fatuma emmanuel chapa administratrix of the estate of the late berkimana sebastian mawala vs sylvester herbert mawalla another 2024 tzhclandd 59 29 february 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 430 OF 2023 (Originating from Application No. 449 of 2019, Kinondoni District Land and Housing Tribunal) FATUMA EMMANUEL CHAPA (Administratrix of the Estate of the Late Berkimana Sebastian Mawalla)..................... APPELLANT VERSUS SYLVESTER HERBART MAWALLA ......................................... 1st RESPONDENT GREGORY KALINGA..... ....................................... 2nd RESPONDENT JUDGMENT 24/1/2024 to 29/2/2024 E.B. LUVANDA, J The Appellant named above are challenging the decision of the Tribunal which dismissed his claim for want of merit, grounding that one of the heirs (that is Anna Severine Fundi who testified as PW1 at the Tribunal) is among the vendors and that it will be wrong to disown the Second Respondent above named for merely reason that vendors were not legally appointed administrators of the deceased's estate. i Briefly, the Appellant sued the First and Second Respondent challenging the sale agreement dated 2/04/2016 (exhibit DI) for reason that the vendors who are the First Respondent herein and Anna Severine Fundi (who testified as PW1 at the Tribunal) had no mandate to sale the suit farm to the Second Respondent for reason that at the time of the alleged sale, the First Respondent was yet to be appointed an administrator of the estate of the late Berkimana Sebastian Mawalla (proprietor of the suit farm to wit a piece of two acres located at Mbezi Msakuzi Area, Mbezi Louis Ward in Ubungo District). It was alleged that the late Berkimana Sebastian Mawalla dead interstate and barren. PW1 was the biological mother of the deceased, the First Respondent is the uncle of the deceased and the Appellant is a daughter of the deceased's brother. It would appear the deceased was sired by the brother of the First Respondent, thereafter PW1 was married to another man where other three child were born, including the father of the Appellant. The deceased passed away on' 13/03/2016 at the suit property and burial ceremony were hosted by the First Respondent at Ifakara. On 18/03/2016 a clan meeting was convened and nominated the First Respondent to be appointed as the administrator of the deceased's estate. Nineteen days after death, to wit on 1/04/2016 the First Respondent along PW1 disposed the suit farm to the Second Respondent for a consideration of Tsh 40,500,000 as per 2 pay in slip exhibit D2 and a sum of Tsh 300,000 was paid cash to the First Respondent and PW1. From the proceed of sale, a sum of Tsh 16,400,000 was credited into the account of PW1, the First Respondent retained a share of Tsh 16,400,000 and Tsh 7,700,000 were used as facilitation fees for testimony and follow up of a probate cause. On 20/12/2016 the First Respondent was granted letters of administration of the estate of the late Berkimana Sebastian Mawalla via Probate and Administration Cause No. 426/2016 Kinondoni Primary Court, as per exhibit Pl. In exhibit Pl, the probate court ruled PW1 as a sole heir. The letters of administration granted to the First Respondent were revoked on 13/02/2019 by the same court and in turn appointed the Appellant herein as administratrix, as per ruling dated 13/02/2019 annexure PCJ to the written statement of defence for the First Respondent, and also letters of administration exhibit P2. Thereafter the Appellant sued the First and Second Respondent for relief that the suit farm of two acres located at Mbezi Msakuzi Area, Mbezi Louis Ward in Ubungo District to be declared part of the property of the deceased and estate subject for administration by the Appellant including an order for declaration that a sale agreement between the First Respondent and Second Respondent was illegal and fraudulent. The Tribunal declined to sustain the Appellant's claim and reliefs. 3 In the memorandum of appeal the Appellant grounded that: One, the trial Tribunal erred in law and fact for delivering the judgment in favour of the Respondents without considering the fact that the said sale agreement was signed out of ignorance and mis representation; Two, the trial Tribunal erred in law and fact by holding that PW1 was involved in the sale of the disputed property whereas the evidence on record established that the disputed property was at the material time in the possession of Berkimana Sebastian Mawalla-the deceased; Three, the trial Tribunal erred in law and fact by holding that the sale of the disputed property was valid, whereas it is evident that at the time of sale thereof, PW1 