Issa Abdullah vs Mwananyasini Mustafa and 6 Others (Civil Appeal No. 47 of 1997) [1998] TZHC 2574 (11 May 1998)

A ISSAABDULLAH v.MWANANYASINI MUSTAFA and SIX OTHERS HIGH COURT OF ZANZIBAR B ATVUGA (Kannonyele, J.) C CIVIL APPEAL No. 47 OF 1997 (From the Regional Magistrate ’ s Court of Zanzibar at Vuga, in Civil Case No. 27 of 1996) D Land Law - Joint ownership of land - Brother inviting fellow brother to jointly develop property belonging to the former - Whether joint ownership is F thereby established Land Law - Joint ownership of landed property - Owner of property invites a brother to jointly develop the property - Whether the children of the invited brother have any right in the property F The appellant was owner of a piece of land and invited his brother, the father of the respondents, so that they could jointly develop the property as their joint „ residence. The two brothers developed the property jointly and were assisted by kJ the children of the invited brother. After the death of the invitee his children demanded as of right a share in the joint property. The Regional Court at Vuga gave them that right. On appeal: H Held: (i) The invited brother, Mustafa, qualified for joint ownership because he was invited by the plaintiff but the children of the invited brother cannot lay claim to the joint property; (ii) Even if it be true that the children of the invited brother made their investments into the property, they did so at their own risk;

ISSA ABDULLAH v. MWANANYASINI MUSTAFA ... (Kannonyele, J.) 537 A B (iii) When development is made on another person ’ s land, the development thus made will vest in the owner of that land or title holder thereof, and the one who makes the development may lose it unless the development is done with leave or consent of the owner or title holder; (iv) The defendants can only lay claim, if any, to the property as heirs to the joint owner, their late father, Mustafa. Orders accordingly JUDGMENT (Dated 11 May 1998) Kannonyele, J. : The plaintiff, the appellant at this juncture, had a plot atBegamojainthemunicipalityofZanzibarwaybackin 1964. Heinvited his brother, the late Mustafa, that they should jointly develop the plot for E their joint residence. The late Mustafa is the father ofthe defendants, now the respondents on appeal. Together with his invitee, they built a house on the plaintiffs plot on mutual understanding that they would both live there. They first built a mud house on the plot. Later they transformed it into a concrete brick house. Each the plaintiff and the defendants ’ father built a room of the erstwhile joint property. Lately, the plaintiff moved from the joint property to live elsewhere leaving the defendants ’ father behind. On the other hand, it is in the first defendant ’ s evidence that (uninvited) her brother added value to the joint property by constructing one more room in the house. He then moved to live there with his father Mustafa, pj However, the defendant ’ s brother is in record as having since moved away from the demised property to live elsewhere. Also (uninvited) the 1 st defendant in her own capacity similarly constructed an additional cement block room to complete one since j started by her father before he died. The room acknowledged to have been by the plaintiff is still there unoccupied by anyone. These facts hitherto are not substantially contested by the parties.

538 TANZANIA LAW REPORTS [1998] T.L.R. A B C D E F G H I What is in dispute is when the plaintiffappellant claims that the house was joint property between him and his late brother Mustafa, the defendants father. The defendants say the plaintiff is entitled only to that room he constructed of the joint property, no more. The trial Regional Court found and held for the defendants. The plaintiff is aggrieved by the decision. Hence the appeal. In fairness to the defendant/respondents, they are at best mere uninvited guests to the property, which in reality is jointly owned by the plaintiff and his late brother Mustafa. And even then, Mustafa qualified as part owner of the property by virtue of the holder or possessor of the land himself, as the case maybe. But for this free invitation to the scene by the plaintiffhimself, even Mustafa would not have qualified forj oint ownership of the property. If therefore the defendants are entitled to anythinginthe property, it is only by inheritance of their late father ’ s share ofthe property which, however is subject to proof and they have not yet sought to establish so, legally. In so far as the property is concerned, therefore, it still remains joint property between the plaintiff, appellant, on the one hand and the deceased ’ s estate on the other. Hence it is only the deceased ’ s legally appointed administrator or duly approved heirs of the estate can lay their claims of their rightful share of the joint property. No one else can legally do this and expect to succeed against theplaintiffrappellant. It is important to emphasize that even this late Mustafa ’ s share ofthe property is on the basis of the fact that he was freely invited to come to the scene. As such he is recognised and accepted by the plaintiff who, according to established and or facts or on the balance of probabilities recording to the evidence, he is the one who has possession or licence to develop the plot. But for his having been so invited as such, even the late Mustafa could not properly lay his claims to the property. The same is not true ofthe defendants. Except for their share as heirs to the late Mustafa - if they are entitled indeed (for they have not yet legally established the same), they are otherwise trespassers or uninvited guest to the property. For even if it be true that they made their own investments into the property - say by constructing their respective rooms as alleged and not disputed in evidence, the fact is that they did this at their own risk. "Quicquidplantatur solo, solo cedit " is an old principle

