haruna mussa shamte administrator of the estate of the late mohamed shamty vs seleh ally salumu another 2022 tzhc 14860 28 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND CASE NO. 11 OF 2021 HARUNA MUSA SHAMTE (Administrator of The Estate of The Late Mohamed Shamty)..........................................PLAINTIFF VERSUS SELEH ALLY SALUMU...................................................... 1st DEFENDANT HADIJA MOHAMED.......................................................... 2nd DEFENDANT JUDGMENT 31st October & 2$n November, 2022 Kahyoza, J.: Haruna Musa Shamte (the administrator of the Estate of the late Mohamed Shamty) (Shamte) sued Saleh Ally Salum (Saleh) and Hadija Mohamed (Hadija) for vacant possession of the suit premises, an order to restore ownership and register the property in the name of Mohamed Shamty, an order to the first defendant to compensate all rents gained from the premises, general damages and costs of this case. In this case all facts were settled, there was nothing to prove. As a result, parties agreed that, as factual issues are settled they will proceed i under rule 6 of Order XIV of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC) by submitting regarding legal issues. The undisputed facts of this case are that; the suit premises, a house located at Plot No. 71 Block M. Rufiji street Mwanza was a property of one Mohamed Shamty. Mohamed Shamty died intestate in 1986 or 2010 or 2012 as the year and date of his death is not certain. Following Mohamed Shamty's death, Hadija applied and obtained letters of administration of his the estate vide Probate Cause No. 146/2010 before the primary court of Mwanza District (Nyamagana District) at Mwaza urban. Hadija who was the administratix disposed the suit house to Saleh on the 23rd February, 2011. The price is not clear. The sale contract executed between the Saleh, as a purchaser, and Hajida Amiri Musa, Selemani Ally, Tunu Ally. Hussin Mussa, Aisha Minaji, Fatua Minaji, Mohamed as vendors showed that the contract price was Tzs. 75,000,000/= and the transfer of right of occupancy signed between Saleh and Hadija showed that the sale price was Tzs. 85,000,000/=. I will revert to this point later. After the sale of the premises, Saleh took possession. At that time Shamte was in prison. He came out of prison in 2013 and found Saleh occupying the suit premises. Shamte approached the primary court seeking revocation of Hadija as an administratrix. He lost and appealed to the 2 district Court. The District Court decided to appoint Shamte and Hadija as joint administrators of the deceased estate. Shamte was aggrieved. He appealed to this Court. This Court found that Hadija had obtained the administration of the estate fraudulently and revoked her appointment. The Court found that Hadija gave misleading information to the court to be appointed as the administratrix of the deceased estate and that she tendered a fake death certificate. Hadija admitted to have lied to the court including telling the court that she was the deceased's daughter. The Court observed in that judgment, that- "It is crystal clear and without fumbling that the respondent was a fraud hence from the outset does not qualify to be appointed as an administrator of the deceased estate leave alone to be confirmed as one" I gathered from the pleadings and the judgment of this Court in PC Probate Appeal No. 03/2015, that Shamty alleged that the deceased was his uncle. Whereas the Hadija referred to the deceased as her grandfather as she descended from deceased's sister. Thus, both Shamty and Hadija are distance relative of the deceased. It is on record that the deceased had only one child who died before the saga commenced or he might have died long before his father's death. The records do not talk much about him. 3 It is from the above facts this Court framed two issues, thus- 1) Whether the first defendant legally occupies the suit premises; and 2) What reliefs are the parties entitled to? The hearing of this suit proceeded by way of written submissions. Mr Innocent Michael advocate, represented Shamty, the Plaintiff and the defendants was represented by Mr. Rutahindurwa advocate. Does Saleh occupy the suit premises legally? The plaintiff's advocate position is that Saleh's occupation of suit premises is illegal because the disposition of the suit plot was tainted with procedural irregularity and Hadija had no good title to pass. On the other hand Mr. Rutahindurwa for Saleh contended that his client, Saleh was a bona fide purchaser for value, hence, he legally occupies the suit premises. Before, I embark an answering the issues raised, I wish to react on the issue raised by the defendant's advocate that the plaintiff's advocate had raised and argued facts not pleaded. There is no dispute that parties are bound by their pleadings and the court is bound to determine issues raised by pleadings. I subscribe to the authorities cited by plaintiff's advocate, which are Captain Harry Gandy Vs Gasper Air Chatties Ltd, 4 (1965) E.A.C.A. 139, James Franck Gwagilo Vs Attorney General [2021] TLR 455 and Galaxy Paints Company Ltd V. Fakon Guards Ltd, (2000) E. A 385. I did not make a reference to unreported cases, which were not attached. In Captain Harry Gandy the court held that;- "The object of the pleadings is of course, to secure.... that both parties shall know what are the points in issue between them so that each may have full information of the case he has to meet