20170703 TZHC Dar es Salaam

I IN .. THE. COURT ·-~ OF APPEAL ... ·-•· -·· OF TANZANIA ·--········ ··-···--r--·····- . --· ·- AT DAR ES SALAAM (CORAM: JUMA, Ag. C.J., MJASIRI, J.A. And MWARIJA, J.A,) CIVIL APPLICATION NO 1 OF 2009 1 MGENI SEIFU ........................................................................ 1 ••••••••••••••• APPLICANT VERSUS · MOHAMED I YAHAYA KHALFANI. ......................................................... RESPOND ENT I {Application for Revision from the Judgment of the High Court of Tanzania 1 at Dar es Salaam) (Ihema, J.) dated the 29 th day of November, 2004 1 in Civil Case No 175 of 2001 RULING OF THE COURT 19th June & 3 rd July, 2017. JUMA, Ag. C.J.: Although the deceased Ibrahim Athumani Ngude died. intestate sixty 1 i five years (65) ago in 1952, the fate of his estate is ~ot settled yet. This motion before us is a classic example of confusion which invariably results, I when a person dies intestate, and the beneficiaries 'fail to immediately 1. ' apply for letters of administration of the deceased's estate. The motion also underscores a lesson; it is only a probate and administration court which can empower an administrator to transfer the deceased person's property. 1 j I ___ Before _us _is a~_ 9pplication by way _of N9ticE} _Qf_Motiq_r, _mpd~_pursuant.to - . . . L. - Section··4 T3T-of the -Appeffate Jurisdiction Act, c;::ap 141 R.E. 2002 i (hereinafter referred to as "the AJA"). The applicant, Mgeni Seif, seeks to 1 I move the Court to exercise its power of revision. Concretely, I the applicant I would like us to call for, examine and determine the correctness, legality, I i propriety, regularity of th_e record of proceedings o~ the High Court of I Tanzania at Dar es Salaam in Civil Case No. 175 of 2001 which led to a I Ruling of Ihema, J. dated 29 November 2004. To support his motion, the I applicant relies on the following grounds: I 1. The said proceeding~ ruling and order of Ihema, 1. were fraudulently and illegally procured in view of positions already I taken by the District Court of Ila/a, the High Co41rt notably vide decisions made by Chipeta, Mackanja and Ihema, 111 (as they I then were) in lUMANNE NGUDE v. ALLY SAIDi Civil Revision no. 25 of 2000 as well as by this Court. I 2. The High Court wrongfully exercised its origina1 jurisdiction to I stay execution of a decree of the District Court of I/ala which 1 . I had already been executed by eviction of the rffspondent and 2 wrongfully evicted the applicant ---· ·------·-----·----·- . ·--- ·----------- ·-- who·-- was in law(ul occljpat(Qfl. - - oftfie SUit premises and resloredfhe respondent:1- 3. The decision of lhema/ J. is not otherwise supported by law✓ i sense or reason in that pleadings ofpersons dragged into court ! as defendants cannot be incompetent for want of locus standi I and thc1t a plaintiff wh9 must first establish a claim of right I over some suit premises is not entitled to any r:elief until the claim of right is established. I 4. The High Court wrongly entertained a suit in contract for an ! action that arose in 1986 after the expiry of the period within which such claim could lawfully be brought. The motion is supported by two affidavits. The applicant affirmed 1 how, as a bona fide purchaser for value of a house number 10 situate I along Iringa Street in Ilala Dar es Salaam, he bought that house from I Jumanne Ngude and Mohamed Ngude who were joint administrators of I the estate of the deceased Ibrahim Athumani Ngude 1 One of the two administrators, Jumanne Ngude, affirmed that he indeed sold the disputed house in his capacity as the administrator of the deceased's estate. I 3 The decision __ of Ihema, J. which the _9_pp_licant se~k$ tQ_impugn had ordered a stay of-execiJfion of the deds1on of the District Court of Ila la (at Samora) in Civil Revision No. 3/1986. That decision of Ihema, J. also restored the respondent Mohamed Yahaya Khalfan back (n the House No. 10 at Iringa Street, on the explanation that the restoration will avoid waste and to minimize lo_ss of property. In this context, it also appropriate to observe that the decision of the District Court in