20150213 TZHC Iringa

; .· .. .::,,- ; t~ ' ,. ' .·• ,';J-: ;:./ 1. EDWARD jAPHET MBANGALA . -~ / . } ...... RESfONDENTS ~ , ~. ' " ~ '.,. ~-- • ·.,. .I; .: . ( 2. EDWIN CASSIAN 30/1/2015 &- 13/2/2015 -:. ·- - ... ·' . ' .. - JUDGEMENT MADAM SHAN GALI, J. . I , ·_ . . I This appeal originates from t e decision of tjhe District. Land and Housing Tribunal for Njombe in! Land Application No. 2 of 2011. -_ In that land Application the pric;seft appellant Ten:ende Mwakagile · sued the present respondents Edward Japhet Mbangala (1~ and I i - . '·•· Edwin Cassian (Z7~ seeking for de<::laratory orders tb the effect that .. • _ the purported sale agreement of th6 suit land ·between Jonathan J. · . .~ ...· . ··. ~>~1?,ri·;:-::'J~lq,a.pg9I~ :~nd. Edwin Cassian (Z7~ Je declared ltl:!?Jll.,~n~"."YOid an~:!tbl,e-~:""'~< .. .:,:f ~: . _. . 1 ' .... · , ' . .. \ appUcant:Tenende Mwakagile be declared lawful owner of the same.- The applica·nt/appellant further craved for general damages ·at the tune of T.Shs.10,000,000/= for trespass -committed by the, 2nd respondent and costs of the suit. · After hearing the application, the trial District Land Tribunal ruled in favour of the respondents and dismissed the application with costs. ·._ · Briefly, the case is based on a suit Plot No. 337 ·s1ock "2" Mjimwema area Njombe township which was sold to the appellant on 9th September, 2010 by Janeth Yoram Mbangala, a widow of the late Yoram Japhet Mbangala alleged to be the former owner of the suit plot. On the other side the -respondents claimed to have right over the suit plot in the sense that upon the death of the late Yoram Japhet Mbangala who was the owner of the alleged plot, the brother of ·the 1st respondent namely Jonathan Mbangala was appointed to administer the deceased's estate. Unfortunately, the said Jonathan .. Mbangala · died before completing his duties as the administrator. That, upon the death of Jonathan Mbangala, the first respondent was appointed as the administrator of the deceased's estate to replace Jonathan Mbangala. It appears that before the demise of Jonathan nd Mbangala there was a family meeting which allowed the 2 respondent Edwin Cassian, as part of an agreement, to construct a house on another plot for the deceased's widow and children so that •, nd . the 2 -respondent -could be the. owner. of the suit plot. That 2 ' ' ,- .; .:. ,:-,. ;'l:c. ,. . contract, however, was not honoured by the 2nd respondent. At the same time following the death of Jo~athan Mbangala, the widow of the deceased, Janeth Yoram Mban, ala sold the suit plot to the appellant. The trial District Tribunal found that since the, 1st respondent was the appointed administrator of the estate of Yoram Japhet I - Mbangala, he was the only person with powers to dispose of the suit plot. That, the said Janeth Haule @ Janeth Yoram Mbangala, widow of the deceased had no powers to Jale the same to the appellant. I Thus, the sale agreement between the appellant and Janeth Haule was declared null and void. . l As a result of the trial District Tribunal's decisidn the appellant approached this court with eight groJnds of appeal, namely; -- I -. 1. The District Land and Housing Tribunal for Njombe erred both in points of laJ and facts in reaching the decision i~ favour .. of ihe . respondents without ,. regarding appellant's evidence as to the sale - I - agreement between the ?ppellant and one Janeth· Yoram Mbangala. 2. The District Land and Ha,using Tribunal for Njombe I ' erred both in points of law and facts in reaching the . I decision in favour of the respondents without I .. ~ .... I' I . t,l•"TI,.,...- _.. ,. • ,'f""'""''-' • < •· b ·- . ":~ , r >ivtr1~;,~~ ,.·.,: 3 ·_, regardin_g· appellant's ·family :·use and occupation of the suit for an undue length of time. : 3. The District Land and Housing Tribunal for Njombe erred both in points of law and facts in reaching the decision in favour of the respondents without · . regarding that appellant bought the suit land before the appointment of the 1st respondent as an administrator of estate of the late Yoram Mbangala. 