asha mwinyimvua vs salama issa mtambo 2010 tzhc 2 16 september 2010

IN THE HIGH COURT O F TANZANIA

AT DAR ES SALAAM PC CIVIL APPEAL NUMBER 49 OF 2010 ASHA MWINYIMVUA................... APPELLANT vs SALAMA ISSA MTAMBO.......... RESPONDENT

JUDGMENT Date of last Order: 08-07-2010 Date of Judgm ent: 16-09-2010 JUMA, J.: On 15-05-1989 K atende Sim ba w as granted by the Kariakoo Primary Court-(Probate No. 50 of 1 9 8 9 -Mketo-PCM) the letters of administration of the estate of the late Nassor Sim ba. The Kariakoo Primary Court directed the administrator to p a y ap p ellan t herein her Va share of the estate of her d e c e a s e d husband within 90, “..m w om b a ji K a ten d e d /o Sim ba a w e msimamizi w a mirathi ya m a reh em u Nassoro Sim ba ni warithi w a p e k e e w a mali hiyo m ke w a m areh em u a p e w e V* ya mali yo te b a a d a ya kujulikana fham ani yake ni kiasi gani m a g a w a n yo y a ta to le w a siku 90 b a a d a ya h a p a jina la m arehem u Nassoro Sim ba lifufwe na liandikwe na mrithi w a n yu m ba hiyo K a te n d e d /o Sim b a ” By the time the administrator of the estate (Katende Simba) died in 1997 ap p ellan t had not b een paid her share of the estate, but the administrator had alre ad y transferred the house subject of the estate to her own nam e as e vid e n ce d by a transfer d eed d ated 14-04-1990. Respondent herein (Salma Mtambo) w as appointed by the Kariakoo Primary Court to take over the administration of the estate. On 6th M ay 2009 the issue of the distribution of the estate w as taken b a c k to the primary court for directions. This time around the primary court w as

requested to resolve differences am ongst heirs on how to determine the value the house before granting the appellant her % share to the estate of her d e c e a se d husband. A ppellant requested the primary court to order the value be p eg g ed on prevailing market value. Respondent (administrator of the estate) prayed for valuation by the G overnm ent Valuer. The presiding primary court m agistrate (D. Moshi-RM) directed the Governm ent Valuer to co n d u ct the valuation before distribution of the estate. Appellant w as not h ap p y with the decision to rely on the G overnm ent Valuer. She a p p e a le d to the District Court of llala in Misc Civil Application No. 16 of 2009 challenging the order of the Kariakoo Primary Court directing that the value of the house situated at Ukami Street on Plot Number 47, Block 70 Kariakoo be determ ined by a Governm ent Valuer and not the prevailing m arket price. The ap p ellate District Court of llala (J. Kinyange-RM) in his decision d ated 7th Jan u ary 2010 w as of the opinion that the G overnm ent Valuer should determine the value of the property at issue before giving the appellant her 'A of the share. Still 2 ag g rieved , ap p ellan t preferred further a p p e a l to this court on the following grounds, i) The ap p e llate m agistrate erred in holding that the main issue in this m atter is the m ode of getting the e x a c t valu e

of the disputed property instead of obtaining the appropriate and just valu e of the said property. ii) The ap p e llate m agistrate erred in holding that parties and other heirs to the disputed property did not intend to sell the said property. iii) The ap p e llate m agistrate ought to h ave held that the current m arket valu e of the disputed property is shillings Eight hundred million (800,000,000/=). iv)The a p p e llate m agistrate erred in insisting that the valuation of the disputed property be co n d u cte d by governm ent valuer after admitting and holding that reports from governm ent valuers normally provide lower property values than m arket prices. On the first d a y of hearing of this a p p e a l app ellant w as represented by Prof. Safari and respondent w as represented by Mr. M agafu. THe tw o' learned Counsels requested and this court ag re e d that hearing of the a p p e a l be by w a y of written submissions. Both Counsels filed their respective submissions within their respective prescribed schedules. On b ehalf of the ap p ellant Prof. Safari has submitted that the ap p e llate District Court should h ave ordered the primary court to obtain appropriate and just value of the estate instead of ordering the G overnm ent Valuer to get the e x a c t value of the estate. A ccord ing to the learned A d vo ca te , every seller of any property hopes to get the

highest possible price. Prof. Safari in addition w arn ed of the dangers of unscrupulous administrators of the estate who invariably favour Governm ent Valuation in order to deprive the beneficiaries of the estate real and just share of the inheritance. In the opinion of Prof. Safari, appropriate and just value of the estate c a n only be obtained from the prevailing m arket price but not e xa c t value to be determ ined by the report of the Governm ent Valuer. In a pointed response citing a Court of A p p eal decision in Attorney General Vs Sisi Enterprises Ltd, Civil Appeal Number 30 of 2004; C ra x Law Partners (A d vo cate) submitted on behalf of the respondent that ap p e llan t’s first ground of a p p e a l requesting appropriate and just market value has no merit. The learned A d vo cate s submitted that in the c a se of Attorney General Vs Sisi Enterprises Ltd (supra), the Court of A p p eal expressed a view that b etw een the Governm ent Valuer and a report by a private valuer, the Court of A p p eal trusted the report com piled the Governm ent Valuer. Applying the Court of A p p eal decision on this a p p e a l, the A d vo cate s for the respondent assert that the primary court w as right to order the valuation of the estate to be co n d u cte d by the G overnm ent Valuer all for the sake of transparency of transaction. Further, the learned A d vo cates brushed aside

