erica john legal representative of elisante macha vs violent guido another 2018 tzhclandd 57 2 march 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 320 OF 2015 ERICA JOHN (Legal Representative of ELISANTE MACHA).................................... ........ 1st p l a i n t i f f VERSUS VIOLENT GUIDO................................ ,1st d e f e n d a n t NAKUROI G. INVESTMENT CO. LTD.... 2nd DEFENDANT JUDGMENT (EX PARTE) 9/2/2018 & 2/3/2018 MZUNA, J.: The plaintiff filed a suit against the above mentioned defendants. The original claim was that the late Elisante Macha, was the registered owner of the house on Plot No. 363 Sinza, Kinondoni District, Dar es Salaam. It was alleged that the first defendant who was the custodian of the title deed purported to sell the property to the second defendant without prior approval or consent of the owner. The plaintiff's case, in her capacity as a personal legal representative was dismissed on technicalities, giving chance to the second defendant NAKUROI G. INVESTMENT CO. LTD to establish her claim on the counter claim. She alleged that was never handled the suit property despite the fact that she paid the purchase price to Violet Guido, the first defendant. Hearing proceeded ex parte and the said defendant was represented by Mr. Lusajo Willy, the learned counsel. In order to establish the claim, three witnesses were summoned namely, Samwel Merisheki Mollel (PW1), Rajabu Mrindoko (PW2) and Kajesa Minga (PW3). PW1 said that he is a Contractor cum the Managing Director at Nakuroi Investment Company Ltd. He informed the court that Plot No. 363 Block "A" Sinza, Dar es Salaam belongs to Nakuroi Investiment Co. Ltd since 2011 after purchasing it from Violet Guido Leshabali then as the administratrix of the estate of the late Coleta Raphael. It was reduced into writing as evidenced by the sale agreement exhibit PI. The purchase price was for Tshs 60,000,000/= which was deposited in her account. Upon signing it, she handled to him the Probate letters of appointment received as exhibit P2. That, the deceased left other surviving heirs. Nobody who complained except Erica John who instituted the suit. He tendered the Certificate of title deed for Plot No. 363 Block "A" Sinza evidencing ownership as proof thereof, exhibit P3. According to the title deed exhibit P3, Violet appears as the personal legal representative of Coletha Raphael (deceased). He said that it means Coletha Raphael and Coletha R. Kinyaia are one and same person. Erica John lodged an injunction against their company not to use that plot alleging that was the appointed administratrix of Elisante Macha. That according to exhibit P3, Elisante Macha is the legal personal representative of Coletha Raphael. Elisante Macha is now the deceased. In Probate case No. 61/2013, received as exhibit P4. Elika Steven Shayo was appointed as administrator of Elisante Steven Macha. Elisante Macha passed away in 2004 while PW1 bought that plot in 2011. That the house is now in the possession of Erica and title could not pass due to her objection. PW1 says, incurred a loss of about Tshs 100,000,000/= which is calculated at 20% at Bank rate which attract an interest of more than Tshs 90 Million. He prayed for the court to declare that the plot belongs to Nakuroi Investment Co. Ltd, the plaintiff and that the said Erica's continued occupation is illegal. She should be evicted. He further prayed for damages of about Tshs 100 Million plus 20% interest from the date of judgment to the date of the payment in full and costs of the suit. 3 PW2 said is the advocate of the High court. He said that he witnessed the sale of a plot located at Sinza between Nakuroi Investment and Violet Guido Laishabahi. He identified Exhibits PI, P2 and P3. He drafted and then signed the sale agreement after being satisfied that the seller had the title deed and the probate letters showing that she was appointed as the administratix of her mother's estate. She had also the form for renewal of Certificate of occupancy. That, the renewal form for another 33 years was also annexed in the Certificate of title. The same shows that she is the administratix of Coleta Raphael the owner of that house. That based on the above documents he believed to be the real owner. He said that he prepared the sale agreement Exhibit PI where he also witnessed on behalf of the seller. The purchasers were witnessed by the Directors. As proof that he was for the seller there is a seal of his company as an advocate. He confirmed that after the sale, the owner is Nakuroi Investment. PW3 said is the Land Officer employed by the Permanent Secretary Ministry of Lands Housing and Human Settlement. His duties among others is to advise the Commissioner on matters relating to land. It was his evidence that Plot No. 363 Block "A" Sinza area, Dsm belongs to Coletha Raphael, now the deceased. After her death there was appointed the administrator of the estate Elisante Zacharia Macha. Currently the Administrator of the estate of Coletha Raphael is another person called Violet Guido Reshabari since 2011 according to the record. The witness acknowledged to know Exhibit P2, which shows she was appointed since 10/08/2001. He further said that Elisante Zacharia Macha was the Administrator of Coletha Raphael the owner not that he owned it. The title shows the owner is Coletha Raphael. The main issue is whether the counter claim had been proved? Should the eviction