Civil Revision No. 3/1986 which Ihema, J. stayed, was itself a revision over the decision of the Primary Court of Kariakoo. The primary court had earlier-been directed by the District Court to decide whether or not the estate belonging to the deceased Ibrahim Athumani Ngude had long been dealt with by any court of law. Instead of determining whether any court of law had settled the issue of administration of the estate of the deceased as directed by the District Court, the Primary Court ordered the sale of the house. The Principal District Magistrate found the action taken by the primary court to be unwarranted and ordered its correction. He set aside the order of sale, and directed the District Land Officer to be notified of the decision of the District Court. 4 _ ~t is apparently cl~c1_r th_c1t t_h_~_-9_pplicant hereinj~__a_ggrieved witb_the decision of Iliefii"a, J. tO nand over the disputed house tQ the respondent Mohamed Yahaya Khalfan. He complains that following the handover of the house, the applicant was evicted from the house he claimed to have purchased from one of the administrators of the dece?sed estate. The applicant affirmed his belief that the decision of Ihema, J., was tainted with illegality and was obtained under the cloud -of fraud. The applicant also affirmed that he decided to seek the revisional jurisdic~ion of the Court because he was not a party to the Civil Case No. 175 of 2001 and only became a party when he moved the High Court to vacate its order of eviction, and he lost on 16th June, 2008. At the hearing of the Notice of Motion on 19 June, 2017 learned counsel for the applicant, Mr Herbert Nyange, adopted his written submissions which he had filed earlier and urged us to grant the ' application. Mr. Nyange reiterated his position that the proceedings which led to the decision of Ihema, J. on 29/11/2004 were fra1;1dulent and illegal in view of the previous decisions of the High Court on the estate of the deceased. He similarly attacked that decision to order a stay of the 5 execution of the _decree _of the Dist_rict Court at the ti_f!le when ex~cl)tig_n had· been cortfpletea l:iy" evidi"oii" of fffe respondent. The learned counsel for the respondent, Mr Florence Tesha adopted his written submissions and urged this Court to dismiss· the application. Mr. Tesha contends that it is the respondent who owns house at number 10 Iringa Street which he purchased on the order of sale issued by the Primary Court of Kariakoo in Probate Cause No. 15 of 1985. He argued that having occupied the disputed house for over twelve years, it was not proper to evict the respondent from the premise. Mr. Tesha supported the 29/11/2004 decision of Ihema, J., who had restored the respondent back into the house at number 10 Iringa Street. In order to understand the substance of the competing claims over the disputed house between the applicant, and the respondent, we took the trouble of reconstructing the chain of events and saHent court decisions leading up to this application for revision. Ultimately, we found that the bone of contention is in essence, who the rightful successor is, to the estate of the deceased Ibrahim Athumani Ngude who died intestate way back in 1952. 6 - the fiolise- ffo-m the 1:wo" administrators of the estate 'or the deceased~- Jumanne Ngude and Mohamed Ngude. The applicant traces this claim back I I to the moment when the deceased owned and left behind a house at No. 42 Mchikichi Street in Ilala District. It is not clear whether his surviving I widow and four is?LJes c:1cted unde( any lette_rs of adrnJnistration when, as the applicant claims, they sold the house at Mchikichi Str(pet. It was submitted on the applicant's behalf that the beneficiaries of i the deceased's estate used the proceeds from the sale of the Mchikichi Street house to buy a house at number 10 Iringa Street,. which it is further i submitted that they owned jointly as tenants in common:. To prove that he purchased the house from administrators of the estate of the deceased at I consideration of Tshs. 7,750,000/=, the applicant attached to his affidavit, a copy of LAND FORM NO 35 dated 