is mwanawima and another vs mrs chiku mapunda administratix of the estate of the late yohana mapunda 2020 tzhclandd 2196 22 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 53 OF 2018 (Appeal from the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala in Land Application No. 275 of2012) 1.1.S MWANAWIMA........................................... 1st APPLICANTS 2. JOHN A. CHALE........................................ 2nd APPLICANTS VERSUS MRS. CHIKU MAPUNDA, The Administratix of the estate of the late YOHANA MAPUNDA.............RESPONDENT JUDGMENT ON APPEAL S.M.MAGHIMBL J The appellant, being dissatisfied with the decision of the District Land and Housing Tribunal of Kinondoni District at Mwananyamala ("The Tribunal") in Land Application No. 275 of 2012, has appealed to this court on the following grounds:- 1. That the Tribunal erred in law and in fact in deciding that the suit land was a matrimonial property. 2. That Tribunal erred in law when it decided that the disposition of the suit land to the Appellants was ineffectual/ invalid and unlawful for failure to obtain the consent of the spouse of the seller. i 3. That in view of the Tribunal's finding that the disposition was ineffectual and invalid, the Tribunal should have ordered the Respondent to refund to the Appellants the consideration received as purchase price plus interest thereon. The Appellants were represented by Steven Luco, Advocate while Respondent enjoyed the service of learned counsel Catherine Mkoba. The appeal was disposed of by way of written submissions and the submissions were filed as scheduled. Before going into the merits of this appeal, brief background of the matter is narrated. The transaction in dispute dates back to 1997 when the deceased Yohana Mapunda informed the second appellant (PW1) of his intention to sell a piece of his big land situated on Farm No. 1857 located at Kimara Matangaini ("The suit property"). The 2nd appellant eventually purchased the divided piece of the suit property which is part "C" of the sketch Plan (EXP7) at a price of Tshs. 4,117,600/-. The sale (EXP1) was executed on 09/09/1997. He was handed the piece of land and planted some crops Shortly after the said sale, the deceased approached the PW1 informing him of his intention to sell another piece of land and the PW1 introduced the deceased to the 1st appellant, (PW2) who bought another piece of land from the big farm which sale was executed on the 11/03/2002 (EXP6). The payments of the said piece of land were done in several installments and by the time the dispute arose, the 1st appellant (PW2) had paid Tshs 4,417,000/- with a remaining balance of Tshs. 580,000/-. The piece of land 2 purchased by the 1st appellant was marked Portion "A" of the sketch plan of the Title Deed (EXP7). On the 25/09/2002 the said vendor passed away and his wife was appointed as the administrator of his estate (EXD1). When the appellants approached her for their pieces of land, she told them to wait for the appointment of an administrator and later on she stopped communicating with them. As for the respondent, she distributed the suit property to the heirs of the deceased and the disputed property was given to their son Jacob Mapunda. The dispute arose when the 1st appellant wanted to pay his remaining balance and the respondent refused to receive the money, she also chased away the 2nd appellant's workers from the land. The 1st appellant then lodged a caveat (EXP8) and the 2nd appellant sent a demand notice to the respondent (EXP3) and upon several attempts to settle the matter amicably proved futil, the respondent refused to hand over the farm hence the appellant unsuccefully filed the application at the tribunal to claim their land hence this appeal. Submitting on the first ground of appeal that the Tribunal erred in law and in fact in deciding that the suit land was a matrimonial property, Mr. Lucco submitted that he read the provision of section 61(1) together with section 161(1) and (2) of the Land Act, Cap 113 R.E 2002 ("The Land Act") and find nothing in them entitled the Tribunal to hold the sale of the suit land to the Appellants was ineffectual and invalid or that the disposition of the suit land was unlawful. He argued further that the Respondent did not submit any evidence that she contributed in acquisition of the said land. TMr. Luco then directed the court to analyse the submissions of the 3 appellants at the tribunal. With respect, it is trite law that submissions are not evidence hence if the Chairperson did not consider them during his judgment, he would have made them the submission in chief in this application and not to direct the court to analyse a reproduction of those submissions and fault the tribunal for not considering them. He then submitted that even if the disposition was vitiated by lack of consent of the spouse, the consequence of the disposition was only voidable at the option of the spouse who had not consented in terms of the Section 161(3) of the Land Act. He however argued that there was no evidence by the respondent that she took the option of making the transaction void and did not counterclaim her right to do so. Further that in her WSD at the tribunal, she did not plead