peter hamisi musa vs verdiana nkwabi macha the administrator of the estates of the late john ambrose macha another 2023 tzhclandd 17212 13 october 2023

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

AT PAR ES SALAAM LAND APPEAL CASE NO. 218 OF 2023 {An Appeal from Judgment and Decree of the District Land and Housing Tribunal in Land Application No. 248 of 2017, by Hon. P.I Chinyeie, Chairperson} PETER HAMISI MUSA................................................................ APPELLANT

VERSUS VERDIANA NKWABI MACHA (The Administrator of the Estates of the Late John Ambrose Macha)............................................. 1st RESPONDENT ZANZIBAR TELECOM PUBLIC COMPANY.......................2nd RESPONDENT

JUDGMENT 27h September 2023 & 13" October 2023 L. HEMED, J. The disputed property is a piece of land known as Plot No. 136 Block '17' Kigamboni Area in Dar es Salaam city. It was the subject matter in Land Application No. 248 of 2017 instituted in the District Land and Housing Tribunal for Temeke District (DLHT). At the DLHT, PETER HAMIS MUSA, the appellant herein, sued the 1st Respondent, VERDIANA KWABI MACHA claiming ownership of the disputed land. He i also claimed against her for general damages of Tshs. 20,000,000.00 for the demolished house. Before the trial Tribunal the Appellant herein alleged to have purchased the suit landed property form the late John Ambrosi Macha on 12th December 2013 for Tshs. 55,000,000/=. The 1st Respondent, who is also the administratrix of the estate of the late John Ambrose Macha and Widow of the said deceased, disputed the claims of the appellant. She also raised a counter claim against the Appellant and the 2nd Respondent, ZANZIBAR TELECOM PUBLIC LIMITED COMPANY. In the counter claim, inter alia, she claimed for refund of all the amount of money that the appellant received from the 2nd respondent herein, as proceeds of the illegal and dubious transfer of lease form the Deceased to the Appellant form the year 2014 to the time of filing the suit at the DLHT. She claimed the rent arrears of TZS 15,129,000. In reply to the Counter Claim the

appellant disputed the claims and stated to be the lawful owner of the disputed land. However, on its part, the 2nd respondent stated to have started paying rent to the appellant after having introduced himself to be the owner of the suit land. 2 The 2nd Respondent pleaded to have stopped paying rent to the appellant after having discovered that there was a lawsuit. It stated to be ready to pay the arrears of rent to the person who would be declared the rightful owner of the premises. Having deliberated on the matter, the DLHT found in favour of the 1st respondent herein. It dismissed the original suit and granted the counter claim with costs. The 2nd Respondents were ordered to pay rent arrears of April 2016 up to December 2017 to the 1st Appellant. Aggrieved by the said decision, the appellant knocked the gates of this court seeking to challenge the decision of the DLHT on the following five (5) grounds of appeal: - "1. That, the Honourable Trial Chairman erred in law in and fact by holding that the 1st Respondent herein is the lawful owner of the suit premises and that the Appellant shall not restrict the 1st Respondent and her family form use of the said family property without proof. (Sic) 2. That, the Honourable Trial Chairman erred in law and in fact by failing to analyze evidence tendered in Court property and arrived at wrong conclusions. 3 3. That, the Honourable Trial Magistrate (sic) erred in law and in fact by relying on un-pieaded facts and evidence not tendered by the 1st Respondent in Court.

4. That, the Honourable Trial Chairman erred in law and in fact by holding that the Appellant should pay the 1st Respondent a total amount of Tzs 15,129,000 he received form Zantei plus TZS 810,000/= being 2.5 increment of the rent form Zantei. (Sic) 5. That, the Honourable Trial Chairman erred in law and in fact in entering judgment in favour of the 1st Respondent herein above in the absence of evidence providing the 1st Respondent's claim." The matter was argued by way of written submissions. The appellant used the legal service of Mr. Said Nassor, learned advocate while the 1st Respondent enjoyed the service of Ms. Mariam Moses Mwinzya, advocate. The 2nd respondent could not file submissions despite being served. This judgment is thus based on the submissions which were filed by the appellant and the 1st Respondent. 4 Having gone through the submissions presented, I have noted that the appellant submitted on ground five (5), four (4) and one (1) all together. He opted to abandon the rest of the grounds of appeal. It was argued by the counsel for the appellant that from the proceedings, the trial chairperson erroneously arrived at the wrong conclusion and failed to analyze presented evidence. He asserted that the 1st Respondent who is the administratrix of the deceased estate had never made a transfer of the disputed property from the deceased's name to the 1st respondent's

