yussuf mohd seif vs abraham yussuf mohd another 2013 tzhc 2160 21 november 2013

HIGH COURT FOR ZAZNIBAR HELDAT CHAKE CHAKE - PEMBA CIVIL APPEAL NO. 03 OF 2013 YUSSUF MOH’D SEIF APPEALLANT v/s ABRAHMAN YUSSUF MOH’D JUMA MOH’D SEIF RESPONDENT JUDGMENT Mwampashi, J The appellant Yussuf Mohamed Seif who is the administrator of the estate of his late father Mohamed Seif Salim filed a suit in the Land Tribunal at Machomanne Pemba against the respondents Abrahman Yussuf and Juma Mohamed Seif hereinafter to be referred to as the 1st and 2nd respondent respectively. The appellant’s case before the Tribunal was that the 2nd respondent who is his brother did sell part of the shamba belonging to the estate of their late father to the 1st respondent without consent from other members of the family. The appellant therefore asked the Tribunal to declare the sale between the respondent illegal and a nullity b'ecause the 1st respondent had no righted power to sale the shamba as the same did not belong to him. From the pleadings and evidence there was no dispute^ that the parcel of land in dispute was part of the estate of the i&iOe appellant’s father of which the appellant is its administrator. It was also not in dispute that at the time the parcel was being sold to the 1st respondent the parcel had not been given to the seller i.e the 2nd respondent as his share from the estate. This is also very clear from the findings of the Tribunal and throughout the Tribunal’s judgment*Regardless of this, at the end, it was decided by the Tribunal that the appellant did not manage to prove his case and an order that the 1st respondent was the lawful owner of the parcel of land in dispute was made. The Tribunal went further by ordering that the estate be divided among all the beneficiaries including the 2nd respondent according to their respective shares and that the distribution should be in the manner that the parcel in dispute which had been sold to the 1st respondent by the 2nd respondent is given to the 2nd respondent. This is what aggrieved the appellant hence this appeal. Thi& appellant’s memorandum of appeal is comprised of four grounds which to my considered view boil to only one ground that the Tribunal did err in not declaring the sale illegal and a nullity. At the hearing of the appeal the appellant who was not represented as it was for the respondent just asked the court to allow the appeal on the ground raised because the 2nd respondent had no power to sale the disputed parcel of land to the 1st respondent. The 2nd respondent supported the appeal arguing that he did not know that he had no power to sale the parcel as he did. He told the court that he is ready to pay back to the 1st respondent the sale price which is Tshs. 250,000/ = . On his part the 1st respondent asked for the appeal to be dismissed because he bought the parcel of land in dispute believing that the same belonged to the 2nd respondent. As hinted above the Tribunal correctly found that the parcel of land sold by the 2nd respondent to the 1st respondent was part of the shamba belonging to the estates1to which the appellant is the administrator. It was also a common ground that the shamba of which its part had been sold to the 1st respondent jointly belonged to the 2nd respondent, the appellant and other heirs of the late Mohamed Seif Salum. It was also clear from the evidence that at the time the sale was being made between the responden&the shamba including the parcel of land in dispute was still under the control of the appellant who is the administrator of the estate and had not yet been divided among the entitled heirs. The 2nd respondent had therefore no exclusive ownership to the parcel he sold to the 1st respondent. The parcel did not belong to him and he therefore had no rmgWC to sale or title to pass to the 1st respondent. The sale was therefore illegal and void ab initio. The Tribunal did err in that the sale was valid and that the 1st respondent was^igntful owner of the parcel of land in dispute. It was also wrong for the Tribunal to make an order directing on how the estate should be administered and that the parcel already sold to the 1st respondent should be given to the 2nd respondent as his share of the estate. By making this order the Tribunal assumed powers it dd^-not have. Administration of estates is beyond the Tribunal’s powers and functions. For the above given reasons the appeal succeeds. The Tribunal’s orders except order (iv) on compensation are set aside and the-a^idegftaad sale between the 1st and 2nd respondent nullified. The appeal is hereby allowed with costs and the 2nd respondent is ordered to pay back to the 1st respondent Tshs, 250,000/ = . Costs to be borne by the 2nd respondent because he is the cause of all the fracas. Sgd: Abraham Mwampashi, (J) 21/11/2013. Delivered in court this 21st day of November, 2013 in the presence of the appellant and 2nd respondent. Sgd: Abraham Mwampashi, (J) 21/11/2013 I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL KHAMIS R. ABDALLA (D/R) CHAKE - PEMBA