LAND CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 137 OF 2021 MISHED CHUNILAL KOTAK...................................................... PLAINTIFF

VERSUS OMARY SHABANI.................................................................. 1st DEFENDANT KELLEN ROSE RWAKATARE KUMTU..................................2nd DEFENDANT HUMPREY KAULILA KENETH RWAKATARE...................... 3rd DEFENDANT TIBE KENNETH RWAKAKARE............................................. 4th DEFENDANT MUTA ROBERT RWAKATARE.............................................. 5th DEFENDANT (2nd to 5th defendants are administrators of the estate of the late Getrude Rwakatare)

JUDGMENT 24/05/2024 & ii/07/202j| GWAE, J In this land dispute, the plaintiff, Mished Chunilal Kotak is praying against the defendants herein jointly and severally for the following court orders:- 1. A declaration that the plaintiff is the legal owner of the House No. 108 situated on Plot No. 13 Block "75" Aggrey Street Kariakoo area in Ilala Municipality (Suit property). i 2. A declaration order that, the 1st defendant following the sale between the late Getrude Pangalile Rwakatare (Deceased) and the Selemani Mwanjeka (the administrator of the estate of the late Abdallah Tanganyika) has no claimable interest 3. Costs of the case 4. Any other reliefs, which the Court may deem fit and just to grant Upon service of the plaintiff's copy of the plaint, the 1st defendant through his WSD strongly disputed the plaintiff's ownership over the suit property on the ground that, the sale between him and the late Rwakatare has been nullified by this Court (Maghimbi, J) through its ruling dated 12th day of July 2021. He also contended that, the ownership of the suit property has been reverted to the original owner vide Land Case No. 65 of 2009 and sale thereof was declared illegal and ineffectual through default judgment, which was over the same suit property. The 1st defendant further stated that, the plaintiff purchased the suit property from a person with no good title to pass to another

person. He thus prayed for dismissal of the suit with costs. In their brief joint written statement of defence, the 2nd to 5th defendants admitted the plaintiff's claims. In appreciation of the parties' nature of the controversies, I find it apposite to give albeit a brief background that led to various institutions of 2 cases in this Court and courts below. It was in 1930 when one Abdallah Tanganyika (herein deceased) passed away and prior to his demise, he was owning a property located at Kariakoo prescribed as House No. 108 Aggrey street and he was survived by three children namely; Omari Abdallah, Shabani Abdallah and Mwajuma Abdallah. The children of the deceased person were blessed with issues that is to say; Omari Abdallah had four children, Shabani Abdallah-nine children including the current 1st defendant (Omary Shabani) and Mwajuma Abdallah was blessed with one issue known by the name of Selemani Ally Mwajeka). Unfortunately, the deceased person's children passed away before the distribution of the suit property aforementioned. In 1997 the 1st defendant, Omary Shabani and the said Selemani Mwejeka applied for grant and were appointed administrators of the estate of their late grandfather (Abdallah Tanganyika) on 26th February 1999 vide Probate and Administration Cause No. 237 of 1997 by Kariakoo Primary Court (Mmbaga-PCM)-Ilala. Nevertheless, the letters of

administration issued was in the name of the said Selemani Mwajeka in exclusion of the 1st defendant, which led to an application for revision before the Ilala District Court by the 1st defendant and eventually before this court (Munisi, J as she was) vide 3 Civil Revision No. 124 of 2003. This Court exercising its revisional power on 21st November 2012 ordered that, both administrators so appointed by the said primary court be issued with letters of administration of the deceased person's estate. Kariakoo Primary Court Complied with the order of the Court (Munisi, J) on 12th July 2016. Unfortunately, while the said Revision Application was pending before this Court, the 1st defendant instituted a land case against the said Selemani Mwajeka (his co-administrators) and one Getrude Rwakatare now deceased and being represented by 2nd to 5th defendant herein vide Land Case No. 65 of 2009. In that land case, the 1st defendant was praying inter alia that, the sale of the house on Plot No. 108 Block "75" Aggrey, Kariakoo in Dar es salaam between the late Getrude Pangalile Rwakatare (The late Rwakatare) was illegal and ineffectual, damages and costs. On 11th March 2014, this Court (Mutungi, J) entered default judgment with following effect that; "Having perused through the file, I find the defendants have long been served yet they have not filed their defence. They have also not been

