KASWENDE FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL NO. 1037 OF 2025 (Originating from the decision of the District Land and Housing Tribunal for Geita in Land Application No. 55 of 2023 before Masao-Chairperson) ANDREA BUJIMU LUKANULA-------------------------------------- APPELLANT VERSUS ZACHARIA KASWENDE------------------------------------------------RESPONDENT JUDGMENT Date of last Order: 06/02/2025 Date of Judgment: 02/04/2025 K. D. MHINA, J. This is the first appeal. It stems from the decision of the District Land and Housing Tribunal ("the DLHT") for Geita at Geita in Land Application No. 55 of 2023, whereby, ANDREA BUJIMU LUKANULA, the appellant in the instant appeal, inter alia, claimed against ZACHARIA KASWENDE, the respondent for the ownership two acres of land located at Kasungamile Village within Geita District valued at TZS. 2,000,000/= The appellant alleged that he had purchased the suit land on 13 August 2021 through an action conducted by Shashinhale Auction Mart and Court 1 Brokers Limited, following the decree of Busanda Primary Court in Civil Case No. 48 of 2020 between Bujimu Lukanula and Lucia Kasemwa. On his part, the respondent alleged that he purchased the suit land on 26 July 2021 from the previous owners, Maluhi Malamla, Maguhwa Malamla, Sibitali Malamla, Salu Malamla, and Nugwa Malamla, who were the children of the late Malamla Majingi. After a full trial, the DLHT dismissed the appellant’s claim and declared the respondent as the lawful owner of the suit land. Undaunted, the appellant is now challenging the decision of the DLHT by way of appeal with the following three (3) grounds of appeal as follows; i. The trial tribunal erred both in law and facts by declaring the respondent herein as the lawful owner of the land in dispute without considering that the purported sellers had no title to pass to the respondent and the sale, if any, had an evil motive of deterring and pre-emptying the public auction process as the land in dispute had already been attached for execution of a decree vide Civil Case No. 48 of 2020. ii. The trial tribunal erred in law and facts by its failure to note that DW2 and DW4 had no title to pass to the 2 respondent herein as the land in dispute during disposition of it was solely owned by DW3 and one Maguhwa Malamla after the demise of their father. iii. The trial tribunal was in gross error in law and facts in not considering the appellant herein, in alternative, as a bona fide purchaser of the land in dispute, hence entitled to be reimbursed of his purchase money. The appeal was argued by written submissions. The appellant was represented by Mr. Laurent Bugoti, a learned Advocate. On the other hand, the respondent was represented by Mr. Batholomew Musyangi, a learned advocate. Mr. Bugoti decided to abandon the 3rd ground of appeal. In support of the 1st ground of appeal, Mr. Bugoti submitted that as per the proceedings, formerly, the land in dispute was owned by the late Malamla Manjinji, who passed away in 2002. After his demise, the land in dispute was handed over to his children, Sibitali and Maguha. In 2021, the mother of Saku Malamla Manjiji (DW2) fell sick; therefore, due to sickness, on 26 July 2021, the family agreed to sell the land in dispute to the respondent. 3 Mr. Bugoti further stated that, based on the above story, there was no complete succession process (transmission) of disposing of the land in dispute from the predecessor owner to the successor owners, as there was no probate of the deceased. Therefore, the land in dispute was yet to be bequeathed to anyone. Thus, neither Sibitali nor Maguha nor their family members had any legal title to pass to the respondent. He explained that it is a cardinal principle of law that where the deceased dies, intestacy letters of administration may be granted to any person who, according to the rule of administration of the estate of an intestate applicable in the case of such a deceased, is entitled to the estate of the deceased as per section 33 of the Probate and Administration of Estates Act, Cap 352 R.E.2019. Furthermore, Mr. Bugoti contended that the land in dispute had already been attached for execution in Civil Case No. 48 of 2020 at Busanda Primary Court. Therefore, as per the attachment, the land in dispute was no longer under the control of either Sibitali or Maguha (or any family member) but somewhat under the authority of the court that issued the attachment order. The land was entirely under the absolute control of the court that granted the warrant of attachment. 