20180730 TZHC Mbeya 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA ) AT MBEYA LAND APPEAL NO.04 OF 2013 (From District Land and Housing Tribunal Land Application No.38 of 2010) .ABI..AH..iVI iIIJ.A.lBAJILE .................................... 1ST APPELlANT JACOB lVIAT.AMBAJII..E ......................................... 2ND APPELLANT

VERSUS EMMANUEL MWAMBAJILE ]ST RESPONDENT E1I1VIANUEL C. .TJHUDI.................................... RESPONDENT BYSON 1GALE................................................. 3 RESPONDENT

JUDGMENT Date of last Order: 0210712018 Date of Judgment: 3010712018 NGWALA, J: The appellants who were applicants are dissatisfied with the decision of the District Land and Housing Tribunal for Mbeya in Application No.38 of 2010. That Tribunal dismissed the prayer by the appellants to nullify the sell agreement between the 1st and 2' respondent. It also dismissed the prayer that the suit property belonged to the beneficiaries of the late Mwambajile Mwakaswila. The appellants have come to this Court seeking redress. Their memorandum of Appeal contains six paragraphs, which have been conveniently concretized into two grounds as follows:- ii P a g e That the Tribunal erred in giving decision in favour of the 1st respondent in the absence of evidence of his appointment to ) be the administratOr of the estate of the deceased. That the Hon. Chairman erred in law to decide the matter in favour of the 1st respondent without including the opinion of assessors. During the hearing of the appeal, the appellants were unrepresented. The respondents were represented by Mr. Mushokorwa, learned counsel. The 1st appellant who took the first stand requested the Court to adopt the grounds of appeal laid down in their memorandum of appeal. The second appellant, Jacob Mwabajile ably submitted that the Tribunal's erred in its decision because their brother, the 1 St respondent had never been

appointed the administrator of the estate of their late father. There was no evidence of the letters administration to prove that fact. He stressed that there were no minutes from the family which allowed him to petition for appointment. He contended that, he is the administrator of the estate of their late father, since he has the letters of administration. In reply, Mr. Mushokorwa, submitted that question whether one, Emmanuel Mwambajile was appointed the administrator of the estate of the late Mwambajile Mwakaswila was dealt with by the same Tribunal in case No.33 of 2007, which was between the appellant's mother and the first respondent. In that case it was 21 P a g e decided that Emmanuel Mwambajile had been appointed the administrator. There was no appeal. ) The learned Counsel, submitted further that, the 2nd appellant was appointed to be the administrator of the estate of the 1st respondent on 14/03/2011. At that time according to Mr. Mushokorwa, the letters of administration of one Emmanuel had not been revoked. Mr. Mushokorwa however submitted that the 2nd appellant's appointment was done after this suit had already been instituted on 23/03/20 10 before the District Land and Housing Tribunal. Regarding non involvement of the family members in the sale of the suit shamba, Mr. Mushokorwa referred this Court to the case of Hassan Manyasa v. Mzee [1994] TLR 225, and Rule

2 item 4 to 6 of the 5" Schedule to the Magistrates Courts Act, [Cap. 1 1.R.E.2002]. Mr. Mushokorwa stressed that there is no such requirement in law. In rejoinder, the 2nd appellant stood firm on his earlier submission regarding non involvement of family members on the sale of the farm. No one in their family had ever seen the letters of administration of Emmanuel Mwambajile. Upon perusal of the trial Tribunal's records, it appears that the centre of the dispute is whether the 1st respondent, one Emmanuel Mwambajile was entitled to sell the land in dispute. Apparently there is no dispute that the land was sold to the 2nd respondent. 31 P a g e The only issue calling for determination as alluded above is whether 1st respondent was entitled to sell the disputed land to the 2nd respondent. To answer the above issue, it is pertinent to resolve the first ground of appeal, on whether Emmanuel Mwambajile was appointed to be the administrator of the estate of the late Mwambajile Mwakaswila? Indeed as rightly submitted by the appellants, there is no record of his appointment which was tendered in the Tribunal during institution of the case, or even during the hearing of the suit. The learned Chairman remarks in his Judgment at page 2, the last paragraph that, the evidence of appointment of the first respondent was brought in Court in land Application No.33 of 2007 was not supported by

