alyoce juma vs helena aliseni 2017 tzhc 2243 29 may 2017

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA LAND APPEAL NO. 5 OF 2017 (Appeal from the District Land and Housing Tribunal o f Manyoni at Manyoni Land Application No. 25 o f 2015) ALYOCE JUMA ............................... APPELLANT VERSUS HELENA ALISENI .................................. RESPONDENT JUDGEM ENT Mansoor, J: Date o f JUDGEMENT- 29/05/2017 Alyoce Juma is the step son of Helena Aliseni. Helena Aliseni was the wife of Aloyce Juma’s father. The dispute is over an 8 acres land situate at Sasajila Village in Manyoni, District. Aloyce Juma claims to have been given the land by his late father, while Helena Aliseni claims that this is her land, and she and her late husband had cleared the virgin land since 1977. Helena testifies she and her husband have used the land, and later on, they moved to a different village, leaving the suit land under the care of Sajilo Muyinje. Sajilo Muyinje testified in the District Tribunal as PW2. Helena testifies that she gave the land to her son in law, Aloyce Juma to only use it, and not to own it, and that was in 2006, and in 2015, she asked the Appellant to give vacant possession, the Appellant refused to vacate, and that is when she decided to file a case at the District Land and Housing Tribunal for vacant possession. She won the case. Aggrieved, the appellant filed this present appeal raising 4 grounds of appeal. He claims that he was not given a chance to defend his case but reading from the proceedings it is clear that the matter was fixed for defence hearing on 24th August 2016, the Appellant did not enter appearance instead he wrote a letter informing the court that he was bereaved, and asked for adjournment. The Tribunal adjourned the hearing of the defence case to 28/09/2016, and again on 30/09/2016. The Appellant did not appear before the Tribunal on SO1/09/2016- and he did not assign any reasons as to why he failed to appear, hence the Tribunal closed the case and gave the judgement. This ground of appeal is meritless since the Appellant was indeed given a chance to present his witnesses defending the claim, but he chose not to appear in court without assigning any cause. The Tribunal did not err. The Appellant was not denied a chance to be heard, thus grounds No. 1 and 2 of the Appeal are dismissed. Regarding the 3rd and 4th grounds of appeal, I agree that the respondent submitted before the Trial Tribunal that the land in dispute belonged to her late husband, and her late husband had many wives, and many children. Her witnesses also supported the contention that the land belonged to her late husband. She testified before the Trial Tribunal that she is the wife of the late Juma Mpiji, the original owner of the disputed Tand. However, it is also true that she did not inherit this land from her late husband, but she was the co-owner. The rest of the respondent’s witnesses testified the same, that the respondent and her late husband owned the land jointly, and that the Appellant was given a piece of land by her late father before he died, but the appellant sold the land. Since the land was co-owned by Helena and her late husband, and since the Appellant is the son of the late Juma Mpiji, i agree that had Helena Aliseni had no power to sue over ownership of the land that was co-owned by her and her late husband without first obtaining letters of administration. Helena Aliseni did not present any proof of letters of administration granted to her by any Court or by the family members to enable her to own the land that belonged to her late husband. I agree with the decision by Longway J. (as she then was) in the case of Danford Mwakidunda and Rebeka Sanga (unreported) Misc. Land Appeal No. 11 of 2007 that “in other words there is no indication o f any probate administration having taken place from which assumption o f authority or mandate o f the same could be read to court from in my considered view although I agree that children inherit their parents a process has to be done to indicate what and how. Since no such evidence was adduced in the lower Tribunal it was improper fo r the Trial to have taken place as done for lack o f probate administration. ” This is a matter of succession. The Probate and Administration Act and Rules deals with succession to the estate of a deceased person. The Court recognizes the representation to the estate and secures transmission of the property in favour of the legatees or the successors as the case may be. There cannot be any succession without the estate. There cannot be a representation without the estate, nor can there be a transmission to the legatee/successor without the estate; Helena Aliseni could only be able to distribute the estate of her late husband if there was the letters of administration granted to her by the Court authorising her to administer and eventually distribute to the heirs her late husband’s estates. The Letters of Administration could have been demonstrated to the Tribunals or Courts .If she was the grantee of the Letters of Administration she could have gotten powers to supervises the distribution of the assets of the deceased and in that sense deals with the property until it is transmitted to the legatee or the legal heirs and eventually own it or distribute it amongst the heirs. On this ground, this appeal is therefore allowed; the decision of Manyoni District Land and Housing Tribunal is hereby quashed and set aside. The estates of the late Juma Mpiji should be protected until the Administrator is appointed. The Respondent or the Appellant should await the appointment of the Administrator and then may choose to sue the appointed administrator for their respective rights over the disputed land. Appeal allowed with no orders as to costs. DATED at DODOMA this 29th day of MAY, 2017 29th MAY 2017