4. The District Land and Housing Tribunal for Njombe erred both in points of law and facts in reaching the decision in favour of the respondents while the suit land was not part of the property administered by the 1st respondent. -5. The District Land and Housing Tribunal for Njombe erred both in points of law and facts in reaching the . decision in favour of the respondents while the 1st respondent was not legally appointed by family members as an administrator of estate of the late Yoram Mbangala as there is no any minutes by family members appointing him~ 6. The District Land and Housing Tribunal for Njombe erred both in points of law and facts in reaching· _the 4 t - -t'r;c,,: :· .>:• • ·:• - ·,· ~ --,_,./::::~:;~ .. ·· .... ., . \ . I I decision in favour . of t~e respondents i >without ·, I '. recognizing that the appel1l~nt is a first and· bonafide purchaser of the suit land.: I I I I 7. The District Land and Hou, ing Tribunal for Njombe I, I erred both in points of law':and facts in reathiAg the decision in favour of th1 respondents "'."hile the purchase money paid by 1 the appellant left i i 1 undetermined. 8. The_ District Land and Hoy,sing Tribunal for Njombe erred both in points of law: and facts in reJching the decision in favour of the ~espondents whi~le the 1st I respondent admitted thayj the suit la:nd I was the property .of o~e Janeth IYoram Mbanga;la (PW2} . -- ...., -.• -..Y/ .• ,. before the appellant bought from her. I I I ' Following non-appearance of[i the respondents and their 1 ., I th advocate on 18 September, 2014 this court grant~d leave to the appellant to argue his appeal Exparte. In the exp rte hearing the 9 appellant. was represented by Mr. Eri¢k Nyato, learne9 advocate. . i ' I During the hearing, Mr. Nyato opted to abandoij grounds No. 3, 4 and 5 and argued grounds 1, 2, 6, iJ and 8. I ,. . :' . .,, 1t st - On the 1 ground he contended that by the. ftact that the suit. I • d .t "•- ·, ' •' ,'<, '-;• :•'· ,-'\'~ ,l .-, . i . 5 ·, i, • _ .. . . ' '_/...:-.. ~ .• .t . ,. ... >_•:. .· ··;···.·j'~~t. , ·v- . .. . . ,. • . , .... ' ~-.~, . . I ., • :·, plot was.:the properties of both Janeth Yoram· Mbangala and his ' . . late husband ( Yoram Japhet Mbangala) prior to the late husband's death, Janeth Yoram Mbangala had authority and power to sale the suit plots as she did. He cited section 161 (1) of the Land Act, 1999 which provides that where a spouse obtains land under a right of occupancy for co-occupation and use of both spouses they would hold the land as occupiers in common. He cited also subsection (2) of the same section which provide that where a land held for right of occupancy for the name of one spouse but the other spouse . C(?ntri.Ruted to its productivity, upkeep and improvement of the land ,.· that spouse shall be deem~d by virtue of the labour to have acquired i[lterest in common. Thus the trial tribunal erred by its failure to · cdnsider that fact. · Mr. Nyato contended that Janeth Haule, the widow of the deceased has powers to deal with that suit plot as she did witha.,t being an adm_inistrator because the property was in her possession after the death of her husband. On the 2nd grol!nd of appeal Mr. Erick Nyato ~contended that there is evidence to the extent that the suit plots was used by the appellant's father since 1980, having been given the same by Yoram Japhet Mbangala, the late husband of Janeth Yoram. Mr. Nyato argued that there is evidence to establish that following the death of Y6ram Japhet Mbangala there was misunderstandings between Yoram Japhet's relatives over the suit plot. That in order to settle the disputes the appellant in agreement with the family members decided . ( . . .t0 ~rchase the suit plot at T.Shs.15,000,000/=, ·the amount wh_ich 6 , . . . .·.