irene redentha emmanuel soka vs asile ally said another 2018 tzhclandd 141 25 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 363 OF 2015 IRENE REDENTHA EMMANUEL SOKA... PLAINTIFF VERSUS ASILE ALLY SAID.......... . I st DEFENDANT BENEZET RWEYEMAMU 2 nd DEFENDANT Date of Last Order: 09/04/2018 Date of Judgment: 25/05/2018 JUDGMENT S.A.N. WAMBURA, J: Irene Redentha Emmanuel Soka instituted this suit against the defendants Asile Ally Said and Benezet Rweyemamu for the following reliefs:- (a) A declaration that the sale of the house on Plot No. 147 Block H, in Temeke Municipality is null and void. (b) That the I st defendant give vacant possession to the disputed premise. (c) Payment of Tshs. 50,000,000 as general damage. (d) Costs of this suit against the Defendants. (e) Any other reliefs this honorable Court deems fit and just to grant. l The 1st defendant in her written statement of defence denied the entire allegations in the plaint and alleged that she is the lawful owner of the land in dispute having purchased it on 16th December, 2010 from the 2nd defendant and on 17th May, 2012 she was granted with the Right of Occupancy of the suit property under Certificate of Title No. 94575. She therefore prayed for dismissal of the suit with costs. On the other hand the 2nd defendant admitted that he sold the suit property to the 1st defendant without obtaining consent from the plaintiff. At the hearing of this case the plaintiff was represented by Mr. Ndunguru Advocate while the 1st defendant enjoyed the legal services of Mr. Geofrey Paul Advocate and the 2nd defendant appeared in person unrepresented. Before the commencement of the hearing of the suit, three issues were framed to be determined by the Court being:- 2 (1) Whether the disputed land is a matrimonial property? (2) Whether the 1st defendant acquired the said land lawfully. (3) To what reliefs are the parties entitled to? In support of her case, the plaintiff was the only witness while on side of the defence the 1st defendant Asile Ally Said (Dw 3) invited one witness namely Ali Saidi Salum (Dw 2) and the 2nd defendant Benezet Rweyemamu (Dw 1) defended himself. Both counsels filed their final written submissions as scheduled. I am thankful to them as the submissions have been helpful in the writing of this judgment. Before I determine the issues which were raised in this case in seriatim, I believe there is a need to summarize the facts of this matter. The plaintiff and the 2nd defendant were married in the year 1990 and were blessed with one child. During their marriage they acquired a house on Plot No. (disputed plot) sometime in 1993. They lived in the house for a short period then they moved to 3 Kinyerezi as they decided to rent the house. However a misunderstanding occurred and the plaintiff went to live with her parents. While there Dw 1’s friend told her that their house had been sold by the 2nd defendant. The plaintiff went to search at the Ministry of Land which confirmed that the house has been sold by the 2nd defendant to the 1st defendant. She thus decided to file this suit because she did not consent to the sale of the house praying to this court to nullify the sale. In her defence, the 1st defendant Asile Ally Said (Dw 3) contended that she is the owner of the disputed house having bought it with the assistance of her father from the 2nd defendant in 2010. Dw 2 concedes to have bought the same for her daughter from Dw 1. That Dw 2 also contributed to the purchase price. That at the time of the purchase Dw 1 was living together with his wife called “Mama Benson” in the disputed house. That later on the 2nd defendant moved out and rented the house. Dw 4 3 went on stating that after sometime, the 2nd defendant informed him that he was selling the disputed house. He thus negotiated on the purchase price and bought the same on behalf of his daughter. He did not state whether there was the wife's consent or not. I will now resolve the issues herein framed. (1) Is the disputed land a matrimonial property? According to the evidence adduced by both Pw 1 and Dw 1, there is no dispute that the plaintiff and the 2nd defendant are husband and wife as there is no proof that they have divorced. The evidence on court’s record shows that the plaintiff and the 1st defendant jointly purchased the disputed house in 1993 from one Joha Salumu. It is also in the court record that the plaintiff and the 2nd defendant were living together at the disputed house up to when they moved to another place. The fact which was not disputed by the 1st defendant. The only fact which the 1st defendant disputes is that at the time of the sale of the disputed house he 5 and the plaintiff were separated. The 2nd defendant further stated that he did not see any need of consulting the plaintiff before selling the disputed house because the plaintiff did not contribute anything when purchasing the disputed house. In the Case of Bi. Hawa Mohamed Vs. Ally Sefu (1983) TLR, the Court of Appeal of Tanzania defined to what constitutes “matrimonial asset” as per Section 114 of the Law of Marriage Act by stating:- " Matrimonial assets’ means the same thing as what is otherwise described as ‘family assets' Under paragraph 1064 of Lord Hailsham’s HASBURY’S LAWS OF ENGLAND.4™ Edition p 491, it is stated, ‘‘The phrase “family assets" has been described as a convenient way of expressing an important concept; it refers to those things which are acquired by one or other both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole ............ " 6 It is on record that the plaintiff was the one who knew that the disputed house was being sold and told the 1st defendant. They then went together to purchase the same. From the above evidence, it is clear that the suit plot was acquired through the plaintiff and 1st defendant’s joint efforts hence it is a matrimonial property. Thus this issue is answered in affirmative. (2) Did the 1st defendant acquired the said land lawfully? It is trite law and principle that in any disposition of a matrimonial property by way of sale or gift or lease or mortgage there must be consent of the other spouse. It is not in dispute that the plaintiff’s consent was not obtained before the sale of the disputed property between the 1st and 2nd defendants was affected as the latter conceeds that he did not notify his wife. So obviously there was no consent obtained from the plaintiff. The 2nd defendant had a duty of notifying his wife (the plaintiff) on the intention of the sale of the disputed house and get her consent as the said property was a matrimonial property. 7 Under Section 59 (1) of the Law of Marriage Act (1971), the plaintiff’s consent being a co-owner was a necessity. For clarity Section 59(1) (supra) provides as herein I quoted; “ Section 59(1 J where any estate or interest in the matrimonial home is owned by the husband or by the wife, he or she shall not while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, g ift lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat caution or otherwise under any law of the time being in force relating to the registration of titled to land or of deeds.” (Emphasis is mine). Again Section 161 (3) (b) of the Land Act Cap. 113 R.E. 2002 provides as follows:- “(3) Where a spouse who holds land or a dwelling house for a right of occupancy in his or her name alone undertakes a disposition of that land or dwelling house, then- 8 (b) Where that disposition is an assignment or a transfer of land , the assignee or transferee shall be under a duty to make inquiries of the assignor or transferor as to whether the spouse or spouses have consented to that assignment or transfer in accordance with section 59 of the Law of Marriage Act, and where the aforesaid spouse undertaking the disposition deliberately misleads the lender or, as the case may be, the assignee or transferee as to the answers to the inquiries made in accordance with paragraphs (a) and (b), the disposition shall be voidable at the option of the spouse or spouses who have not consented to the disposition (Emphasis is mine). In the circumstances, the sale of the disputed house was of no legal effect because the 2nd defendant as a joint owner with the plaintiff could not pass title of the disputed house to the purchaser (1st defendant) without the consent of the other joint owner, his wife (the plaintiff). In the Case of Zakaria Mubiru (1995) TLR 211(CA) the Court of Appeal of Tanzania held and; I quote; 9 “(ii)......... as a joint owner, could not pass title of the house to the purchaser without the consent of the joint owner, his wife." The 1st defendant who had parted with his money on the disputed house also was duty bound to inquire of existence of the spouse’s consent before purchasing the same. He had to go further and inquire about the existence of a spouse and inquire whether due consent has been secured. In view of the above, the sale transaction between the 1st and 2nd defendant is a nullity. Thus this issue is answered in the negative. 3. What reliefs are the parties entitled to? Since the plaintiff has proved her case as required, this Court Orders that:- 1. The sale of the house on Plot No. 147 Block H, in Temeke Municipality is hereby declared null and void. 2. The 1st defendant to issue vacant possession of the disputed premises. 10 3. As the plaintiff was not living in the said house then there is no need of being granted general damages. 4. The 1st defendant is at liberty to file a civil suit against the 2nd defendant to recover her money. 5. The costs of the suit to be borne by the defendants. 6. Exhibits herein tendered to be returned to the respective owners after the expiry of the appeal period. ^JUDGE 25.5.2018 li