4 However, the records reveal that the land in dispute was sold to the respondent after the order for the warrant of attachment and sale was issued. He concluded on this ground by arguing that if the land in dispute was not liable for attachment, Sibitali and Maguhwa were required, by law, to object to the attachment of the land in dispute rather than selling it. On this, he cited Kangaula Mussa vs. Mpunghati Mchodo (1984) TLR 348. Concerning the second ground of appeal, Mr. Bugoti claimed that DW2 and DW4, who testified during the proceedings, had no title to pass to the respondent, despite their names appearing on Exhibit DE1, the sale agreement. However, according to DE2, even Nugwa Malamla lacked the legal title to pass to the respondent (Nemo dat quod non habet). He explained that if any, once the suit land was handed over to Sibitali and Maguha without prejudice to the submission in the 1st ground of appeal, Sibitali and Maguha, if any, were the ones supposed to sell the land to the respondent. He cited the case of Frank Mohamed vs. Fatuma Abdak (1992) TLR 205 in which it was held inter 5 alia that; “He who does not have a good title to the land cannot pass it to another.” Therefore, if there was any sale, it was void ab initio and, hence, invalid, as held in Mohamed Hamis Hamduni vs. Ally Shabani Kilima and three others, Misc. Land Case Application No. 567 of 2022, that “Again, under the common law maxim "nemo dat quod non habet, the 3rd respondent could not convey what he did not have at that material time. He was not, in fact, the owner of the land he sold to the applicant. Therefore, the whole transaction between them was opaque; something this court is unable to see It through at this point”. In response, Mr. Musyangi joined the 1st and 2nd grounds of appeal and argued them together. He submitted that the respondent fulfilled the requirements of sections 110, 111, and 112 of the Evidence Act [Cap 6 R.E. 2022] by proving his case. On the other hand, according to the trial DLHT judgment, the appellant failed to establish the facts he alleged in his Evidence by failing to call the material witness before the DLHT. 6 He explained that the appellant failed to call the broker to attest on his claim, while the respondent succeeded in establishing that he bought the land from the deceased family, of which the same was corroborated by the members of the family of the deceased (DW2, DW3, DW4 and DW5) who were the sole heirs of the deceased. He further argued that in our jurisdiction, when a deceased's land is sold, the outcome typically depends on whether the sale was legally conducted by the proper administrator of the deceased's estate. If the sale is deemed valid, the respondent would usually be allowed to retain the land. However, suppose the sale is found to be invalid due to procedural issues. In that case, the deceased's heirs may potentially reclaim the land, depending on the specific circumstances of the case and applicable laws. Furthermore, he referred this Court to page 6 of the judgement of the DLHT, where it was noted that the deceased's family decided to sell the suit land. This indicates that the deceased family's decision to sell the suit land to the respondent was fully supported by the entire family, and this evidence was corroborated by DW3, DW4, and DW5. Therefore, the sale was valid. Mr. Bugoti did not file the rejoinder. 7 Having considered the written submission made by both learned counsel for the parties and the entire record of appeal, I will determine the 1st and 2nd grounds jointly since they are intertwined and both revolve around the complaint that the sellers who sold the suit land to the respondent had no good title to pass since the land was owned by the late Malamla Majinji. The records, as per Exhibit D1 (deed of sale), indicate that the sellers of the suit land to the respondent were Maluhi Malamla, Maguhwa Malamla, Sibitali Malamla, Salu Malamla, and Nugwa Malamla. In their evidence, Salu Malamla (DW2), Sibitali Malamla (DW3), and Maluhi Malamla (DW4) testified that the suit land was previously owned by their late father, Malamla Majinji, who passed away in 2002. In 2021, their mother fell sick, and as a family, they decided to sell the suit land to the respondent to treat their sick mother. Based on the above facts, Mr. Bugoti challenged the sale in the first ground of appeal by arguing that the DLHT erred because the purported sellers did not have a good title to pass to the respondent. In the second ground of appeal, he claimed that DW2 and DW4 also lacked a good title to 8 pass