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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO 26898 OF 2024 (Originated from the District Land and Housing Tribunal for Mbeya at Mbeya Land Application No. 7 of 2024) ALLES SANDOFU MWAKALASYA (An Administratrix of the Estate of the late Mwakatumbula Mwabulambo) ………….. APPELLANT VERSUS PHILIBERT MWABULAMBO MWAKAJILA .………….….………… 1ST RESPONDENT GODFREY MWABULAMBO MWAKAJILA ……………..…...….….. 2ND RESPONDENT NELSON MWABULAMBO MWAKAJILA ………………..….……… 3RD RESPONDENT GASPER EZRON TESHA …………………………………….………… 4TH RESPONDENT ANYASIME MWABULAMBO MWAKAJILA ……………….………. 5TH RESPONDENT JUDGMENT Date: 14th March, 2025 & 27th March, 2025 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT) in Land 1 Application No. 7 of 2024. The brief facts of the case are that the appellant is the widow of the late Mwakatumbula Mwabulambo (the Deceased), who died in the year 2014. She was appointed as the administratrix of the deceased’s estate in 2024 vide Probate Cause No. 91 of 2023 before the Mwanjelwa Primary Court. The Deceased owned a house, Plot No. 299 Block Y, located in Ilomba within the District and Region of Mbeya (the Disputed Property). The appellant claimed that the first, second, third and fifth respondents sold the said house to the fourth respondent without her consent on 4 November 2023. The respondents alleged that the sale of the Disputed Property was agreed upon by all the family members, including the appellant. The appellant unsuccessfully brought the matter against the respondents before the DLHT. The DLHT decided that the sale of the Disputed Property to the fourth respondent was legal. Now aggrieved with the decision of the DLHT, the appellant brought this appeal with the following grounds: 1. That the Learned Honourable Chairman erred in both points of law and facts when he held that the house of the late Mwakatumbula Mwabulambo who died in 2014 was properly sold to the 4th Respondent 2 by the 1st, 2nd, 3rd and 5th respondents who were not administrators of the estate of the late Mwakatumbula Mwabulambo. 2. That the Learned Honourable Chairman erred in both points of law and facts he failed to note that sale of the house formerly owned by the late Mwakatumbula Mwabulambo was tinted with illegalities on the part of the sellers namely the 1st, 2nd, 3rd and 5th Respondents and any other involved relatives who had no capacity to sell the disputed house to the 4th Respondent in absence of a dully appointed Administrator of the estate of the late Mwakatumbula Mwabulambo. The hearing of the appeal was by way of written submissions. The appellant was represented by Mr. Simon Mwakolo, learned counsel. The first, second, third and fifth respondents were represented by Mr. Herman Mutayoba, learned counsel. The fourth respondent was represented by Mr. Chapa Alfred, learned counsel. Submitting the appeal, Mr. Mwakolo argued on the first ground of appeal that the DLHT erred in both points of law and facts when it held that the Deceased's house was properly sold to the fourth respondent by the first, second, third and fifth respondents, who were not Administrators of the estate of the Deceased and that the sale was tinted with illegalities on the 3 part of the sellers namely the first, second, third and fifth respondents and other relatives involved relatives who had no capacity to sell the Disputed Property to the fourth Respondent in absence of a dully appointed administrator of the estate of the Deceased. He further argued that this case falls under Sections 100 and 101 of the Probate and Administration of Estates Act, Cap. 352 R.E. 2019 (the Act). He argued that the section provides that only the administrator, administratrix or executor of the deceased's estate has the power to sue in all causes of action. The appellant, being the administratrix of the Deceased's estate, was the proper person to sue on the Disputed Property, not the first, second, third and fifth respondents, who were merely heirs. He cited the case of John Petro vs Peter Chipaka, (PC) Civil Appeal No. 81 of 1996 (HC) at Mwanza (unreported). The counsel was of the view that it was incorrect to declare the fourth respondent as a lawful buyer of the Disputed Property, while the first, second, third, and fifth respondents had no authority to sell the Disputed Property. In reply, Mr. Mutayoba raised two issues for his discussion. First, Whether the house of the late Mwakatumbula Mwabulambo was legally sold to the fourth respondent by persons who were not administrators of the Deceased. 