IN
THE COURT OF APPEAL OF TANZANIA
AT
DAR ES SALAAM
(CORAM: MUNUO, J.A., KILEO, J.A. And LUANDA
CIVIL APPEAL NO. 75 OF 2008
1. MIRE ARTAN ISMAIL………………….…….…..1ST
APPELLANT
2.
ZAINABU
MZEE…………………………………...2ND APPELLANT
AND
SOFIA
NJATI………………………….…………………RESPONDENT
(Appeal
from the Ruling of the High Court of Tanzania
at
Dar es Salaam District Registry)
(Mandia,
J.)
dated
the 3rd day of February, 2006
in
Civil Revision No. 82 of
2003
--------
JUDGMENT OF THE COURT
2 December, 2008
& 5 February, 2009
MUNUO, J.A.:
The
appellants are challenging the Ruling of Mandia, J., as he then was, in Civil
Revision No. 82 of 2003 in the High Court of Tanzania at Dar es Salaam Livingstone Street Dar es Salaam
When the late Yusuf Mzee passed away on
the 6th March, 1996, his sister, Zainabu Mzee, the 2nd
appellant, applied for letters of administration in Probate and Administration
Cause No. 57 of 1996 in Kinondoni District Court. She was granted letters of administration on
the 9th September, 2002 as shown on Page 15 of the record of
appeal. Among the properties of the
deceased, the 2nd appellant sold House No. 29 on Plot No. 4 Block 61
Livingstone Street, Kariakoo, Dar es
Salaam
KURIDHIA MAUZO YA NYUMBA NA
KUTHIBITISHA KUPOKEA MALIPO.
Sisi Maumbi Yusuf Mzee,
Salma Yusuf Mzee,
Umba Yusuf Mzee, na
Aziza Yusuf Mzee
tumeridhia nyumba ya baba
yetu marehemu Yusuf Mzee iliyopo Kariakoo, mtaa wa Livingstone No. 29 kuuzwa
kwa Bwana Mire Artan Ismail na msimamizi wa Mirathi Zainabu Mzee kwa thamani ya
shilingi milioni themanini na tano (sh. 85,000,000/=) tu. Tunathibitisha kuwa tumeshapokea mgao wetu
yaani sh. 9,916,666/= kila mmoja. Tunathibitisha kuwa zimebakia milioni
11,000,000/= hatazilipa mpaka wapangaji watakapohama na kukabidhiana nyumba
yake.
The above Kiswahili consent
statement means –
CONSENT TO THE SALE
We, Maumbi Yusuf Mzee,
Salma Yusuf Mzee,
Umba Yusuf Mzee, and
Aziza Yusuf Mzee
Consent to the sale of the
house of our late father, Yusuf Mzee, located at Kariakoo, Livingstone Street,
House No. 29, to Mr. Mire Artan Ismail, by the administratrix, Zainabu Mzee,
for shillings eighty five million (sh. 85,000,000/=) only. We hereby confirm that we have each been paid
the sum of shillings 9,916,666/=; the balance of sh. 11,000,000/= to be paid by
the purchaser after all the tenants have vacated the house and the purchaser
being put into possession.
The
beneficiaries of the late Yusuf Mzee signed the consent and affixed their
photographs thereon.
As stated above, letters of
administration were granted to the 2nd appellant, Zainabu Mzee, on
the 9th September, 2002. On
the 10th December, 2002, the said administratrix sold the house in
dispute to the 1st appellant.
She then required the respondent who was occupying a portion of the
house to vacate but she refused. The 2nd
appellant then filed Commercial Case No. 313 of 2002 in the Commercial Division
of the High Court, seeking vacant possession from the respondent, Sofia
Njati. Kalegeya, J., as he then was,
struck out the suit on the 3rd November, 2003 on the ground that it
was incompetent.
On
appeal, the order for striking out the appeal was reversed by this Court in
Civil Appeal No. 108 of 2003 thereby restoring Commercial Case No. 313 of 2002
for determination by another judge of competent jurisdiction. Thereafter, Massati, J.A. as he then was, took
up the case. However, before Commercial
Case No. 313 of 2002 was heard, the respondent, Sofia Njati, filed Civil
Revision No. 82 of 2003 in the High Court of Tanzania at Dar es Salaam Commercial
Court
The facts giving rise to Civil Revision
No. 82 of 2003 are reflected in the chamber summons and affidavit of the
respondent, Sofia Njari, wherein she prayed for:
(a)
an
order for revoking the letters of administration granted to Zainabu Mzee, the 2nd
appellant, in Probate and Administration Cause No. 57 of 1996 in Kinondoni
District Court.
(b)
an order for nullifying the sale of House No.
29 on Plot No. 4 Block 61
Livingstone Street
(c)
Costs of the Revision, and
(d)
Any
other relief deemed fit by the Court.