and prepare his defence to support his own case or to meet that of the opponent." The defendant's advocate submitted that the plaintiff's advocate introduced new facts by alleging that Hadija disposed the disputed piece of land before she was registered as the legal representative of the estate. He called the submission from the plaintiff's advocate as the submission from the bar. He submitted that as the defendant's advocate, he anticipated to have in place facts as reflected by the pleadings. He expected submission to establish the alleged illegal entrance and its incidental occupation of the house located at plot No. 71 Block M. Rufiji street Mwanza and facts as discerned from the pleadings that the first defendant knowingly that the whole transactions was illegal ab initio, signed a transfer of right of occupancy with the second defendant. Lastly, the defendant's advocate contended that he expected legal discourse as to what is named as 5 unwarranted and unlawful procedures done by the second defendants in corroboration with the first defendant at their personal gain and interests. The plaintiff's advocates refuted to raise new issue. He submitted that there was no way one could submit on illegal occupation without an eye on the title and procedures surrounding acquisition and justification of occupation which where the main theme of their submission. I wish to state at the outset that the nexus of the plaintiff's case is that the Saleh, the first defendant occupies the disputed land illegally. One of the issues framed by this Court and agreed upon the parties is whether Saleh, the first defendant occupies the land illegally. For that reason, facts from pleadings to establish Saleh's illegal occupation are relevant to the facts in issue. Is Saleh a bona fide purchaser for value or an illegal occupier of the suit premises? The plaintiff's advocate submitted that the disposition of the suit plot was tainted with procedural irregularity. He contended as pleaded in paragraph 3 of the Written Statement of Defence, on 23rd of 02/2011, Hadija Mohamed, Amri Mussa, Seleman Ally, Thunu Ally, Hussein Muna, Aisha Miraji, Fatuma Miraji, Mohamed disposed the suit plot (Plot No. 71 Kitalu M. Rufiji) to one Salehe Ally Salum at a consideration of Tzs 6 75,000,000/=. The sale agreement indicated that they sold the suit plot as owners and not as heirs or legal person representatives of the late Mohamed Shamty. He submitted that they disposed the suit plot without having the required capacity to do so. The plaintiff's advocate submitted further that on the 18th March, 2011 Hadija executed a transfer of the right of occupancy of the suit plot to the first defendant for a consideration of Tzs. 85,000,000/=. He contended this was a second transaction on the same plot made by Hadija who had no capacity to do so. He concluded that the two transactions proved an inference that the sale and its incidental transfer of title was done by the person(s) who had no capacity to pass tittle, subsequently rendering the process of sale void ab initio. He added that disposition of the deceased property involves a tedious procedures, he who wished to dispose must have acquired a good title to do so. And that, he wants to buy the deceased property, must conduct due diligence and cautiously. He narrated the steps to be taken as; one, a person must petition for letters of administration or probate; two, once appointed, the administrator of the estate must apply to be registered as owner of the deceased property; three, upon being duly registered as legal personal representative he becomes vested with mandate to exercise 7 various powers including disposition. To support his contention, he cited sections 67 and 68 of the Land Registration Act, [Cap. 334 R.E. 2019]. The sections read- 67. On the death of the owner of any estate or interest, his legal personal representative, on application to the Registrar in the prescribed form and on delivering to him an office copy of the probate of the will or letters of administration to the estate of the owner, or of his appointment under Part VIII of the Probate and Administration of Estates Act or the Fourth Schedule to the Magistrates' Courts Act shall be entitled to be registered as owner in the place of the deceased. Dispositions and assents by legal personal representative. 68.-(1) No assent to the vesting of any devises of bequest of any registered estate or interest, or disposition by a legal personal representative, shall be registered unless such estate or interest is registered in the name of such legal personal representative. (Emphasis is added) The defendants' advocate submitted that Saleh, the first defendant was a bona fide purchaser for value. He defined a bona fide purchaser for value as per Black's law Dictionary as- ”/4s purchaser for a valuable consideration paid or parted with in the belief that the vendor had a right to sell and without any suspicious circumstances to put him in inquiry" 8 He added another definition of a bona fide purchaser from the Oxford Scholarship Online as- "A bona fide purchase is someone who purchase something in good faith, believing he or she has clear rights of ownership after the purchase and having no reasons to think otherwise. In situation where a seller behaves fraudulently, the bona fide purchaser is not responsible. Someone with conflicting claim to the property under discussion would need to take up with the seller not purchaser and the purchaser