attending the court session as required by law. In the given circumstances, I grant the Plaintiff's prayer and judgment is entered against them in default thereof." 4 Subsequent to the said default judgment, the 1st defendant filed an application for correction of the default judgment dated 11th March 2014 via Misc. Land Application No. 181 of 2015, substituting it with "House number" and by adding the word "Plot No. 13" immediately after the House Number. (House No. 108 on Plot No. 13 Block "75" Aggrey Street-Kariakoo area). On 7th March 2016, the 1st defendant's application was eventually dismissed as it was found by the Court (Mutungi, J) that, parties' pleadings should not be interfered by courts. The 1st defendant also filed an application for execution of the decree through the default judgment by way of eviction against the said Selemani Mwajeka and the late Rwakatare on suit property described as House No. 108 Plot No. 13, Block 75- Aggrey Street-Kariakoo area. (Application No. 79 of 2016 followed by Execution Application No. 72 of 2019 over the same suit property. However, the plaintiff by of way objection proceedings filed an Application No. 617 of 2020 before the Court (Maghimbi, J). This Court dismissed the plaintiff's application through its ruling dated 12th day of July 2021. Henceforth, this suit under consideration. 5 Throughout the preliminary hearings and

trial of the case, Mr. Charles Mgare, the learned advocate duly represented the plaintiff whereas the 1st defendant was represented by Mr. Adnan Abdallah Chitale assisted by Ms. Salma Abdallah, both the learned advocates. Equally, Dr. Chacha Bhoke, the learned advocate represented the 2nd to 5th defendants. The issues that were framed for proof or disproof by the parties and for the court's determination are;- 1. Whether the plaintiff is the legal owner of the house No. 108 situated on plot No. 13 Block 75 Aggrey Street Kariakoo Area within Ilala Municipality.

2. To what reliefs are the parties entitled to. However, in the course of hearing, the Court and the parties' respective advocates re-framed the 1st issue forming three sub-issues. These are:- i. Whether one Selemani Mwejeka had capacity to dispose of the suit property ii. If the sub-issue (a) is answered in affirmative, whether the sale agreement of the suit property to the late Getrude Rwekatare was actuated by indirect motive or malice on the 6 party of the said Selemani Mwejeka iii. Whether the plaintiff bears any blameworthy in the subsequent sale of the suit property between the late Getrude Rwekatare and him or whether he is the bonafide purchaser Establishing the case in his favour, the plaintiff appeared before the Court as a witness (PW1) and summoned one Thomas Brash, (PW2). The brief evidence adduced by PW1 is to the effect that; he lawfully purchased the suit property from the late Getrude Pangalile Rwakatare on 14th April 2014 for Tshs. 450,000,000/=. He likewise questioned the 1st defendant's claim of ownership on the ground that, his former case No. 65 of 2009 was on Plot No. 108 Block "75" Aggrey street-Kariakoo, which is quite different from the suit property described as House No. 108, Plot No. 13 Block 75- Aggrey Street-Kariakoo area. PW1 further testified that, before and after the questioned sale, he made official searches and that, the sale agreement

was reduced into writing and that; there was a subsequent transfer from the deceased's ownership to his personal ownership. PWl's evidence relating the sale of the suit property to the plaintiff was supported by that of the learned advocate (PW2) who acted as a Commissioner for oath during sale agreement. In support of his oral evidence, the plaintiff produced the 7 following exhibits;- 1. Transfer of Right of Occupancy executed on 4th April 2014 (PEI) 2. Application for Official Search dated 19th Day of September 2013 addressed to Registrar of Titles (PE2) 3. Certificate of Title No. 89750 (PE3) 4. Application for official search of 23rd November 2015 (PE4) 5. Application for execution No. 79 of 20216 (PE5) that was struck out by the Court (Teye-DR).