and DW1 were not administrators of the deceased's estate, as such they had no any title to transfer to DW2 and hence the purported sale was nullity in all respects; Four, the trial Tribunal erred in law and fact in failure to properly evaluate the evidence on record which clearly established that PW1 and DW1 had no mandate and/or locus stand to dispose of the disputed property to DW2 and that whatever the later purported to develop on the property was done on a frolic of his own and at his own risk. Karilo Mulembe Karilo learned Counsel for Appellant submitted that it is evident from the record that the suit property was owned by the late Berkimana Sebastian Mawalla who passed away on 13/03/2016 and the sale agreement exhibit DI was executed on 1/04/2016 where the First Respondent sold to the 4 Second Respondent. He submitted that the First Respondent was appointed on 20/12/2016. He submitted that PW1 aged 80 years was neither voluntarily, freely, consented nor having knowledge regarding the sale of the said property, arguing it was a tricky of the First Respondent to accomplish his mission to legalize the sale by alleging PW1 was among the seller. He submitted exhibit DI depict seller and not sellers, arguing it means the property was sold by one person, He submitted that PW1 was factiously written in exhibit DI and argued DW1 was forcefully and fraudulently fixed her thumb print by inducement from the First Respondent. Ground number two, the learned Counsel submitted that it was a misdirection on the part of the learned Chairperson to hold that PW1 was involved in the sale of the disputed property whereas the evidence on record established that the same was in possession of the deceased up to the time she passed away on 13/03/2016. He submitted that PW1 was not freely neither consented to enter into any agreement with the Second Respondent. He submitted that even if is assumed to have been involved, still had no authority to dispose the same, arguing the agreement was illegal and nullity. Ground number three, the learned Counsel submitted that the disputed property being the property of the deceased one Berkimana Sebastian Mawalla could not be sold to the Second Respondent without following procedures, by DW1 and 5 PW1 having no title thereupon, arguing no title could pass to the Second Respondent. He cited the case of Abassa Ally Athuman Bantulaki & Another vs Kelvin Victor Mahity (Administrator of the Estate of the Late Peter Walchr), Civil Appeal No. 385/2019 CAT at DSM. He submitted that even the buyer himself showed weakness, for reason that he did not do any thorough investigation over the suit property to know the real owner, arguing, only said to have been satisfied on merely seeing the First Respondent and PW1 at the suit property. He cited the case of Farah Mohamed vs Fatuma Abdallah (1992) TLR 205 and Athuman Nassoro Jakwenga vs Renatus E. Ngabani and Two Others, Land Appeal No. 100/2021. Ground number four, the learned Counsel submitted by reiterating his argument that the owner passed away on 13/03/2016, the First Respondent and PW1 sold it on 1/04/2016 before the appointment of the administrator of the deceased estate who was appointed on 20/12/2016. He submitted that the Tribunal failed to discern on how and whose authority they managed to obtain a clean title to the suit property which legalized them to dispose to the Second Respondent. In reply, Mr. George Yudas Msangi learned Counsel for First Respondent submitted that PW1 signed the contract freely without any misrepresentation due to the fact that the discussion of selling the land in dispute was not made within one day rather was made for several days, all discussions were conducted 6 in the premises of PW1 who signed with her consent, capacity and she received money from the proceed of sale of the land in dispute to the Second Respondent. He submitted that the disputed land was sold by both PW1 and DW1, it was drafted seller instead of sellers because it was crafted by the hamlet office, and parties were made to fill in the blanks. He submitted that PW1 and DW1 are the one who sold the disputed land to the Second Respondent, arguing PW1 is the only heir of deceased's estate. He submitted that if the land will be returned back to her, will cause injustice to the Second Respondent, arguing PW1 want to benefit twice on the property freely sold. Ground number two, the learned Counsel submitted that the Appellant failed to prove her case that PW1 was not involved from the negotiations stage to the execution of the contract, the Appellant failed to produce any document to show that the land in dispute is owned by the late Barkimana Sebastian Mawalla. He cited section 110(1) of the Evidence Act, Cap-6 R.E. 2019. He submitted that there is no any evidence to show that PW1 was forced to fix her thumb in the sale agreement and also there is no any evidence tendered by the Appellant to show ownership of the land in dispute is owned by the deceased. He cited the case of Barelia Karangirangi vs Asteria Nyamlwambwa, Civil Appeal No. 237/2017. 