RAHEL PHILIPO NGHOLOPE V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 32 OF 2023 (Arising from Judgment in Land Application No. 33/2021 from the District Land and Housing Tribunal of Shinyanga dated 12/05/2023) BETWEEN RAHEL PHILIPO NG’HOLOPE…………………………..…. APPELLANT (The administratrix of the estate of the late PHILIPO NG’HOLOPE) VERSUS BANDORA SALUM MIRAMBO………...…………………RESPONDENT JUDGMENT 7th June & 19th July, 2024 MASSAM, J.: Dissatisfied with the decision of the District Land and Housing Tribunal for Shinyanga, the appellant has filed this appeal with a total of five grounds of appeal namely:- 1. That, the trial tribunal erred in law and fact when failed to consider that the appellant had no legal capacity to be sued as an administratrix of the estate of the late Philipo Ng’holope. 2. That, the trial tribunal erred in law and fact by not taking into account that the title deed in respect of plot No. 366 Block “EE” it has not been transferred from the name of the late Philipo Ng’holope to the appellant’s name, hence there was a mandatory 1|Pa ge requirement of the consent of heirs in the impugned sale agreement. 3. That, the trial tribunal erred in law and fact by failing to adhere that the sale agreement is legally void for failure to comply with the mandatory legal procedure as the disputed plot is surveyed land. 4. That, the trial tribunal erred in law and fact when failed to consider that the appellant signature in the impugned sale agreement was obtained by undue influence. 5. That, the trial tribunal erred in law and fact when failed to take into account that the appellant did not hand over any documents to the respondents. When the matter was called for hearing, learned counsel Geofrey M. Tuli represented the appellant from Tuli & Co. Attorneys, on the other hand, the respondent was represented by Mr. Ijan Augustino, learned counsel. Before going to the merit of the appeal, it is apposite to briefly state the background-giving rise to this appeal. The respondent herein filed an application against the appellant on the claim that, he is the lawful owner and occupier of the house located at plot No. 366 Block “EE” situated at Ngokolo, Mitumbani area at Shinyanga District which he bought lawfully 2|Pa ge from the respondent herein at the price of Tshs. 10,000,000/=. The respondent further stated that, after he purchased the said house, the appellant prayed to be given six months to remain in the house so that she can finalize her plan to shift to another house and she gave the respondent all the documents which is Right of Occupancy and Land Rent payment. Among others, the respondent sought for reliefs that the tribunal declared him as the lawful owner of the disputed house and issue an eviction order to the appellant herein. On his side, the appellant submitted at the trial tribunal that she is the lawful owner of the disputed house which he acquired jointly with his late husband Philipo Ng’holope since 1990 and they never made any disposition to anybody including the respondent herein. In it finding the trial tribunal allowed the application on the reason that, the disputed house is the lawful property of the respondent herein and the appellant is supposed to honour their agreement by vacating from the disputed house. The appellant was ordered to pay general damages to the respondent at the tune of Tshs. 2,000,0000/= and the costs of the application. Aggrieved, the appellant filed an appeal to this court based on the ground submitted herein above. In disposing this appeal, the parties 3|Pa ge argued the appeal orally and the same will be considered during the determination of the merit of the appeal. Starting with the 1st ground of appeal, Mr. Tuli complained that when the respondent herein sued the appellant at the trial tribunal, she was not yet appointed as administrator of the estate of the late Philip Ng’holope, therefore she had no capacity to be sued regarding the estate of the late Philipo Ng’holope. He added that if there was any transaction the same is not valid as there was no legal representative of the deceased who was appointed by the court. He referred this court to number of cases including the case of Gasper Kalolo Kauzenu v. Mathias Michael Kauzeni, Land Appeal No. 9 of 2020 (HC of Sumbawanga) where the case of Mohamed Hassan v. Mayasa Mzee and Another, 1992 TLR 222 was cited, and the court held that an administrator of the estate is the one who has mandate to deal with the property of the deceased. Responding to this ground, Mr. Augustino, submitted that when the respondent was purchasing the disputed house from the appellant, the appellant introduced herself as the administrator of the late Phillipo Ng’holope and that the right of occupancy was in custody of her daughter Angela who late gave him the said right of occupancy. He is of the view that the respondent is wondering why the appellant is now complaining 4|Pa ge that she was not administrator when they were selling the house to him. He prayed for the respondent to be protected as bonafide purchaser after believing the appellant and her daughters. He cited the case of Suzana Warioba v. Shija Daudi, Civil Appeal No. 44 of 2017 to support is arguments. On the 2nd ground of appeal, Mr. Tuli stated that the trial tribunal did not consider the title deed in respect of Plot No. 366 Block “EE” (Exhibit M.2) which was not yet transferred to anyone and there was no consent of heirs regarding the said sale agreement. It was his further submission that, the sale agreement tendered lack photo of seller and buyer, photo of heirs and names and names of witnesses. Regarding the 3rd ground of appeal, Mr. Tuli stated that the sale agreement between the appellant and respondent was legally void. He stated further that as the land was a surveyed land, there must be application by legal personal representative as per section 67 of the Land Registration Act, Cap 334. And there was no consent of heirs, no indemnity, and form No. 29,30 and 35 must be filled, so it was wrong for the tribunal to entertain the application and gave rights to the respondents while the procedures were not followed. 