saada january nyambibo the administratrix of the estate of the late january bwire nyambibo vs debora january nyambibo and another 2021 tzhclandd 6791 17 november 2021.

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 97 OF 2020 SAADA JANUARY NYAMBIBO (The Administratrix of the Estate of the Late JANUARY BWIRE NYAMBIBO)...... PLAINTIFF VERSUS DEBORA JANUARY NYAMBIBO........................... 1st DEFENDANT DEBORA JANUARY NYAMBIBO (as the Guardian of JOCKTON BWIRE JANUARY (minor).............. ...2nd DEFENDANT JUDGMENT A. M ATU MA, J: The Plaintiff Saada January Nyambibo is the daughter of the late Brig. Gen January Mkama Nyambibo who owned among other properties, the suit plot, a house on Plot No. 176 Block AT, Oysterbay area Kinondoni within Dar es Salaam City. The suit house was previously a government property which was later sold to the late January Mkama Nyambibo by Tanzania Building Agency. He bought and house on a loan basis as per exhibit D3 the purchase Deed and paid the purchase price through deductions of his monthly salary as per exhibit P5 collectively/ the salary slips. Having finished to pay the purchase price in full, the late Brig. General January Mkama Nyambibo was thanked by Tanzania Building Agency through a letter with reference No. GA.210/228/064/7. Ontap of that Tanzania Building i Agency wrote to the Commissioner for Lands to introduce the late Brig. Gen. January Mkama Nyambibo as the Lawful owner of the suit plot for the purposes of being issued with the Certificate of Occupancy in respect of the property, the suit house. Some months thereafter and prior to the certificate of occupancy being issued, Brig. Gen. January Mkama Nyambibo passed away. The 1st Defendant Debora January Nyambibo, the deceased's cousin and who identified herself as the widow of the late January Mkama Nyambibo though disputed by the plaintiff, being aware that in the purchase deed of the suit house she was along with her son one Jocktan Bwire January named as heirs of the said January Nyambibo, processed the certificate of title in respect of the property and since it was not yet issued during the life time to its owner, the same was issued in the names of the Defendants. It is from this background, a dispute arose between the parties whereas the plaintiff claims that the suit house is part of the estate of the late Brig. Gen. January Mkama Nyambibo while the Defendants alleges that the suit house is not part of such estate because the deceased intended during his life time that the suit house be their own property, hence this suit. During the final pretrial Conference, three issues were framed for determination and those are; i) Whether plot No. 176 Block AT, Oysterbay area, Kinondoni is part of the estate of the late January Bwire Nyambibo subject to be administrated by the plaintiff. 2 ii) Depending on issue no. (i) above, whether the title of the suit plot was properly procured by the Defendants. Hi) To what reliefs are the parties entitled to. At the hearing of this suit the plaintiff was present in person and had the legal service of Mr. NyaronyO Mwita Kicheere learned advocate. The first defendant was also present in person while the second defendant was present through his guardian who is also the first defendant. Both defendants were represented by M/S Yusta Kibuga learned advocate. The Plaintiff arraigned three witnesses to prove her claims. They are; Mvano Hassan (PW1), Saada January Nyambibo (PW2) and Rukia Abdallah Kitogo (PW3). On their party the defendants brought only one witness; Debora January Nyambibo. As I have already made the summary of the facts of the case as herein above, I will go straight to the issues versa-vie the evidence on record for their determination accordingly. Whether Plot No. 176 Block AT, Oysterbay area Kinondoni is part of the estate of the late January Bwire Nyambibo subject to be administrated by the Plaintiff. On this issue, I would first put it dear that the deceased person in this case has been referred by the witnesses of both parties by different names. Sometime he was being referred to as Brig. Gen. January Mkama Nyambibo, January Nyambibo, or January Bwire Nyambibo. Both parties are not at issue on the names of the deceased and therefore all the names herein above referred to mean the same person Brig. Gen. January Mkama Nyambibo. 