20100429 TZHC Mbeya

• A IN il-IF HIGH COURT OF TAN/ANIA (LANJ) 1)IVISION). AT M13EYi\ LAND CASE APPEAL NO. 32 OF 2008 (From the Decision of the District Land and I lous)ng Tribunal Of Mbeya l)istrict at Mbeya in I.and Case No. 15 oI'2004) NICO SNT() SANGA ) AWAN MICHAEL SAN(;A) .................. APPELLANTS \"ERSUS J. 'ELIAM MICHAEL SANGA ) 2. JOSEPH A ORDINARY SANGA ) ............ RESPONDENTS MPELI KUSA RALO.N(;E ) JUDGEM ENT 9/4/10 & 29/4/2010 LUKELELV 1 A. J. The appel I ants Niko Sisto Sanga and A idan Michael Sanga unsuccessfully sued the respondents:- 1 . Eliam Michael Sanga, 2. Josepha ()rdinary Sanga and 3. Mpeli Mkusa Kalonge in the District Land and liousing Tribunal for Mbcya at Mbcya. In the application filed in the registry of the above tribunal on I 8 October 2005 it was averred under paragraph 6.1 thereof that. "The first applicant (now the first appeila nt) is the rightful owner of the house on plot No. 125 Block 'Y' in the Muriici pality ol Mbeva. He bought it from the second applicant (now the second appellant) who had a good title to the ownership of the house having been bequeathed the house by will of his late father. Out of the blue, and without any coiou r of right, the respondents on 13/1 0/2004 have grabbed the said house by firce. They have jointly and/or severally locked the house by padlocks, thereby preventing the first applicant from getting into the house and doing business there. The house is used as a bar and guest house, by the name of Mdope Highway Guest House and Bar. The second respondent is sued as AdrninistauL\ of the estate of the late Ordinary WI. Sanga, a.k.a. Hilimani Sanga". The foIIowint Reliefs were claimed by the appellants:- Immediate vacant possession and/or release of the house to the first applicant. Payment of shs.3,000.000/= for loss of the bar and guest house business at hs. I 00000/= per day. Costs ofihe appication. Interest of the said sum of l'.shs.3.000.000J= at 25% Pa. The respondents I.E ham Michael Sanga. 2.Joscpha Ordinary Sanga and 3. Mpeli Mkusa stated in their answers to the amended application that the appellants have never been owners of the house in dispute at all)' time as alleged or at all. That the second Respondent was not adm i iii strain x of the estate of late Ordinary M. Sanga as alleged. I have done my best to examine the proceedins of the trial i)istrict Land and Housin. Tribunal for Mbeya which are in what is now known as Kiswa- English. This sort of record writing conflicts with the express provisions of section 32 of tile Courts Land Disputes Act, 2002 which provides that, "The language of the 1)istrict Land and Housing iribu naf shall be either English or Kiswahili 7 0 as the chairman holding such (rihunat may direct except that the record and ) judgement of the Tribunal shall be in English." All the same I hold that the lapse did not occasion a failure of justice. From the evidence on record the following matters appear to be not in a serious dispute. That is Ordinary Ilerman Sanga died on 24/4/97. He was survived by seven children from [our wives to whom he was married during his life time. The second respondent, Josepha Ordinary Sanga was the senior wiie of the deceased. The second responclent is the mother of the first respondent lEliani Michael Sanga. The latter is the first male child oi'the deceased. The second appellant Aidan Michael Sanga was born to another wizie of the deceased whom they divorced when the second appellant was aged iwo years. The second appellant was brought up by the second respondent and the first respondent. It was not disputed that the Late Ordinary I lclman Sanga was a wealth man. He owned several I anded properties including houses, and shambas. He also owned motor-vehicles and ran several business. Ihe ongin ol the hOUSe in dispute was explained by the second respondent Josepha Mahcnge who told the trial court that she was the one who had purchased the semi fin i shed house, "pa ga hi" From a person she cou ldn 't remember at a price of shs.45.00 only. The deceased, Ordinary Ilelman Sanga was in l)ar-es-Salaani then DW2 contacted her husband in Dar-es-Salaam, who had instructed her not to register the prei i ses in 11 is name but to register the house in the nant e of the second respondent Aidan Michael Sanga. The exact date when DW2 purchased the semi-finished house is not known, but on 5/9/1984 The Mbeya Municipal Council granted an oiler of Plot No. 125 l3lock Y Mbeva Municipahty to the second respondent Aidan M. Sanga \'ide letter Reference number MMC/LD/600/2 dated 5/9/84. 