lack of consent as a vitiating factor nor did she plead any interest in the land. Mr. Lucco submitted further that even if the respondent took the option of avoiding disposition, the result would not have made the disposition unlawful as held by the tribunal, rather it would have been declared void with an order that the respondent refund the appellant the purchase price plus damages. That upon declaring the disposition void, the tribunal had the duty to order restitution of the money paid to the respondent. He hence prayed that the appeal is allowed with costs and the decision of the tribunal be set aside. Further that the appellants be declared lawful owners of the suit property and eviction of the respondent d her agents from the suitland and payment of mesne profits as assessed by the court. In the alternative, he prayed that the Respondent be ordered to refund purchase price plus interest therein at the rate of 20% from 11/03/2002 when the 4 property was purchased to date of payment in full and general damages for misleading the appellants. In reply, Ms. Mkoba submitted that it is clear from the wording of Section 161-(1) and (2) of The Land Act that where land held for a right of occupancy is held in the name of one spouse only but the other spouse contribute her labour to the productivity, up keep and improvement of the land, spouse shall be deemed by virtue of that labour to have acquired an interest in that land in the nature of an occupancy in common of that land. That in this appeal, the allegation that the suit property did not acquire the status of matrimonial property, lacks merit. She argued that the suit land being a matrimonial property, the law requires that for the disposition to be valid, it must be accompanied by spouse consent. That the purported sale between the Appellants and the deceased is invalid in law for lack of spouse consent. As regards the alternative prayer for refund contained in paragraphs 3 and 4 of the Appellant's submission, she replied that the same is an afterthought because one; it was not part of the prayers in the trial tribunal as it was not even brought by way of an alternative prayer and therefore, the tribunal cannot be faulted for not considering such a grant. Two; was that in the pleadings and on record, at the time the application giving rise to this appeal was filed, the Respondent had already discharged her duties as administratix of the estate of Yohana Mapunda. That it is also on record that the Appellants never registered their interest (if any) during the administration of the said estate and that at this stage the Respondent does not possess the rights and, or, duties of the office of an administrator. 5 That she cannot be ordered to make payment and, in fact, she cannot have such sources. In rejoinder the Applicant raised an objection that the Respondent decided to change name of part (respondent) and the name changed from "MRS. CHIKU MAPUNDA, The Administratix of the estate of the late YOHANA MAPUNDA" to "MRS CHIKU MAPUNDA" only. MRS CHIKU MAPUNDA in her capacity has no locus to address the court in this case. He then submitted that living with the late Yohana Mapunda did not turn the Respondent into spouse. He then reiterated what he said in his submissions in chief. I have gone through the submission of both counsels and the records of the trial Tribunal; before going into the determination of the merits, I have noted two things I have to address. I have noted that in his reply submissions, Ms. Mkoba introduced a new issue altogether, that at the time the application was filed the respondent had finished her duties as administrator and had distributed the estate. This is a new issue which needed to be determined at the tribunal. The appellants had no duty whatsoever to know whether the respondent had distributed the estate and the probate closed, hence it was the duty of the respondent to raise an objection at that point on the cause of action. Instead they went along, argued their case to the end and at this stage, they are trying to use that as an exit door. This is not acceptable in law and the issue cannot be entertained at this point. Since the respondent tagged along in the proceedings, she cannot refuse liability at this point hence the argument is baseless. 6 I have also noted that in his rejoinder submissions, Mr. Lucco also introduced a new issue of the marital status of the respondent Chiku to the deceased Yohana. This cannot be entertained because that was never an issue during trial hence it cannot be brought up at this stage. If he has issues with their status he should have made sure that it was an issue to be proved in evidence during trial and not bringing it at the stage of appeal. This is a private matter and it had to be brought procedurally and not throwing such accusations at this stage. This argument is not only baseless, but indecent to be thrown so casually at this stage. Having made that clear, let me now turn to the merits of this appeal, the main issue for determination is whether in this transaction, the alleged lack of consent of spouse was necessary and if so, whether it can invalidate the alleged disposition. From the records, it is not disputed that the late