JUDGMENT CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE PC CIVIL APPEAL NO. 17416 OF 2024 (Arising from Misc. Civil Application No. 01280 of 2024 of District Court of Temeke at Temeke One Stop-Judicial Centre) BADRUDIN MOHAMED ALIDINA................................................... 1st APPELLANT SARA MOHAMED ALIDINA............................................................. 2nd APPELLANT VERSUS ALLY MOHAMED ALIDINA (as the Administrator of the late Sheikh Mohamed Aladina)........................................................................ RESPONDENT JUDGMENT 14th August & 11th October, 2024 BARTHY, J.: The appellants, Badrudin Mohamed Aladina and Sara Mohamed Aladina, being aggrieved by the decision of the District Court of Temeke at the One Stop Judicial Centre, appeal to this court, advancing eight grounds of appeal, as follows; 1. That the ^appellate court erred in law and fact by dismissing the appellant’s appeal without considering that the alleged sa/e/purchase conducted was so done without compliance to section 67 and 68 of the Land Registration Cap 334 of 2019. i 2. That the 1st appellate court erred in Law and fact by upholding the trial court decision without considering that the trial court had granted the reliefs validating sale of the deceased’s land which was not among of the prayer at the trail court, and it was so done without any legaljustification. 3. That the 1st appellate Court erred in Law and fact by failure to consider the appellant's submission, failure to analyze, evaluate parties submission, failure to give reasons for accepting or refusing parties' arguments, prior to coming to the decision which led to an unjust decision and hence miscarriage ofjustice. 4. That the 1st appellate court erred in law and fact by failure to consider that the Administrator's relationship with the beneficiaries is that of fiduciary in nature and the act of non­ complying to that renders the respondent's administration invalid. 5. That the 1st appellate court erred in law and fact by failure to order the revocation of the administrator upon finding that the issue of the WILL left by the deceased was not res judicata, so as to allow the WILL to be filed in court accordingly. 6. That the 1st appellate court erred in law and fact by dismissing the appellant's appeal, leaving disputed issues unresolved without any legaljustification. 2 7. That the 1st appellate court erred in law and fact by dismissing the appellant's appeal without considering that the trial court, while refusing the appellant's application for revocation, had fai/ed to consider that at the time of appointing the respondent, there was no compliance with the law and it was so done without any legaljustification. 8. That the 1st appellate court erred in law and fact by dismissing the appellant's appeal based on a record which was not part of the court record and without any legaljustification for that. The appellants therefore prayed that this honorable court may allow the appeal, and the judgment and decree of the first appellate court, as well as the decision of the trial court, be quashed and set aside. Order the trial court to determine the issue of the deceased's will, which was left unresolved. Also address the matter of the Wakf created by the will of the deceased and the respondent's appointment as administrator be revoked. Also, the alleged sale or purchase of the estate's property be nullified, and the alleged purchaser be directed to recover his money after deducting the rent already collected by him. Additionally, they sought for any other relief(s) that this honorable Court may deem fit and just to grant. The appellants filed an amended petition of appeal again, however, without obtaining leave from this court. Therefore, it will not be considered 3 and the same is struck out from the record for being improperly filed before this court. During the hearing, both parties were represented, with the appellants by Mr. Emmanuel Kessy and the respondent by Mr. Alex Enock, learned advocates. The matter was argued through written submissions, both of which were filed on time as per the court's scheduling order. The background of the matter is essential for determination of the present appeal, the parties in this case are siblings and heirs to the estate of their late father. They are before this Court due to a dispute over the administration of their deceased father's estate. The dispute in this case stems from Letters of Administration Cause No. 60 of 2019 in the Primary Court of Kariakoo (the trial court). In that Cause, Sara Mohamed Alidina (the second appellant) was initially appointed as the administratrix of the estate of the late Sheikh Mohamed Alidina. However, the