tenende s mwakagile vs edward japhet mbangala another 2015 tzhc 2076 13 february 2015

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] AT IRINGA LAND APPEAL NO. 9 OF 2013 (From the decision of the District Land and Housing Tribunal of Njomne District at Njombe in Land Case No. 2 of 2011) TENENDE S. MWAKAGILE......... APPELLANT VERSUS 1. EDWARD JAPHET MBANGALA RESPONDENTS 2. EDWIN CASSIAN 30/1/2015 & 13/2/2015 JUDGEMENT MADAM SHANGALI, J . This appeal originates from the decision of the District Land and Housing Tribunal for Njombe in Land Application No. 2 of 2011. In that land Application the present appellant Tenende Mwakagile sued the present respondents Edward Japhet Mbangala (1st) and Edwin Cassian ( 2nd) seeking for declaratory orders to the effect that the purported sale agreement of the suit land between Jonathan J. Mbangala and Edwin Cassian ( 2nd) be declared null and void and the applicant Tenende Mwakagile be declared lawful owner of the same. The applicant/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 Block "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 Mbangala there was a family meeting which allowed the 2nd respondent Edwin Cassian, as part of an agreement, to construct a house on another plot for the deceased's widow and children so that the 2nd respondent -could be the owner of the suit plot. That contract, however, was not honoured by the 2nd respondent. At the same time following the death of Jonathan Mbangala, the widow of the deceased, Janeth Yoram Mbangala 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 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 sale the same to the appellant. Thus, the sale agreement between the appellant and Janeth Haule was declared null and void. As a result of the trial District Tribunal's decision the appellant approached this court with eight grounds of appeal, namely; 1. 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 appellant's evidence as to the sale agreement between the appellant and one Janeth' Yoram Mbangala. 2. 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 3 regarding 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 decision in favour of the responoenis without recognizing that the appellant is a first and bonafide purchaser of the suit land. 7. 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 purchase money paid by the appellant left undetermined. 8. 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 admitted that the suit land was the property of one Janeth Yoram Mbangala (PW2) before the appellant bought from her. Following non-appearance of the respondents and their advocate on 18th September, 2014 this court granted leave to the appellant to argue his appeal Exparte. In the exparte hearing the appellant was represented by Mr. Erick Nyato, learned advocate. During the hearing, Mr. Nyato opted to abandon grounds No. 3, 4 and 5 and argued grounds 1, 2, 6, 7 and 8. On the 1st ground he contended that by-the fact that the suit 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 contributed to its productivity, upkeep and improvement of the land that spouse shall be deenfed by virtue of the labour to have acquired interest in common. Thus the trial tribunal erred by its failure to consider that fact. Mr. Nyato contended that Janeth Haule, the widow of the deceased has powers to deal with that suit plot as she did withc*it being an administrator because the property was in her possession after the death of her husband. On the 2nd ground 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 Yoram 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 to purchase the suit plot at T.Shs.15,000,000/=, the amount which 7 6 was divided among the members of the family cum lawful heirs of the deceased. Therefore, he stressed, it was not correct for the trial District Tribunal to order the suit plot to be returned to the respondents. On the 6th ground Mr.' Erick Nyato contended that the fact that the appellant was the first and bonafide purchaser of the suit plot then the trial tribunal erred in reaching at its decision. On the 7th ground he contended that there is evidence that the appellant paid Tshs. 15,000,000/= as a purchase amount 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 24 (2) of the Constitution of the United Republic of Tanzania in emphasizing the right of people of not being deprived of their property rights without authority of law and adequate compensation. The case of Attorney General Vs Lohay Akonaay and Another [1995] TLR 80 CA was cited in which 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 Constitution of the United Republic of Tanzania, for compensation. On the 8th ground of appeal, Mr. Erick Nyato'contended that by the fact that the 1st respondent admitted that the suit plots belonged to Janeth Yoram before it was purchased by the appellant the trial tribunal erred in deciding in favour of the respondents. Such admission operates as estopel as per section 26 of the Evidence Act. He further stressed that, in the circumstances, the suit plots were not subject of the estate of the late Yoram Japhet Mbangala because it was the joint property. Mr. Nyato prayed the court to allow the •appeal with costs. The. most contentious issue in this appeal is whether PW2, ■Ja'netfv hteule, the widow of the deceased Yoram Japhet Mbangala had authority or mandate to sell the suit plot to the appellant. There is sufficient evidence on record to establish that the suit plot was among the matrimonial properties owned 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 Mjimwema office where all members including the first- respondent admitted and confirmed that the suit premises was the property of Janeth Haule following the death of her husband. Then, Janeth Haule instructed her relatives to find someone to purchase the suit ‘ 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 family {heirs) to divide among themselves (See the evidence o f PW3 and PW4). In his own evidence before trial District Tribunal at page 25 of the proceedings during cross-examination, the first respondent stated; "Janeth Haule is the widow of my late brother, Yoram Mbangala ... I don't know why my brothers' children objected the said building ... Janeth was entitled to the deceased's properties that is why she allowed us to give the suit land to the 2nd respondent.....Janeth was already agreed that the suit land be given to 2nd respondent so that he can build a house for her and the deceased's children ... The suit land belonged to the late yoram, Janeth was entitled to it but I am the administrator of the deceased's estate ..." In essence the first respondent admitted that Janeth Yoram Mbangala as the widow of the deceased is entitled to the deceased' properties including the suit plot. However, it seems that the first respondent thinks that by being appointed the administrator of the estate of the deceased he became the owner of the deceased's properties i.e. he stepped into the shoes of the deceased. Itr is undisputed that, Janeth yoram Mbangala as a spouse was the joint occupier/owner of the suit plot prior to the death of her husband in accordance with Part XII of the Land Act, Cap. 113 which provides for co-occupancy and partition. The evidence shows that the suit plot was jointly acquired and owned by the spouses in equal half shares and that the widow was entitled to the deceased's properties and from that authority she had decided to sale the suit plot to the appellant. That being the case, Janeth Yoram Mbangala, the widow of the deceased was entitled to the suit plot as a joint shareholder and principal beneficiary. I totally agree with Mr Nyato's submission on this matter. * 9 It can also be said that, 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 occupier, 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 surviving spouse even where the property was not jointly owned. In the case of Constantino Mahaluka Vs Pius 10