Mwambene v Mwanyingili ((PC) Civil Appeal No. 42 of 1998) [1999] TZHC 501 (17 September 1999)

SAMSON MWAMBENE v. EDSON JAMES MWANYINGILI 1 SAMSON MWAMBENE v. EDSON JAMES a MWANYINGILI HIGH COURT OF TANZANIA ATMBEYA b (Moshi, J.) (PC) CIVIL APPEAL No. 42 OF 1998 c Land Law - Land given to an invitee - The owner gave the land to the invitee - The owner dies - Land is passed to heirs. Land Law — The invite improved the land — The heirs possess the land through p inheritance from the invitee - Whether invitee is entitled compensation for the improvements therein made. The respondent sued the appellant for return of a piece of land before the Primary Court of Masebe. The Primary Court unanimously found the land in dispute was the e property of the deceased father of the respondent, and therefore should be returned to the family of the respondent as its share of inheritance of the estate of the father. But it ordered the respondent to pay the appellant compensation of TZS. 40 932 520 for developments and expenses incurred on the land as condition of taking possession F of the shamba. The respondent was aggrieved and appealed to the District Court of Rungwe district at Tukuyu. The District Court allowed the appeal and ordered the appellant to vacate the land in dispute for the respondent unconditionally. The appellant then appealed to the High Court challenging the District Court decision. G Held: (i) The appellant was an invitee ex gratia of James on the land in dispute. As this court has consistently held no invitee can exclude his host whatever the length of his occupation (ii) With respect to compensation, it would be unfair to compel the respondent to H pay any compensation for developments effected after the death of James and James had not permitted them. Appeal dismissed

TANZANIA LAW REPORTS [2001 ] T.L.R. A Cases referred to:

1. Makofia Meriananga v. Asha Ndisia [1969] HCD n. 204
2. Swalehe v. Salim [1972] HCD nJ 40 B JUDGMENT (Dated 17 September 1999) C Moshi, J.: The dispute between the parties centred on a piece of land hereinafter to be referred to as the land in dispute. The respondent, Edson James Mwanyingili, sued the appellant, Samsoni Mwambene, before Masebe Primary Court for the return of the land in dispute D back to the family of his deceased father, James Mwanyingili, as his share of his inheritance. The Primary Court arrived at a unanimous finding that the land in dispute was the property of the deceased father of the respondent, and therefore the property of the respondent, but ordered the respondent to pay the appellant a compensation of TZS. 40 932 520 for developments and expenses incurred on the shamba in dispute, as a condition for taking possession of the shamba. The condition for payment of F compensation aggrieved the respondent who accordingly preferred an appeal to the District Court of Rungwe District at Tukuyu. The District Court allowed the appeal, quashed and set aside the condition for payment of compensation, and ordered the appellant to vacate G the land in dispute for the respondent unconditionally. The appellant, in turn, felt aggrieved, hence this second appeal preferred and argued before me by his learned advocate, Mr Mwangole, and resisted by the respondent himself. H These material facts were established in evidence. The appellant was the brother-in-law of the father of the respondent, James Mwanyingili. The former was married to the sister of the latter. Sometime in 1970, the father of the respondent, James, left for Zambia to work. He 1 left the shamba under the care of the appellant for the benefit of his

SAMSON MWAMBENE r. EDSON JAMES MWANYINGILI children, including the respondent, who were young. This was what A his wife or respondent ’ s mother, Ndise Kipesise (SM2), and the wife of the appellant, Magadalena Bulambo (SU2), said. On the shamba he left a foundation of a building, stones, coffee and banana plants and a variety of trees. The foundation was for a building for the children b and some materials, such as nails, had been bought. Again, SM2 and SU2 thus said. Unfortunately though, disaster struck. James died in a road accident in Zambia in 1972 leaving behind a widow (SM2) and eight young children including the respondent. c The respondent was four years old at the time of the death of his father James. He was born in 1968 and became eighteen years of age in 1986. On 25 November 1996 the Clan Council appointed him an administrator of the estate of his deceased father, and on 28 D August 1997 a Primary Court confirmed that appointment and officially appointed him the administrator of the estate. He instituted the suit on 17 March 1997. After the death of the respondent ’ s father James, the appellant E completed the building on the land in dispute and effected more improvements of permanent nature on it. He planted more coffee and banana plants and trees on it. The respondent had to move in and live with the appellant on the land in dispute. Later on at a time F which was not established in evidence, the appellant place claims that the father of the respondent had given him the land in dispute as his property. He told the trial court that there were no witnesses to the giving and that it was oral and not in writing. He tendered in g evidence (Exhibit 1) a letter he allegedly received from the appellant touching on the matter. But as rightly found by both courts below, the authenticity of the letter was clearly questionable. It was typed, but it was undated and unsigned and did not bear the address of the H sender. In sum, the letter was a plea to the appellant to take care of the coffee and trees. Let me pause here and say that the concurrent finding by both courts below, that the land in dispute was throughout the property of i