· was divided among the. members ·of the family cum lawful heirs of ' ' ' ' ' ! the deceased. Therefore, he stressed 1 it was not corre~t for the trial /i District Tribunal to order the suit; 'plot to be returned to the respondents. On the 6th ground Mr~· Erick Nyat9 contended that the fact that I' I the appellant was the first and bonafide purchaser df the suit plot ' ' then the trial tribunal erred in reaching at its decisi0n. On the ih ' ' ground he contehded that there is evidence that the, appellant paid I Tshs. 15,000,000/= as a purchase a~ount which was divided to the family members and the appellant also paid fees for survey and several costs which makes a total of Tshs. 1,000,000/= but the trial tribunal said nothing on the said amounts of money. ,He cited Article I 24 (2) of the Constitution of the ynited Republic of Tanzania in emphasizing the right of p~ople. of not being deprived. of their property rights without authority of l~w and adequate compensation. The case of Attorney General Vs ·~ohay Akonaay and Another [1995] TLR 80 CA was cited in whiFh the Court stated that where efforts has been put to the land , by occupier he is ·entitled to protection under Article 24 (2) of the Cons~itutiory of the United Republic of Tanzania, for compensation. • I On the 8th ground of appeal, Mr. Erick Nyato '·contended that by the fact that the 1st respondent ad~itted that the:su.it plots belonged to Janeth Yoram before it was pur~hased by the appellant the trial . . , I . •. tribunal erred i!l deciding ~n •fq~OWfi·· of the 1 r~spo!7denfa ..";_S.u~tr 7 . • r __..:·•·,..,_ • ._\!"\l.'T. • . ~ ..{:\: . .- ·/.~ :;,:;'_ :· . . • .i·::·•_,. -~:" ··:_. ·. • •._ ~ ·~ .· i;· '"'. i•· · ; i. ,, :· . ,. r . · ' ,-· :. _.. ·_.:. ,)·-• .·-· •- ·. ::\.,·. ·, :· -:•- - ·_ ·• ;:ii~;;Il1f :· - ·· - · . · _ adniission oper.ates,·:·as\estopel'-a~ pet':seo:iort 26 -o'f the Evidence Act. · - -· '. -_· : it~/,.· )· ·•'••\j(1;:.··_ _,_;§li x~. <: -_'_:·.:-(. :-•.·-, ?::# -:.• _-':•i· . ;,, . •..~, ~ir::,:··; I '.,i. '."\.:~~ .," ' ·: . '.'. _',. ~. •. ::, ,'/.i~'. ,, ' . . • . • ,,, _f He further stressed that, in the circumstances, the.-suit plots were not ·. :: - subject . . of the estate .of-the late Yoram Ja.phet . Mbangala because . ..... it .was the· joint property:: Mr. Nya-to prayed the court to .allow the---- , . --qppeal with ~osts. .- •, .:- ·- · -. - · ' .. -· _ ._ _TheT--_rll9st·,c9ntehtious issue in this appeal is whether PW2; ._--_.-·· ~J'. .... _ .._ _ ."":.{·_ ·f_'·:.~_;.)/.:/\'. ~~· . . -:. _;Jane_th'.:J-i!a4Jle,_ the widow of the deceased Yoram Japhet Mbangala ;·:JS,ad,:~~~b~ity .or mandate to sell the ~uit plot to the appellant. There· ... • • • :. • ' t-,1 _- ,·:is~--sufficient evidence on record to establish that the suit plot was . . . . ·•-· . --~ . . . . _~--·,frnor:,g · the matrimonial properties o·wned by the deceased Yoram . . . . ':',. Japhet Mbangala and his wife Janeth Haule. That after untimely :_death ,of Yoram ·Japhet Mbangala there was a clan meeting at · rvijimv./emp offi-ce -where all members including the first- respondent _ _:·:,_1&}~~\tteq· a□d- confirmed that the suit premises was the prop~rty- of . Ja~~et~! ·H_~ule following the death_ of her. husband.· Then, Janeth Haule ·instr~cted her relatives to find someone to purchase the suit 1 • . . . · plot hence the appellant who bought it from her. Part of the proceeds was used to build a house at Ludewa and part was given to Mbangala _farnily (heirs) to divide among themselves (See the evidence ~f PWJ and PW4). In his ow~ evidence before trial District Tribunal a~ page 25 of the proceedings during cross-examination, the first respondent stated; "Janeth Haule is the widow of my late brother, ' 1, j:' ~, • .·-r 1,r:-1" /' ~-:":),If'[ '.:,?/}:,... ,,. ._ ~ ~'.) ,,;!•" • •• •I•.- 1.: ~""' '-• •• •- • l • . Yoram Mbangala ... I don't know why my brothers' 8. . . ,.·, .· ' . l I . . . . I i •.. . .- _· • • . ; • childi-eri objected the said buildr~~- .. . Janeth wa___s; entitled to the deceased's properties that 1s why she al!mNed us to . d ' . ·, I give the suit land to the 2n res ancient ...... Janeth was : - i already agreed that the suit land be given to 2nd 1 respondent so that he can build a house for her and the deceased's children ... The suit _land belonged td the late ' I yoram, Janeth was entitled to it but I lam the , ._, administrator of the deceased's estate ... " I In essence the first respondent admitted that i Janeth Yoram Mbangala as the widow of the decea sed is entitled tcp the deceased-- 1 . I - properties including the suit plot. However, it seems that the first respondent thinks that by being appointed the admi~istrator of the I estate of the deceased he became the owner of the deceased's 1 1 -- . •. . . • ~ .. :.