Halfani Msulwa vs Omary Shabani Msulwa (Civil Revision No. 40 of 1997) [1999] TZHC 120 (8 February 1999)

IN THE HIGH COURT OF TANZANIA AT DAR ES SA.LAfu~. CIVIL REVISION NO.40/97 HALFANI MSULWA VERSUS OMARY SHABANI MSULWA JlJDGEMEiiT The Appellant, Halfani Msulwa, is a brother of Shabani Msulwa, deceased, who was survived, among others, by Omari Shabani Msulwa, ~a son, and hwas appointed Administrator of the deceased's estate, and a Respondent in this appeal. In the course of collecting and managing deceased's estate Respondent (Omari) enlisted a house on plot No.PI/55, Choma street, Morogoro Municipality, as being one () ,!::

• .L the deceased's property .. Tf1e Appellant then surfaced as an objector arguing that the house in question belongs to him and not deceased. The trial court after hearing evidence from both parties found for the Respondent. Halfani could not accept this hence the present appeal. Before the District court the Respondent maintained that the objector had freely given to deceased a plot on which the disputed house is constructed; that deceased proceeded to construct a house thereon; that unfortunately deceased died before transfer of the name could be effected. On the other hand, the Appellant insisted that all the materials and financing j' r

2 of construction was made by him, and that deceased was a mere supervisor; that later, howeve~, he decided to given the said house to deceased as gift but that the transaction was not completed as deceased wanted the transfer to be made into Omari's name which he (Appellant) could not accept as it excluded other children, and that therefore ownership has never changed. Messrs Ngassala and Ngalo Advocates appeared for Appellant and Respondent respectively. The trial court believed the Respondent's story and concluded that though the plot is in Appellant's name the construction was done by the Respondent's father hence the beneficiaries are entitled to the disputed house. On the strength of the evidence adduced before the trial court I have no basis to differ with the trial court's finding. In his appeal, the Appellant attacks the trial court's finding as follows:- That the Magistrate erred in law and on facts in holding (a) that the house in dispute was part of the estate of the deceased (b) that the house in dispute belonged to the deceased when evidence and record available show that it did not (c) that the house was given to deceased as a gift when there was in fact no such gift given (d) in basing his decision on the evidence the Respondent.

.... .j ' He prayed to be declared the lawful owner of the house in dispute, and, in THE ALTERNATIVE be compensated for the plot on which the house stands, with the usual prayer for costs, I should start by saying that Respondent could not be a witness to anything regarding the acquisition of the plot or construction thereon, for, he was not yet born when the former took place and was but a child as the latter latter was going on. There is however on record sufficient evidence establishing that the Appellant gave Respondent's father, the said plot as a gift, and that the deceased was the one who constructed the house. PW1 (Ally Ramadhani) is a carpenter who roofed the rear house and fixed doors and windows. He testified how deceased told him that the house is his - he is the one who hired him and paid him. PW3 (Abdallah Matunga) aged 72 years is a relative of both Appellant and deceased as they are both born of 1 • • + nis sisl.,er, Fatuma. He testified how sometime in 1994 the two brothers paid him a • • .L VlSlL and how in the due course of discussion, "I-falf ar1i fiisu.1iva. tolcl his l)rotf1er ( clec:ea.sed) that he should go and change the name of the offer because when I die there will be problems". The said witness then goes on, "The deceased said if he dies he Halfani, will have the duty to change the name of the offer for his sons (i.e. Shabani's sons) and

4 the doing so he should write the name of Shabani Msulwa and not other name". Regarding construction, this witness stated, "I never knew that the house was being given fund by Halfani". PW4, the deceased's and Halfani's brother aged 75 years deposed, !! the plot for the said house in dispute belongs to Halfani and Sha.bani Msulwa was the one who constructed the house". while under cross examination he said, "Shabani·was the. one who.constructed that house and Halfani used to provide building materials. I don't know whether Shabani was helping his young brother to build the house". Although the last witness seems not to be sure, possibly due to hii age, the totality of the evidence leaves no one in doubt that it was the deceased who effected the construction of the relevant house. The Appellant simply stated that he used to send money for the construction; that he freely gave that house as a gift to deceased but that as they differed regarding the name into which the change of the title should be made he remained the owner. He called no witness except tendering a letter of offer in respect of the plot whose contents were not disputed.