The
High Court allowed the Revision giving rise to this appeal. The gist of the revision was that the 2nd
appellant fraudulently obtained the letters for administering the estate of the
late Yusuf Mzee so the said letters of administration should be revoked and the
sale of House No. 29 on Plot No. 4 Block 61 Living Street, Kariakoo, Dar es Salaam
The proceedings in the
Court of Resident Magistrate of Dar es
Salaam
Dissatisfied
with the above decision, Mr. Marando, learned advocate for the appellants,
advanced three grounds of appeal namely that –
1. The learned judge erroneously quashed the
proceedings and orders of the Court of Resident Magistrate without giving the
parties a hearing on the issue of jurisdiction.
2. The learned judge erroneously nullified the
sale of the house on Plot No. 4 Block 61 Livingstone Street, Kariakoo, Dar es
Salaam to the 1st appellant,
Mire Artan Ismail a bona fide purchaser
for value without notice.
3. As the learned judge suo motu
invalidated the sale of the house in
dispute, he should have ordered the vendor, the 2nd appellant
Zainabu Mzee to refund the purchase price to the 1st appellant, the
purchaser thereof, counsel for the appellants prayed that –
(a)
the
ruling appealed against be quashed and set aside;
(b)
a
declaration that the primary court has no exclusive jurisdiction over Islamic
estates;
(c)
an
order that the High Court’s nullification of Probate and Administration Cause
No. 57 of 1996 in
the Court of Resident Magistrate at Kisutu, does not automatically result in
the nullification of the sale of House No. 29 on Plot No. 4 Block 61
Livingstone Street, Kariakoo, Dar es Salaam;
(d)
an
order that the respondent pays for the costs of the appeal.
In
his submission, counsel for the appellants contended that the learned judge suo
motu introduced the issue of jurisdiction when writing the Ruling and
erroneously determined it without according the parties a hearing. Had the parties been heard on the issue of
jurisdiction, counsel for the appellants further contended, the learned judge
would have found out that primary courts have no exclusive jurisdiction over
estates subject to Islamic law, as was the house in dispute in this case. In that situation the learned judge should
neither have nullified the proceedings of the trial court in Probate and
Administration Cause No. 57 of 1996 in Kinondoni District Court nor invalidated
the sale of the house in dispute in this case.
Urging us to fault the learned judge for
determining the issue of jurisdiction unilaterally without hearing the parties
thereby causing injustice to the appellants, counsel for the appellants
referred us to the case of Tanganyika Cheap Store Ltd. and 2 Others versus The
National Bureau de Change, Civil Appeal No. 93 of 2003, Court of Appeal of
Tanzania (unreported) at Page 5 of the typed judgment wherein the learned judge,
suo motu, while composing the judgment, determined the issue of outstanding
balance to be repaid by the borrower to the bank, without hearing the parties
to the suit. In that case, the Court
considered the provisions of Order XX Rule 5 of the Civil Procedure Act, 1966,
Cap 33 R.E. 2002 which are in pari
materia with the provisions of Section 149 of the Indian Code of Civil
Procedure. On the power of the Court to
determine issues suo motu, the learned author, Mulla on the Code of Civil
Procedure, Volume II, 15th Edition at Page 1432 states:
If the Court amends an
issue or raises an additional issue, it should allow reasonable opportunity to
the parties to produce documents and lead evidence pertaining to such amended
or additional issue…………….
Amendment of issues is the
discretion of the trial court. No right
or obligation of a party is determined, either by the court refusing to delete
issues, or by the court adding more to them.
It is only a procedural matter.
The trial court is required to determine the controversy between the
parties.
We
are of the considered opinion that Mulla’s view is correct in line with the audi attrem partem rule of natural
justice which requires the Court to adjudicate over a matter by according the
parties a full hearing before deciding the matter in dispute or issue on
merit. On this we wish to affirm the
decisions of the Court in the cases of Shomary Abdallah versus Hussein and Another
[1991] TLR 135; National Housing Corporation versus Tanzania Shoes and Others
[1995] TLR 251, and Ndesamburo versus Attorney General [1997] TLR 137
on the right to be heard before an adverse decision is taken against a party
such as the 2nd appellants nullification of letters of administering
the estate of her brother, the late Yusuf Mzee, and the invalidation of the
sale of House No. 29 on Plot No. 4 Block 61 Livingstone Street, Kariakoo, Dar
es Salaam which sale had been consented
to by the beneficiaries of the late Yusuf Mzee.
In the light of the above, we are of the
firm view that the omission to give the parties a hearing on the issue of
jurisdiction occasioned miscarriage of justice.
Thence, there is merit in ground one of the appeal.
