ZAHIRA SHEMSI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA LAND APPEAL NO. 79 OF 2022 1. ZAHIRA SHEMSI 2. ASHA SOMOYI SHEMSI ……………..APPELLANTS VERSUS 1. VERONICA ALPHONCE MASSAWE 2. KHAMIS KAYILA NKINGA 3. CASMIR N. LUKUBA 4. HAJI SOFTER MTAKI ………..RESPONDENTS 5. BILAS MKOFU 6. FRANCIS PIUS MTAMBALIKE 7. CONSOLATA BUNDALA 8. TINA MAMA FRANCIS [Appeal from the decision of the District Land and Housing Tribunal of Shinyanga at Shinyanga.] (Hon. C. Hatson, Chairman.) dated the 7th day of October, 2022 in Land Application No. 09 of 2020 1 ----------- JUDGMENT 8th February & 19th March, 2024. S.M. KULITA, J. This is an appeal from the District Land and Housing Tribunal of Shinyanga (DLHT). The story behind this appeal in a nut shell is that, Sai Utumbo was the original owner of the disputed land which is located on Plot Number 107 Block “K” Viwandani in Shinyanga Municipality, till when she passed away in 1994. Following her demise, Khamis Kayila Mkinga (2nd respondent) was appointed the administrator for estate of the late Sai Utumbo. In his capacity as administrator, this 2nd respondent started with transferred ownership of the suit property into his name. Later on, in order to distribute the said property to heirs, the said 2nd respondent sold the same to Veronica Alphonce Massawe, the 1st respondent herein. After being handled the said property, the 1st respondent also transferred it to her name. In taking control and enjoyment of the same, the 1st respondent demanded from the tenants (3rd to 8th respondents), who were living in the suit house by the time she was buying the house, to pay their rent to her as a new owner of the house. However, the said tenants did not heed her demand. Upon looking for the cause as to why the tenants refused to pay her rent, she came to realize that, the 2 appellants herein are the source. They used to influence those tennants not to pay rent to her. With that knowledge, the 1st respondent decided to file this case at the DLHT. In their defense during trial at the DLHT, the appellants herein stated that, by the time the 2nd respondent was selling the house in dispute, he was no longer the administrator for the estate of the late Sai Utumbo. The reason behind that allegation was that, a long time had passed without the said 2nd respondent taking legal actions in administering the deceased’s estates. The other reason was that, the said late Sai Utumbo had left an oral “will” that the house in question should not be sold. The case was heard, and finally the Chairman decided in favor of the 1st respondent herein. She was declared the lawful owner of the suit property and that, all tenants were ordered to pay rent to her and settle the sum that they were indebted by her. That decision aggrieved the appellants herein, hence appealed at High Court with three grounds as follows; one, that trial court did not have jurisdiction to hear and determine this case on merit, two, that the trial tribunal granted the reliefs which were not sought by the applicant, and three, that it was wrong for the DLHT to hold that the 1st respondent bought the house in dispute lawfully. 3 On 8th February, 2024 the case was scheduled for hearing. Mr. Audax Constantine, Advocate represented the appellants whereas Mr. Frank Samwel, Advocate appeared for the respondents. Submitting in support of the first ground of appeal, Mr. Audax stated that, the house in dispute was owned by Sai Utumbo who had passed away in 1994. He said that, on 7th November, 2016 the 2nd respondent was appointed the administrator of her estates. He added that, following the said appointment the 2nd respondent sold the said house on 29th October, 2019, that is, after the lapse of 3 (three) years period of time. Following that scenario, the appellants herein challenges the sale on the following reasons; firstly, there is an oral will that the house in question should not be sold, secondly, as the late Sai Utumbo had no child, the appellants claim for interest of the deceased’s estates who is their mother’s sister and lastly, the sale of a suit house being done after the lapse of 3 years’ period from the date that the 2nd respondent was appointed the administrator is wrong. As for these facts, Mr. Audax is of the views that, this case is fit to be tried at the Probate and Administration court, not the Land court. As for the third ground, Mr. Audax submitted that, even when it was held that the Land court had jurisdiction to entertain the matter, yet, the 4 sale was unlawful because the 2nd respondent sold the said house after expiry of 3 (three) years without seeking for extension of time for his administration status. The Counsel argued that the prescribed time limit to administer the deceased’s estates from the date of appointment, that is filing inventory and accounts as per section 107(2) of the Probate and Administration of the Estates Act [Cap 89 RE 2019], is 6 (six) months. Lastly, Mr. Audax observed that, the trial tribunal was wrong to award the reliefs which were not pleaded. He mentioned the said reliefs being, a declaration that the sale of the disputed house was lawful, and that the 1st respondent be paid the accumulated rents of Tshs. 20,000/= per month for each tenant, to be computed from the date that she had purchased the house. The Counsel stressed further that, as these prayers do not fall under the reliefs sought, and it is a principle