3 Now back to the issue, the evidence of both parties reflects that the late Brig. Gen. January Mkama Nyambibo is the one who bought the suit house in his name as per exhibit D3, the purchase deed which was put in evidence by the first defendant herself (DW1). The Plaintiff on the other hand through PW1 tendered in evidence exhibits Pl and P2 which are letters of Tanzania Building Agency to the late Brig. Gen. January Mkama Nyambibo and Commissioner for Lands respectively in respect of the property in question. PW2 the Plaintiff herself tendered exhibit P5, the salary slips through which the deceased's salary was deducted monthly in payment of the purchase price. All those exhibits from both parties deprived of any other person in the whole world to the ownership of the property in question other than the deceased himself. Even the Defendant's sole witness DW1 who is the 1st Defendant herself testified that: - "Prior to the house being our property me and my son, the house was owned by my husband January Nyambibo ...I have the contract which show that my husband bought such housd'. The same evidence was given by the Plaintiff's witnesses as herein above stated. In that respect, up. to the time of his death the parties were not at issue that the property at issue was owned by the late January Nyambibo. The issue is whether he passed his title on the property to the defendants before his demise. 4 The 1st defendant was very clear on this, when she testified on how she and her co-defendant obtained the title from the deceased. She stated that upon death of the late January Nyambibo, she went to the vendor who had sold the property to the late January (TBA) and obtained a copy of the purchase contract in which she was named as a heir with her son Jocktan, the 2nd defendant. She went to the Commissioner for Lands with the said contract exhibit D3 where the officers in the Commissioner for Lands' Office advised her to bring the relevant documents relating to death and the photos of the named heirs so that the certificate of occupancy is issued in their respective names because it was yet issued in the names of the late January who is no more (dead). In that respect, there is no evidence be it oral or documentary to the effect that the late January passed his title to the defendants during his life time. It was the 1st defendant who processed and procured the certificate of occupancy thereof in the names of the defendants after the death of the late owner of the property in question. That was not proper because the property not passed during the life time of the deceased always remain to be part of his estate until dully administered and distributed to the heirs of the deceased. After the death, only the administrator of the estate can pass the title of the estate to the heirs. In the instant matter neither the deceased himself nor administrator of his estate passed the title of the suit house/plot to anybody. Commissioner for Lands and or his officers were not administrators of the estate of the late Brig. Gep. January Mkama Nyambibo to pass his title on the suit housero the defendants. Their 5 acts towards such registration of the property in the names of the defendants without authorization by the administrator of the estate and even the vendor (TBA) were utra-vires and void ab initio. In that respect the purported title of the suit plot to the defendants is not valid because it was procured from person who had no the requisite authority to pass the title of the estate in question. I do hereby declare that the suit plot/house on Plot No. 176 Block AT, Oysterbay is part of the estate of the late Brig. Gen. January Mkama Nyambibo subject to be administrated by not only the Plaintiff but also the 1st defendant who is the co-administratrix of the estate as per exhibit P2, "Fomu ya Mirathi No. IV". The first issue is thus answered in the affirmative. Depending on issue no. (i) above, whether the title of the suit plot was properly procured by the defendants. On this issue as it depended on the outcome of the first issue, I find that the defendants processed and procured the certificate of Occupancy exhibit D2 merely because they believed that the late January Nyambibo since he named them as heirs on the purchase deed, he had intended that they inherit the suit house upon his death. That perception might be true but only the administrator of the estate or the court as the case may be could interpret such intention. It was not legally justified for the first defendant to process and procure the title thereof without due process for the administration of the estate. As I have said in the first issue only administrator of the estate can passlhe title of the estate of o the deceased person to a third party. In the instant matter the title was processed and procured prior to the appointment of the administrator of the estate. That was unlawful and illegal despite of the honest belief that might have been on the part of the Defendants. If the defendants thought to interpret the intention of the deceased person on his purchase contract towards inheritance of the suit house, it was open to them to do so by negotiating with the administrator of the deceased's estate or argue the same in the probate court to have such intention of the deceased person determined. I therefore find the second issue in the negative to the effect that the defendants improperly, unlawfully and illegally procured the certificate of occupancy in respect of the suit house. In her brief final submission advocate Yusta Kibuga argued that since the defendants have already the title deed of the suit house in their names, they are in law owners