6. The 1st defendant's plaint vide Land Case No. 65 o 2009 together with the Court's default judgment dated 11th March 2014 (PE6) 7. Misc. Application No. 181 of 2015 and its chamber summons and affidavit filed by the 1st defendant for correction of what was alleged to be clerical mistakes (PE7) 8. Ruling of the Court (Mutungi) in Misc. Land Application No. 181 of 2015 dated 7th March 2016 (PE8) dismissing the 1st defendant's application for correction 9. Application form for execution of the default judgment in Misc. Application No. 72 of 2019 (PE9) 10. Ruling of the Court (De-Mello, J) dated 10th April 2019 striking out the plaintiff's application for objection proceedings through Misc. Land Application No. 1040 of 2016 (PE10) 11. Ruling of the Court (Kalunde, J) dated 16th October 20220 Misc. 8 Land Application No. 249 of 2019 granting extension of time in favour of the plaintiff within which to file an application for objection out of time (PE11), 12. Ruling of the Court (Maghimbi, J) delivered 12th July 2021 dismissing the plaintiff's objection proceedings through Misc. Land Application No. 617 of 2020 13. Sale agreement dated 4th April 2014 between the plaintiff and the late Getrude Pangalile Rwakatare (PE13) On the other hand, the 1st defendant who appeared as DW1) entered his defence by stating that, the said Selemani Mwejeka did not involve him as his co- administrator

in the sale agreement that was entered in 2001. He went on stating that, he pleaded Plot No. 108 in his plaint instead of Plot No. 13 Block "75" Aggrey because all the documents were in custody of his co- administrator (Mwejeka). He added that, the default judgment (PE6) entered by the Court in his favour has never been vacated to date. DW1 also stated that the order of this Court (Mutungi, J) dismissing his application for correction did not affect the validity of the default judgment. His sister one Kashindye Shabani (DW2) who stated that there was no consent for the sale entered between Selemani Mwejeka and the late Getrude corroborated the 9 oral testimony of PW1. The DWl's further evidence disproving the plaintiff's claim was through 8 exhibits. These are as follows;- Ruling of Kariakoo Primary Court of 26th February vide Probate and Administration No. 1997 (DEI), sale agreement between Selemani Mwejeka and Getrude Rwakatare dated 26th June 2001 (DE2), Ruling of the Court (Kahyoza, J) delivered on 14th August 2019 vide Misc. Land Application No. 1080 of 2016 filed by Mwajeka and the late Rwakatare against the 1st defendant for extension of time to file an application for setting aside the default judgment (DE3). The plaintiff further produced chamber summons and its supporting affidavit in Misc. Land Application No. 617 of 2020 for objection proceeding against the 1st

defendant's application for execution and written submission in support of the application (DE4) and letters of administration issued by Kariakoo Primary Court on the 12th July 2016 in favour of the 1st defendant and Selemani Mwejeka to administer the estate of the late Abdallah Tanganyika (DE5). On his part, the 2nd to 5th defendant did not appear in person and in lieu thereof, one Selemani Mwajeka (DW3), the one who was duly appointed io administrator together with the 1st defendant who vended the suit property to the late Rwakatare on 26th June 2001. DW3 told the court that he sold the suit property at Tshs. 60,000,000/= DW3 went on testifying that, the 1st defendant and his blood relatives (children of the late Shabani Abdallah) refused to receive their shares on the contention that, each hear should be given equal shares out of 14 deceased's grandson and granddaughters on the basis of the deceased's three heirs. The 2nd to 5th defendant also tendered the following exhibits;- Firstly, letters of administration of the deceased's estate only in favour of the said Selemani Mwejeka issued by Kariakoo Primary Court issued on 26th February 1999 (DE6). Secondly, a handing over certificate of Tshs. 20 mil from Selemani Mwejeka to a Kariakoo Primary Court Cashier (DE7) and The court ruling (Munisi, J) delivered on 21st November 2012 reversing the District Court's decision and given