Yohana Mapunda sold the suit land to the Appellants at different times. It is also undisputed fact that the respondent, who is sued as an administratix of the deceased estate, is also the wife of the deceased Yohana Mapunda. It also undisputed fact that the late Yohana Mapunda sold the suit land to the appellants and the said sale did not have the consent of his wife. The question before me is whether the consent was material and if so, what is the effect of the disposition which lacks spouse consent. I have noted that in making his decision, the Chairman of the Trial Tribunal bunked much on the Land Act and its provisions on the issue of spouse consent. He has however overlooked the records that the said land was sold to the 2nd appellate way back on the 09/09/1997 while the Land Act came into operation in 1999. It was the Land Act, 1999 that introduced 7 under Section 161(2) the issue of spouse consent. Prior to that, the co- ownership was arguable and to be proved under evidence. Hence at this juncture, to deny the 2nd appellant his right of occupancy which he lawfully purchased from the deceased respondent is by all means unjustifiable. As for the second respondent, the records shows that he purchased the land in 2002, indeed this was after the Land Act 1999 came into operation. I have noted that in his decision, the trial tribunal relied on the issue of spouse consent and mixed the issues by addressing the respondent in her personal capacity as "the spouse". But in law, it was not Chiku Mapunda who was sued, the respondent was Yohana Mapunda and since he was deceased, the said Chiku was sued as the administrator. Therefore the liability to prove or disprove the sale was on Yohana Mapunda and not for his spouse to take up the proceedings and address the issue as if she was the one sued. This is evidenced on page 2 of his typed judgment when the Chairman wrote: "It is not in dispute that the respondent was a wife of the late vendor and according to the evidence adduced before the court, its apparently that the applicant really purchased the suitland, but the question is whether they purchased lawful or not., the issue here is whether they sought the consent of the vendor's couple who in the present circumstances appeared as the respondent" The above analysis is wrong because the vendor's spouse was not the respondent since she was not sued in person, she was there as administrator of the vendor. Had the tribunal addressed her in the form of a witness it would have been another issue. 8 The above notwithstanding, the other issue is whether the consent of the spouse not having been obtained nullified the sale. From the records of the case, the 2nd respondent bought part of the land which was measuring four acres. He paid his installments and the vendor passed away before the payments were completed. He tendered the receipts to the payment and the title deed therein was received as EXP7. The vendor instructed the commissioner for land to divide the farm and give the 1st appellant his portion. It is hence undisputed that the piece of land sold to both the 1st and the 2nd appellant was not the whole farm but a portion of it. From the above, even if we were to agree with the fact that the main issue at the trial was that the land was a matrimonial asset requiring consent, it still remains undisputed that whatever the case maybe, the deceased Yohana Mapunda had his share of the farm land and so had his wife. Since not the whole land was sold, then we can safely conclude that the deceased sold to the appellants his part of share of the said farm and there is a remarkable portion of the remaining piece of land which the spouse can claim and have in her possession as her share of the "matrimonial" asset. Justice is not blind to have granted the argument by the respondent that since there was no consent of the spouse, then the sale was null and avoid. If we heed to that argument, the court would allow the respondent (deceased) to have eaten his cake and still have it. If he sold his part of the matrimonial asset, the spouse cannot turn, upon his death and claim that the said land should remain in his estate and be distributed among the heirs, this will be unfair and unjust as the appellants have all along been 9 bonafide purchasers for value. And if the issue is spouse consent, she has her share of the remaining farm all to herself and not to drag the appellants' transaction and return it to the estate of the deceased. That said, this appeal is allowed for both the appellants. The judgment and decree of the tribunal are quashed and set aside. The second appellant remains the lawful owner of the disputed land to which he has purchased and he shall be left with peaceful enjoyment therein. As for the first appellant, he is the lawful owner of the suitland to the portion that was sold to him. The transfer of title shall be effected to him upon him paying the remaining amount of the sale price which was Tshs 583,000/- which he shall pay the respondent within 30 days from the date of this judgment and proceed with the transfer and subdivision of the title deed. The appellants shall have their costs for this appeal. Dated at Dar-es-Salaam this 22nd day of April, 2020 io