of the suit house. With due respect, the title deed which has been unlawfully obtained does not confer ownership of the property to the person who has unlawfully procured it. The title deed would only establish ownership of the property, only if it was lawfully and procedurally procured.; In the instant matter as I have said in the first issue, up to the time of his death the deceased had not passed his title to any person. And upon his death the title on the suit house was not passed to any person by the administrator of the estate in question. Again, as I have determined herein above on the second issue, the certificate of occupancy was illegally procured. In-the circumstances the 7 same does not establish substantial ownership of the suit property and it is hereby declared a nullity ab initio. On the other hand, Mr. NyarOnyo Mwita Kicheere learned advocate in his brief final submission submitted that exhibit D3 is not a Will as it does not contain the ingredients of a valid Will. For avoidance of pre-empting the probate court on the pending probate cause between the parties on whether or not exhibit D3 is a Will let me refrain from making any determination on it because I am seating as a Land Court and the matter before me is ownership of the suit property. I would only add that even if it would be successfully argued that exhibit D3 is a Will or that it is a purchase contract but with a clear expression of the intention of the deceased that the property in question be owned by the defendants upon his death, only the probate court is better positioned to determine as such. I am confirmed only to determine who is the lawful owner of the suit house and I have determined that it is the late Brig. Gen. January Mkama Nyambibo. Also, I have heard the evidence of both parties tending to establish and disestablish who is entitled to inherit the estate in question and who is not. Who was the widow surviving the deceased and who was not between the 1st defendant and the PW3 the mother of the Plaintiff. For instance, PW2 and PW3 testified that the 1st defendant came at their home in the suit house as a house maid but started love affairs with the deceased as a result of which the.2nd defendant was born. They do not recognize the 1st defendant as the wife of the deceased. On her party the 1st defendant avers that PW3 was divorced from the deceased by the court's decree for divorce which she^even attempted to tender in 8 evidence during the hearing of this matter, and that she was in lieu thereof married to the deceased in the year 2000 under customary law as evidenced by the affidavit regarding marriage exhibit DI. Be it as it may, whether PW3 is the only widow of the deceased, or it is DW1 the first defendant, whether or not PW3 is entitled to inherit, all these are issues to be determined by the Probate Court. I am aware as it has been stated on recorded that the parties herein have also a pending Probate cause No. 1/2009 which awaits the outcome of this suit on the property in question. In the circumstances all such issues can be raised thereat for their determination. "To what reliefs are the parties entitled to." Having determined the first and second issues as herein above, I find that the parties are entitled to the following reliefs; One, this suit is allowed in favour of the plaintiff and the suit house is declared part of the estate of the late January Bwire Nyambibo @ January Mkama Nyambibo @ January Nyaimbibo @ Brig. Gen. January M. Nyambibo subject to be administered by the administratrix of this estate as per letters of administration exhibit P3. Two, the certificate of occupancy by the defendants exhibit D2 is declared to have been unlawfully procured by the defendants thus void ab initio. Three, taking into consideration the circumstances of this case, I find it better and appropriate to award costs of this suit against the defendants. The plaintiff is thus awarded cost of the suit against the defendants. v 9 Four, since the plaintiff did not produce any evidence to establish general damages, I find it difficult to assess the damages suffered and the sum to be awarded as reasonable amount and thus the same is not granted. Fifth, It is hereby ordered that the names of Debora January Nyambibo and Jocktan Bwire January be removed from the Register of the Registrar of Titles is respect of plot No. 176 Block AT, Oysterbay in favour of the administratrix of the estate; Saada January Nyambibo and Debora January Nyambibo for their administration and distribution to the heirs as shall be amicably agreed or as shall be determined and directed by the Probate Court. This suit is herefore allowed to the extent as herein above explained, whoever aggrieved has the right to appeal to the court of Appeal of Tanzania subject to the relevant laws governing appeals thereto. It is so ordered. 17/11/2021 COURT: Judgment delivered in the presence of the parties in person and in the absence of their respective advocates. Sgd. A.Matuma JUDGE 17/11/2021 io J