a direction to Kariakoo Primary Court to issue letters of administration of the estate of the deceased to the said Selemani Mwejeka and the 1st defendant, which is inconformity with its earlier ruling dated 26th February 1999 (DE8). After the close of the parties' case, the advocates for the parties sought and obtained the leave to file their respective closing submissions, li which I shall consider accordingly. New/ to the determination of the 1st issue on, whether the plaintiff is the legal owner of the house No. 108 situated on plot No. 13 Block "75"Aggrey Street Kariakoo Area within I/a/a Municipality. The 1st question is spilt into three sub-issues herein, starting with the first sub-issue on whether one Selemani Ally Mwejeka had authority to dispose of the suit property, the estate of the late Abdallah Tanganyika alone, the estate that was administered by two administrators. Before embarking into determination of the first issue and its three sub-issues, it is vitally importantly to clearly state that, the law under sections 110 and 111 of the Evidence Act, Cap 6, R. E, 2019 requires a person who asserts an existence of a certain fact to prove the existence of such facts. Hence, the plaintiff who is in possession of the suit property, which is currently registered in his name, must prove that, he is the actual owner and the 1st respondent has to establish if the previous

sale was invalidated and therefore him (plaintiffjof the ownership. Similarly, the 2nd to 5th defendant have duty to prove that, the late Getrude had a good title to pass to the plaintiff or alternatively she was a 12 bonafide purchaser. Sections 110 and 111 of the Act provide;- "77Z7 (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden ofproof ties on that person.

111. The burden ofproof in a suit proceeding ties on that person who would fail if no evidence at all were given on either side". I am also asked by the plaintiff's counsel through his closing submission to refer to section 119 of the TEA, which provides; "119. When the question is whether any person is owner of anything to which he is shown to be in possession, the burden ofproving that he is not the owner is on the person who asserts that he is not the owner." It is trite law that, the standard of proof in civil cases is always at the balance of probabilities in terms of section 3 of the TEA. I subscribe to the foreign judicial jurisprudence in Siraj Din vs. Ali Mohamed Khan [1957] 1 EA 25, "The quantum ofproof ordinarily required in civil litigation is not such as resolves all doubt whatsoever but such as 13 establishes a preponderance of probability in favour of one party or the other." See also Manager NBC Tarime vs. Enock M. Chacha [1993] TLR 228. In our instant dispute, the plaintiff has sufficiently established, to the satisfaction of the Court that, he purchased the suit property from the late Getrude Rwakatare on 26th June 2001 through his oral testimony corroborated by that of DW3 together with exhibits namely; PE13, PEI and DE2 aforementioned. Hence, the fact that, the plaintiff had purchased the suit property has been proven to the required standards even from

the defence side. However, the issue before the court is whether the said Mwejeka would dispose the suit property alone that is without involving his co-administrator now the 1st defendant. According to the Ruling of Kariakoo Primary Court delivered on 26th February 1999 (DEI) read together with the ruling of the Court (Munisi, J) delivered on 21st November 2012 (DE8), it goes without saying that, the said Mwejeka and the 1st defendant were appointed as co- administrators of the estate of the late Abdallah Tanganyika. On the other hand, examining the 14 DW3's testimony as well as contents of the ruling of the Court (Munisi, J- DE8), it is plainly clear that, the 1st defendant was aggrieved by the issuance of letters of administration to the said Selemani Mwejeka purporting to have been appointed a sole administrator of the of the estate of the deceased. The 1st defendant's grievances of such issuance of the letters to Selemani Mwejeka as the only person appointed as an administrator are indicated in the Probate and Adm. Revision No. 24 of 2001 before Ilala District Court at Samora Avenue and Civil Revision No. 124 of 2003 before the Court (Munisi, J). Similarly, it is clear as rightly submitted by the plaintiff's counsel that, at the time the previous contracting parties namely; Selemani and Getrude entered into the sale agreement of the suit property on 26th June 2001,