4 Second, Whether the disposition of the same house was tainted with illegalities, and the vendors to that effect had no legal status or capacity to effect the same. The counsel submitted that the first and second respondents, along with the appellant and another relative, Ephraim Mwabulambo, were appointed administrators and administratrix of the deceased’s estate and the disposition was made and agreed upon by all heirs, including the appellant. The counsel insisted that the disposition was valid in law, as it was dutifully administered with reasonable diligence, as required under Section 108(1) of the Act. Mr. Mutayoba contended that the first, second, third and fifth respondents disposed of the Disputed Property for the best interests of all heirs. He cited the case of Mohammed Hassani vs Mayasa Mzee and Mwanahawa Mzee [1994] TLR 225. As for the legality of the disposition, he explained that the proceeds of the sale were equally distributed amongst all legal heirs of the Deceased. Furthermore, the sale took place within the appellant's residence, involving the respondents and the appellant, where he referred to page 10 of the DLHT Judgement (the Judgment). For emphasis, the counsel cited the case 5 of Mire Artan Ismail and Zainabu Mzee vs Sofia Njati, Civil Appeal No. 75 of 2008. Mr. Mutayoba submitted that based on the records, the appellant objected not to the sale itself, but to the selling price. That such defects were non-existent at the time of sale of the Disputed Property. Thus, the purchaser acted in good faith, thereby qualifying as a bona fide purchaser as provided under Section 67(b) of the Land Act, Cap 113, R.E. 2019 (the Land Act). Summarising his submission, the counsel was of the view that the appellant sought from the DLHT what she had not pleaded in her pleadings. The matter of market price was not pleaded and therefore cannot be granted by the DLHT. He cited the case of Melchiades John Mwenda vs Gizelle Mbaga (Administratrix of the Estate of John Japhet Mbaga, deceased) and 2 Others, Civil Appeal No. 57 of 2018. In reply submission for the fourth respondent, before going to the merit of the appeal, Mr. Chapa raised a legal issue that emanated from the DLHT. The appellant claims to be the administratrix of the Deceased's estate, but she did not tender any evidence to prove this claim. Hence, she had no locus standi to file an application and prosecute this appeal. He cited the case of Burhan Said Mlavi (as the legal Representative of Zuhura Abdallah 6 (deceased) vs. DMI St Joseph University in Tanzania, Arusha Campus and Another, Land Case No. 13 of 2019. Now, discussing the appeal, the counsel argued that there was no dispute regarding the Disputed Property being sold to the fourth respondent, as the sale was agreed upon by all family members, as reflected on pages 9 to 10 of the DLHT proceedings (the Proceedings). The fact that the Disputed Property belonged to the Deceased had no basis, and it was misconstrued for the appellant’s counsel to raise this issue at this stage. The counsel continued that, at page 10 of the Proceedings, the appellant admitted that the house had been properly sold. The appellant complains that she was not given her share as shown on page 11 of the Proceedings. She also admits that those who sold the Disputed Property were her children. Additionally, at the time the property was sold, there was no evidence to suggest that it was the Deceased’s property. Mr. Chapa added that on page 9 of the Proceedings, the parties agreed on the issue to be determined. That is, whether the appellant subscribed or consented to the sale of the Disputed Property to the fourth respondent. The counsel was of the view that the appellant's consent was immaterial because 7 the house was not a matrimonial asset and she did not own the Disputed Property. Thus, the sale by the first, second, third and fifth respondents to the fourth respondent, a bona fide purchaser, was legal. On the second ground, Mr. Chapa argued that the Deceased was living a customary way of life as he had three wives. Thus, the Act is not applicable in dealing with his estate, and the cases cited by the counsel for the appellant are distinguishable from the matter at hand. The counsel emphasised that the court should determine the issues raised by the parties. That the issues complained about by the appellant’s counsel were neither framed nor evidence adduced at the DLHT. He further maintained that the appellant had no locus standi to prosecute this appeal as there is no record showing she is an administratrix of the estate. For emphasis, he cited the case of Asami Memote and 2 Others vs Alex David Silaa and Another, Misc. Civil Application No. 351 of 2019. During the rejoinder, Mr. Mwakolo reiterated most of what he submitted during his submission in chief. Additionally, he