-· ~-~. ->---- properties i.e. he stepped into the shoes of -th~ drceased.I Itiris\~:~- }/ :_ ... · ·:. - - undisputed that, Janeth yoram Mba~gala as a spous;e was the joint ,· occupier/owner of the _suit plot priori to the death of her husband in 1 accordance with Part XII. of the Lanid Act, Cap. 113 which provides - I • for co-occupancy and partition. The evidence shols that the suit plot was jointly acquired and own~d by the spousys in equal half • I shares and that the widow was entitled to the deceased's properties and from that authority she had decided to saie th~ suit plot to the . ! : appellant. That being the case, Janeth Yoram Mbangala/the widow I j . of the deceased was entitled to the -suit plot as a joint shareholder . ! ' · · and principal beneficiary. I totally 9gree with Mr Nyato''s.submission~-· . , ~ .. I - f.:'""'~H•_ ~~;-. ,, Ofl this matter. ,,1, , .. •••,~ . :<_'.,t •;r""··":"'' . . .,· ·• 1 9 ---, : r ,, .. ~,. ' • • '( - • ·~ v.- - ..J... :•:. •·:::~-,;!· • . . : ,; ...... -~, ' 1 < .:i:.·. ·.:". ,' ,~ ... >·· ' ... -, J.~ • . ~~~- t~_.~, . ·- It can" a!so :t,e said t~at;: by· the :fact that' the late Yoram Japhet . '. . ,.., ' Mbangala died intestate ·without bequeathing his• share in the suit premise to any other person then his interest shall vest in the surviving occupi~r,- Janeth Yoram Mbangala. In the. case of Juma Rahisi Nayange Vs. Shekhe Farisi (1999) TLR 29 it was held that:- · (i) N/A (ii) Since Farisi Mbwana and his late wife, the mother of the respondent, were joint owners of the house during her lifetime then, upon her death, and in absence of evidence that' she had bequeathed .her share in it to some other person, property in the house devolved upon the husband. (iii) Since upon the death of the wife property in the house . devolved upon the husband, he could . deal with it as he wanted, and, therefore,_ he could _dispose of it by sale." It is also the_ position of the law that, the right of devolution or inheritance of the. property by the surviving spouse is not limited only on properties which were jointly owned by the spouses; it also extend on the .surv_iving spo..use eve·n where the property was not jointly owned. In the case of Constantino Mahaluka Vs P~us -~ I r· . I r a, i ,. . '~ '""' .., . . -:::'" .• ''".•I ..: ,; ~ ., IO . .. >_ ", ;.. . . ; . '.. . ~ ~ I ! Lu.pala, (PC) Civil Appeal - No. 1 . of 1999 High Court Mbeya ( unreported) it was held that:_ I "in my Judgement where a man dies intestate and he I - I ' leaves behind a_ widow, the widow acquires her husband's interest in land in the same Janner as if the, spouses were joint tenants. A cust~(nary rule which holds otherwise is repugnant to justice; cannot be allowed to I take away just interests from widows." See also the case of Mahmoud G. Shambe Vs. Zuihura Stiambe (DC) Civil Appeal No. 8 of 20131 High Court Ir,inga Registry 1 (unreported) where the court insiste~ on legal rights of widows and I widowers. Thus from the clear position of law and the evidence on record I' it is crystal clear that Janeth Yoram Mbangala had authority and mandate to dispose the suit plot by way of sale to th~ appellant. . The ' above findings are enough to dispose this appeal, but there is . ! another interesting point which was not clearly I discussed and resolved by the trial District Tribunal. That concern tbe legality of the 1 I appointment of the first respondent as the administrator of the estate I: : of Yoram Japhet Mbangala. The evidence indicate that the first person to be appointed was Jonathan Mbangala who died before completing his duties as an adminis~rator. However there is no clear - ,._. • ·- I '.~ , ,,-~,· ., .• 1 ey1de.nce~,-.. to show how~ the 1st respon·dent .was,.,)appointed, an,,-_ - ···· 11 I • I t ·• . , , , • • . . ., ,. I ~ adm"inistr~tbr" ·of the -·estate'.