of law that parties are bound with their pleadings, he opined that, it was wrong for the tribunal to award those reliefs. In reply, Mr. Frank Samwel, Advocate, stated that, the issue that the late Sai Utumbo had left an oral “will” that the house should not be sold is a new issue. He said that, it is firstly been introduced by the Appellant’s Counsel. He added that, the said issue does not form part to the raised issue of jurisdiction, hence, urged this court to disregard it. 5 He stressed further that, oral will has its conditions, of which the Appellants herein have failed to meet. He added that, even those who claimed on the said will, failed to state before whom the same was pronounced. The Counsel added further that, as the appellants participated in appointing the 2nd respondent to be the administrator, to him, minutes of the family meeting should have contained facts to the effect, that the house in question should not be sold as claimed. On that account, Mr. Frank named this argument as an afterthought. Concerning the issue that, the appellants claim interest over the disputed house due to the fact that Sai Utumbo had no child when she passed away, Mr. Frank Samwel stated that, this does not fall under the umbrella of jurisdiction. He thus prayed for the same to be disregarded. Mr. Frank added that, out of 16 (sixteen) heirs, only two of them, the appellants herein, dispute over the sale of the property. To him, this is because the said two appellants are the only ones who have been enjoying rents from the tenants for that house since 1990s. Concerning the issue of sale of the disputed house after a lapse of 3 (three) years, Mr. Frank, Advocate, called it an afterthought. He gave the reason being that, this has never been an issue during trial, but it 6 came to be raised in this appeal case. He added that, irregularities of the administrator, which are minor like this one, should not lead to the nullification of the appointment of the administrator and sale of the deceased’s estates that has been done. He emphasized it by giving the reason that, the act of only two beneficiaries out of sixteen, objecting the said sale, should be regarded as a ground for this court to maintain status of the 2nd Respondent as the Administrator of the deceased’s estates. He added that, the same reason should also be used as a ground for not nullifying the sale of the deceased’s estates. It was Mr. Frank’s contention that, all what have been discussed, do not in themselves go to the fact that, the matter was supposed to be filed as the Probate Case. He averred that the said matter was rightly filed as a Land Case. He concretized this argument with the existence of section 3(2) of the Land Disputes Courts Act [Cap 216 RE 2019] which specifies the courts categories in which the land cases should be tried. It was Mr. Frank’s further contention that, the land matters which are taken to the Probate Courts are the ones which involve beneficiaries only. As for this one, he said that, the 1st respondent just bought the property in question from the 2nd respondent and that he had no means of knowing that the same was basically owned by the late Sai Utumbo. 7 The Counsel added that, even the 1st respondent’s prayers at the trial tribunal, was not for seeking inheritance of the suit property. In that sense, the counsel was of the views that, the 1st respondent was right to institute a land case for the tenants who had rejected to pay rent to her, as well as the appellants, who were claiming to own the landed property in question. To him, Mr. Frank disputes that the matter was well instituted before the land court. Concerning the prayers granted by the trial tribunal, Mr. Frank stated that, the same are the ones which the 1st respondent had prayed for in her application. He urged this court to refer to paragraph 6(1) of the application lodged before the trial tribunal. He insisted that, even the framed issues before the trial tribunal reveal that, the 1st respondent was seeking to be declared the lawful owner of the disputed land. In rejoinder, Mr. Audax just reiterated his submissions in chief. I have earnestly gone through both parties’ submissions and the available records. I have also taken into consideration the rival issues. Having so done, hereinafter is my analysis. Concerning the issue that the trial tribunal had no jurisdiction to entertain this suit, it is not in dispute that, at the tribunal this case was 8 filed by the 1st respondent who claimed to have bought the suit premises from the 2nd respondent. The record reveals that, the 2nd respondent was chosen among the family members and appointed by the respective court to administer the estates of the late Sai Utumbo, which includes the house in question. From the records too, it is also vivid that, soon after the 2nd respondent being appointed the administrator on 17th November, 2016, two months later, that is on 19th January, 2017, in the course of administering, he transferred ownership of the house in question to his own name. The same suit premise, was then sold to 1st respondent on 29th October, 2019 at a consideration of Tshs. 15,000,000/=. The records further reveals, particularly in the 1st respondent’s application, that, after she had purchased the house in question, the following things happened; firstly, she was not given rent by the 3rd to the 8th respondents due to the directives