the letters of Administration of the estate of the deceased were issued to Selemani only. This position is adequately established by both oral evidence and documents so tendered and admitted through DE6 and DE8. In DE8 the Court quoted the decision of Ilala District Court through Probate Revision No. 24 of 2001 indicating that, at the time the 1st defendant filed an application for revision before the District Court, the suit property was 15 already sold by Selemani to the late Getrude. For clarity, I wish to reproduce parts of the ruling herein under; "....//e’ cannot surrender the properties since he is the right administrator ofthe estate. Hence after the sate ofthe estate the respondent, Selemani supposed to distribute the assets accordingly and correctly as the Primary Court ordered him to do.... (bold supplied." In view of the above quoted parts of the Court ruling and the fact that, the 1st defendant and one Selemani Mwejeka were jointly issued with the requisite letters of administration on the 12th July 2016 (DE5) pursuant to the order of the Court, I therefore satisfied that the questionable sale of the suit property to the late Getrude was done when the vendor was a sole holder of the letters of administration. That was contrary to the ruling of the Kariakoo Primary Court delivered on 26th day of February 1999. In my decided view, such issuance of letters sounds

awkwardly as rightly observed by the Court (DE8). I am of that view simply because, it is the requirement of law that, any decree or order or letters of administration must be in conformity with its judgment, ruling, or order of the competent authority. In my firm view, without a clear reason of the omission to issue the letters of 16 administration both persons appointed by appointing court is equal to issue letters of administration to a person not so appointed. For that reason, I apprehend doubts including but not limited to an adverse inference that may be drawn against the one who issued the same and to whom it was issued (Selemani Mweleka). To enable the court to arrive at just and fair conclusion of the sub­ issue one, I endorse the judicial precedent delivered by the Court of Appeal in Dativa Nanga vs. Jibu Group Comapany Limited and another (Civil Appeal No. 324 of 2020) TZCA 39 (22 February 2023) where it was stated "''Being guided by the definition above and the decision of the Court in Ahmed Mohamed Al Laa Mar (supra), we wish to state that since the first administrator had already discharged his duties of distributing part of the deceased's estate whether honestly or otherwise and since, he decided to sell the dispute property, be it as heir or administrator of the deceased estate to the first respondent, the transaction was complete, notwithstanding the revocation

of his appointment as an administrator which came later. In the circumstances....... ...we agree with the appellant's complaint that when RITA took over the matter after revocation of the first administrator, she was allocated the disputed property, yet Y1 jye find that it could not nullify the sale of the disputed property while there were interests of the third party (the buyer) who was a bonafide purchaser. In Suzana S. Waryoba Civil Appeal No. 44 of 2017 (unreported), the Court recited the definition of the term bona fide purchaser as provided in Oxford Scholarship Online previously cited in the same case by the High Court. The part ofits explanation guides thus: "...In situations where a seller behaves fraudulently, the bonafide purchaser is not responsible. Someone with conflicting claim the property under discussion would need to take it up with the seller, not the purchaser, and the purchaser would be allowed to retain the property..... Equally, since the seller was an administrator of the deceased estate at the time of executing Sale Agreement, he was capable of making transfer of the said property to the 1st respondent without presence of other heirs.... Thus absence of other heirs during execution of the said agreement could not invalidate the sale" (See also Said Mpambije Kamaga vs. Zainab Swetu Fundikira, Abasi Swetu Fundikira and Kiugi Swetu Fundikira, (Civil

Appeal N. 430 of 2002) [2023] TZCA 17746 (6 October 2023) Basing on the above-cited authorities, I have nothing to add save an addition that, an administrator of an estate is entitled to dispose of the 18 deceased person's estate and there is no legal requirement of seeking and obtaining consent from other deceased's heirs. However, in our present dispute, I find the facts of the case are distinguishable from the former case of Dativa (supra) on the following reasons; - 1. The ruling of the appointing Primary Court was very clear and to the effect that, there were two administrators of the estate of the late Abdallah Tanganyika. Hence, necessitating issuance of two letters of administrators to each administrator so appointed. The said primary court was threfore bound to issue the letters of administration pursuant to its ruling and not as it wrongly did.