•of•;Yoram' Japhef M6angala after· the , • ' '! demise of Jonathan Mbangala. The only available evidence is the questionable copy of a letter of appointment ~xhibit D2. There was no fami_ly or clan meeting _.minutes to show that he was 4endorsed by the family members. 4 . PW2, the very widow of the .fdeceased -~. testified that she was not aware of the appointment of the . ~ st -'1 respondent as an administrator of the estate of her deceased husband. PW4 Mathew Amos Mbangala, the 1st respondent's step .brother testified as follows; "The 1st respondent is not an administrator of the estate of the late Yoram Mbangala. We did not appoint him ... ". Furthermore both assessors who' set with the trial Chairman opined in favour ·of the appellant on the ground that the first respondent was dubiously appointed· admin_istrator of the estate of the deceased Yoram Japhet Mbangala because there was no sufficient evidence to prove his appointment. -In her opinion- the first · assessor Miss Mlele stated:- "(i) Mjibu kesi Na. 1 Bwana Edward Japhet Mbanga/a alifungua mirathi ya· marehemu kaka yake Yoram Japhet Mbangala bi/a uteu4i wa kuwa msimamizi wa mirathi na familia ya .akina Mbangala bali a!itumia hati ya kikao cha . familia ambayo ilimteua marehemu Jonathan Japhet <. - --·- ~ - 'Mbangata'• kuwa 'insi1riamiz/:· wa mirathi ya inarehemu 12 ' ..... .~ • ... •, < :e .. !,<-~•1'-;:..,,. ~.;' '.~ . .. . _" I ; . . . • ·.1 '. 1.--.' '.· .' ' .. . .,,' . ' ' ' ' t: . ' 1'i . wa ' ,Yoram Japhet Mbang~la.' · Hivyd usimamizi ,r,irafhi tie ,. ulikuwa ni BA TILl'. The second assessor, Mr. Chodo a opined as follows:- I "(ii). Hati ya usimamizi wa mirathi aliyonayo Edward (DWl) haijulikani aliipataje kwani hakuna kikao 1cha ukoo • I . I' kilichopeleka mapendekezo k~a hakimu aliyemteua na ' . vipi alirithi makubaliano kati ya Jonathan Mbangala na r . ,, L,ass,an... . With all that evidence available and correct opinions from _the I tribunal assessors the Hon. Trial Chairman brushed them aside and ruled that the District Land and Housing Tribunal have no jurisdiction . . . 11 . to nullify the letters of an appointment grantep to the first respondent by the primary court. I disagree with the Hon. Chairman. Ii In my opinion, the District Land an9 Housing Tribunal have a legal duty to critically evaluate, analyse,' and examine all evidence and ' ~ ~ I ,; evidential documents placed before ,t in order to satisfy itself on its ! credibility correctness and admissibility. There is no law which forbid I 1 that duty even if the alleged documentary evidence is from co_urt of law. In the circumstances, and upon available evidence the appointment of the 1st respondent, Edward Joseph Mbangala as the 1 administrator ·of the Estate of Yonam Japhet .Mbqngala was not . .- • . .. •., ~-<", • • ~ Ii,;_;· , -.,~ll,,_,,·_-,· . ,..,,· t,· --~-~ . . • •.-, .... ~'._,t.,,,. ~ _,) proved. In other''· wbrds there"' is ·\ti'o-evfdente 'fer show that he was 13 "' ... ·appointed in accordance with the law. In the exercise of.·. my revisional powers· and appellate jurisdiction under Part III of the Magistrate Court Act: Cap 11 R.E. 2002 particularly Section 29 and 31, I hereby reverse and nullify the - appointment. of the 1st respondent Edward Japhet Mbangala as the Administrator of the Estate of deceased Yoram Japhet Mbangala. The 1st respondent is advised to follow the required procedure including to obtain family permission in order to be appointed an administrator. _ As I have stated above and on the strength of the available evide_n_ce on record and grounds of appeal particularly grounds 1, 6, 7 and 8, this appeal is meritorious and it is hereby allow~d with costs. M. S. SHAN GALI . JUDGE 13/2/2015 Judgement delivered on 13/2/2015 in the presence of Mr. Erick Nyato, learned advocate for the appellant and appellant in person. Both Respondents and their advocate absent. M. S. SHANGALI JUDGE I • 13/2/2015 14 ..... , - i:; .· i}/.·;; .· :Order:- ·Respohden~ ·. to'be . nbtified ,. . .. r-: , Jj i I ! I' 'M. S. SHA ' t'GALI JUDGE I Ii 13/2/2015 II! I I, I '' I I' • i I, I •i 15 ., . . ~; ~· ''.'." ..J::.. t tw,.r;. . . .~,~--