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On the other hand the first respondent found that being the administrator of the estate of the late Ordinary NeIman Sanga, the house in dispute had to be transferred to him i n his capac itv of an administrator. I -lowever the second respondent was Still uneasy, probably because the house was not registered in the name of the late Ordinary I iciman Sanga. lie then came \vith an idea that the second appellant had sold the house to him at 'Lshs.9.000/=. 1'hese innovations introduced by the second appellant and the flrst respondent were re Riled by opposing part. Starting with the \Vi II, the second appellant., had this say at the trial ''The house in dispute I inherited from my lather, I was given bcl'ore the death of my father, also there is \Vosia.' PW3 France Sanga, deposed that he was the senior brother of the late Ordinary I lerman Sanga and that the late youngbrothei' IcR a lot of properties, and that had written a will bequeathing the house at Ilomba to the second appellant Aidan Sanga. Later PW3 \-vitnessed a sale agreement between the second appellant and the first appellant Sisto Sanga in respect of the disputed house. The existence of the will •as also confirmed by 1 1 \\'4 Jonisia Sanga who was the sister of late Ordinary NeIman Sanga. P\'V4 denied having witnessed the sale oithc house between the second appellant and the [irsi respondent. Another ccn hrniation of the existence of the will which bequeathed the house to the second appellant came from PW5 lausi Sanga, sister of the deceased and PW6 Aniti Ic Sanga another sister of the late ordinary 1 lelman Sanga. The first respondent NI ian \1ichael Sanga appear to have evaded talking oii the will in his defence evidence. DW2 Josepha Mahcnge was categoric that her late husband left no 'will. 5 A daughter of the late Ordinary Net man Sanga, born to DW I, Josepha ) Mahenge, gave evidence as DW4 Lucy Michael Sanga deposing that when her father died she was an adult, and she did not know whether her Father left a will. DW4, like DW2 and DW3 are horn by DW] DW4 deposed that the flrst respondent had purchased the house in dispute from the second appellant at a purchase price of' shs.9,000,000/= which was consented to by the Family members. She was the secretary ol the meeting which had been COfl\'Cfled tor that purpose. A 11cr signing the agreement they went for attestation before DW3 John Elia Kay a ii ge. The second appellant and the appellants witnesses denied having been part to a family meeting which saw the second appellant selling the disputed house to the first respondent. The above evidence ccarly shows a division \vIiCh had emerged in the Family of the late Ord in arv 1 Ic I man Sanga. There were those who had supported the second appellant who appeared io have not benefited from the property left by his father Ordinary I Icl man Sanga. i'here were also other Family members who were railing behind the first respondent. [ham Michael Sanga, and her mother DW2 Josepha Mahenze ( Sanga. These mainly were daughter born of the womb of D W 2. The dispute had drawn in the service of several ad'ocates at. different stages. These include, learned Mbise, Learned Mk umbe, learned Mahenge, learned Mushokorva, learned John [ha Ka ange, and learned Shitanibala. The application passed through the hands of live chairmen and one chairperson 0 Mbeya District LIIIICI and 1- lousing Tribunal. These were I . S.T. Kessy. 2. J .J. Mutahyabarwa. 3. M. Makombe. 4. [.3. Ntenga. 5. Ti. Wagine. 6. Mrs. H.S. Riwa. 6 Like many proceedinus in the i)istric.t Land and Flousing, Tribunals the legal ) procedures are rarely adhered to the icer. In the case at hand, apart from the Kiswa-1 :ngl ish seen in the tribunal record as siaed earl icr.the words cross-exam nation. Re-exam nation even Re - cross - examination were liberally used. The record shows that on 16/01/2008 the first respondent Eliani Michael Sanga was subjected to cross examination, then to Re-cross examination, then to Cross examination and again to Re-cross examination. The trial !)istrict Land and Housing Tribunal found in iavour of the respondents and dismissed the appellants application with costs. i'he trial fr ibunal found that the house in dispute had never been lawfully owned by the second appellant, as he had failed to tender the vill which he claimed his late further made belore his death. It vcnt on to hold that the said house was amon the p'operI es of the late Ordinary Sanga written by the name of the 7n1 applicant, and that It \\ 'as included throuah probate case NC). 