Judgment Sarah Amri Ntibangila

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA PRIMARY COURT CIVIL APPEAL NO. 7061 OF 2024 (Arising from the ruling of Nyamagana District Court before Hon. V.L Mugendi, RM in Misc. Civil Application No. 36 of 2022) SARAH AMRI NTIBANGILILA ………………………………………….. APPELLANT VERSUS 1.BALELE MAKONDA 2.ODES AMRI NTIBAGINGILA ………………………………….. RESPONDENTS JUDGEMENT 13th September & 23rd October, 2024. CHUMA, J. Aggrieved by the decision of the District Court of Nyamagana in Application No. 36 of 2022 the Appellant decided to lodge this appeal after securing an extension of time on 30.06.2023. The genesis of this case is that the 2nd respondent was appointed by the trial Court to administer the estate of the late Amri Tibagingila. Among the estate of the deceased is Plot No. 854 Block “E” Buhongwa, Mwanza whereas the trial court directed the Land Department to transfer the said plot to the Administrator of the estate, thereafter the administrator sold the piece of land to the 1st 1 respondent who currently has a 99 years title to the said property which faced challenge from the appellants for contravening the law. The appellant successfully applied to the trial court for revocation of the 2nd respondent as an administrator of the deceased estate and declaration that the said property is the deceased estate. Afterward, the 1st respondent approached the district court to invoke its revisional powers whereby the district court invalidated the Primary court's decision but declared the suit property a deceased property and again 1st respondent a bonafide purchaser. Now, the appellant is before this court advancing four grounds of grievance; - i. The revisional court erred in law and fact by ordering that the 1st respondent be a bonafide purchaser without considering the fact that the second respondent sold the disputed land illegally to him which was among the estate of the late Amri Ntibagingila Lubuze ii. That, the revisional court erred in law and fact for not considering the weight of evidence adduced by the appellant side and that the disputed land was the property of the late Amri Ntibagingila Lubuze and was illegally sold without considering that the 2nd respondent through land application No. 61/2018 she stands as an administrator of estate of the late 2 Amri Ntibagingila Lubuze for recovery of the same then sold it to the 1st respondent in her capacity. iii. That, the revisional court erred in law and fact for not considering that the contract of sale by the respondents herein was an illegal and forged document. iv. That, the revisional court erred in law and fact by delivering a contradictory decision. During the hearing of this appeal, the appellant was represented by Gibson R. Ishengoma while the 1st respondent was represented by Mr. Nasimire and the 2nd respondent was represented by Edward Y. John, both learned advocates. In his submission, Mr. Gibson argued that for the district court to conclude that the 1st respondent as a bonafide purchaser erred in law as the sale was conducted after the expiration of her administration by operation of law. He submitted that proper renewal of her administration after the expiry of her term was material to effect the sale. He referred this court to the case of Beatrice Brighton Kamanga & Another Vs. Ziada William Kamanga, Civil Revision No. 13 of 2020 (unreported) and The Registered Trustees of the Dar es Salaam Mosque Trust Vs. Kaburu 3 Aziz Mussa [1998] TLR 347 that when the administrator fails to file inventory and accounts for a period exceeding four months and remains for a long period without extension of time his administration ceases by operation of law and therefore any action becomes null and void. He stated that the seller needs to have a legal capacity so as the doctrine of bonafide purchaser to prevail referred to Pascal Maganga Vs. Damas Pius Mchoro [1988] TLR 42 and section 36 of the Land Act, Cp 113, [R. E. 2019] whereas according to his submission, the buyer had to prove that the seller has a good title and that in terms of section 68 of the Land Registration Act, Cap 334 [R.E. 2019] requires the deceased property to be registered to the administrator's names as a personal legal representative and not in her names and stated that in this case, the 2nd respondent sold the deceased property personally something which was against the law. Arguing on the 2nd ground of appeal, Mr. Gibson stated that as an administrator, the 2nd respondent had a fiduciary duty to act for the benefit of the heirs, and disposing of the deceased property as her own was a breach of such duty and thus he submitted that no distribution was 4 conducted in proper forms in accordance to the law and inventory is silent. He invited the court to see the case of Edwin Mtei Vs. Rashid Mtei [2000] TLR and Mariam Dadi V Ramadhani Juma [1998] TLR 322. Regarding the 3rd ground of appeal, Mr. Gibson submitted that there was no contract of sale reduced to writing and there is nowhere for it to be traced thus making the sale forged and the context of a bonafide purchaser in such circumstance cannot be invoked as it was decided in the case of Rebecca R. Maganga Vs. Christopher Mashauri