2. There is a decision of the very Court (Munisi, J) permitting inclusion of the 1st defendant and issuance of the letters of administration, which I cannot legally reverse despite my appreciation to the decision in Ahmed Mohamed Al Laamar vs. Fatuma Bakari, Civil Appeal No. 71 of 2012 with approval by the Court of Appeal in the case of Dativa (supra).

3. The case of Ahmed Mohamed Al Laamar vs. Fatuma Bakari, (supra) was about revocation of an administrator whereas in the present suit it is all about issuance of letters of 19 administration to two administrators so appointed and contentious sale and distribution of the proceeds of the suit property by one administrator without involvement of his co- administrator. For the stated reasons herein, the said Selemani Mwejeka cannot therefore be said to have a full mandate to dispose the suit property without involving his co-administrator appointed for the reason best known by him (Selemani) and any other person. The 1st sub-issue is consequently determined not in affirmative. Now as to determination of the second sub-issue herein, assuming the first sub-issue is answered in affirmative hundred percentage (100 %), yet the execution of the sale agreement of the suit property between the late Getrude Rwakatare and the plaintiff on 4th April 2014 is found to have been tainted with irregularities, thus actual or constructive indirect motive. I am of such holding for the followings reasons;- Firstly, that, the said Selemani Mwejeka obtained the letters of administration alone while he was quite aware of the decision of Kariakoo Primary Court appointing him and the 1st defendant as co-administrators of the estate of the deceased person 20 via is ruling delivered on 26th day of February

1999. Secondly, that, the sale agreement was executed subsequent to the order of this Court (Mutungi J) entering the default judgment against the late Getrude and Selemani Mwejeka. The default judgment was issued on 11th March 2014, that means prior to the parties' execution of questionable sale agreement. Since the default judgment (PE6) is indicative that, the said Selemani Mwejeka and the late Getrude Rwakatare were served but they defaulted filing of their written statement of defence as well as appearance. That means the said Selemani Mwejeka and Getrude are found to have the requisite knowledge. Thirdly, that, the Court is functus officio not because of the ruling of the Court through the plaintiff's application for objection proceedings dismissing it through its decision delivered on 12th July 2021 as rightly ruled out by my learned brother Arufani, J but because of the default judgment delivered on 11th March 2014. I am of the view for the following reasons a. This Court to date, despite the efforts by the previous contracting parties, has never vacated its default judgment (DE6), which in essence declared the sale of the suit land illegal and ineffectual reverting its ownership to the original owner neither the Court of Appeal reversed the same. 21 b. The 2nd to 5th defendant and Selemani Mwejeka were aware of the default judgment. This fact is substantiated by

their application to set aside the default judgment through Misc. Land Application No. 1080 of 2016 (DE3) but they did not take any further legal action to have it set aside since the dismissal order of their application on 14th August 2019 (DE3). c. The plaintiff's evidence that, the default judgment was pertaining to landed property on Plot No. 108 Block 75 Aggrey Street- Kariakoo-DSM, which is quite different property from House No. 108 Plot No. 13 Block "75" Aggrey Street-Kariakoo area within Ilala Municipality purchased by the plaintiff, is not attainable. Reasons being;- One, from the ruling of the Kariakoo primary court there has been mentioning of House No. 108 being the estate of the deceased. Two, the said Mwejeka and late Getrude entered into sale agreement over the suit property bearing the same House number, Plot and Block number. Three, parties are found to have common understandings over origin of their dispute and location save minor discrepancy depicted in the 1st defendant's plaint via Land Case No. 65 of 2009 (PE6). The 22 reason for such error appearing in PE6, In my view, is minor, which cannot override substantive justice since it is very clear that the parties and their privies are aware that they contesting over the same suit property on Plot No. 13 Block 75-Aggrey Street Kariakoo area -Dar es salaam. d. Upon existence of the default judgment declaring