addressed the two issues raised by Mr. Mutayoba during his reply. On the first issue, he argued that the respondents attempted to justify the sale of the Disputed Property by 8 claiming they had been appointed as co-administrators alongside the appellant. The counsel submitted that these are facts which were not availed at the DLHT. He also insisted that the appellant did not allow her son, the second respondent, to sell the Disputed Property. That, since the first, second, third and fifth respondents were not administrators at the time of the sale, the sale is null and void. He added that the sale of the Disputed Property in the absence of the appellant as an administratrix contravenes Section 99 of the Act, considering her role had not been revoked. The counsel cited the case of Mire Artian Ismail and Zainabu Mzee vs Sofia Njati (Supra). Mr. Mwakolo further submitted that the fourth respondent is not a bona fide purchaser under Section 67(b)(i) of the Land Act, for the reason that he was duty-bound to make a diligent search before making the purchase. I will not reproduce the rejoinder on the second issue, as the counsel repeated most of what he had already submitted earlier. Having reviewed submissions from both sides, along with the record of the DLHT, I will now deliberate on whether I find this appeal with merit. 9 To begin my discussion, I will address the issue raised by Mr. Chapa that the appellant herein lacks locus standi to prosecute this appeal, as she did not tender any evidence at the DLHT to prove her capacity as the administratrix of the Deceased's estate. Upon reviewing the record, I came across the appellant’s application before the DLHT, along with an application for an injunction order against the fourth respondent. Within the main application, one of the documents pleaded and attached is the appellant’s letters of administration on the Deceased’s estate, dated 3 January 2024, before the Mwanjelwa Primary Court. With that, I don’t believe it was again necessary to tender the said document as evidence during the trial. The attachment was sufficient to establish the locus standi of the appellant to bring the matter. This was provided in the case of Ramadhani Omary Mbuguni (A Legal Representative of the Late Rukia Ndaro vs Ally Ramadhani and Another, Civil Application NO. 173/12 OF 2021. To wit: “Letters of administration being an instrument through which the applicant traces his standing to commence the proceedings, was in our view an essential ingredient of the application in whose absence the Court cannot have any factual basis to imply the asserted representative capacity. It is now a settled law that, where, like the instant case, a party commences proceedings in representative capacity, the instrument constituting the appointment must be pleaded and attached. Failure to plead and attach the instrument is a fatal irregularity 10 which renders the proceedings incompetent for want of the necessary standing.” From the above, it is evident that the counsel’s argument is misplaced. Mr. Chapa also proposed that the Deceased practiced the customary way of life, as evidenced by his having three wives. Thus, the Act does not apply in this matter. I will not let this contention hold me back, seeing that neither party provided any evidence to that effect. That being the case, I believe the Act is relevant and applicable in determining this case. That aside, I will proceed to discuss both grounds of appeal together. The appellant questioned the legality of the sale of the Disputed Property to the fourth respondent, claiming that the first, second, third, and fifth respondents had no power to sell the Disputed Property. That, since the appellant was the administratrix of the estate, those powers were vested in her. As I read the case file, particularly the record of the DLHT, it came to my attention that the sale of the Disputed Property was conducted on 4 November 2023. Whereas the appellant was appointed as the administratrix of the estate on 3 January 2024, and the first and third respondents, together with Ephraim Mwabulambo Mwakajila, were added as co- administrators of the estate alongside the appellant on 5 April 2024. As a 11 result, it is fair to say that during the sale of the Disputed Property, neither the appellant nor the first and third respondents had the letters of administration. Thus, there was no existing administrator of the Deceased’s estate. Consequently, that makes the first, second, third and fifth respondents executors of their own wrong, as provided under Section 16 of the Act: “16. A person who intermeddles with the estate of the deceased or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong. Provided