and Yusuph Haji Vs. Haruna Abdalla [2004] TLR 228 Mr. Gibson further submitted on the 4th ground of appeal that the judgment of the district court had contradictions as on page 7 the Magistrate was in consensus that the property in question belongs to the deceased estate and at the same time page 8 declared the buyer a bonafide purchaser while the said property was sold by the 2nd respondent in her own capacity and citing the case of Peter B. Lusajo Vs. Rose T. Lusajo [1993] which decided on the point that a probate estate cannot be legally 5 sold without proper authority and any sale done on the contrary will be invalid regardless of the status of a bonafide purchaser. In reply, Mr. Nasimire counsel for the 1st respondent submitted that the 2nd respondent had a good title to pass to the buyer according to the official records in the custody of the responsible authorities and that in this case the authorities used by the appellant's counsel are acknowledged but a bit different as the 2nd respondent was a registered owner of the suit premise thus making the 1st respondent a bonafide purchaser according to the case of Suzana S. Warioba Vs. Shija Ndalawa, Civil Appeal No. 44 of 2017 CAT and Nala Textile and others Vs. Tax Recovery Officer and another, Civil Appeal No. 6536 of 2003. As to the 2nd ground of appeal Mr. Nasimire stated that there was no fraud committed by the 2nd respondent as the administrator did not sell the property for her own benefit as so entailed by the appellant's counsel in relation to the case of Edwin Mtei (supra) and that of Mariam Dadi (supra) but rather referred this court to the case of Kellu Kamo Lucas Vs. Dr. Luis B. Shija, Civil Appeal No. 63 of 2022 where the Court of 6 Appeal held that a person with a certificate of title is always to be taken as a lawful owner of the land unless there is fraud proved. Responding on the 3rd ground Mr. Nasimire argued that for the Registrar of title to register a transfer by way of sale as it was on the suit premise on 26.02.2021 must have gone through all the appropriate transfer documents and the failure of the appellant's counsel to locate the transfer documents cannot be termed as not inexistence or forged. Concerning the 4th ground, Mr. Nasimire was of the view that there was no contradiction in the District Court ruling but rather a slip of the pen and the said paragraph 1 on page 7 should be read as a whole ruling and not separately and he prays for it to be rectified under section 96 of the Civil Procedure Code, Cap 33 Mr. John counsel for the 2nd respondent maintained that the 2nd respondent was an administrator of the estate of the deceased whose name was registered as the owner under the directives of the trial court then the 1st respondent purchased it from her as she had a good title to pass which was in accordance to section 2(1) of the Land Registration 7 Registration Act, Cap 334 R.E 2019. Moreover, he stated that the appellant applied for revocation of the 2nd respondent which was granted on 7.5.2021 however the sale had already taken place. He further submitted that the appellant's counsel did not provide as to when the term of the administrator expired and he had to say that the claim that beneficiaries did not benefit from the sale is a new fact that requires the appellant to seek another forum as the 2nd respondent divided the estate to beneficiaries. He lastly stated that there was no illegal or forged document used in the sale and therefore the decision of the district court was not contradictory. In his rejoinder, Mr. Ishengoma submitted against the 1st respondent's counsel that regarding the 1st respondent being declared a bonafide purchaser while the same revisional court declared the suit property a part of the deceased estate was wrong as there was no good faith when it comes to the disposition of a deceased property by the administrator in her capacity the same was illegal thus ruining the whole transaction making it unfit for protection under the bonafide purchaser's rule and cited Farah Mohamed Vs. Fatuma Abdallah [1992] TLR 205 8 and Registered Trustees of Kanisa la Pentecoste Mbeya Vs. Lamson Sikazwe [2003] TLR. 191 He went further to maintain that the revisional court's failure to consider the weight of the evidence that the administration of the 2 nd respondent ended by operation of law and thus the sale conducted by her in her capacity was illegal in the face of the law as for 19 years since 1998 to 2017 when sought for extension of time to administer the estate was against the law that she was to fully discharge her duties by filing inventory and accounts. Referring this court back to the case of Beatrice Brighton Kamanga (supra) it was unlawful to have a successful application for an extension of time when there is a lapse of 3 years and above and referred to Rule 10 (1) of GN 49, 1971 and Rule 9(1) of the same GN a revoked administrator cannot be appointed again as so done with the 2nd respondent so whatever discharged by her under such circumstance was a nullity. Mr. Ishengoma also had to state that failure by the respondents to provide sale documents as evidence to stand their ground weakened their evidence and such was