19890313 TZHC Dar es Salaam2

nr TIIE nra=T CO'CiRT Oli' TANZA1UA AT DAR ZS SALAA.1"'\i CIVIL APPEAL 1W. lO(a) OF 1987 BA.KARI CillJ:,IVU 0 0 0 0 0 0 0 f!I O O ti O O ,. (J O O O O O O O O O O O O O O O Cl O O 0 APPELLAJJT Versus ARP.Ji'!~ ATIMED r.10I11)1ED o o coo o o () o e o o o o o o o o coo o o no o o o RESPGlillEifl' JUDGEMElJT MN"ZAVAS J_.Ko In Kisutu Rlis Civ~l Case 1r,. 128 of 1987 the respondent/plaintL:z' sued the appellant/defenda.>1t seeking for a declaration by ·bhe Courc that she was the lawful owner of the suit premises and that the appella.n·(; was a trespasser, in tl1e premis'?s., After hearing evietei1ce from both sides the learned resident magistrate said inter alia in tlle last paragraph of his judgement: "All in all I have reacJ.1ed a decision that sale agreement was lawful hence the transfer of' title is law·l\.1.l - - Ara:fa Ahmed r,Iohamed ·i;he plaintiff in this case; is the 01-mer of the house lfo., 68 Wazani street, r,iagomenij Dar•-i:l,s, Salaar:ir'., Aggrieved by the decision the appellant/defendant has come to this court. His counsel l\1r. El-maa.IllJ'.'1J vigorously challenged -r..!:le finding of tb.e lower co1..~rt arg1dng that there was no consent by t~1e releva..'1t authorities in com1ec·bion with t!:i.e sale of t.'.1.e property to the respondent/plaintiff, that ·i;he proceedings in -t;]:ie prirna17 cou:r-i; regai-tling Administration of the estate t.b.at culminated ·to the sale o:c the house were a nullity as, i·i; was ar611.1ed 1 t;.1e ~imary court had no jurisdicfao_n to hear the Administrat:ii,c. caseo ciJ-these ~- grounds the com~t was 1.m-1-k&\ to set asicl.e -cJ.1e decision of t,;.C' Resident ifagistra:ccs Court and declare that the .l.2012.se is still the property of the deceased., one, Salehe Jong-o., Ii1 rebuttal I11ro ~ijv.go 1 lear11ed counsel for tl1e ~sponden·i/ plaintiff argued that ·;;]_1e house has already been sold to the respondent/plaintiff a.11d ·c:.:w.-~ the appella11t/defcndant was one oi.' the •• 0 ./2 2 people w.b.o witnessed the sale. 'i1he learned· co1.msel argued that the question -tliat the primro-y court had no jurisdiction to hear the administration case only CcJ,mo to libb.t af'ter tl1e .hoi..."!De had been sold to the respond.e:rt/ph.in·i;if:f. ~:he Cou:ct was invi -;qtl to dis::li::-.i:::: the appeal as incon:~·;;ent. The question t__is Court has to decide in whot 1.1er ·t:10 sale of the disputed house to ·tJ.1e respondent, Araf'a Ahmed I,1ohamed, passed om1ership of the hot-..se to hero It was not in dispute in tlliG case that the dispv.ted premises are buiH on a registered. land-House lfo~68 Wazani street, Nae.-omcmi, Dar es Salaam. It was ecft..1.ally not disputed tl1at t}1e tra:1::::fer o? the property has not been approved by the Director of Land Developmen-[; Service::io rJ!o start with I will look into the que:::tion wJ2l-=Jtl1e1~ t~1e ifagomeni primm-y CbtD'.'t had jurisdiction to l1ear a.n adIJinistr_ahon · case in respect of property on a 1~gis·1iered lande Sectio;.1 lC(l) (i) (a) o-:f ·c.:1c Magistrates' Courts Act - No·o 2 oi' 1984 sa;,ts z 11 A primary court sl1all have and exercise jurisdiction (_ (a) in .all proceedings . of a civil nat1ire - · ( l) w~1cre the law applicable is cus -coma.:ry law or . ' \ j i, isalmic 1.:-~vr. Provided tlla{ :'lo primct:ry court shall have jurisdiqtion in cmy proceedings affecting the title to 01~ a.,y interest in la,-:id. registered under the Land negistration