name in the capacity of the deceased's personal legal representative. The appellant was of the view that this is contrary to the provisions of section 67 of the Land Registration Act, [Cap. 334, R.E 2019]. He added that the trial chairperson failed to analyze the absence of the said transfer as the Title Deed is still in the name of the Deceased and no transfer has been effected as required by the law. It was stated further that, the chairperson failed to adhere to the provisions of section 68(1) of the Land Registration Act (supra) which states that no assent to the vesting of any devises of bequest of any registered estate or interest, or disposition by a legal personal representative, has to be registered unless such estate or interest is 5 registered in the name of such legal personal representative. According to the counsel for the Appellant, the mere fact of being appointed as the administratrix of the deceased estate does not automatically qualify one to be declared as the legal owner of the landed property. To support his argument he cited the case of Abbas Ally Athuman Bantulaki & Another vs Kelvin Victor Mahity (Administrator of the Estate of the late PETER WALCHER), Civil Appeal Number 385 of 2019. In connection with the 4th ground of appeal, he argued that the trial chairperson was wrong to order the Appellant to pay the 1st Respondent a total amount of TZS

15,129,000/= which he received form the 2nd Respondent plus TZS 810,000/= being 2.5% increment of rent from the 2nd Respondent. He stressed that the Deceased had entered into a valid sale Agreement dated 19th September, 2013 with the Appellant. He finally prayed the Court to allow the appeal with costs. In reply thereof, the learned counsel for the 1st Respondent contended with regard to the 1st ground of appeal that the trial Chairman never held that the 1st Respondent is the lawful owner of the suit landed property as alleged by the Appellant. According to her, the trial chairperson only declared that the purported sale of the suit property by the late John 6 Ambrose Macha to the Appellant was a nullity. The appellant's claims of ownership of the suit landed property was dismissed. With regard to ground No.5, the learned advocate for the 1st respondent asserted that in Land Application No.248 of 2017, the Respondent was sued in the capacity of administratrix of the estate of the late John Ambrose Macha and raised counter claim thereto. According to 1st respondent, evidence adduced before the trial Tribunal proved her counter claim. In respect of the 4th ground of appeal the learned counsel for the 1st respondent argued that the trial chairman was right to order the appellant to pay the 1st Respondent, the amount of TZS 15,129,000/= which the Appellant received from Zantel,

plus TZS 810,000/= being 2.5% increment of the rent from Zantel. She based her argument of the fact that the sale of the suit landed property was declared a nullity. She concluded by praying for the dismissal of the appeal with costs. Having gone through the rival submissions, it is now apt to determine whether the appeal has merits. The center of the dispute is Plot No. 136 7 Block 17 Kigamboni Dar es Salaam which the Appellant claims to have purchased it from the late John Ambrosi Macha on 12th December 2013. Principally, the person who alleges is the one who is duty bound to prove. This is pursuant to section 110 of the Evidence Act, [Cap.6 R.E 2019] which provides thus:- "10.-(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." At the trial Tribunal, the Appellant was claiming to be the owner of the suit land having purchased it from the late John Ambrose Macha iz/ZZethe sale agreements executed on 12th September 2013 and 4th December 2013. It was thus the duty of the Appellant to prove such allegation. In this case, the subject matter is the surveyed and registered land. The law requires the Commissioner for Lands to approval any disposition of a granted right of occupancy, including by sale like in the instant case. I have gone through the records of the