to the respondent, as during the disposition of the suit land, it was solely owned by DW3 and one Maguhwa Malamla after their father's passing. That means there was no dispute that the land was previously owned by the late Malamla Majinji and later sold by his children. Admittedly, the law is clear that the deceased's estate cannot be disposed of by persons who are not administrators or executors of the estate. See Menard Theobard Bijuka and two others vs. Didas J. Tumaini, Civil Appeal No. 49 of 2019 (Tanzlii), where the Court of Appeal held that; “With due respect, as correctly submitted by Mr. Rweyemamu in his brief but insightful arguments, we find the transaction between the respondent and the clan members of the deceased, if any, to have been invalid and therefore of no legal effect. It must be noted at once that until then, there was no administrator of the deceased's estate who could have transacted on her behalf. In such a situation, the nemo dat quod non habet rule comes into play and if it is anything to go by, it follows in our judgment that the respondent could not have purchased a piece of land from someone who had no legal mandate to deal with it”. However, from the facts of this case, I asked myself a question: even if this court declares the sale to the respondent was unlawful for the sellers 9 not having been appointed as administrators of the late father, can this court be able to declare the appellant as a lawful owner? The nature of the dispute at the DLHT was on the ownership of suit land between the appellant and the respondent. In this appeal, the grounds of appeal shifted the dimensions of the dispute. The issue that arose in this appeal is whether the family members (the children of the late Malamla Majinji) who sold the suit land to the respondent had the legal capacity to sell their late father’s land while they were not the administrators of his estate. From above, I have the following; As rightly submitted by Mr. Musyangi, even if this court invalidates the sale to the respondent, the suit land would remain an unadministered estate of the Malamla Majinji, the late father of the seller to the respondent. This is because; One, in this appeal, the appellant did not pursue his earlier claim of ownership of the suit land. Therefore, even the invalidation of the sale agreement could not confer ownership on the appellant. The land will remain in the hands of Malamla Majinji family as an unadministered estate. 10 Second, the evidence at the trial was lacking concerning the appellant's ownership. At the trial, the appellant relied on Exhibit P1 (the notice for the auction by the Court Broker) and Exhibit PE2 (the handing-over letter for the farm by the VEO of Kasungamile). Exhibit PE1 indicates that an auction of the farm belonging to Lucia Kasemwa, located at Nyakamwanga-Nyarugusu, Geita, was scheduled for 13 August 2021. The notice had no further description of the land. On the other hand, Exhibit P2, a handing-over letter, did not even mention who owned the land before it was auctioned. That letter read as follows; KUMKABIDHI ENEO NDUGU ANDREW BUJIMU LUKANULA Husika na kichwa habari hapo juu. Kwa idhini ya Mahakama kampuni ya Shashinhale ya udalali imemkabidhi eneo la ekari mbili (2) majaruba kwa kiasi cha shilingi milioni mbili (2,000,000/=) ambaye ndiye kanunua eneo hilo. Kapakana na upande wa kusini na Lucas Lung’wecha. Kaskazini kapakana na Shija Malamla. Kupitia ofisi ya Kijiji wameshuhudia makadhiano hayo. 11 That document does not even indicate if the handed-over land was owned by Lucia Kasemwa, the judgment debtor in Civil Case No. 48 of 2020 at Busanda Primary Court. Therefore, as alluded to earlier, a person who is not an administrator cannot dispose of a deceased estate; however, in the circumstances of this case, whether the sellers were administrators or not, it will not change the outcome that the appellant failed to prove his ownership of the suit land. By the way, the matter is not a probate case, and the appellant was not among the heirs or beneficiaries of the late Malamla Majinji, so he cannot complain about how the deceased's estate was sold. Therefore, the 1st and 2nd grounds of appeal are also devoid of merit. From the above discussion, the appeal is entirely without merit; both grounds of appeal fail to persuade this Court to intervene and interfere with the decision of the trial DLHT. Consequently, the appeal is dismissed with costs. It is so ordered. 12 K. D. MHINA JUDGE 02/04/2025 Court: The right to appeal is fully explained. K. D. MHINA JUDGE 02/04/2025 13