that they had from the appellants herein, secondly, the 1st respondent was rejected to renovate the house she had purchased (suit house) and lastly, the appellants claimed that the house was theirs as the sale was unlawful. With these facts, as the 1st respondent is not among the beneficiaries of the estate of Sai Utumbo, it cannot be right to say that 9 she was supposed to file a Probate matter. A non-beneficiary who claims to have got ownership of the land in question (deceased’s land) through purchasing it, cannot sue in a Probate court, claiming for lawful ownership of the land in question and the accumulated rents from the tenants. Probate case would arise if parties to the land in dispute were only beneficiaries of the late Sai Utumbo’s estates. On that account, I am settled that, the trial tribunal had jurisdiction to entertain the suit as it did. Concerning the issue that the 2nd respondent had not lawfully sold the house in question because he did it after the lapse of 3 years’ period from the date that he was appointed by the court, meaning thereby he was no longer the administrator, I have this to say; this issue of delay in attending the administration by the 2nd Respondent cannot be used to invalidate the sale of a house done to the 1st Respondent nor nullifying ownership of the said landed property from the 1st respondent. The following are the reasons for that; firstly, the 2nd respondent was appointed the administrator on 17th November, 2016 and just two months later, that is on 19th January, 2017, he rightly transferred the land in question to his own name. He did so under the umbrella of section 67 of the Land Registration Act [Cap 334 RE 2019] which reads; 10 “On the death of the owner of any estate or interest, his legal personal representative, on application to the Registrar in the prescribed form and on delivering to him an office copy of the probate of the will or letters of administration to the estate of the owner, or of his appointment under Part VIII of the Probate and Administration of Estates Act or the Fourth Schedule to the Magistrates' Courts Act shall be entitled to be registered as owner in the place of the deceased” These facts, plus the prevailing situation as per the records and submissions that the 1st respondent visited the land office before she bought the suit premises and found no caveat lodged for the said land, implies that there was no fault on her side. She was a bonafide purchaser. She could have no means of learning that, the seller was the Administrator of estate who was out of time limit to administer the estates of the late Sai Utumbo. Further, the title deed in respect of the land in dispute bores the name of the seller who was the 2nd respondent. Another thing to note is that, there is no dispute that beneficiaries of Sai Utumbo are sixteen in number. But here in this case, only two of them, Appellants, who dispute the sale. As alleged in the original record that the other beneficiaries have received their share for the sale of the 11 disputed house. Had those other beneficiaries not been considered, they would have applied to be joined as parties to the case as well. Since they have no dispute on the sale of the disputed land, it follows therefore that, nullifying the sale will cause unjust rather than justice, particularly to the other beneficiaries and the purchaser (1stRespondent). Concerning the argument that there is an oral will that the house in question was not allowed to be sold, this issue was not raised in the appellants’ petition of appeal. It thus worth not to be entertained. But still, if I were to determine it, the record is silent as before whom the said oral will was given and that, as long as the said issue is missing in the clan meetings by the time the 2nd respondent was chosen to be appointed the administrator of the estates of the late Sai Utumbo, then, the same remains to be an afterthought. Hence, cannot be regarded. Concerning the argument that the trial tribunal granted prayers which were not sought, the 1st respondent’s application in the tribunal shows that, she prayed for payment of the accumulated rent since 2019 and eviction order for the tenants who are the 3rd to the 8th respondents. This was actually granted by the trial Chairman in his judgment. Also, the 1st respondent’s application shows that, she prayed for the judgment be on her favor. As the pleadings reveal that, she was claiming 12 to be declared the lawful owner of the disputed house following purchasing the same from the 2nd respondent, but the appellants in co- operation with the 3rd to the 8th respondents hinder her from enjoying ownership of her house; for these facts plus the agreed framed issues at page 8 of the trial tribunal’s typed proceedings, it was reasonable for the trial Chairman to declare that the sale of the disputed house was lawful, and thus, the 1st respondent was the lawful owner of it. This was done under the prayer that, judgment be entered in favor of the 1st respondent. All said and done, the records prove nothing but, the trial tribunal was right in entertaining the suit and reaching into the decision it has made. I find no point to fault it. Consequently, I hereby proceed to dismiss the appeal for being unmeritorious. Appellants to bear the costs. S.M. KULITA JUDGE 19/03/2024 DATED at SHINYANGA this 19th day of March, 2024. 13 S.M. KULITA JUDGE 19/03/2024 14