overseen by the revisional court and according to Moses Mwakibete Vs. The Editor of Uhuru, Shirika la Magazeti ya Chama 9 and National Printing Co. Ltd [1995] TLR 134 a contract found on illegality was void. Having heard the parties competing submissions of the parties and my careful perusal of the record, the main issue that calls for determination is whether the revisional court properly exercised its revisional powers. According to its ruling the debated Plot No. 854 Block “E” Buhongwa, Mwanza was declared a property of the deceased and the said decision of the trial court on 7.5.2021 was lawful. The very verdict takes this court to determine the legality or otherwise of the suit premise being sold to the 1st respondent by the 2nd respondent who was revoked by the trial court decision. For the court to declare the 1st respondent a bonafide purchaser Section 68 (2) of the Land Registration Act, Cap 334 is of assistance. The provision reads; - “No assent to the vesting of any devices of a bequest of any registered estate or interest, or disposition by a personal legal representative, shall be registered unless such estate is registered in the name of such legal personal representative” 10 Bearing in mind that the suit premise was declared by the revisional court that it is the property of the deceased and that it is not disputed that the 2nd respondent sold the suit property to the 1st respondent in her capacity then the above-quoted section stipulates how an estate of the deceased has to be disposed of. Going through the decision of Nyamagana District Court among the arguments were that the 2nd respondent could not sell the suit premise as she was not an administrator. The rules governing the administration of an estate in Primary Courts are the Magistrate Court, Cap 11 under the 5th schedule which provides that as soon as an administrator of the estate of the deceased has been appointed, must with due diligence perform the duties for the benefit of the beneficiaries in so doing has to provide account and inventory of the deceased estate and the probate court has the mandate to revoke him/her when there is proof of non-performance of the legal duties. The Primary Court is also governed by the Probate rules and administration of estates in primary Court GN. 49, 1971. As stated by the Appellants counsel the 2nd respondent was an administratrix of the deceased estate since 1998 whereby in 2017 when 11 applied for her tenure to be extended the same had already lapsed by operation of law, the respondents’ counsels claims that the probate was closed and the court was functus official while the revisional court acknowledged the decision of the trial court dated 7.5.2021. Therefore, what we are left with is that the 2nd respondent disposed of the suit property to the 1st respondent under her personal capacity. The law is clear that a deceased property has to be sold by his/her legal representative as it was decided in the case of Rukia Mussa Ally Vs. Ahmad Iddi Sungura, Civil Appeal No 52 of 2019 CAT Dar es Salaam (unreported) that the interest registered has to be in the name of a legal personal representative. See also the case of Joseph Shumbusho Vs. Mary Grace Tigerwa and Two Others, Civil Appeal No. 183 of 2016. Regarding the submission of the 1st respondent on a bonafide purchaser doctrine, a buyer is duty-bound to ensure the rule of “buyer beware” has been exhausted. The buyer has to exhaust all local remedies revolving around the property he/she intends to purchase, and this was a probate property required by law under Sections 67 and 68 of the Land Registration Act to be disposed of via legal representative. The 1st 12 respondent had to do due diligence in purchasing such property arising from a probate matter. In the case of Malietha d/0 Gabo Vs. Adamu s/o Mtenga, Misc. Land Appeal No. 21 of 2020 (unreported) the court observed that; - “When the claim of ownership stemming from the right of inheritance or purchase for value arise while the probate and administration court is still seized with the mater, meaning the administrator has not filed a final account and the court having not approved the same, the probate and administration court must determine whether title properly passed through the administrator of the estate” As discussed above, and since there is no proof of the probate court closing the matter, the division of the estate is still questionable and by the revisional court acknowledging the suit premise being the deceased estate, the only proper and legal way to dispose of it was through the 2nd respondent’s legal representative capacity and not otherwise. This stance was discussed in the case of Joseph Shumbusho Vs. Mary Grace 13 Tigerwa and Two Others, Civil Appeal No. 183 of 2016 (unreported) where the court stated that: "As legal representative of the deceased's estate, all the deceased's estate is vested in him and has all the powers over the deceased assets as the deceased would have, save that he is acting in a representative capacity." However, as submitted by the 1st respondent's counsel the sale was done under the law as the title registration of the suit property named the 2nd respondent as owner. To