the previous sale agreement between the late Rwakatare and Mwejeka illegal and ineffectual, any subsequent transactions arising from the former sale agreement cannot be justifiable in the eye of the law unless such judgment is set aside by this court or reversed by the highest Court of the land. I am of that view simply because a person without better title cannot pass any title to another or in other words, no one gives what he does not have. I am fortified by the rule "nemo dat rule" whose rationale is that the transferor of goods cannot pass a better title than he himself possesses. (See The Resgistered Trustee of Evangelical Lutheran Church in Tanzania, Easter & Coastal Diocese vs. Grace William and two others (Civil Appeal No. 366 of 2020) [2023] TZCA 17469 (3 August 2023) where one Rev. Sinyangwe 23 at the time of the alleged sale and transfer had no better title to pass to the appellant. Fourthly, even in the absence of the default judgment and the co­ administratorship of the deceased estate yet, the said Selemani Mwejeka did not adhere to the provisions of the Land Registration Act, Cap 334, R. E.

2002. Reason being his failure to register the suit property in his name as a legal representative before the late Rwakatare purchased it. (See Philemon Vanai Saiteru Model vs. William Titus Mollel and two others, (Civil Appeal No. 407) of 2021 [2024] TZCA 157 (5 March 2024). In this case, it was stated that, mere proof that, the suit properties were sold by the administrator could not suffice to prove change of ownership unless the administrator complied with section 67 and 68 of the Land Registration Act (LRA). Having demonstrated the reasons herein, I hereby find that, the said Mwejeka had either indirect motive or and unlawfully sold the suit property to the late Rwakatare. Hence, the sale agreement (DE2) entered between them is illegal and ineffectual. 24 As to sub-issue three, whether the plaintiffis the bonafide purchaser. As earlier determined /ate, the late Rwakatare now the deceased being represented by her legal representatives (2nd to 5th defendants) was the one who sold the suit property to the plaintiff. However, this Court has found the capacity of the said Selemani Mwejeka is questionable followed the default judgment entered by the Court. Therefore, the late Rwakatare cannot be said to have a good title over the suit property as opposed to the argument by Dr. Chacha. I am nevertheless unsound of the principle that, where there are rival claims between two

persons, one with a registered certificate of title as opposed to another, it is ordinarily considered that, the rightful owner of the landed property is the one with the "CT" in dispute unless illegality or fraud or any other illegal means is proved. In this legal aspect, I would like to fully endorse the judicial precedent in Amina Maulid Ambali and 812 others vs. Ramadhani Juma (Civil Appeal No. 35 of 2019) [2020] TZCA 19 (25 February 2020) - TanzLII. The Court of Appeal of Tanzania had these to say; "In our considered view, when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is 25 provided that the certificate was not lawfully obtained (emphasis mine)." (See also Nacky Esther Nyange vs. Mihayo Marijani Wilmore and Mariam Wilmore (Civil Appeal No. 207 of 2019 [2022] TZCA 507 (16 August 2022), cited by the learned counsel for the 2nd to 5th defendants in his closing submission. Currently, examining the evidence adduced by both parties, I am not persuaded if there is any fraud or constructive knowledge on the part of the plaintiff during the sale. It is trite law that, an intent of a person is inferred through his or her acts or omissions. However, the fraud or related acts towards the plaintiff's purchase of the disputed property ought to have been established on a higher