7 Ground number three, the learned Counsel submitted that the rule is that each case can be determined according to its own merits, arguing herein the probate court decided that the beneficiary of the deceased's estate is only one who is PW1 (Anna Severine Fundi) and the Appellant is collecting the properties of the deceased to distribute to PW1, arguing it is the same property which was sold by PW1 accompanied by DW1. He submitted that the heir participated to sell her right to the Second Respondent, freely without inducement, arguing she cannot claim it back. Ground four, the learned Counsel submitted that the Tribunal evaluated well the evidence given by both parties in the trial and reached the decision thereon. He submitted that the Appellant failed to prove that the agreement was executed between the First and Second Respondent, arguing it was executed between PW1, DW1 as vendors and the Second Respondent as purchaser. He submitted that the probate court declared PW1 as the beneficiary of the estate of'the deceased, and PW1 participated to sale her right to the stranger, and now she is demanding back the land in dispute, Mr George Yudas Msangi learned Counsel also filed submission for the Second Respondent, he submitted that the discussion for selling the land in dispute was conducted in the house of PW1 which is very close to the land in dispute, she was present in all stages. He submitted that the Appellant failed to prove the 8 alleged misrepresentation and ignorance during executing exhibit DI. He submitted that parties are bound by their agreement. He submitted that no one can benefit from its own wrong, arguing PW1 did with full knowledge, sound mind and was cooperative during demarcation of the land in dispute. He submitted that the argument that the agreement was written seller instead of sellers cannot invalidate the truth that the land in dispute was sold to the Second Respondent by two people who are PW1 and DW1. He submitted that no evidence was tendered to prove that PW1 was forced to fix her thumb print. Ground number two, the learned Counsel submitted that the Appellant had admitted in her pleading that PW1 was involved in the sale agreement as a witness although she is trying to hide the truth. Ground three, the learned Counsel submitted that the Tribunal was correct to decide that the contract was valid, for reason that the only heir participated to sale her right to DW4. He submitted that the Appellant has to collect estate of the deceased property in view of distributing to PW1, arguing the Administrator cannot collect the estate which was sold by the heir herself. Ground number four, the learned Counsel submitted that the Appellant and PW1 knows well the transaction made by PW1 and DW1. He submitted that the Tribunal valuated well the evidence given by both parties but the Appellant 9 failed to prove that PW1 was not involved in the sale of the disputed land, arguing that PW1 admitted to have received money from her fellow vendor. On my part I will kick off on ground number one. The learned Counsel for Appellant submitted that PW1 (alleged aged eighty years, although at the time of adducing evidence on 2/08/2021 she declared to be aged seventy years), signed the sale agreement exhibit DI out of ignorance, without knowledge or consent, involuntarily and by misrepresentation of the First Respondent who forced her to affix her thumb print thereon. The learned Counsel for First and Second Respondent submitted that PW1 was aware, consented for reasons that all discussions of sale of the suit farm were done at the house of PW1 who participated during demarcation and received money as her share from the sale of the suit land. Upon throwing my glance at exhibit DI indicate vendors were Slyvester Mawalla (First Respondent) and Anna Severin Fundi (PW1). However, only one person appended a signature thereat, and a signature reflect the name of S. Mawalla, invariably being that of the First Respondent. Thereon the signature of PW1 is completely missing at the place where vendors ought to sign. But at the extreme bottom there are wordings which are isolated from the rest of the contents of a document reading "SAHIHI YA MAMA" where someone appended a thumb 