20171116 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA LAND APPEAL NO. 71 OF 2015 (From the Decision of the District Land and Housing Tribunal of Tarime at Tarime, in Land Case No. 54 of 2012} JOYCE EGINA (On behalf of late Venance Maseke Egina) ................... APPELLANT VERSUS PURASDUS JU NUS NDARO .. ................................ ..... RESPONDENT JUDGMENT 10/10/2017 & 16/11/2017 GWAE, J Before the District Land and Housing Tribunal at Tarime (trial tribunal), the respondent, Purasdus Junus Ndaro instituted a land dispute over a parcel of land located at Plot '4' at Kinesi village within Rorya District against one Venance Maseke Egina now deceased and his wife (widow) Joyce Egina is no_w an administratrix. I have looked carefully at the evidence of the parties adduced before the trial tribunal and submissions by the parties' advocates during hearing of this appeal, that is Mr. Mhingo and Mr. Herzon for the appellant and respondent respectively, the following are noted matters not in dispute; these are; that, the respondent's father was a previous owner of the land f; in dispute which he however came to sell it to the Deceased's mother in ~ the year 1987. ''"'"V~ 1 . ' • That, family of Egina in the year 1994 desirously started to redeem the parcel of land but there was reluctance from the family Egina and that the appellant ( deceased and the seller Samson Egina are siblings. ' , l t0 It is also undisputed fact that, the one who eventually allowed redemption 1 of the suit land to the family -of respondent was a son of Egina, Samson Egina who is a elder brother of the deceased, for the payment of Tshs. 2,000,000/=. That the said seller appeared as the PW3 and testified in favour of the respondent before the trial tribunal that he sold his piece of land given to him by his old mother and that in the suit land there are graves of the respondent's relatives. The appellant before the trial tribunal was complaining that the sale of the suit land was null and void since the vendor; Samson Egina (PW3) did not seek consent of the family and that the one who solely contributed to the purchase price of the suit land from the respondent's father was the deceased. On the other hand it is the contention of the seller (PW3) of the land in dispute that the he was given the same by her-mother who distributed her properties to her children, the deceased inclusive and that it was the deceased who was approached first by the respondent regarding the sought redemption of the piece of land and that it was the deceased who directed the respondent to the owner (PW3). In this appeal filed by the deceased and succeeded by the widow (deceased's wife), the grounds of appeal are mainly centered at complaint on failure to evaluate evidence on record. 2 '. ! • Before I start determining grounds of appeal, I should determine issue of locus standi implied arose during trial and at hearing of this appeal by the respondent. while it is important for a person intending to sue, she or he must ensure that he has an interest or right to sue, in our case the appellant/deceased ought to have power of attorney in order to represent his mother but under name of his mother and not suing in his own name (s). However in our case it is patently clear that it was the respondent who sued in the deceased's names. Hence the respondent or his counsel cannot at this juncture be heard asserting that the deceased had no locus standi, this kind of contention is an afterthought. Looking at the evidence of PW1, PW2 and PW3 on record I find the evidence to be worthy of belief as the witnesses for the application filed before DLHT are credible and their testimonies had not been shakened in anyhow by defence evidence to justify this court come with a conclusion that it was improbable that the said Samson Egina, the elder brother of the deceased was not given the suit land by his mother or that PW3 did not sell the land in question to the respo·ndent taking into account that the deceased did not bring the former owner, his mother or any other material evidence to support his assertion that his mother did not give Plot No.4 to Samson Edina. Issue of consent from family, to my considered opinion, does not arise taking into account that the one who gave the seller is the owner and mother of botti the deceased and seller. If the alleged giving/transfer w a s ~ 3 , . not true then evidence to that effect ought to be given during trial or if it was impossible due to owing circumstances, the same piece of evidence would have been given as additional evidence in terms of order xxxix rule 27 of the Civil Procedure Code, Cap 33 R. E 2002. If the appellant gave his money to buy the parcel of land in her name, the appellant is not justified to claim later on or in the event his mother used it . in the manner she preferred as the property was hers. Moreover there is ample evidence adduced his elder brother that he was consulted by the respondent. The respondent, according to the evidence on record, is an innocent purchaser who cannot be deprived of the same unreasonably, in the persuasive decision in Bishopsgate Motor Finance Corporation Ltd. v. Transport Brakes Ltd. ([1949] 1 K.B. at p. 336) which I wish to borrow its wisdom, it was held; "In the development of our law, two principles have striven for mastery. The first is the protection of property: no one can give a better title than he himself possesses. The second is the protection of commercial transactions: the person who takes in goqd faith and for value without notice should get a good title. The first principle has held sway for a long time but it has been modified by the common law itself and by statute so as to meet the needs of our times." According to the evidence on record the appellant's mother had a title and thereafter she transferred to his son (PW3) after she had decided to distribute her properties to her children, in this situation the respondent was therefore lawful owner of the suit land unless the contrary was ~ 4 V (t. sufficiently established. Even if it would be proved that the seller, Samson _ Egina was not given the suit land yet the respondent would be a bonafide iJ0i purchaser of the same. Hence he would have an equitable interest or estate where he had no notice. Keenly looking at the evidence on record I have no reason whatsoever to" default the trial tribunal decision. The appellant's appeal is entirely dismissed, the administrator (s) of the deceased are permanently restrained from interfering the respondent from enjoyment of his piece of land I find no justifiable reason for making an order as to costs as rightly submitted by the respondent's counsel that the appellant had passed away. It is so ordered. M~ Judge 16/11/2017 Right of appeal to the Court of Appeal and its requisite processes prior to filing of an appeal explained, M~ Judge 16/11/2017 5