Counsel for the appellants criticized
the learned judge for nullifying the sale of the house in question. He referred us to Halsbury’s Laws of England
Vol. 17 (2) 4 Edition Reissue paragraph 446, Butterworths, wherein it is
stated, and we quote:
All conveyances of any
interest in real and personal estate made to a purchaser by a person to whom
probate or letters of administration have been granted are valid
notwithstanding any subsequent revocation, or variation of the probate or
letters of administration.
Mr.
Marando further cited the text book, LAW OF SUCCESSION by William Musyoka, Law
Africa, at pages 189-190 on the “Effects of revocation of grant,” which state
inter-alia;
(d) Effect of revocation of grant. The effect of revocation of a grant is mainly
felt by personal representatives, debtors of the estate, and purchasers of the
assets of the estate, and beneficiaries who have received assets from the
estate.
Section 92 of the Law of Succession Act
protects the original personal representatives.
In the event of the revocation of grant,
the personal representative will not be personally liable, provided his acts,
whether they are payment of debts or of legacies, are in good faith. Section 92(2) of the Law of Succession Act
allows personal representatives to reimburse themselves for payments they have
made out of their own funds in the course of the administration of the
estate…………
Counsel
for the appellant further observed that the administratrix, Zainabu Mzee, sold
House No. 29 on Plot 4 Block 61 Livingstone Street, Kariakoo, Dar es Salaam to
the 1st appellant, with the consent of the beneficiaries of the
deceased as reflected on Page 19 of the record, and that the purchaser bought
property in good faith in market overt for value and without incumbrances so
the sale was valid and ought not to have been nullified by the learned judge
because the administratrix had valid letters of administration as shown on Page
15 of the record of appeal. The Court,
he urged, should reverse the decision of the High Court and allow the appeal
with costs because the administratrix had power to sell the house under the
provisions of Sections 33, 44, 70 95 and 97 of the Probate and Administration
Act, Cap 352 R.E. 2002.
The respondent was represented by Mr.
Galikano, learned advocate. Urging us to uphold the ruling of the learned
judge, counsel for the respondent contended that Mr. Mbuya SRM, was not a
District Delegate so he had no jurisdiction to determine Probate and
Administration Cause No. 57 of 1996. We
shall not pursue the issue of jurisdiction further because we held earlier on,
that the parties were not accorded an opportunity to be heard on the matter during
the hearing of the Revision which omission occasioned miscarriage of
justice. There is no material on record
to enable us to determine whether Mr. Mbuya SRM was, or was not, a District
Delegate under the provisions of the Probate and Administration Act, Cap 352
R.E. 2002.
Furthermore, counsel for the respondent
contended that the 1st appellant was not a bona fide purchaser for
value without notice so the learned judge rightly nullified the sale. The purchaser, counsel for the respondent
maintained, should claim refund of the purchase price from the administratrix
who allegedly sold the house fraudulently, well knowing that it was a
matrimonial house for the respondent.
In his reply, Mr. Marando pointed out
that the house in dispute belonged to Mzee Sudi, the father of the late Yusuf
Mzee so it was not a matrimonial asset.
The issue before us is whether the High
Court had cause to invalidate the sale of House No. 29 on Plot No. 4 Block 61
Livingstone Street, Kariakoo, Dar es
Salaam
There is no dispute that vide the grant
on Page 15 of the record of appeal, the 2nd appellant, Zainabu Mzee,
was duly appointed the administratrix of the estate of her late brother, Yusuf
Mzee, who died on the 6th March, 1996 at Ilala, Dar es Salaam
Counsel for the appellants submitted
that the house in dispute was inherited from the late Mzee Sudi, by his late
son, Yusuf Mzee, so it was not a matrimonial asset. We are of the settled mind that under
succession, the property devolved to Yusuf Mzee, and upon his death, the said
property devolved to his heirs. The 4
heirs of Yusuf Mzee, per page 18 of the record of appeal, consented to the sale
of house No. 29 on Plot No. 4 Block 61 Livingstone Street, Kariakoo, Dar es Salaam
We are satisfied, therefore, that in
view of the authorities which we find persuasive, the revocation of the grant
did not affect the validity of the lawful sale of house No. 29 on Plot No. 4
Block 61 Livingstone Street, Kariakoo, Dar es Salaam to the 1st
appellant, Mire Artan Ismail for he was a bona fide purchaser for value without
notice of any incumbrance at the time of sale.
For the reasons stated above, the
learned judge erroneously invalidated the sale of the property in dispute. We accordingly reverse the decision of the
High Court in Civil Revision No. 82 of 2003.
We hereby allow the appeal with costs.
DATED at DAR ES SALAAM this 30th
day of January, 2009.
E. N. MUNUO
JUSTICE
OF APPEAL
E. A. KILEO
JUSTICE
OF APPEAL
B. LUANDA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(P. B. KHADAY)
DEPUTY
REGISTRAR
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