Ordinanceilo That being· the· la.w and t~1ere being no controversy tlia·~ tl:e · dispu.fod premises ·are built on a regintered land iJc folloi-m 9 as might :?ollows day;· that the -1Jagomeni primary court had. no jurisdiction to hear the administration case w:1icl1 concerned propert,y on a registered lando That this is the law is aloo evident from the decision of t11is Court in BIBI N!uWNGORO _vs lSSA. (lz70) H •.C.D. \22 0 The proceedings in tl1e pri,aa:ry court in so far as t}iey relatec,l to adr.iinistra·cion o:f -'i;he estate o:;:' SaleJ.10 Jongo wore therefore a nul_l~ty ab· '1Zliti... However this doe::, not per se mal.ce the .sale of the house to tl1e . .:rcspondont/plaintif:f . ,. , .. _ invalid c1S the respondent may plcad 9 a.nd i:1 my view ric'.$~:i-Uy so, tl1at s}:e was a., innoqent Pt;U'c:1ascr for value wi tb.ot~t notice.• •ooeo/3 3 However even if' for ·the sa.r;:e of argume;yt; this Court was to hold. that the sale of the hoime to the respondent was lawf'ul tmd.er the doctrine of an innoce:.1t purchaser for valv.e wi thou-i; notice tho matter does not end there. Lai1d Regulations 1940 ( Oap. 113 / Suppler;1ent 64) say inter alia: 3(1) "A disposition of Rig-Ye of Occupancy si1all not be operative imless it is in ,rri tint~ a11cl_ until approved by tlle President (now the Directo1~ o'·P Land ,,,// .;, . Developmen-~ Services) - - - - - (3) In thi:3 regulc1.·0ion disposition meanc --·· - - (c) a deed or agreement or declaration of trust binding any party to f.lcl.l.:c suc:1 clisposi tion as aforesaid, including a deed or agre<:uent entitling a party thereto to requii,e any sv.ch disposition ·co ··~r.)··madc 11 • f In the present case the purchase was in writing but tl1erc was ( still. ·bhe need for consent of the Director of Land Development I • Serin.ces. Consent o:.'t:' -;~;:ie DiJ:>ector is mandatory- fo:r a.i.'1JT ouch transaction to be oper~:cive. Tl.1.n.t this is the law is clear from the decision of the Eastern Africa Court of Appeal in FAT l 1ERS01-~- 1 a..'1d Another V YJu:JJI (1956) 23 E oA .C .A where the cou.:-ct held ini;er alia that one should not seek: "to enforce at law w:..iich he can only establish by relying on a tra11Gaction declared in law to be inoperative 11 • This decision was quotted a.nd followed in F...'1.1l'EL VS LAWREH30N (1957) EoA.9 °Kf~SS1\H V KASSAl"\i (1960) E.Ao 1042 n..'1d in the recent decision by our Gov.rt of Appeal in NITD-r CO)'FEE ESI1ATES LTD n,nd :four others VS UNE:ED EFGHJEERI:NG 1:VJRKS LTD a::.1d A.'1otller - Civil Appeal Iifoo 15 of 1980 whcn>e i·~ was held inter o.lia tha·i:;: - 11 land held under right of occnpanc,y is not a freely disposable or marl;:eta0l0 commodity like a motor car. Its disposal is m.:,bjcct to the co;:isent o::' ,,:;he superior and parari10·,m·~ landlord as provided for in ,lihe relevant Land Regulations· 1 o . As the government's; consent through the Director of La..,.d DevGlopment SeTV"ices was (anJ.. has) not been obtained tl:e sale of the house to the respond.e~1t/plai11tiff is inopcrati ve and could not pass title over the land to· tlie respondent. I with respect agree wi·;;J.1 Kr. Ei--maa.D17, learned cotU1sel for tJie appellant 9 that the dicputed '..:loUJ3e - 1h.68 1_ Wazani street, Iviago;:icni. Dar cs Salr;.,am still rer,1ai11s ·i:;l:c property of the dcceased. 9 Salehe Jonc(•o In the event the appeal is v.plJ.eld with costs in tllis c1l1d the lower courto Dar es Salaam 13/3/89