that – (a) Intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or property, or (b) Dealing in the ordinary course of business with goods of the deceased received from others, or (c) Action by an administrative officer under section 14 of the Administrator-General (Powers and Functions) Act; (d) Action by a receiver appointed under section 10, does not make him an executor of his own wrong." The phrase "executor of his own wrong" is defined in the Black's Law Dictionary, 9th Ed., as: 12 "A person who, without legal authority, takes on the responsibility to act as an executor or administrator of the deceased's property [usually] to the detriment of the estates beneficiaries or creditors." [See: Godebertha Rukanga vs Crdb Bank Ltd and Three Others, Civil Appeal No. 25/17 of 2017]. On that account, I understand that no detriment occurred towards the estate. The sale of the Disputed Property was intended to benefit the heirs, each of whom had a share of the proceeds. It is also worth considering that the majority of the heirs agreed to the sale, including the appellant. This is evident on pages 11 and 12 of the Proceedings. On page 11 of the Proceedings, the appellant states: “Ni kweli kuwa kila familia ilikuwa na mwakilishi wakati wa kuuza nyumba hiyo. Godfrey ni mtoto wangu kati ya hao wauzaji” This translates to “There was indeed one representative from each family during the sale of the said house. Among the sellers is Godfrey, who is my son.” Moreover, on page 12, she stated, and I quote: Sina shida ya mauzo kwa mdaiwa wa nne (4). Shida yangu mnunuzi aongeze hela. 13 This translates to “I have no problem with the sale to the fourth respondent. I just want him to top up the price” In the circumstances, I agree with both counsels for the respondents that the appellant impliedly admitted knowing of the sale and, like other heirs, consented. This was also evidenced by the majority of the respondents’ witnesses, some of whom are the appellant's children, including DW2 and DW5. As a result, due to such consent among the heirs, the fourth respondent, in good faith, decided to purchase the Disputed Property. Hence, in my opinion, that makes him a bona fide purchaser for value. It is trite law, that the rights of the bonafide purchaser should be protected as provided in the case of Tom Morio vs Athumani Hassan (Suing as the Administrator of the Estate of the Late Hassan Mohamed Siara and Two Others, Civil Appeal No. 179 of 2019. The CAT held: “Furthermore, the law in our country protects the bonafide purchaser for value who purchased the property in good faith and without any notice of encumbrance, as it occurred to the appellant. The provisions of Section 67 (b) (i) and (ii) of the Land Act, 1999, protect the purchaser who has evidently done his part.” 14 In the cited case above, the court agreed that a person is a bona fide purchaser for value once there was no notice of any encumbrance at the time of sale. In the present appeal, there is abundant evidence that the fourth respondent believed the first, second, third and fifth respondents, together with the appellant, agreed to sell the Disputed Property. It does not escape me that some heirs explained that they were not involved in the whole disposition process. Concerning this aspect, I will once again seek wisdom from the case of Tom Morio vs Athumani Hassan (Suing as the Administrator of the Estate of the Late Hassan Mohamed Siara and Two others (supra) which stated that: “Considering the family consisted of seven children, there must have been collusion for what had transpired to go unnoticed, or there would be no peace amongst them. Indeed, putting all these together, it is hard to conclude otherwise, except that the appellant was a bonafide purchaser for value, as he purchased and received the suit property in good faith and without knowledge of any fraud.” [See: Millicom (Tanzania) N.V. vs James Alan Russelll Bell & 5 Others, Civil Revision No. 3 of 2017]. 15 Accordingly, I find both grounds of appeal to be without merit, as they appear to be an afterthought, following the appellant's dissatisfaction with the disposition price of the Disputed Property. Also, considering the issue of the first, second, third and fifth respondents being administrators of the deceased's estate was not raised or discussed by the appellant or her witnesses before the DLHT. In the upshot, the appeal is dismissed. The fourth respondent is hereby declared the lawful and legal owner of the Disputed Property. As the case involves relatives, I make no order as to costs. It is so ordered. Right of appeal explained. DATED at MBEYA on this 27 day of March 2025. A. A. SINDA JUDGE 16