10 print under those wordings. It is unknown as to who is the alleged 'Mama', neither stated a thumb print was for what use or purpose. It is not clear whether the alleged 'Mama' appended a thumb print under which capacity either as a vendor, purchaser, witness or attesting officer. The said thumb print at the extreme bottom of exhibit DI, which is remote and isolated from the rest of the contents of the document as aforesaid, is appearing after all witnesses, including the hamlet or cell member (Shina Na. 35). Above all it is in a different hand writing and ink, depicting belong to the so called "SAHIHI YA MAMA". It is unknown as to whom it belong, when it was appended, because all other participants had appended their signatures and inserted a date thereof. In view of the foregoing, a complaint by PW1 that she was forced by the First Respondent to sign, gain momentum nearest to be trusted. This is because PW1 asserted to be literate and able to sign. Indeed PW1 tendered her identification card commonly NIDA and counter affidavit dated 12/12/2017 exhibit P2 which reflect PW1 signed by writing her name as A.FUNDi, in both documents all being in capital case ending with a small V. It is the rule that the document speaks for itself. Herein, exhibit DI at the vendor PWl's signature is missing, a thumb print at the extreme bottom the author is unknown, was not disclosed. 11 In that way, surely it cannot be said that PW1 had participated to the alleged sell transaction. I have taken note of a fact that PW1 admitted to have travelled to Ifakara along with the First Respondent immediately after execution of exhibit DI, where a sum of Tsh 16,000,000 was credited into her account and she spent the same. However, that alone cannot suffice to rule that exhibit DI is her deed. Ground number two, essentially the learned Counsel for Appellant was faulting the findings of the Tribunal on account that at the time of sell the suit land was the property of the late Berkimana Sebastian Mawalla, who alleged passed away on 13/03/2016 and the suit farm was disposed on 1/04/2016 being hardly nineteen days after her demise. The learned Counsel was of the view that PW1 and the First Respondent had no mandate to sell and therefore no title could pass to the Second Respondent. Specifically to this ground, the learned Counsel for First and Second Respondent submitted that the Appellant failed to prove that the disputed farm was owned by the late Berkimana Sebastian Mawalla. According to the records of the Tribunal, PW1 and the Appellant who testified as PW3 alleged that the suit land belonged to the deceased and argued that the First Appellant disposed it prior being appointed as an administrator of the estate. But apart from oral narration by word of mouth, no documentation whatsoever was tendered by either PW1 or PW3. Indeed, PW1 alleged to have 12 been living with the deceased until when her daughter passed away on 13/03/2016. In a sale agreement exhibit DI there is no indication whatsoever that it was a deceased estate. Nowhere depict that vendors were disposing it on behalf of someone. The document exhibit DI suggest vendors disposed it at the capacity of owners. I am bringing in this argument, for reason that the Appellant is suing under the umbrella of administratrix for the estate of the late Barkimana Sebastian Mawalla. In exhibit Pl that is a first ruling of Probate and Administration Cause No. 426/2026, on 20/12/2016 the Probate Court at Kinondoni listed the properties of the deceased subject for administration therein, namely: 1. Nyumba ya Msakuzi Mbezi 2. Gari aina ya Sukuzi 3. Mifugo kuku 4. Vyombo vya ndani. The alleged suit farm of two acres is missing, was not mentioned. In the ruling dated 13/02/2019 when the same probate court was deliberating a question of revocation of the letters of administration granted to the First Respondent, established, I quote in extenso and verbatim for appreciation, 'Katika shauri hili ia mirathi Na. 426/2016, msimamizi wa mirathi amelaiamikiwa na mrithipekee wa marehemu Bibi Anna 13 Severine Fundi. AHandika barua yake ya kuomba kumbadilisha msimamizi wa mirathi, Msimamizi wa mirathi aliitwa afike mahakamani iakini hakufika, mrithi wa marehemu alisema, hata gari la marehemu mtoto wake analo had/ leo. Mrithi wa marehemu aliendelea kusema walikaa kikao cha familia cha tarehe 30/11/2018 walimchagua msimamizi mwingine. Kutokana na maelezo ya mrithi wa marehemu yaliungwa mkono na ndugu wa familia pia mahakama imetosheka na maelezo yake, msimamizi katika mirathi ameshindwa kutekeieza wajibu wake. Hivyo ombi la mrithi wa marehemu limekubaliwa, msimamizi Sylvester H. Mawala