decree and not mere suspicions. (See the case of Twazihrwa Abraham Mgema vs. James Christian Basil (As the administrator of the estate of the late Christian Basil Kiria, deceased, (Civil Appeal No. 229 of 2018) 2022] TZCA 91 (2 March 2022). In our present dispute, there is no scintilla of evidence with effect that, the plaintiff was aware or had reason to believe that, the vendor of the suit property to the late Getrude was not an administrator alone. In my firm view, the jurisprudence in Philemon Vanai Saiteru Model (supra), where 26 the appellant, Mollel was aware that the seller, Jimmy Titus Model was yet to be appointed as an administrator of the estate of the late Titus Aron Model whose name was still therein as owner but proceeded to purchase the estate of the deceased person. Moreover, the plaintiff had conducted inquiry before he purchased the suit property as evidenced by an application for an official search made on 19th September 2013 (PE2). Had he omitted to conduct search in order to clear doubts on whether there are other persons interested in the suit property other than that of the late Rwakatare, he could have been held liable to have constructive notice and or imputed notice of the interests of others persons including the 1st defendant's over the suit property. (Hamisi Bushiri Pazi & Others vs Saul Henry Amon & Others (Civil Appeal No. 166 of 2019) [2022]

TZCA 186 (13 April 2022) and section 67 (a) and (b) section 66(1) of the Land Act The position of the law has been restated in a chain of judicial decision for example in Stanley Kalama Masiki vs. Chihiyo Kuisia w/o Nderingo Ngomuo [1981] TLR 143. In that case, it was held that, the bonafide purchaser for value was entitled to a declaration that, he was the lawful owner of the suit plot; it was further held that; 27 "Where an innocent purchaser for value has gone into occupation and effected substantial development on land the courts should be slow to disturb such a purchaser and would desist from reviving stale claims." Perhaps it is pertinent to appreciate how the doctrine of the bonafide purchaser had come into play as expounded in the foreign jurisdiction in Bishopsgate Motor Finance Corporation Ltd. vs. Transport Brakes Ltd. [1949] 1 KB. at p. 336), where 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 himselfpossesses. The second is the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title. The first principle has held sway fora long time but it has been modified by the common law itself and by statute so as to meet the needs of our times." (Emphasis supplied) Guided by the above

quoted principles of the law and considering the fact that, the plaintiff had no notice of not only of the said Mwejeka as an administrator of the deceased person's estate, suit property. Therefore, basing on the evidence adduced by the parties during trial, the plaintiff is found to be a bonafide purchaser. However, it is not clear as to the extent 28 of developments of the suit land effected by the plaintiff. In that premise, he is thus entitled to a refund of his purchase sum of Tshs. 450, 000, 000/= (say four hundred and fifty million shillings only) by the 2nd to 5th defendants as well as by the family members of the deceased represented by the 1st defendant and the said Selemani. I have further considered the fact that, the plaintiff or 1st defendant have neglected joining the said Mwejeka as a third party in these proceedings. Consequently, I hereby make the following orders; 1. That, the plaintiff's prayer of the ownership of the suit property is dismissed except that, the plaintiff is entitled to the refund of the purchase price of Tshs. 450,000,000/=by the 2nd to 5th defendant as well as from the representatives of the late Abdallah Tanganyika 2. The 1st defendant, a legal representative of the estate of the late Abdallah Tanganyika, is the lawful owner as well as his co- administrator of the estate described as House No. 108 Plot No. 13 Block "75"-Aggrey Street

Kariakoo within Ilala Municipality on behalf of the deceased's descendants in terms of the Court's 29 default Judgment unless set off principle arrangement is applied at the parties' liberty 3. The plaintiff or any other acting under his instruction is permanently restrained from making any interference with or any other business unless the parties voluntarily resort to the set principles 4. That, given the circumstances of the parties' dispute, I shall make no orders as to costs of the case It is so ordered Court: Right of App^alfullyexplained. >i —

JUDGE 11/07/2024 30