the proceedings. In their submissions, the appellants bitterly dispute that fact. At this juncture, I am inclined to believe that there is no documentary evidence to prove the appointment of the 1st respondent as the administrator of the estate of the late Mwambajile Mwakaswila. The learned Chairman believed the testimony of the 1st respondent that he was appointed to be the administrator of the estate without proof. The appellants have raised one concern regarding the 1st respondent's appointment if any, which in their opinion is illegal. They argue that no family meeting had ever sat and appointed him. I hasten to say that the law is very clear on this. There is no law 4 1 Page which requires that in order for one to apply for letters of administration must be nominated by the family meeting. That is a mere practice whose aim is to find a deligent and suitable person for the job. Section 2(a) of the fifth schedule to the Magistrates Courts Act, [Cap. 11 .R.E.2002] states that the Primary Court upon which jurisdiction in the administration of deceased's estate has been conferred may either on its own motion or on an application by any person appoint an administrator of the estate. This position of the law was amplified by this Court in Obeth Lwanga v. Anyangenye Mwalubilo, DC Probate Appeal No.05 of 2013 (High Court) Mbeya (unreported) in which Chocha, J. (as he then

was) observed: - "Actually the clan meeting aimed at nominating a suitable candidate for administration of the deceased estate is a matter of practice. The clan is under no legal obligation so to do. That is the reason why under Section 2(a) of part 1 to fifth Schedule the Court may on its own motion appoint a suitable administrator of the estate". Now regarding the sale, an administrator of the estate need not derive consent from any one on how he should dispose of the property, the subject of the estate. All what is required to do is to exercise his powers with diligence and ensure fair distribution of 5 I Page the estate to the heirs/ and or beneficiaries (see Section 5 of the 5th schedule to the Magistrates Courts Act, [Cap. 11 .R.E.2002]. In the instant case, the evidence shows that the purported administrator of the estate of the late Mwambajile Mwakaswila did not exercise his powers deligently, having sold the suit land, he disappeared. The learned trial Chairman held that: "there is ample evidence on record that 1st respondent sold the disputed land to the 2nd respondent on 01/05/2007 before the village leaders as an administrator of the estate of the deceased father having all power in disposing the property in the estate". The trial Chairman further held what he thought was the remedy to the applicants was that they were entitled to their share in the sale proceeds,

if at all the 1st respondent did not distribute to them. They have to sue him in appropriate Courts for their share if they so wish. The quoted holding by the trial Chairman is wrong in law, because the seller of the disputed land, the 1st respondent had no capacity to sell the land because the land in dispute belonged to their deceased father, the father of the appellants and the 1st respondent. The honourable assessors who sat with the chairman during the trial, in accordance with the provisions of Section 23 and 24 of the Land Disputes Courts Act, [Cap.216.R.E.2002] had opined that the 1st respondent who purported to be the seller or vendor had no letters of Administration of the estate ofthe deceased, so he could 61 P a g e not sell the disputed land. These two Assessors Messers A.C. Ongara and B.B. Kalongole opined in favour of the appellants who ) were then the applicants. The trial Chairman, however in disregarding their opinion did not give reasons for differing with their opinion as provided in mandatory terms under Section 24 of the Land Disputes Courts Act, that in reaching decisions the Chairman shall take into account the opinion of assessors but Chairman shall in the Judgment give reasons for differing with such opinion. This was wrong for non compliance with the law. In the final analysis, the appeal has merit. It is allowed with costs. The Judgment and Decree of

the tribunal is set aside. The Appeal is allowed. The Sale Agreement between the 1st and 2ndRespondentis declared null and void. The land in dispute, belongs to the heirs and beneficiaries of the late Mwambajile. The 2nd respondent bought the suit unlawfully without checking whether the 18, respondent was the real owner of the suit land. The 2' respondent is advised to sue the legal representative of the 1St respondent who is reported dead. The 2nd respondent should claim the purchase price of the suit land from the said legal representative. As the Appellants and the 1St are blood relatives, I make no orders as to costs. Order Accordingly. ' - A.F. Ngwala .\\ Judge 3O/O7/2Oi8 71 P a g e Date: 30/07/2018 Coram: Hon. A.F. Ngwala, J. ) ]St Appellant: Present 21d Appellant: Present For the Appellants: unrepresented 1st Respondent: Absent 2 nd Respondent: Present 3rd Respondent: Present For the Respondents: Mr. Mwampaka (Advocate) B/C: Patrick Nundwe Court: Judgment delivered in Court in the presence of the parties and Mr. Ezekiel Mwampaka. Court: Right of Appeal to Court of Appeal of Tanzania explained. ~ 4" - A.F. Ngwala Judge 30/07/2018 81 P a g e