LAND CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 8796 OF 2024 AMIRI RAMADHANI (Adm. Of Ramadhani Amiri).................... PLAINTIFF VERSUS MTEMBEZI RAMADHANI AMIRI................................................ DEFENDANT RULING 14/8/2024&26/8/2024 GWAE, J This ruling stems from a preliminary objection canvassed by the defendant herein on the points of law to the effect that:- "This court has no jurisdiction to try this alleged land case". The plaintiff named above claims against the defendant for perpetual injunctive orders against the defendant, his servants, employees and any person drawing power or instructions from him for not dealing with plot number 261 Block 41 Kinondoni Dar es Salaam, in any way which is against the interest of the plaintiff and the beneficiaries, to wit; construction a house on it, selling the plot or leasing the said plot unlawfully. i The defendant disputed the plaintiff's claim by filing the Written Statement of Defence accompanied by a notice of preliminary objection indicated above. Hearing of the preliminary objection was conducted by way of written submissions. Mr. Jackson Liwewa, learned advocate represented the plaintiff whereas the defendant enjoyed the service of Mr. Jerome Joseph Msemwa the learned advocate. Relying on the paragraph 4 of the plaint demonstrating that he plaintiff is suing the defendant as an administrator of the estate, Plot No. 261 Block 41 Kinondoni, Dar es Salaam of the late Ramadhani Amiri. According to the defendant, this suit is not a land matter in terms of Section 167 (i) (ii) of the Land Act and Section 37 (e) of the Land Disputes Courts Act Cap 126, Revised Edition, 2019 on the reason that, the property does not belong to the plaintiff. He added that, the suit property is not his. It is thus his opinion that, the defendant cannot thus seek for perpetual orders against the defendant who is also a beneficiary of the estate. Mr. Jerome further added that, the parties cannot choose where to file their case, but the question as to where to file the case is determined by the law. He averred that, since this is a Probate and 2 Administration matter, this court has no jurisdiction to try it. He prayed that the suit be struck out with costs. Opposing the preliminary objection, the counsel for the plaintiff stated that, section 167 (i) and (ii) of the Land Act (supra) does not does not exist. He also argued that, section 37 (e) of the Land Disputes Courts Act, Cap 216 does not support the preliminary objection raised. He stated that, the matter before this court is a matter relating to the land. The plaintiff further argued that under section 80 (1) of the Probate and Administration of Estate Act Cap 352 R.E 2002 this Court is vested with the land in dispute and as such is empowered to see if there are inconsistent activities carried out on the said land and without abiding the law. Having dispassionately examined the pleadings, specifically the plaint, and the submissions for and against the preliminary objection, the main issue for determination is whether the preliminary objection raised is meritorious. The counsel for the defendant submitted that, this court has no requisite jurisdiction to hear and determine the dispute on the reason that, the property does not belong to the plaintiff and that there is a probate and administration matter. 3 Starting with the defendant's contention that, the suit property does not belong to the plaintiff. That is in my considered view, the defendant is challenging the competence of the plaintiff in prosecuting this suit. It is apparent that locus standi is one of the threshold of instituting a suit. In the absence of the locus standi on the one instituting an action, the same can affect the jurisdiction of the court., the court could not have jurisdiction to entertain the suit. In the case of Lujuna Shubi Balonzi vs Registered Trustees of Chama cha Mapinduzi, (1996) TLR 203, 208, the locus standi was defined as:- " A principle governed by common law whereby in order to maintain proceedings successfully a plaintiff or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court." In our present matter, it is not disputed that, the suit property belongs to the one Ramadhani Amiri, now deceased person. Further, as per the letters of administration attached to the plaint exhibiting that on 06th August 2009, Kinondoni Primary Court appointed the plaintiff as an administrator of the estate of the late Ramadhani Amiri through Probate and Administration No. 474 of 2008. To re-instate the legal position, I 4 feel like pursuaded to endorse the case of Projest Enery vs. Evelina George, Land Appeal No. 65 of 2021, HC at Bukoba, the court held that: "The general rule known worldwide is that, when the property in dispute belongs to the deceased person, the only person with locus standi to sue on behalf of the estate is the one who has sought and obtained letters of administration of the deceased's estate." The plaintiff, being the administrator of the estates of the late Ramadhani Amiri, has instituted this suit against the defendant seeking for perpetual injunctive orders against the defendant in respect of the suit property. In my view, since the plaintiff has been appointed as the administrator of the estate of the late Ramadhani Amiri, and that the suit property is party of the said estate, this court has jurisdiction to entertain the instant suit. Regarding the defendant's assertion that this matter is on the probate and administration matter, hence, this court has no jurisdiction. The defendant has cited section 167 (i) and (ii) of the Land Act, Cap 113 R. E 2019 and section 37(e) of the Land Disputes Courts Act (supra) to support his objection. I am of the view, as correctly argued by the 5 counsel for the plaintiff, section 167 (i) and (ii) of the Land Act does not exist. Section 37 (e) of the Land Disputes Courts Act, provides that:- *37.-(l) Subject to the provisions of this Act, the High Court shall have and exercise originaljurisdiction- (a) N/A-(d) NA (b)In all such other proceedings relating to land under any written taw in respect of which jurisdiction is not limited to any particular court or tribunal." From the above quoted provision of the law. The issue for consideration is on, whether the instant matter is relating to land, therefore entertainable by the Court. In determining this contentious matter, I had to go through the plaint to scrutinize the content of the subject matter which is found at paragraph 3 and is reproduced as hereunder:- "plaintiff claims against the defendant for perpetual injunctive orders against the defendant, his servants, employees and any person drawing power or instructions from him for not dealing with plot number 261 Block 41 Kinondoni Dar es Salaam, in any way which is against the interest of the plaintiff and the beneficiaries, to wit construction a house on it, selling the plot or leasing the said plot unlawfully." From the above cited paragraph, I find that the Plaintiff's claim for perpetual injunction in respect of the suit property against the 6 defendant falls within the phrase "such other proceedings relating to iand"\n\\\c\\ this court has original jurisdiction. Accordingly, I find the preliminary objection raised by the counsel for defendant's counsel lacking merit. It is hereby overruled. Considering the nature of the dispute and parties' relationship, each party shall bear his own costs. It is so ordered. dated and delivered at dar ES salaam this 26th August 2024 WAE JUDGE 7