issue for Plot No. 363 Block "A" Sinza? In his written submissions, the learned counsel asked court to take note that the name Nakuroi G. Investment Co. Ltd appearing in the defendant's written statement of defence is the same as Nakuroi Investment Co. Ltd. Second that the adduced evidence conclusively shows that the suit property belongs to the second defendant not Elisante Zacharia alias Elisante Zacharia Macha now deceased as alleged by the plaintiff in her plaint. In actual fact, the learned counsel says, Elisante Zacharia Macha alias Elisante 5 Zacharia (deceased) was the mere administrator and legal personal representative of Colletha Raphael alias Colletha Raphael Kinyaiya. That the sale of the suit property by the first defendant to the second defendant is lawful in compliance with section 101 of the Probate and Administration of the Estates Act, Cap 352 RE 2002. That the executor or administrator has the right to dispose the property vested on him/her. That it is about six years which had lapsed since when the said sale took place however the property had never been handled. He prayed for the counter claim to be allowed and be granted Tshs. 100,000,000/- with costs. I have keenly read and followed the adduced evidence as well as the submission from the learned counsel. I have been referred as well to the provisions of section 101 of the Probate and Administration of the Estates Act, Cap 352 RE 2002, which reads: "101. An executor or administrator has, in respect o f the property vested in him under section 99, power to dispose o f movable property, as he thinks fit, and the powers o f sale, mortgage, leasing o f and otherwise in relation to immovable property conferred by written law upon trustees o f a trust for sale." The second defendant acquired title through the person then as administrator whose powers includes sale of immovable properties, a house 6 (as in our case) inclusive. The position of the law is clear as stated in the case of Mohamed Hassani vs. Mayasa Mzee And Mwanahawa Mzee [1994] TLR 225 (CA) where it was held that:- 1. It is up to the person challenging the validity o f appointment o f an administrator by the court to show that the person so appointed does not have the required qualifications to administer the estate. 2. The administrator is not legally required to obtain consent o fall the heirs before disposing o fproperty or sale o f a house. The dispute in the case of Mohamed Hassani (supra) involved challenging powers of the administarator of the estate to sale the estate without consent of other hairs. The court applied and followed its earlier on decision in the case of Aziz Daudi Aziz v Amin Ahmed Ally & Another, Civil Appeal No 30 of 1990 (unreported) where it was held that:- ' We cannot find in the evidence before the High Court that there was anything wrong with the sale o f the house. Once an administrator o f the estate was appointed then the house o f the deceased owner o f the property is changed in all documents and that o f the administrator is substituted and it is left to his discretion to administer the estate in the best way he can....'. That holding would normally apply to this case, however there are some doubts, that is: - First whether NAKUROI G. INVESTMENT CO. LTD is the same as NAKUROI INVESTMENT CO. LTD. The second defendant (PW1) never gave any elaboration in relation to the letter 'G' appearing in the written statement of defence. Actually it was the learned counsel who I would say testified from the bar on this aspect, during his submissions. Ordinarily it cannot be said a Company registered in the name of NAKUROI G. INVESTMENT CO. LTD (appearing in the written statement of defence) is the same as M/S NAKUROI INVESTMENT CO. LTD (the purchaser of the suit plot appearing in exhibit PI where the letter "G" was omitted. Second, failure to call the seller who was sued as the first defendant. She is a material witness in this case. Nothing had been said on her non attendance while it is expected she is within reach. Issue of sale is something which requires proof. We cannot rely on the sale agreement or simply because one possess the title deed and probate letters in a hotly contested matter like this. It was the burden of the second defendant to prove such fact as stated under section 101 (1) of the Tanzania Evidence Act, Cap 6 RE 2002. It reads "110. (1) Whoever desires any Court to givejudgment as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist. 8 (2) When a person is bound to prove the existence of any fact, it is said that the burden o f proof lies on that person." That provision is very clear that the second defendant must prove existence of such fact of ownership and or sale. Merely alleging had paid money for the past six years or made search is not by itself enough to believe his story especially after even the names of the Company are different. For the above stated reasons, the counter claim therefore fails on the ground that there are two different names for the seller vis a vis that of the second defendant to which the counter claim relates. Second, in the absence of evidence of the seller, a material witness, there is no proof of a fact relevant in issue, especially in a hotly contested probate case. I would say, courts should not take such sale on probate matters so lightly, otherwise justice will be at stake. The counter claim therefore stands dismissed with no order for costs. (L M. G. MZUNA 9