and their marriage was blessed with two children that is,

Mohamoud Mohamed Haji Dau (a son) and Asha Mohamed Haji Dau (a daughter).

During the subsistence of their marriage, they jointly built the house now in dispute

at Kidongochekundu, and agreed to own and enjoy it jointly, and they also agreed on

other terms concerning its C use and disposition while they continued to be married

or to be alive and also in the case of death of either or both. It is also common ground

that subsequently the marriage between the parties come to an end, and that

currently, the Respondent is living in the house at Kidongochekundu together with

one child of the marriage, while the Appellant D is living in another house at

Kikwajuni, Zanzibar. It is common ground that the Appellant got this other house at

Kikwajuni from the Respondent during the subsistence of their marriage.

With regard to matters that are in dispute between the parties, it is the appellant's

case E that ever since the termination of the marriage of the parties, the Respondent

has denied the appellant of her right to enjoy or benefit from the house at

Kidongochekundu contrary to the terms of their contract, and that under those

circumstances she is discharged from the contract concerning the house, and

consequently she is entitled to have her share in F the house paid to her in monetary

terms.

The Respondent on the other hand contends that the Appellant is no longer entitled

to claim a share in the house at Kidongochekundu for two reasons. First, it is the G

Respondent's contention that the house in which the Appellant currently lives at

Kikwajuni was given to her by the Respondent as compensation for her share in the

house at Kidongochekundu. This is of course denied by the Appellant who contends

to have got that house by buying it from the Respondent. Secondly the Respondent

H contends apparently in the alternative, that the Appellant is fully compensated for

her share in the Kidongochekundu house through the use of that house enjoyed by

her children living there with the Respondent.

The first issue for consideration and decision in this case is whether the Appellant

was given the house at Kikwajuni by the Respondent as compensation for her share in

I Kidongochekundu

1992 TLR p370

NYALALI CJ, KISANGA JJA, RAMADHANI JJA

house or whether she bought it from the Respondent. The Appellant produced a A

registered Sale Deed at the trial, and she showed it to us on appeal. The Respondent

confirmed this by showing us his own photostat copy of the same Sale Deed made on

the 20th March, 1984. The Deed clearly states to the effect that the Respondent had

agreed to sell the house situated at Kikwajuni to the Appellant for a sum of shillings

fourteen B thousand only. How can anyone in his or her right mind, let alone this

Court, construe the Sale Deed to be anything else. We are satisfied that the house at

Kikwajuni has been sold by the Respondent to the Appellant and that it is a blatant lie

to assert otherwise. C

The second issue for consideration and decision in this case is whether the Appellant

is sufficiently compensated for her share in the Kidongochekundu house through the

use and enjoyment of that house by the children of her marriage to the Respondent.

We do not think that this contention is tenable. This is because the Appellant's share

in that house D is distinct and separate from the children's right to use and enjoy the

house in question. This is so because the childrens' right arises from their father's

(that is, the respondent's) obligation to provide accommodation for them, whereas the

appellant's right in that house arises from the joint ownership of the house in

accordance with the contract made E between the parties when they jointly built

that house. We thus find that the Appellant's share in the house is not compensated

for by the use and enjoyment of the house by the children.

The third issue for consideration and decision in the case is whether the Appellant is

F entitled to be treated as discharged from the contract as a result of the Respondent's

conduct. Obviously, since the Respondent no longer recognised the Appellant's share

in the house in question, he is no longer minded to continue to honour the contract.

Under G section 39 of the Contract Decree of Zanzibar, Cap. 149 the Appellant is

entitled to terminate that contract. Section 39 states:

39. When a party to a contract has refused to perform, or disabled himself

from performing, H his promise in its entirety, the promisee may put an end to the

contract, unless he has signified, by words or conduct, his acquiescence in its

continuance.

The fourth and last issue for consideration and decision in this case is whether the I

Appellant is entitled to be paid or otherwise

1992 TLR p371

NYALALI CJ, KISANGA JJA, RAMADHANI JJA

compensated for her share in the Kidongochekundu house, and if so how much. A

Clearly, the termination of the contract between the parties removes the basis upon

which the house in question is jointly owned by the parties and consequently each

party is entitled to recover his or her own share. What then is the extent of the

Appellant's share in the house? The Appellant annexed to her plaint a document

made and signed by the B parties embodying the contract between them. However,

this document was not registered as required by sections 4(1) of the Registration of

Documents Decree Cap. 99 of the Laws of Zanzibar and it cannot therefore be relied

upon to create a right or interest in immovable property. Fortunately for the

Appellant joint ownership of the house is C admitted by the Respondent. We are of

the considered opinion that where a right in immovable property is indisputably

established between the parties, as is the case here, a document which is otherwise

inadmissible to prove the existence of such a right may be looked at by the Court for

purposes of clarification of the established right. An D analogous, though not a

similar situation was dealt with in the case of Ali Bin Khatibu v Khamis Bin Omar 7

Z.L.R. 113 where it was held that the court could look at an unregistered document

relating to a transfer of land not as evidence of title to land but as E evidence that

the transferee had entered into the disputed land under colour of a claim adverse to

ownership of the transferer.

An examination of the document annexed to the plaint of the Appellant leads one to

the conclusion that the parties made equal contributions to the building of the house.

This is F apparent from the opening sentence of the document which reads:

Mimi Mohamed Haji Dau, nathibitisha kwamba, kuhusu mada ya hapo juu

imejengwa kwa mashirikiano na bibi Saumu Mohamed Kassim kwa gharaza zote (We

have underlined the G relevant portion).

In the light of this evidence we are satisfied and find as a fact that each party is

entitled to half share of the house at Kidongochekundu. H

The Appellant prays for an order for the sale of the house by public auction. She puts

the current value of the house at shillings 1,000,000/=. It is in that light that she

claims in the alternative to be compensated by the Respondent paying her a sum of

500,000/= for her share. I

1992 TLR p372

On the basis of the facts established in this case, there can be no doubt that the trial

A High Court erred in dismissing the Appellant's claim. We therefore allow the

appeal with costs, and order that the Respondent pays the Appellant the sum of shs.

500,000/= or half the value of the house to be assessed or determined by the

Government Valuer B within a period of three months from today, and in default,

the house to be sold by public auction and the proceeds thereof be divided equally

between the parties.

C Appeal allowed.

1992 TLR p372

D