Salum Mateyo vs Mohamed Mateyo [1987] TZHC 34 (2 October 1987)


Mroso, J.: On 26th February, 1981 the respondent Mohamed Mateyo obtained a G decree in the District Court of Mbeya for a declaration that a house on Plot 22, Block 46 with Title number 12179 in the Mbeya Municipality belonged to him.  The appellant felt aggrieved by that decree and appealed to this court.  The appeal itself has had a H chequered history but I shall not go into that.  Suffice it to point out that it was not until last week, the seventh year after it was filed, that it was heard.
Before the trial court it was not disputed that the house which was the subject matter of I the suit was registered in the name of the appellant.  Originally the plot on which the house stands belonged to one Hilmar Kyumana.  He had a Certificate of Occupancy.  On

30th May, 1975 the Right of Occupancy was transferred to the appellant, in his name, in A consideration of shilling twelve thousand which was paid as purchase price of the house in the plot.  The transfer was subsequently duly registered.
It was a matter for dispute, however, on who paid the purchase money.  The appellant said he did it out of his own savings.  The respondent on the other hand said he had paid B it out of love and affection for his brother, the appellant.  The trial court was of the view that it was paid by the respondent.
There was a second issue on who received the rent from the tenants.  Evidence was given by two witnesses who were tenants during the period between 5th May, 1975 and C 30th June, 1978.  One of the witnesses said he paid rent to both the respondent and to the appellant, but at different times.  The other one said he paid rent to the respondent only and that he recognized him as his landlord.  The appellant in his evidence said he had authorized the respondent to collect rent on his behalf because he, the appellant, D was too busy working in an hotel of the respondent.
The trial court considered the evidence and the law and held that although the Certificate of Occupancy was in the name of the appellant the suit premises belonged to the E respondent mainly because it believed the purchase money had been paid by the respondent who also collected rent from tenants in the house and those tenants recognized him as their landlord.  The crucial question in this appeal is whether the trial court had directed itself properly on the facts and on the law. F
On the evidence I think it was open for the trial court to hold both that the money for the purchase of the suit premises was paid by the respondent and that for most of the time between May, 1975 and 30th June, 1978 the respondent received the house rent and was considered by the tenants to be the landlord.  But considering that the legal title to G the premises was in the name of the appellant could the trial court properly proceed to declare the suit premises the property of the respondent?
It seems to me clear that in law, the appellant in whose name the suit premises were registered was the owner.  I am fortified in this view by Section 2 of the Land H Registration Ordinance, Cap. 334 which defines "Owner" in relation to any estate or interest as the person for the time being in whose name the estate or interest is registered.  The appellant remained the unchallenged owner of the premises until July 1978 when the respondent purported to terminate the appellant's ownership, apparently I because of a misunderstanding

between them resulting in the extinction of their mutual love and affection. A
It would appear from the facts of the case as given to the trial court as accepted by that court that the appellant had acquired title to the house by way of a gift inter vivos.  Was B it open for the respondent to revoke the gift when their personal relationships charged?
Counsel for the appellant has submitted that the gift had been given unconditionally and was therefore absolute and irrevocable.  He did not cite any authority for that proposition.  The respondent has said before me that he had attached a condition to the C gift.  He said he had told the appellant that he would hold the property in trust for his (respondent's) daughter who was then a minor.  This is novel and appears to be an afterthought.  The respondent never mentioned any such thing before the trial court and I do not believe he would have forgotten to mention it had it been the true position.  Now, D back to the question whether the gift was absolute and irrevocable.
In the first place, the respondent as sui juris was competent to give the suit premises to the appellant as soon as he bought it by allowing him to take possession of the E Certificate of Occupancy and to register himself as the owner of the right of occupancy.  It is stated on page 366 of Volume 18 of Halsbury's Laws of England, 3rd Edition, that "It is on legal and aquitable principles clear that a person sui jurisacting freely, and with sufficient knowledge, ought to have and has power to make, in binding and effectual F manner, a voluntary gift of any part of his property, whether capable or incapable of manual delivery, whether in possession or reversion, and howsoever circumstances"
There is no evidence that at the time the respondent paid the purchase money for the suit G premises and allowed the appellant to be registered as the owner thereof and to take possession of the certificate of occupancy he attached any conditions, precedent or subsequent, to the gift.  So, in the absence of evidence to the effect that the respondent had reserved a power of revocation, and as there is no claim that the gift was induced by H fraud, undue influence, mistake or misrepresentation, of was tainted with illegality, I am constrained to hold that the gift was absolute and irrevocable.
The trial magistrate held that because there was evidence showing that the respondent was receiving rent and was considered by the tenants as the landlord, that, in effect, I annulled the appellant's legal title to the suit premises.  No authority was cited for such a

view and I, on my part, cannot think of any.  It seems to me plain however that mere A receipt of rent from tenants cannot be sufficient in fact or in law to make the receiver, ipso facto, the owner of premises.  It needs no great talent to know that owners of premises quite often do appoint agents to collect rent from tenants on their behalf.  The tenants or their part may mistakenly take the agents for the landlord or, more precisely, B the owner of the premises.
Although the respondent has my sympathies in the sense that on the facts and the law of the case he is unable to take back the valuable gift which he had given to the appellant during their happier days, I have to allow this appeal by quashing the judgment of the C trial court and set aside the decree thereof.  The appellant remains the owner of the suit premises and shall he entitled to costs of this court and of the court below.  The costs to be taxed.
D Appeal allowed.


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