would be allowed to retain the property" After providing a definition of what bona fide purchaser, Saleh's advocate submitted that, the record showed that before purchasing the disputed land, the first defendant satisfied himself that the 2nd defendant was appointed as an administratrix of the estate of the late Mohamed Shamty. He saw the letters of administration issued to Hadija, the second defendant. He submitted that Saleh purchased the disputed plot in the belief that the vendor had a right to sell and without suspicious circumstances to put him in inquiry. Thus, fitting in the pigeon holes of the definition of the bona fide purchaser for value, deserving to be protected by law. He cited the case of Suzan S. Waryoba Vs Shija Dakawa, Civ. Appeal No. 44/2017 CAT at Mwanza (unreported) and another case which I will not mention as I was not provided with a copy. 9 He submitted further that after the purchase, Saleh pulled down mud-houses on the Plot and constructed modern houses made up of bricks in which tenants occupy. He added that courts have been reluctant to disturb a bona fide purchaser for value who innocently purchased the Plot and gone further to effect the substantial development on the said plot. To buttress his argument, he referred to the case of Stanley Kahama Maziki Mgamuo, [1981] TLR 143 where it was held that;- "Where an innocent purchaser for value has gone into occupancy and effected substantial development on land the courts should be slow to disturb such a purchaser and would desist from reviving state claims" In his rejoinder, the plaintiff's advocate submitted that the defendant's advocate did not address the legal issues. He prayed the prayers in the Plaint to be granted. Having heard the rival submissions, the issue is whether Saleh is a bona fide purchase for value. The Court of Appeal in Tom Mario Vs Athumani Hassan (Suing as the administrator of the Estate of the late Hasan Mohamed Siara) and 2 Others, Civ. Appeal 179/2019 defined a bona fide purchase as a person on who purchased and received the suit property in good faith and without knowledge of any fraud. Quoting the 10 decision of the Court of Appeal Seychelles in Dorothy Hall V Maria Amina Morel and 2 others, Civ. Appeal 22/2017 where the court stated- "Good faith on the part of a purchaser is a firm belief on his part that the vender of a property had the right and the capacity to sell it" The undisputed facts show that Saleh purchased the suit house from Hadija who showed him document that she was an administratrix of the deceased estate. It is also on record and undisputed that a sale agreement was execute between Hadija Mohamed, Amiri Mussa, Selemani Ally, Tunu Ally, Hussein Mussa, Aisha Miraji, Fatma Miraji, Mohamed, on one side, and Salehe Ally Salum, on the other. Obviously, the sellers had no title to pass to the purchaser. The sellers were not owners of the property they purported to sell. The property they sold was the late Mohamed Shamty's property. Thence, the sale agreement was invalid. I will proceed to consider whether the transfer of right of occupancy executed on the 18th March 2011 between Hadija and Saleh transferred title. It is clear that a person who transferred title was Hadija and not Hadija, as the legal representative of the late Mohamed Shamty. Hadija was not a legal owner of the land she was purporting to transfer. The transfer was invalid. I wish to associate myself with the division of the ii Court of Appeal in Abbas Ally Athumani Bantulaki and another v. Kelvin Victor Mahitty (Administrator of the estate of the late Peter Walchef), Civ. Appeal No. 385/2019. In that case, like in the present case, Erick Peter Walcher the administrator of the deceased's estate disposed land to Abbas Ally Athumani Bantulaki without indicating that he was doing so as a legal representative of the deceased's estate. He disposed the deceased's landed property as if it was his own land. The court of appeal observed- "The law is clear that by being duly appointed administrator of the estate of the late Peter Walcher, Erick Peter Watcher became a legal representative of the deceased for all purposes and all the properties of the deceased person arrested on him. (See section 99 of the Act, [Cap. 352 R.E. 2019]). Further the provisions of section 67 of the LRA a legal representative is required to apply to be registered as owner of the deceased property in the place of the deceased and upon being so registered he becomes vested with the mandate to exercise various powers stipulated therein in terms of section 68 of the LRA including disposition." (emphasis provided) The Court of Appeal made it clear that the administrator of the deceased's estate cannot dispose the decease's landed property without the same being registered in his name as the representative of the 12 deceased estate. This is the position of section 68(1) of the LRA, cited by the plaintiff's advocate. I wish to reproduce it here, thus- "68(1) No assert to the vesting of any devises of bequest of any registered estate or interest, or disposition by a legal personal representative, shall be registered unless such estate or interest is registered in the name of such legal representative." The Court of Appeal in Abbas Ally Athumani Bantulaki found that- "In the instant case and as indicated above, Erick Peter Watcher applied to be registered as owner of the disputed Plot but neither of the parties was forth coming or produced any proof that he was duly