20/08/2002 which, he lodged in the I Land Office in Dar es Salaam to be registered as the owner of the remaining right of occupancy over the House No. 10 Iringa Street. The respondent's version to the claim, asserts that he bought the i 1 disputed house from one Abdallah Ibrahim Ngude who, it was submitted, exercised his power to sell the house which once belonged to his deceased 7 I father. The respondent's version staking as a son ofJ~_e _d~ceased, dicL not disclose wllel:nerne h<ld been ilpp~;nted rs the admiiliStr~tor of the estate of his deceased father. The respondent disputed the applicant's claim over the house by pointing out that MohaniJd Ngunde and ~umanne Ngunde could not sell the house because they w!ere not the adiT\inistrators of the I I l I estate of the deceased. I I I It seems clear to us that there a~e competing claims between the applicant and the respondent, over d!ceased person'$ estate. In the circumstance, only a probate and admini~ration court ca~ explain how the deceased person's estate passed on tp a beneficiary or a bona fide I I purchaser of the estate for value. In other words, a person claiming any interest in the estate of the deceased mjst trace the root! of title back to a letters of administration, where the deteased died inte~tate or probate, where the deceased passed away testate!. ' I For purpose of this motion the deoeased died intestate in 1952. It is I not clear how his heirs and beneficiaries shared out his estate for 33 years I till 1985 when one Jumanne Ngunde is ,ecorded to have filed the Probate and Administration Cause No. 15 of 198J in the Primary ~ourt of Kariakoo. In his written submissions the applicani herein stated that the deceased I 8 was - - survived by his widow- and - - - - --- ----- -- -- - - four children ------------ -- - - ---- who- he identifie_c:l --- r· - as A~dall_~_h ~ . Ibrahim, Abdi.ffrahmari IIS"fahim~ Mariam Ibrahim ana Tatu Ibrahim. It ·was submitted that the four children inherited the property qt No. 42 Mchikichi Street jointly. The applicant concedes that there are no records of administration of ! the estate evidencing how the estate was divided out, to the heirs. The applicant has not shown how the estate passed for Jumanne Ngude to apply for letters of administration in 1985. The applicant relied on facts in ' the record of the District Court (Civil Revision No. 3/19~6) which disclose that the heirs to the deceased's estate had sold the house at Mchikichi I Street and bought the house number 10 at Iringa Street. By the time the I dispute was taken to the primary court, all the heirs! to the deceased ; Ibrahim Athumani Ngude had already died except Abdallalh Ibrahim. Although this Court was not availed with the records of the primary court, it was all the same submitted that the primary court as a probate . i and administration court, found that the deceased had left a house on plot I number 42 Mchikichi Street in Kariakoo. After finding that there was a dispute amongst the heirs over the house, the primary court had ordered its sale. But, before the order of sale could be carried I out, the District 9 Court of Ila la in_terve~(=c:l__l:)y vy_9y _qf a rev!?ion and su~p~nd~9 the sc:iJe _Qf the house. B"ut, the High ·co"urt (Mn~zava, Jk) intervened by way of revision when he quashed the decision of the Primary Court and ordered the I I complainants (Jumanne Ngude and his brothers) to apply for letters of administration of the estate of the deceased. Mnzavas, JK also ordered the I district court to inform the land office about what he had just ordered. I From the documents presented in tnis motion we cah say that there are contradicting positions how the administration of the deceased's estate I has changed hands over the years since 1952. The applicant claims that he bought the disputed house from JumanAe Ngude and Mohamed Ngude who he introduced as the administrators of the estate of the deceased. Jumanne Ngude supported the applicant's version. He affirmed that on 6/6/1990 the High Court granted him the letters of the administration of ' ' the estate of the deceased. He attached (JN-1) a fading copy of the order '• of the High Court at Dar es Salaam in Probate and Administration Cause No. 7 of 1990 which allegedly g_ranted himI letters of administration. Understandably, Mr. Nyange made no great effort to rely on the purported grant of the letters of administration by the High Court (Probate and Administration Cause No. 7 of 1990) tp Jumanne Ngude as the basis of 10 ., the ape_ji~an!':i_ clai_m__ !