1 6/98 and that the Primary Court transferred the said property to Lliam Ordinary Sanga of P.O. Box 1 677 Mbcya. The function of an administrator of an estate of the deceased inter-alia is to collect the properties of the deceased as the Is respondent did in the estate of his late .faiiicr. The learned chairman held that. 'Since the property in suit was among the properties of' the late Orc.Iinarv Sanga and the same has been id collected and transferred the to nme a of admtnistra tor ol the estate. 1 he 2 applicant has never been lawful owner of the houSe in dispule." The two honourahie assessors namely Mr. A.C. Ongara and Mr. A.L.A. Kangale gave dissenting opinions to the holding of the Learned trial chairman. The honourable assessors were critical or the evidence of the first respondent that there was a family member meeting wh cli authorized the second appellant to 7 sell the house in dispute to the fist respondent. 'ilie meeting was refuted to have ) taken place by three aunts of the parties which appear to be independent. The house was bought in early eighties and has remained in the name of the second appellant till the death of their lather. They found no reason why property belonging to a living person should be included into the estate oihis late father. The appellants are challenging the findings of the trial District Land and 1-lousing tribunal. \Vith leave of this court, the appeal was argued by way of written subn'issions. This lime Mr. Shitambala learned counsel advocated for the appellants while Mr. J\lushokorwa learned counsel advocated for the respondents. It would appear that the Land Act and the village Act generally and in Particular the provisions of section 4(1 ) of' the l.and Disputes Courts Act has thrown in a lot of confusion in administration of Civil Cases in this country to the extent of one Litigating on the same subject matter in the I and court, the ordinar Civil courts, the Commercial Courts and other tribunals. Section 4(1) of the I .and Disputes Cot.trts Act provides that, "Unless otheflViSC provded by the Land Act, no magistrates' Court cstabhshed by the Magistrates' Courts Acf shall have civil ju nsdiction in any maltcr under the Land Act and the village Land Act" In this case., the matter had started as an Administration Cause flied in Mwanjelwa Primary Court where on 29/4/1998 .Josepha Ordinary Sanga, the second respondent was appointed ad m i iii strat or of the estate of' the late I-li] iman i Sanga \.Vho died on 24/4/97. It was normal, and expedient to have all matters concerning that Administration of Estate Cause. to be tried in the said Mwanjelwa Primary Court, be it concerning I ..and under customary law or registered Land all those ISSUeS have 8 to be tried in the Primary Court. That has always been the practice and in my view it had worked we!]. May be it is pertinent to point out. the provisions of the Probate and Administration of' Estates Act, Cap. 352 RE 2002 were not applicable in this case which was COndUcted under customary Law. Primary' Courts have no jurisdictions under the above Act. Primary Courts derive powers in Adm in i si rat ion Cases under section 19(.1) of the Magistrates Court Act and the Fifth Schedule to the Magistrates' Courts Act. Item 1(1) to the Li Fth schedule provides that. "The jurisdiction of a Primal')' Court in the administration of deceased s estate. \vhcre the law applicable to the administration or distribution ot the SUCCeSsIOn 10, the estate is customary law or Islamic law, may be exercised in cases where the deceased at the time of his death, had a fixed place of abode within the local limits ofthe courts jurisdiction. Provided that noihino in this paragraph shall derogate From the jurisdiction of a pnmarv court in any proceedings trans fti'red to such court under Part v of this Act. 1 (2). A primary shall not appoint an