5|Pa ge Replying on the 2nd and 3rd grounds of appeal, Mr. Augustino stated that was a private agreement hence there was no need of consent from heirs. He argued further that the stages mentioned by the counsel for the appellant need to be done during the transfer of the tittle deed which was not yet conducted at the first stage of selling. The case of George Shambwe v. National Printing Company, Civil Application No. 7 of 1997 was cited to support his argument. On the 4th ground of appeal, Mr. Tuli stated that at the trial tribunal the appellant stated that he signed the sale agreement under the influence of her children who want to get a loan and not to sell the house as she does not know how to read and write. Responding to this ground, Mr. Augustine stated that this was just an afterthought as it was not featured in her written statement of defence that she was forced by her children to sign the sale agreement. Further, she never reported anywhere that he was forced by her children to sale or to mortgage the disputed house as they both agreed to sale the same and she did receive the money together with her children. On the last ground of appeal, Mr. Tuli submitted that the appellant did not hand over any document to the respondent as alleged it was her children who gave the respondent those documents. He prayed for the 6|Pa ge court to evaluate the evidence of Angelina Philipo (daughter of the deceased) who received the money from the respondent and hand over the right of occupancy to him. He prayed for the appeal to be allowed and the decision of the trial tribunal be set aside. Responding to this ground, Mr. Augustino stated that, when the appellant received money from the respondent her family was present including Angela who later gave the right of occupancy to the respondent and the contract was done when they received the said money. Further, the facts that she is ready to return the respondent’s money means she was aware of the said transaction between her family and the respondent. So, he prayed for the appeal to be dismissed with costs. Having heard the oral submission from the counsels of both parties this court will now determine whether the appeal is merited or not. All grounds of appeal will be determined jointly. Starting with the issue of capacity to sue or being sued as raised under the 1st ground of appeal. I am aware that in order for a person to be sued regarding the estate of the deceased he /she must have been appointed as administrator of the estate of the said deceased. See the case of Suzana Warioba v. Shija Daudi (supra). In our present case 7|Pa ge the appellant was sued in her capacity as administrator of the estate of the late Philipo Ng’holope. The counsel for the appellant only challenged and alleged that when the appellant and his family sold the house to the respondent the appellant was not yet appointed as administrator of the estate of the late Philipo Ng’holope. On his side, the respondent stated that as long as they were both aware that they sold the house when the appellant was not yet appointed as administrator and received the money from him, he stands to be protected as bonafide purchaser. This court do subscribe to the arguments raised by the counsel for the respondent for the reason that as long as they received the money from the respondent and the whole family agreed to it, then the issue of being administrator or not cannot nullify the contract between them. This is based on the fact that in situations where a seller behaves fraudulently, the bona-fide purchaser is not responsible. See also the same case of Suzana Warioba v. Shija Daudi (supra), which defined a bonafide purchaser to be a person who purchases something in good faith believing that he/she has clear rights of ownership and after purchase he has no reason to think otherwise. So, it is the firm view of this court that the issue of locus stand cannot stand in this case. 8|Pa ge Coming to the 2nd issue of the valid of the contract as raised under the 3rd, 4th, and the 5th grounds of appeal. The learned counsel for the appellant complained that the contract had no pictures of seller and buyer, photos of the heirs and their consent and the procedures for transfer of the name was not followed as required under Section 67 and 68 of the Land Registration Act, Cap 334 R.E 2019. I have revisited the trial court records and noted that, the appellant did not dispute that there was a contract between her and the respondent herein and she did sign and receive the respondent’s money Tshs. 10,000,000/=. The appellant is just raising the issue that she signed the same after being deceived by her children as she did not know how to read and write, and it was her daughter Angela who gave the respondent a right of occupancy and other documents. However, the appellant nowhere indicated that she did sue her children for deceiving her or forcing her to sign a contract she did not want to sign. Also nowhere was shown that appellant went to complain to any family leader or any leader that her children did deceive her. As for the issue of procedures under Section 67 and 68 of Cap 334, this court supports the argument of counsel for the respondent that the same will be followed when they 9|Pa ge reached the stage of doing a transfer of a right of occupancy and they did not reach that stage. Regarding the complain that the transfer was not yet done hence, the contract between them was void. It is the firm view of this court that this argument is baseless. As it is already explained herein above, the transfer is the next step after finalizing the purchase stage and the respondent did not yet made any transfer as the appellant was not yet vacated from the disputed house as agreed, also respondent had liberty to transfer to his name at any time he wishes so, as long as he had all documents concerning that house, and the appellant had a duty to prove to this court that they were not the ones who give the respondent that document this court could think otherwise and order respondent to tell this court how he came to possession of the said document, but the answer is very clear that the said documents were handed over to respondent by appellant’s daughter one Angela, this court is asking itself if there was no issue between appellant and respondent, why the appellant ordered her daughter to hand over that documents to respondent? That being said, it is apparent that the appellant with her own willingness together with her family did sell the disputed house to the 10 | P a g e respondent herein at the rate of Tshs. 10,000,000/=, as exhibited under exhibit M1. And gave the respondent all the necessary documents. The arguments raised of undue influence is just an afterthought as there is nowhere the appellant complained that her children forced her to sell the house. In the premises the respondent herein being a bonafide purchaser has all rights to enjoy the property which he has legally bought in good faith. That, being told this appeal is dismissed in its entirely with costs. The decision of the trial tribunal of Shinyanga District and housing Tribunal is remained undisturbed. It is so ordered. Dated at Shinyanga this 19th day of July, 2024. R.B. Massam JUDGE 11 | P a g e