4 TANZANIA LAW REPORTS [2001JT.L.R. A the father of the respondent which would pass on to the respondent in inheritance could not be faulted. There was ample material and believable evidence in support of that finding. The appellant ’ s claim, as demonstrated, was wholly unsubstantiated. It was a futile attempt to defraud the children B of James, including the respondent, of the land in dispute. The appellant was an invitee ex gratia on the land in dispute. As this court has consistently held, no invitee can exclude his host whatever the length of his occupation

• See, for instance, Makofia Meriananga v. Asha Ndisia(). It mattered c for nothing that the appellant had even made unexhausted improvements on the land in dispute - See Swalehe v. Salim (2). That the appellant was occupying and had even made unexhausted improvements on the land in dispute was not, in law, reason for him to oust James who had D invited him ex gratia. Like both courts below, therefore, I find the land in dispute to have throughout been the property of James which could be inherited by the respondent. Mr Mwangole preferred five grounds of appeal. They were: ® 1. That the Subordinate Courts erred in law in entertaining this suit as the respondent has no locus standi.

2. That both the Primary and District Court ought to have entered judgment in favour of the appellant as the suit was time barred.
3. That the learned District Magistrate erred in law and point of facts in holding that the suit shamba was merely entrusted to the appellant by the respondent ’ s father. G 4. That the learned District Magistrate totally failed to evaluate the evidence on record.
4. That, on the evidence on record, the learned District Magistrate ought to have concluded that the respondent had failed to prove his TJ case on the balance of probability. I have already disposed of grounds three, four and five of appeal. With respect, I find no merit in the first ground of appeal. As an interested member of his clan or family, the respondent had an independent

SAMSON MWAMBENE v. EDSON JAMES MWANYINGILI right to sue for what he believed, and was found to be, his deceased A father ’ s property due for inheritance. That power did not depend on his having had to be clothed with administration powers or consent of the clan or family members first. In any event, he had already been clothed with consent and authority of clan members at the time b he preferred the suit. He thus had locus standi. As equally devoid of merit is the second ground of appeal. First, at no time did adverse possession begin to run against the appellant in the circumstances of this case from which limitation of time would c have begun to operate against James and respondent. Second, the respondent became of the age of majority in 1986 when the period of limitation would have begun to run against him, and he was thus still within the prescribed limitation period of twelve years when d he preferred the suit in March 1997. I am next, and in conclusion, to consider whether the District Court rightly quashed the condition for payment of compensation. Mr Mwangole submitted that the District Court erred but I would, E with respect, disagree with the learned advocate. The District Court gave sound and convincing reasons for setting aside that condition. First, the developments were effected by the appellant after the death of James and not before, and James had not permitted them. So it F becomes clear that the appellant had effected them on his own accord, and he had thus taken undue advantage of the death of James and that of the tender ages of his children, the respondent included. Second, in view of the untenable claims raised by the appellant over the ownership g of the land in dispute, it became clear that the appellant had effected the developments intending to swindle the children of James of that land. This was, to say the least, an outrageous manner of thanking James for his hospitality. Quite clearly, therefore, gratitude was not H listed among the virtues of the appellant. With respect to Mr Mwangole, it would be unfair to compel the respondent to pay any compensation in the circumstances of the case. I would agree with, and uphold, the decision of the District Court which, I am satisfied, was deserving

6 TANZANIA LAW REPORTS [2001JT.L.R. A in the circumstances, and a befitting lesson to a swindler. In consequence, this second appeal stands dismissed in its entirety. The respondent to have his costs here and in both courts below. FAHARI BOTTLERS LIMITED v. REGISTRAR OF COMPANIES AND NBC (1997) LIMITED AND c OTHERS ... OBJECTORS HIGH COURT OF TANZANIA AT DARES SALAAM D (Kalegeya, J.) MISCELLANEOUS CIVIL CAUSE No. 155 OF 1998 E [Consolidated with Misc. Civil Causes Nos. 146,147,148,149,150,151,152,153, and 154 by order of the court dated 16 July 1999] Civil Practice and Procedure - Preliminary Objection — Contents thereof F Civil Practice and Procedure - Locus standi - Evidence conferring locus standi. Company law - Provisional liquidator - Appointment of provisional liquidator

• What the court should consider in exercising its discretion to appoint a provisional liquidator. Company law — Provisional liquidator — Scope of the powers of a provisional liquidator. Company law - Provisional liquidator - Stands in the position of a trustee - H Need to have no conflict of interests. Company law - Provisional liquidator - Appointment of provisional liquidator — Procedure of appointment — petitioner has fded a chamber application for appointment of provisional liquidator supported by an affidavit - Whether objectors proposing a name of a person to be appointed