anaondolewa katika kusimamia mirathi hiL.Arudishe fomu Na. IV ya uteuzi wa usimamizi wa mirathi imefutwa na ndugu Fatuma Emmanuel Chapa miaka 27, ndiye ameteuliwa kusimamia mirathi ya marehemu Berkimana Sebastian Mawalla...' In the entire ruling above reproduced, nowhere the sole heir (PW1) complained that the First Respondent had disposed of a two acres farm, or else that she was forced, induced, or misrepresented to append a signature in exhibit DI. What the sole heir complained off and what entailed revocation of the letters granted to the First Respondent was a fact that he is still retaining into his possession a motor vehicle of the deceased. Indeed, in exhibit Pl a motor vehicle Suzuki model is mentioned. 14 Now in the circumstances where there is no tangible evidence to prove that the suit land belonged to the deceased, PW1 received a share of proceeds of sale, exhibit DI does not depict to be a farm of someone else, in exhibit Pl there is no mention of a farm of two acres, in a letter of complaint lodged by the sole heir and subject for revocation of the First Respondent and re-appointment of the Appellant, no complaint was lodged to the probate court regarding illegal sale or disposition of a farm of two acres. Frankly speaking it cannot be said । that the suit farm fall under the estate of the deceased subject for i administration by the Appellant. i My next question question is who else is a key complainant on the sale of a i farm of two acres? Because the sole heir never complained before the probate court. Importantly, there is no record to reflect that the newly appointed administratrix (Appellant) lodged a complaint to the probate court that in the i course of collecting and distributing the deceased's estate to the sole heir she encountered a scenario of illegal sale of the deceased property. Why ‘ immediately after grant, the Appellant rushed to the Tribunal to sue the First Respondent and purchaser alone, leaving behind another person who alleged participated to dispose the suit farm? 15 My undertaking is grounded on the fact that this is not a probate court which have got wider range of powers to deal with administration of the estate of the deceased. It is to be noted that, the appointment of the Appellant was done by Kinondoni Primary Court. Rule 8 of The Primary Courts (Administration of Estates) Rules, GN. 49 of 1971, Cap 11 R.E. 2002 Subsidiary Legislation, which is all for other matters to be decided by the probate court, specifically primary court, provide I quote and bold areas of emphasis, 'Subject to the provisions of any other iaw for the time being applicable the court may, in the exercise ofthe jurisdiction conferred on it by the provisions of the Fifth Schedule to the Act, but not in derogation thereof, hear and decide any of the following matters, namely- (a) whether a person died testate or intestate; (b) whether any document alleged to be a will was or was not a valid or subsisting will; (c) any question as to the identity ofpersons named as heirs, executors or beneficiaries in the will; 16 (d) any question as to the property, assets or liabilities which vested in or lay on the deceased person at the time of his death; (e) any question relating to the payment of debts of the deceased person out of his estate; (f) any question relating to the sale, partition, division or other disposal of the property and other assets comprised in the estate of the deceased person for the purpose of paying off the creditors or distributing the property and assets among the heirs or beneficiaries; (g) any question relating to investment of money forming part of the estate; or (h) any question relating to expenses to be incurred on the administration of the estate' Therefore, in the circumstances where the probate court did not mention a farm of two acres in the list of the deceased properties, the heir did not complain on illegal sale, in totality render the Appellant's claim unmaintainable in law. This is because the duty of the administrator is vested unto him/her by the order of the probate court. It was expected that the administrator in case of any 17 difficulties will go back to the probate court to seek clarification and afterward sue before the Tribunal. Therefore, this adumbration takes into board grounds number three and four as well. They are all ruled to be unmerited. Therefore, save for the first ground of appeal which was in the affirmative, the rest grounds of appeal are wanting. The verdict of the Tribunal dismissing the Appellants claim is upheld, although on different grounds. The appeal is dismissed. No prder for costs. E, B. LUVANDA JUDGE 29/02/2024 18