5 Appellant's story as to why the change was not effected on the offer in respect of the plot is contradicted by PW2's evidence,an elderly relative to whom they had both paid a visit. He does not make reference to any of the alleged argument regarding whether it should be in the name of Omar or deceased. If irideed that kind of discussion had taken place it is more likely than not that he would have referred .L • +- LO 1. ,_ as well-and indeed, as their elder, logic would expect that their dispute then would have been tabled to him for advice. Further to all the above, to show that Appellant's conscience haunts him and brings him back to the only truth very well known to him~ that is, that the only thing which was his before giving it away, is the plot and that he never incurred costs for the construction of the house, let us look at his memorandum of appeal where he seeks an alternative prayer, "In the alternative, the Appellant be compensated for the plot on which the house stands"! If he has all along been clamouring for both the plot and the house, and if indeed the deceased was a mere supervisor in the construction, and, who used materials and funds supplied by him, (Appellant) what has happened at this last hour to change his heart, forcing him to decided to abandon his claims over the house save the plot!. As found by the trial court, and as conceded by him,

,. 0 Appellant gave the plot to deceased as a gift; on which plot the deceased constructed the house. The gift, for all practical purposes passed over as all the necessary conditions of a valid gift were met as pronounced in 1 the caseAMohamed Yusuf Vs. Tunda Binti Kassim (1973) LRT No.67, (referred to by parties) "1. A manifestation of the wish to give on the part of the donor 2. The acceptance of the gift by the donee either implied or expressly 3. The taking of the subject matter of the gift by the donee either actually or con:::;tructi ve ly" The giving out of the gift by the appellant was clearly established by his (Appellant) own evidence before the trial court and before this court through his advocate's submission, while the acceptance and taking of the plot cannot be better manifested by the deceased than the construction of a house thereon, The question however is whether this whole transaction is legally founded and which can confer title to the deceased's estate. Did the deceased have a title to the plot on which he built the house? Under Regulation 3 of the Land Regulations, 1948 (GN 232 of 1948) as amended by the Land (Amendment) Regulations 1960, disposition of a Right of Occupancy cannot take place unless

' ' I 7 and until it is approved or consented to by the Commissioner for Lands to whom the President delegated his powers. The said Regulation reads, "3(1) A disposition of right of occupancy shall not be operative unless it is in writing and unless and until it is approved by the President ( 3) In this regulation "disposition'' means a) a conveyance or assignment other than by way of mortgage c) a deed or agreement or declaration of trust binding any party thereto to make any such disposition as aforesaid, including a deed or agreement entitling a party thereto to require any such disposition to There is no doubt that the Appellant by way of gift intended to dispose the plot to deceased. That intention however is arrested by Regulation 3, for, first, there is nothing in

8 writing,and secondly there is no consent of the Commissioner for lands. While I will not pose to ask whether legally, land being a public land the Appellant could dispose of an undeveloped plot, his only recognised interest being merely the developments he may have effected thereon (and appellant effected none in our case) suffice to say that non-compliance with Regulation 3 makes any intended disposition in-operative or void and unenforceable by way of civil action (Millen Richard vs Ayub Bakari Hoza (1992) TLR 385; Chandrakant Vinubhai Patel V. Frank Lionel Marealle & another (1984) TLR 231; Nitin Coffee Estate Ltd and Four others vs United Engineering Works Ltd and Another CA No.15 of 1988). I Thus~ the genetlemen's agreement in our case, even if deceased were still alive, could not be enforced by way of a suit. That said, what should this court do? This has indeed exercised my mind. On one hand we have a party who, believing that the gift (the plot) given to him was his for good, expended energy and money thereon, while on the other the law says that he has never been the owner of the said plot. r: . :, -t-, • ~ un one s1ae ne sa1a party (donee) having died, his beneficiaries wish to enjoy the energy and money he spent on the structure, while on the other, the donor hiding behind the express claws of the law wishes-lo reap what he never planted! While the court cannot act against the law: S.3 of the Land Regulations cannot permit the otherwise logical step of ordering specific performance (that is, transferring the Right of Occupancy into the name of deceased's

9 Estate), at the sametime it cannot allow the Appellant to enjoy the fruits he never shed sweat for. It is only equitable that the heirs be afforded chance to enjoy the expended energy of the deceased in the form of the house on the disputed plot. It is hereby ordered that the relevant house be valued by a recognised valuer and the Appellant be called upon to pay the valued sum arrived at, as compensation, which sum would be paid to Respondent as Administrator of deceased's Estate for its application and distribution according to law. In the alternative, and in consonance with his alternative prayer, the Appellant may (in compliance however with Land Regulations) accept compensation for plot. Regulation 3 his interest of in The Appeal succeeds only to the extent explained above and considering the relationship between parties no order is made as to c:ost.s ~ r~ .. B 1t Kalegeya Delivered in the presence of Mr Ngalo. 1 certi.fy t0~;-.:·, tr· :.. \ of he c·,· ... ·,::·, ,,·. · .1 • • •' • • • •• j ,/ .. ' ' ), I f • i 10- --"' ___ 55 __ \ !:.."':~~~~---------- ..... ····---··•"•'----- L.B. Kalegeya ,JUDGE 8/2/99