administrator of' a deceased estate. In respect of' an estate to which the provisions of' the Probate and Administration [slates Act, are applicable or of which a grant of administration has been made under that Act, or of' which the administration is undertaken by the Administrator - General s Powers and Functions Act; or Where the gross value of the estate does not exceed sits. I 000/= unless the court is of' the Opinion that such an appon(ment is necessary to protect the creditors or bcneflciarics. It was not clear however, why the second reslondent Josepha Ordinary Sanga abdicated from the duty of an administrau'ix oF the estate and the primary 9 court wh I cli had granied her the letter of administration lai lcd to take her to task and submit an inventory of the estate; instead handled over the administration to his first son, the first respondent seven years after she was appointed the administrator. It is provided under Item 5 to the Fifth Schedule to the Magistrates' Courts Act that, "An administrator a ppointed by a prima rv court shall, w'ith reasonable diligence, collect the property of the deceased and the debts that were due to him, pay the debts of the deceased and the debts and costs of the administration and shall thereafter distribute the estate of the deceased to the persons or for the purposes entitled thereto and, in carrying out his duties shall give effect to the directions of the pnrnarv con rt.' In ally case it was strange ii not a step forward that DW2 Josepha Sanga was appointed administrairix of the estate of, her late husband. Under the Customary Law, notably the Local Customary Law (Declaration) (No 4) Order, GNs. Nos. 436 of 1967 and 219 of 1967 which directed to be the local customary law iii re respect of, the subjects contained therein in the areas subject to the jurisdiction of iVlbe\'a District Councils, provides under hem S of the second schedule thereto, that the administrator of the deceased estate shall be the senior brother of the deceased, or the father of the deceased, or any other male relative to be assisted by the clan haraza. item 27 thereof is written as follows: "Mjane hana fit ngn lake katika urithi ikiwa ma rehemu aliacha janiaa na ukoo wake, fungu lake ni kutunzwa na w'atoto wake, i insi alivvo\vatunza" The respondents appear to have received a good legal advice, as a result avoided the provisions of Customary law which did not serve their best interests, but retaining, the provisions of Customary law which were lavourable to them. I have in mind the pro\ . isions of ilem 24 to the second schedule to the Local Customary I av (Declaration) No. 4 Order which provides in Kiswahili "Jkiw'a 10 marchemu amew'agaw'ia warithi wake schemu ya niaii yake w'akati alipokuwa bado hai, sehernu liii inahesabiw'a kalika mgawanyo w'a mali baada ya kifo c hake". I think all efforts to create a sale of the suit property to the first respondent by the second respondent and the transfer ol' the Cciii Iicaie of occupancy which was in the name of the second appellant to the first respondent moved from the premises of the above provisions of the law; although they did not know where to find that law. Otherwise how can administrator collect property which the deceased had given to an individual long time ago with no intent of having it back. At one point the first respondent stated that his late father ) who was a wealth businessman intended to evade tovcrnntcnt lax on his several properties. There was no evidence to support the statement of the first respondent. In my view the most probable explanation of registering the suit premises in the name of the second appellant was a gift given to him by his father on consideration of love and affection to his son. given the fact that the Second appe] lani 's mother had left him when he was barely two \ears old, and the aidman was not Sure whether the second appellant could have received a fair deal from the first respondent who was the Senior first male chi Id. ihat is what was happening according to the evidence on record. Under the provisions of section 11 (3) of the Juchcature and AppI ication of Laws Act, Cap. 358 RE. 2002. It is provided that. "En any proceedings where the law applicable is customary law, the coit rt shall apply (he customary law prevailing within the are of its local Jurisdiction, or