(CORAM: MUNUO, J.A., KILEO, J.A. And LUANDA, J.A.) CIVIL APPEAL NO. 75 OF 2008

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1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A., KILEO, J.A. And LUANDA, J.A.) CIVIL APPEAL NO. 75 OF MIRE ARTAN ISMAIL....1 ST APPELLANT 2. ZAINABU MZEE...2 ND 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 3 rd day of February, 2006 in Civil Revision No. 82 of 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 delivered on the 3 rd February, In the said ruling, the learned judge nullified the sale of the property on Plot No. 4 Block 61, Livingstone Street, Kariakoo, Dar es Salaam giving rise to this appeal. When the late Yusuf Mzee passed away on the 6 th March, 1996, his sister, Zainabu Mzee, the 2 nd 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 9 th September, 2002 as shown on Page 15 of the record of appeal. Among the properties

2 2 of the deceased, the 2 nd appellant sold House No. 29 on Plot No. 4 Block 61 Livingstone Street, Kariakoo, Dar es Salaam to the 1 st appellant, Mr. Mire Artan Esmail on the 10 th December, The heirs of the deceased consented to the sale of the property as reflected on Page 19 of the record of appeal. The consent is worded thus in Kiswahili: 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 OF A HOUSE AND CONFIRMATION OF RECEIVING PAYMENT. 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.

3 3 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 2 nd appellant, Zainabu Mzee, on the 9 th September, On the 10 th December, 2002, the said administratrix sold the house in dispute to the 1 st appellant. She then required the respondent who was occupying a portion of the house to vacate but she refused. The 2 nd 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 3 rd 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. In the said Revision, Mandia, J. nullified the sale of the house in dispute. Meanwhile, in view of the Revision, the Commercial Court stood over the determination of Commercial Case No. 313 of 2003 so it is still pending. 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, Kariakoo Dar es Salaam; (c) Costs of the Revision, and (d) Any other relief deemed fit by the Court.

4 4 The High Court allowed the Revision giving rise to this appeal. The gist of the revision was that the 2 nd 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 nullified. Allowing the revision, the learned judge held that The proceedings in the Court of Resident Magistrate of Dar es Salaam at Kisutu are therefore invalid and are quashed and set aside. Any purported sale made thereunder is declared invalid. 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;

5 5 (d) appeal. an order that the respondent pays for the costs of the 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 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, 15 th 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.

6 6 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 2 nd 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 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.

7 7 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 1 st 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, and 97 of the Probate and Administration Act, Cap 352 R.E 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 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 Furthermore, counsel for the respondent contended that the 1 st appellant was not a bona fide purchaser for value without notice so the learned judge rightly nullified the sale. The purchaser, counsel for the

8 8 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 2 nd appellant, Zainabu Mzee, was duly appointed the administratrix of the estate of her late brother, Yusuf Mzee, who died on the 6 th March, 1996 at Ilala, Dar es Salaam. The letters of administration were issued to the 2 nd appellant on the 9 th September, 2002 by Mr. Mbuya, then a Senior Resident Magistrate at Kinondoni District Court. There was no objection to the grant. Objection surfaced when the respondent, along with other tenants in the house in dispute were required to vacate so that the purchaser could take possession of the same. 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. Under the circumstances, the administratrix lawfully sold the house in dispute to the 1 st appellant, Mire Artan Ismail. The latter was a bona fide purchaser for value without incumbrances. The proceeds of sale were distributed to the beneficiaries of the late Yusuf Mzee as shown on Pages 99 to 102 of the record of appeal. The property was properly transferred to the purchaser as shown on Page 103 of the record of appeal. 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

9 9 lawful sale of house No. 29 on Plot No. 4 Block 61 Livingstone Street, Kariakoo, Dar es Salaam to the 1 st 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 We hereby allow the appeal with costs. DATED at DAR ES SALAAM this 30 th day of January, 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