registered so... On clear terms of section 68 of the LRA he lacked mandate to sell." (Emphasis added) There is no evidence that Hidaya registered as the owner that is the legal person representing the deceased, at the time she executed the transfer deed. In the absence of the proof and the fact that she executed the deed of the transfer in her own name, she had no title to transfer. Thus, there was no valid disposition of the disputed land between Hadija and Saleh. Having found that there was no valid disposition, can I still hold that Saleh was a bona fide purchase for Value? The Court of Appeal in Tom Mario's case stated that, it is settled principle that no one can give title, 13 which he does not have to another person (Nemo dat quod non-habet). However, the Court of Appeal pointed out that there are two exceptions to the general rule of nemo dat quod non-habet. The first exception is where a person purchased land in good faith and without knowledge of any fraud. It started- "Nevertheless, there are exceptions to the above stated settled legal position as illustrated in the case of Suzana Waryoba (supra) in which the Court failed to fault the second appellant the respondent was a bona fide purchaser for value, after receiving the purchased land in good faith and without knowledge of any fraud. Also in the case of Ismail and Another (Supra) the court failed to fault the validity of the sale which had already taken plan as there was no notice of any encumbrances at the time of sale" I have already held that Hadija had no title let alone good title to pass to Saleh, the question is that, can Saleh be covered under the exception. To answer that question, I asked myself another question, if Saleh purchased the disputed land in good faith without knowledge of any fraud. My answer is in affirmative. The evidence record shows that the sale agreement was illegal because Hadija sold land in violation of section 68(1) of the LRA. Hadija sold the disputed land fraudulently. There is no evidence that Saleh took part in Hadija's fraudulent acts. Saleh knew that Hadija was a administratrix and he ensured Hadija's relatives participated 14 in selling the land. I find there is no evidence that Saleh knew that Hadija had fraudulently obtained letters of administration of the decease's estate or that she had no capacity to transfer the disputed land. The second exception to nemo dat quod non-habet principle, as held in Tom Mario's where a person procures land without notice of any encumbrance at the time of sale. That person is a bona fide purchaser for value once. In the present case, Saleh purchased the disputed land without notice of any encumbrance. It is worth noting that although Haruna Mussa Shamte was appointed by this Court to be the administrator of the deceased estate, he has no letters of administration of the deceased estate. He is not governed by any court. The records further show that, both, Hadija and Haruna Mussa Shamte are distant relative of the deceased and none of them can even tell when Mohamed Shamty, the owner of the disputed land passed on. Hadija forged and presented a forged death certificate to the primary court showing that Mohamed Shamty died on 26/5/2010. This court (Ebrahim J.) found that Mohamed Shamty died in 1986 according to the evidence Haruna Mussa Shamte. The court observed as follows- "The appellant (Haruna Mussa Shamte) called a number of additional, three witnesses who all witnessed that the deceased 15 died in 1986 and not 2010, and that the respondent stole a certificate of title of the house at Rufiji Street and sold it." Surprisingly, when Haruna Mussa Shamte instituted the present case, pleaded that Mohamed Shamty died on 26th of May 2002. He stated under paragraph 5 of the plaint that- "5-That the plaintiff is the Administrator of the estate of the MOHAMED SHAMTY, deceased who died on 2&h May 2002, and that the latter is the lawful owner of the property located at Plot No. 71 "M" located at Rufiji street" who in Nyamagana Mwanza in that representation (As witnessed by a copy of an officer of the said plot of land which herewith attached as DLC). I find it proved that both Haruna Mussa Shamte and Hadija are impostors. They have no close relationship with the deceased, the owner of disputed land. They do not know when he passed away and that is why none of them applied for letters to administer the deceased's estate immediately after Mohamed Shamty succumbed to death. The law cannot and should not allow one to benefit from his own wrong. The wrong of pretending to be deceased's heirs. In the end, I find that there was no valid transfer of land between Hadija and Saleh because the transferor transgressed the provisions of section 68 (1) of the Land Registration Act. However, since Saleh Ally 16 Salum purchased the disputed land without being aware of Hadija's fraudulent acts or without notice of any encumbrances, he is a bona fide purchaser for value. I will not nullify the sale. It is settled law as stated in the case of Tom Mario (supra) that courts have a duty to protect a bona fide purchaser for value who purchased land in good faith and without any notice of encumbrances. Consequently, I dismiss the suit for want of merit with costs. It is ordered accordingly. DATED this 28th day of November, 2022 Court: Judgment delivered in the absence of parties as the parties could not connect to the virtual court. B/C Ms. Jackline (RMA) present. J. R. Kahyoza JUDGE 28/11/2022 17