ASHA MOHAMED v ZAINAB MOHAMED 1983 TLR 59 (CA)

ASHA MOHAMED v ZAINAB MOHAMED 1983 TLR 59 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mwakasendo JJA, Makame JJA and Kisanga JJA

October 20, 1983 F

(PC) CIVIL APPEAL 13 OF 1983

Flynote

Civil Practice and Procedure - Jurisdiction of Primary Courts in cases involving title

or interest to land registered under the Land Registration Ordinance, Cap. 334 -

Section 14 of the Magistrates' Courts Act, Cap. 537.

Land Law - Compensation in respect of contribution made to property. G

-Headnote

The appellant sued respondent for half of the value of a house which she had jointly

built with respondent's deceased father. The appellant was sister to the deceased,

while the H respondent was daughter to the deceased. It was established in evidence

that appellant had made financial contributions towards the construction of the

house. The house, the subject matter of the dispute, was on land registered under the

Land Registration Ordinance Cap. 334.

Two issues were considered by the appellate court: first, whether a primary court has

I jurisdiction to entertain suits arising

1983 TLR p60

from immovable property on land held under the Land Registration Ordinance, Cap.

A 334; and secondly, whether the appellant was entitled to any compensation in

respect of the contribution she made to the property.

Held: (i) A Primary Court has no jurisdiction to entertain proceedings relating to B

immovable property on a piece of land held on a government lease or right of

occupancy;

(ii) a person is entitled to compensation for contribution made to any property.

Case Information

Order accordingly. C

No case referred to.

S. El-Maamry and Lubulila for the appellant. D

[zJDz]Judgment

Makame, J.A. read the following considered judgment of the court: In the Primary

Court of Temeke the present appellant Asha Mohamed sued the respondent Zainabu

E Rashidi, her niece, for half the value of the house she said she had jointly built with

her deceased brother, the respondent's father, and which the respondent wanted to

treat as being entirely part of her father's estate. The appellant succeeded in the trial

court and the decision was affirmed by the District Court of Temeke on appeal. The

present F respondent was still aggrieved so she appealed, further, to the High Court

where she eventually succeeded. In the course of his judgment the learned Judge

Kiongozi observed:

The issue in this case was not one of a debt of money owing from the appellant

to the defendant as the lower courts seem to have thought. The issue before the court

was who as G between the parties was the legal heir of the deceased`s property.

Mr. El-Maamry, learned advocate for the present appellant in the High Court

obtained a H certificate to come up before us on the basis that the learned Judge

Kiongozi misconceived the issue, the real dispute being whether or not the appellant

had a share in the house in her own right as a partner. Before us Mr. Lubulira, learned

counsel holding I the brief for Mr. El-Maamry, conducted the appeal on behalf of

the appellant, while the respondent was unrepresented.

1983 TLR p61

MAKAME JA

Briefly, Mr. Lubulira argued that the learned Judge Kiongozi proceeded on the wrong

A basis and made a decision on the wrong issue, the appellant was not claiming a

share of the deceased's estate, not in the particular suit giving rise to the present

appeal. There was, further, the question as to whether the matter was in any event

justiciable in the Primary Court in view of section 14 of the Magistrates' Courts Act.

Cap. 537. Now the B said section 14 provides inter alia:

...No Primary Court shall have jurisdiction in any proceedings-(A) affecting

the title to or any C interest in land registered under the Land Registration

Ordinance..., Cap. 334.

The other question was as to whether section 57 of the Magistrates' Courts Act was

applicable. The relevant portion of that section is to the effect that no civil

proceedings D relating to immovable property on a piece of land held on a

Government lease or right of occupancy granted under the Land Ordinance may be

held in the Primary Court.

In reply the respondent merely reiterated that she had all along denied the existence

of a E partnership in the house, between her deceased father and the appellant.

We propose to start with the question as to what the real issue was. With great

respect, we are of the firm view that the learned Judge Kiongozi got it wrong. There

had been earlier proceedings on who should inherit what portion of the deceased's

estate. The F matter reached right up to the High Court where the learned Chief

Justice pronounced all the proceedings below, null and void, and ordered a trial de

novo. In the present proceedings there were passing references to the earlier

Administration Clause but this was merely by way of providing a background:

Inheritence never features as an issue G per se. The matter was contested on the

basis of whether the present appellant had made some contribution to the

construction of the house in dispute. We must take that as we find it. We agree with

Mr. Lubulira, therefore, that the learned Judge Kiongozi did not base himself

correctly. H

The other matter was the one regarding jurisdiction. So that the matter may not be

tried in the Primary Court the title to or any interest in the land must have been

registered under the Land Ordinance. What the respondent apparently produced

before the high Court, incidentally at the eleventh hour, was merely an offer

conditional upon the offeree I accepting it by paying the necessary

1983 TLR p62

MAKAME JA

fees, in this case Shs. 56/=. The fees had not been paid, therefore the offer had not

been A accepted and there had not yet been registration by the time the suit was

filed, sometime in November 1978. The respondent has conceded before us that

payment was not made until March 1980. There may be proof that the plot had been

surveyed B but there had been no registration under the Land Ordinance. It must

follow therefore that the Primary Court had powers to try the suit.

We now come to the substantive issue: Whether or not the appellant had proved her

assertion that she had built the house jointly with the respondent's father. The first

two C courts below were satisfied that she had, while, as pointed out, the High

Court did not at all consider the issue. The learned Judge Kiongozi remarked:

The respondent may have helped the deceased financially in constructing the

house but that D fact does not necessarily support her claim in the lower courts that

she is entitled to the inheritance of deceased property". (The emphasis is ours).

Going through the proceedings before the Primary Court, we are satisfied that there

was E enough convincing evidence to justify the concurrent finding by the two

courts below. The trial Court was clearly influenced by the evidence of Asha Musa,

the respondent's aunt and apparently the appellant's half sister, and by the testimony

of Zaina Omari, the F respondent's mother's co-wife, both of which supported the

appellant's claim that she used to sell things to raise money to help in building the

house. We do not think we have any good grounds to upset the concurrent findings

of the first two courts. We accordingly allow the appeal, with costs, and affirm the

decision that the appellant is entitled to 50% of the house. G

We wish to conclude by anticipating, and dispelling, a possible confusion. This appeal

decides the question of partnership only. It does not concern the inheritance of the

deceased's estate which consists of 50% of the house and any other inheritable

property the deceased may have left. The respondent will have to apply for

administration, afresh, H the earlier proceedings having been declared null and void,

whereupon the appellant will probably claim a share therein as sister of the deceased.

In that event it will be for the trial Court to determine whether or not the appellant

would be entitled. No fresh fees I should be paid. We order the offer to be returned

to the respondent.

Order accordingly.

1983 TLR p63

A