as obiter dictum the observation by the District Court that p ra ctice has shown that reports of Governm ent Valuer are invariably lower w hen co m p are d to value of property prevailing in the open market. I h ave considered the rival submissions ably articulated by the opposing learned A d vo cate s on the issue! w hether the trial primary court and the ap p ellate District Court erred in insisting that the valuation of the disputed property be co n d u cted by Governm ent Valuer.\l h ave also taken into a c co u n t the fa c t that the app ellant has for the last 21 years been waiting for her 'A share of the estate of her d e c e a se d husband. I h ave further take note that during these 21 years, the house at issue w as for unexplained reasons transferred to the administrator of the estate (Katende Sim ba). I should perhaps begin with the question w hether the Court of A p p e a l decision in Attorney General Vs Sisi Enterprises Ltd (supra) cited in support of reliance on valuation by Governm ent Valuer is a binding authority on facts leading up to the present a p p e a l. There are two b asic reasons w hy in my opinion the Court of A p p eal decision in Attorney General Vs Sisi Enterprises Ltd (supra) is distinguishable from the facts leading up to this a p p e a l before m e. First, in the cited Court of A p p eal decision the Governm ent of Tanzania had intended to acq

uire the land under S. 4 of the Land Acquisition Act, 1967 w hich is not similar to the m atter b etw een private persons inter se pertaining to the distribution of estate of the d e c e a s e d pending in the Kariakoo Primary Court-(Probate No. 50 of 1989). Second, the Court of A p peal in Attorney General Vs Sisi Enterprises Ltd (supra) had before it two sets of valuations w hen it w as called upon to select betw een valuation that w as prep ared by a Governm ent Valuer and another by a private valuer. Confirmation that the Court of A p p eal in its decision co m p a re d two opposing valuation reports is evident on pages 13 and 14 of the judgm ent in Attorney General Vs Sisi Enterprises Ltd (supra), “ ...m u ch as w e re sp e c t the re p o rt we are o f the view that justice will d e m a n d that w e trust m ore the value given by the G o vern m en t valuer than that o f the private valuer. In this c o n te x t the value o f Tshs.998, 467,000/= given b y the G o vern m en t valuer, DW2 D eodatu s Kalyanda, will b e fair a n d a d e q u a te co m pen sa tio n to the respo ndent. We further think that this will b e fair co m pen sa tion given the fa c t that the unexhausted im provem ents w ere on a prim e a rea o f the c ity .” The Kariakoo Primary Court-(Probate No. 50 of 1989) in my opinion should h ave allow ed opposing valuations to be presented before it instead of

directing the com pilation of the report only by a Governm ent Valuer. Since the app ellant has a vested interest in the value of the estate of her d e c e a se d husband it is prudent in the circum stances of this a p p e a l to let not only the Governm ent Valuer to co n d u ct valuation of the property at issue, but to also allow valuations by any other "qualified valuer" as defined by section 2 of the Land Act, C a p 113. Section defines a “ qualified valuer" to m ean, a valuer with a professional or a c a d e m ic qualification in land valuation or with a professional or a c a d e m ic qualification in a su b je ct that includes land valuation. Appellant’s fear that the valuation by the Government Valuer may be detrimental to the size of her share of the estate should be addressed by the primary court. This fear is reinforced by the fact that she is old and has waited for over two d ecades for her share to materialize. During this long wait the property at issue was even transferred to the name of the administrator. From the foregoing, I hereby find and hold that the Primary Court erred when it ordered the valuation of the disputed property to be conducted only by the Government Valuer without giving room to the appellant to bring reports of other qualified valuers for consideration by the trial primary court. In the upshot this appeal is allowed and the Kariakoo Primary

Court-(Probate No. 50 of 1989) is hereby directed: (i) to consider both the valuation by the Government Valuer and also other valuations conducted by any other qualified valuer the appellant m ay wish to bring for the consideration bythe Primary Court; and (ii) to order the respondent administrator of the estate of the late Nassoro Simba to pay the appellant her Va share of the estate of her d eceased husband within 90-days of the decision of the primary court on valuation method it selected. No order is m ade with respect to costs. I.H. Juma

JUDGE 16-09-2010 Delivered: For applicant: Prof Safari-Adv. For respondent: Absent v - I.H. Juma, JUDGE i*i<»! 16-09-2010