~_oyvnersbip of__ the. d~put~d hq_~§e.;_n is a_p_pfo_priate to note tnaf -parts of the ·Ietter of grant containing tne: signature of the· Registrar and the rubber stamp have faded away. The basis of Jumanne Ngude's power to sell as an administrator of the estate of the deceased is not clear to us. At any rate, at the time in 1990 when the High Court is purported to have granted Jumanrie Ngude l~tters of administration through Probate and Administration Cause No. 7 of 1:990, the Primary Court of Kariakoo was already well and truly seized of th~ estate in Probate and Administration Cause No. 15 of 1985. Further, despite the claim that Jumanne Ngude hc;id been appointed as the administrator of the deceased's estate in 1990, pS late as in 2005 ' when the respondent in this application filed Application No. 166/2005 in the District Land and Housing Tribunal at Ilala Boma, the Tribunal Chairman (R.L. David) after referring to the 29/11/2004,decision of Ihema, J. made a pertinent observation that the ownership of ,a House No. 10 on Plot No. 51 Iringa Street Ilala Dar es Salaam had by then not been determined by any court. As matters now stand, we do not think the chain bf events which the respondent relies upon, definitely proves his claim of ownership of the 11 disp_~t~s!- ho~se. In h_i_~~ffidayLt in ~~ply ttte !~?_ponqE:!nt ~!9jm~c:! th9J b_e boughr-the - dTsputea - nouse ·from the deceased's son, ·one ABDALLAH IBRAHIM NGUDE. In his written submissions the respondent put forward the following claim: "The Respondent is a lawful registered owner of the; landed property described as House· No. 14 Plot No. 51/ Block R Iringa Street at Ila/a within Dar es Salaam City. the said property was bought by the Respondent in September 1986 from Abdallah Ibrahim Ngunde who was the administrator and legal heir (son) of the late Ibrahim Ngude vide: Probate and Administration Cause No. 15 of 1985 before Kariakoo Primary Court Soon after the purchase of the said,'property the Respondent transferred the right of occupancy to· his name and on 24h day of Septembe0 1997 the said property was duly registered in the name of Mohamed Yahaya Kha/fan who is the Respondent herein. 11 We do not think the respondent's claim is straight forward as painted above. The respondent, through Mr. Tesha his learned counsel, seems to be oblivious of the Ruling of the District Court of Ilala (at Samora) dated 12 I 22/9/1986_(in_ Civil __Revision _No._ J___gf__1986) which had__ reyis~d the_ decisi_Q_n - --- ----- ofTnePrimary-Court ofKa-riaT<oo Disfrkt -CoLfrFthere6y-bl6cking the sale of the house to the respondent. Similarly, while determining Civil Revision No. I I 12 of 1987 (which was decided on 21/5/1991) Msumi, J. had detected 1 anomalies in the order of sale of the primary court when he stated that the I house in dispute and the S_Ubj~<:t of tbe ilJegal order of the primary court is ' number 10 Iringa Street Ilala and not number 42 Mchikichi Street, Kariakoo. We do not think that as matters now stand, the respoldent I can still legitimately claim that he bought the house on the strength of the orders of the primary court which had been revised by the District cburt. I As we already pointed out at the beginning of this judgment, the dispute over the estate of the deceased Ibrahim Athuman Ngude can only be sorted out by a probate and administration court, in ~his case, the Primary Court of Kariakoo in Probate and Administration Cause No. 15 of 1985. In so far as his decision to grant ownership of the house No. 10 to ! the respondent interfered with the Primary Court of Karia~oo which was seized with the matter, that order of Ihema, J. was an irre:gularity which I has contributed to more confusion. The learned judge sh◊uld not have 13