ISSA ABDULLAH v. MWANANYASINI MUSTAFA ... (Kannonyele, J.) 539 in law which to say that whatever is planted to the soil belongs to the A soil. In other words, this means that when development is made on another man ’ s land, the development thus made will vest on the owner of that land or title holder thereof and the one who makes the development may loose it unless he was doing this with leave or consent ® of the owner or title holder. “ The mere fact that a man builds an expensive house on a piece of land does not entitle him to that land. If permission is required to build upon the land, that permission must be obtained before building is started. If permission to build is necessary, and a man builds without having obtained it, he may lose his house because it is built upon another man ’ s land. ” OgolaNgelav. Olum Oludae (1959) C.O.R 4 James&Fimbo: Customary p Land Law of Tanzania (1973). And, therefore, “ He cannot be allowed by the courts to benefit from his illegal acts ” : ® Ringita Nyoraro v. Omari (1965) P.C.C.A. 38/1965 James & Fimbo op. cit. p.621. In the instant case, it is only the late Mustafa ’ s position, which can be recognised and accepted as vesting title to him over the property jointly together with the plaintiff? appellant. This is because Mustafa was invited to the landby the holder himself. His investment to die land was therefore legally recoverable. Conversely, the defendants are only heirs to the late Mustafa, if indeed the^ are and this they have to establish by known legal procedure which, however, they have not yet. done. Otherwise, they remain uninvited guests to the property if not trespassers per se I am fortified in this view by the evidence of DW2 (llyasa Vuai Mcha) who said he did not know the nature of agreement or understanding between theplaintiff/appellant and the late Mustafa except that the latter had informed him (D W2) that he (deceased) had built two rooms, one * for himself and the other for his (unspecified) brother who, in the circumstances, is most likely to have been the plaintiff/appellant. Since he does not know the nature of understanding which the deceased and

540 TANZANIA LAW REPORTS [1998]T.L.R. A the appellant had made between themselves, then that is the more reason why he cannot be heard to challenge the evidence of the appellant that he is owner of the plot who had only invited the deceased to come to the scene. B But Haji Vuai (Mdaiwa No. 3 sic) was more pertinent when the informed the trial court that his late brother (apparently Mustafa, the defendant ’ s father) had told him that the house was joint property between him, deceased, and his brother, one Issa, most certainly the plaintiff in C this case. It is only further development of the property which was shouldered by the deceased aided by his children. I hold that these children were only aiding their father and were not thereby laying title to P the property in their own right. There was also DW5 (Iddi MbarakAmeir) who stated that he heard the plaintiff had offered a plot so that the deceased could develop it after which Issa (supra) should be availed with a room. He also stated that E before Mustafa ’ s death, Issa lived there in,the demised property. All this gives more weight to the plaintiffs claims on the balance of probabilities. The memorandum of appeal is to the effect that the trial magistrate had misdirected himself and that he erred in fact and in law by saying that F the plaintiff'appellant was entitled to a room only and by refusing to accept that he was the sole surviving owner of the erstwhile joint property between him and the deceased Mustafa, the defendant ’ s father. I respectfully concur withhim. On these premises therefore, I am satisfied that this appeal is based on a just ground of complaint. The Regional Court ’ s decision was erroneous, with due respect to the learned trial magistrate. The appellant H is entitled to redress here on appeal. The appeal is therefore allowed. Judgement and order of the Regional Court are therefore hereby set aside. There is instead substituted therefore a declaration to the effect that the plaintiff'appellant is the sole surviving owner of the joint property I formerly owned by him j ointly together with his late brother Mustafa, the father of the defendants, as the same is not dispute potent. The late Mustafa ’ s Share of the property now devolves to his estate and, under the appropriate law of succession/inheritance as maybe applicable, to

NHC v. I. ARUSHA MUNICIPAL COUNCIL ... (Nyalali, CJ., ... , JJ.A.) 541 proven heirs thereof. Now that there are already misunderstandings between the plaintiff/appellant and (the potential heirs ofMustafa) the defendants, the plaintif£'appellant is entitled and is free to sell his share of the property as he has already intimated. In the alternative, the defendants are free to compensate him for same to see him off and leave the property to them. Appellant to have his costs in this court and in the court below. A B C D E F G H I