them, they did not encounter any incumbrance letting alone that they went through proper authorities after the Primary court's directive for the property to be in the administrator's name which makes their client a bonafide purchaser. They cited the case of Suzana S. Warioba (supra) and Nala Textile (supra) which under the said circumstances was correctly decided. However, it should be noted that Primary Courts directives cannot supersede the law requirement or rather legalize illegal transaction. And more so, I am moved to refer to the Probate and Administration of Estate Act, Cap 352 which does not govern perse the Primary court probate matters just to get a gist on who a 14 bonafide purchaser is concerning the disposition of deceased properties. Section 101 provides that: - “An executer or administrator has, in respect of the property vested in him under section 99, power to dispose of movable and immovable property, as he thinks fit, and powers of sale, mortgage, leasing of and otherwise in relation to immovable property conferred by written law upon trustees of a trust of sale” As submitted by the 1st respondent's counsel all proper course was taken still this is a probate matter in that from the beginning, they had to note the irregularity of a deceased property reading as a personal property. This in itself ruins the possibility of the principle of bonafide purchaser catering to the 2nd respondent as the same has to stand only when the seller had a good title to pass. I disassociate myself with the submission of the respondents’ advocate that the 2nd respondent had a good title to the property giving her mandate to sell because the registration though facilitated by the Mwanza Urban Primary Court was invalid as the obtainment or shifting of the property from the deceased to the second respondent is questionable and unsubstantiated. For that reason, I do agree 15 with the appellant's counsel that there is no bonafide purchaser in an irregular probate sale or where there is no valid disposition of the disputed property. In reference to Menard Theobard Bijuka & 2 Others Vs. Didas J. Tumaini, Civil Appeal No. 49 of 2019 CAT Bukoba (unreported) the court had to say the same that you cannot purchase a piece of land from someone that had no legal mandate in it. I also decline to hold the assertion of the respondents’ counsels that the anomaly pointed out by the appellant in the decision of the first appellate Court on pages 7 and 8 was just a slip of the pen which is subject to rectification under the slip rule as per section 96 of Civil Procedure Code, in my view the effect goes far to the root cause of the case. The slip rule principle its scope is limited. A judgment cannot be corrected by bringing into the judgment a new matter which does not appear naturally to have been in the contemplation of the Court when the judgment was being written. This stance was discussed by the Court of Appeal in the case of William Getare Kagege Vs. Equity Bank and Ultimate Auction Mart Civil Application No.24/08 of 2019 by referring to a case of Sebastian Stephen Minja Vs. Tanzania Harbours Authority Civil Application 16 No.107 of 2000. In this case, the court held that; "...The Court can correct a clerical mistake such as where the word "from" instead of the intended word "for" had been written, or an arithmetical mistake such as the figure "108" instead of the intended figure "180" appearing in the judgment. It can also correct an error arising from an accidental, that is to say, unintended, slip or omission. For example, if the Court intended to say "we allow the appeal" but by a slip of the pen wrote "We dismiss the appeal." The word "dismiss" was not intended and is wholly inconsistent with the reasoning in the judgment. See also the case of Jewels & Antiques (T) Ltd Vs. National Shipping Agencies Co Ltd [1994]. Guided by the above authorities, the way the first appellate court decision was coached can not be regarded as a slip of the pen and cannot be rectified under the slip rule doctrine. I rather side with and confirm the appellant's submission that the decision is contradictory. From the foregoing, it is my firm position that the 2nd respondent failed to exercise and act with ultimate good faith in the alleged sale of the 17 disputed plot hence no good title could pass to the 1st respondent. Accordingly, under the circumstance, the purported sale was void abinitio. Thus, the ownership of the disputed plot remains the property and part of the estate of the late Amri Ntibangilila Lubanze as rightly decided by the Mwanza Urban Primary Court in its decision dated 7.5.2021. Conclusively, I find this appeal meritious and I proceed to quash the proceedings, set aside the ruling and orders thereto in Misc. Civil Application No. 36 of 2022. Considering the nature of this matter, I desist from making an order for costs. I so order DATED at MWANZA this 23rd Day of October, 2024 W. M CHUMA JUDGE 18 Judgment delivered in court before Mr. Gibson Ishengoma and Stephen Mhoja advocates for the appellant and in absence of Mr. Nasimire and Mr. John Edward advocates for the respondents this 23rd day of October 2024. C. KISONGO DEPUTY REGISTRAR 19 20