trial Tribunal and 8 could not find evidence adduced by the Appellant to prove that the alleged disposition was blessed by the approval of the Commissioner for Lands. Section 37(5) of the Land Act, [Cap.113 RE 2019] invalidates any disposition of granted right of occupancy done without the approval of the Commissioner. It provides thus:- "(5) A disposition which has been carried out without first obtaining the approval of the Commissioner shall be inoperative." In the instant case, it was thus proper for the trial Tribunal not to bless the claimed disposition of the disputed landed property. Evidence on record also reveals that the suit landed property is still registered in the name of the late John Ambrose Macha. In view of section 35 of the Land Registration Act, [Cap.334 R.E 2019] the person whose name is registered in the land register is the owner of the said land. Therefore, in the instant case the suit landed property can be said to be part of the estate of the late John Ambrose Macha. I have further noted that the respondent herein raised a counter claim, claiming interests over the suit property as administratrix of the 9 \ ) estate as well as the wife of the deceased. The fact that the suit landed property is still registered in the name of the deceased and then the same is part of the estate of the deceased hence under the administration of the 1st

Respondent. Evidence adduced by the 1st Respondent during trial was such that she married the late John Ambrosi Macha in the year 1985 and she proved vide exhibit D-l, the marriage certificate. She also testified that the suit property was acquired jointly in 1989 where they constructed a house which was the home of the family. Evidence on record shows that the 1st Respondent, by virtue of her participation in acquiring and developing the suit landed property, she developed interests on it and became a co­ occupier despite the property being registered in the name of her husband. This is by virtue of section 161(2) of the Land Act, [Cap. 113 RE 2019], which provides thus:- (2) Where land held for a right of occupancy is held in the name of one spouse only but the other spouse or spouses contribute by their labour to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed by virtue of that labour to io have acquired an interest in that land in the nature of an occupancy in common of that land with the spouse in whose name the certificate of occupancy or customary certificate of occupancy has been registered. (Emphasis added). Being the co-occupier of the suit property, it was necessary for the 1st Respondent to be consulted to consent the disposition of the property to the Appellant. Evidence adduced by the Appellant was such that

when he purchased the property on 12th December 2013, the vendor, the late John Ambrosi Macha did not inform him that he was married. The testimony of the 1st Respondent also revealed that truth where she stated that after the death of her husband and upon being appointed administratrix of estate, she tried to look for the certificate of occupancy of the suit landed property but she could not find it. She reported to the Police, got the loss report, reported to the Registrar of Titles, and obtained the duplicate copy of the certificate of occupancy. This evidence unequivocally shows that the 1st Respondent was never informed nor consulted as regard the purported disposition of the suit landed property by sale to the Appellant. ii The question that arises is on the effect of not consulting or involving the spouse/co-occupier in the matter like the one at hand. The answer is straight forward that, the disposition if any becomes invalid and void ab initio. At the trial Tribunal, the Appellant tried to level blames to the vendor, the late John Ambrosi Macha that he did not inform him that he had a wife. It should be noted that, the law also imposes a duty to the transferee to make inquiries of the transferor as to whether the spouse had consented to the transfer. The said duty is provided under section 161(3)(b) of the Land Act(supra) thus- "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- (a) ... (b) where that disposition 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 12 section 59 of the Law of Marriage Act..." (Emphasis added) I have examined evidence of the Appellant as was adduced before the trial tribunal to find out if at all, he fulfilled his duty to make inquiries of the transferor as to whether the spouse had consented to the transfer, I could not find any. This makes the entire transaction invalid for want of the 1st Respondent's consent. Let it be assumed that the appellant had inquired on the consent of the spouse but the vendor deliberately misled him. Then, what would be the fate of the appellant/transferee over the suit property? The answer is provided in the same provision of section 161(3)(b) of the Land Act (supra), thus:- "... 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 added) 13 According to the above provision, where the transferor/vendor has misled the transferee, then the disposition becomes voidable at the option of the spouses who has not consented it. In the instant case, the testimony of the 1st Respondent was such that she never consented to the disposition of the suit land and she opted to challenge vide her counter claim. The counter claim implies that the option of the 1st Respondent is for the transaction to be invalidated. It was thus justifiable for the trial Tribunal to invalidate it. From the foregoing, I find no merits in the Appeal. The entire Appeal is dismissed with costs. I order so. 14