if there is more than one such law, the law applicable in the area in which the act, transaction or matter occurred or arosc unless it is satisfied that the proper customary law to be applied is some 0111cr law. Provided that the court shall not a pply any rule or practice of customary law which is abohshcd, prohibted, punshabk', declared unlawful or expressly or impliedly disapplied or superseded by any written jaw." It is my considered opinion that a customary law which allows a revocation of an offer of a gift which had been duly accepted by the oitered contravenes the express provisions of section 5 (1) and (2) of the I .aw of Contract Act which provides that, "5(1) A proposal may be revoked at a ny time before the communication of its acceptance is corn plete as agauisl the proposer, but not afterwa rds. 5 (2) An acceptance may be revoked at any time before the comm u nication of the aecepta rice is corn plete as against the acceptor, but not afterwards," hence it is unlawful. It follows therelore that the transfer of right occupancy in respect of a house on Plot No. 125, Block Y, Mbcya Municipality registered in the name of Aidan Michael Sanga 10 the frsi respondent I liam Michael Sanga, was illegal as the premises did not form part of the estate of the late Ordinary I lelman Sanga. Lvdcnce showed that the hate Ordinary Helman Sang,a had decided to construct the house for the second appellant. The alleged sale of the house by the second appellant to the first respondent according to the evidence on record was fabricated, there was no such a sale. This means that the first respondent had no house to sate to the thii'd respondent as he had no title oi the house to pass to the latter. In the same vein, the second appellant had a valid contract of sale with the first appel ant although the same lacked the necessary consent. See the I'ui] bench Ruling In CAL Misc. Civil Appeal No. 1 of 1999. ABUAIJ.Y ALII311AI A7JZ. APPELLANT V ERSUS IThATI A I3ROTI IERS L'li) .. ..... R.FSPONT)ENT. Where it was held that. "A contract for the disposition ol land, which otherwise 12 is proper but for the lack of required consent, is in operative, that is, un ) enforcement is prejudicial to the interests of the paramount Landlord. However, where such enforcement is not thus prejudicial, a party who has performed his or her part of the bargain may be assstccI by the court to enforce the contract against the defaulting party." 1-laying SO adumbratec! I hereby allow the appeal, and order the immediate vacant possession and release of the house to the first appellant. The appellants had claimed in their application payment oI' shs.3,000,000I= for loss of the bar and guest house business at T.shs. 1 00,000/ per day. These were sped lic damages the law requires that specific damages be strictly proved. The appellants failed to prove the said damages strictly. Apart from the bare statements of the No appellant there were no supporting documents to support the claims, I dismiss that claim. The same goes with the claim of interest of the said sum oll.shs.300.000? at 25?/ p.a. which is also dismissed. The appellants shall have their costs here, and at the District Land and 1-lousing Iribunal i'm surprjsed that the appellants did not include in their application a prayer for further reliefs which the District Land and I lousing 1'ribunal deemed lit to gra lit. However this was not fatal to the interests of the appellants. Order VII rule 7 of the Civil Procedure Code provides that, [veiy plaint shall state specifically the relief \vhich the Plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may al ways be given as the court may think just to the same extent as if it had been asked for; and this rule shall apply to any rd id claimed by the delèndant in his written statement." Basing on the above pro\'isions of the law, I hereby grant the appellants general damages to the tune of shs.2,500,000/= (Two mill ion •shil lin,s and Five 13 / / hundred thousand only) For the respondents unlawlul act of grabbing the suit ) premises and closing the bar and guest houe business. The appellants are also awarded interesis of' seven per centum on the above shs.2,500,000/= from the date of this judgcnient to the dale of satisfaction of the decree. Appeal allowed. Order accordinuiy. Qt\ S.B. LtJK?WA JUDGE 29/4/201 0 14