court subsequently revoked her letters of administration and appointed Ally Mohamed Alidina (the respondent) as the new administrator of the estate. Unhappy with this decision, the first appellant sought a revision of the trial court’s ruling through Probate Revision No. 12 of 2022 before the District Court of Temeke, which was unsuccessful. This led the first appellant to file PC Civil Appeal No. 54 of 2022 before the High Court, but that appeal was also unsuccessful. The case was then remitted back to the primary court, where the appellants filed an application to revoke the respondent's appointment as the administrator, presenting four reasons. This application was also unsuccessful, prompting the appellants to appeal to the district court and later to this court, where they have presented the eight grounds of appeal as mentioned above. In his submission, Mr. Kessy on behalf of the appellants argued each of the eight grounds separately. In the 1st ground of appeal, Mr. Kessy argued that the respondent conducted the sale of the deceased's registered land without following the mandatory procedures under Sections 67 and 68 of the Land Registration Act, Cap 334 R.E. 2019, thereby rendering the sale invalid. He requested the court to nullify the sale, as the land was still registered in the second appellant's name, the former administratrix. In the 2nd ground of appeal, Mr. Kessy argued that the first appellate court unjustly upheld the sale despite the absence of proof of a proper 5 transfer. He highlighted that the disposition of registered land requires a certificate of occupancy and approval from the Commissioner for Lands, in accordance with Sections 33, 41(l)-(4) of the Land Registration Act and Sections 22(l)(i), 36(2), 37(1) and (5), and 62(2) of the Land Act, Cap 113 R.E. 2019. He cited Consolata Daud Mallya vs. Mathew Silayo and Another and Ridhiwani Juma Hatibu and Jane Kimaro vs. Vicky Adili, emphasizing that no legal disposition can occur without registration. In the 3rd ground of appeal, the appellants asserted that the first appellate court overlooked the respondent's appointment, which was based on a forged death certificate, and failed to consider the will presented during the trial. Mr. kessy referred the case of Edwin isdori Elias vs. Serikali ya Mapinduzi Zanzibar and Hamis Rajabu Dibagula vs. Republic, which emphasize that judgments must address all relevant evidence. Additionally, he cited Abubakari I.H. Kilongo and Another vs. Republic case where the court ruled that unresolved key issues render a judgment defective. In the 4th ground, Mr. Kessy argued that the first appellate court ignored the fiduciary relationship between the appellant and respondent. He noted that the respondent did not dispute the will or the allocation of the deceased's shops to his children, stressing the necessity of obtaining the 6 consent of all interested parties, including WAKF administrators, before taking any action on the estate. In the 5th and 6th grounds, Mr. Kessy argued that the first appellate court should have inspected the will and revoked the respondent's appointment as administrator. He cited Rule 8 of the Primary Courts (Administration of Estates) Rules, G.N. No. 1971, which grants the court authority over matters concerning the will. He emphasized that the trial court should have considered the deceased's wishes, as the WAKF had been established before the deceased's death and continues to serve the community. In the 7th ground, he argued that the respondent's appointment was flawed due to reliance on a forged death certificate, which was not addressed by the first appellate court, leading to a miscarriage of justice. In the 8th ground, he asserted that the appellate court dismissed their appeal based on the respondent's advocate's submission, which was not part of the trial court record, and failed to acknowledge that the deceased's land remains registered under the second appellant's name with no transfer of ownership. The appellants sought for the appeal to be allowed as per their petition of appeal. &yv^ 7 The respondent opposed all the grounds of appeal, arguing that the appellants misunderstood the laws and principles related to probate matters. Mr. Enock, the counsel for the respondent clarified that the original dispute in the lower court focused on the revocation of the second appellant's letters of administration over the estate of the late Mohamed Alidina, not on the ownership of property registered in the second appellant's name. He contended that the appellants introduced new grounds that were not raised before the first appellate court. Regarding the 1st ground of appeal, Mr. Enock contended that the appellants' reliance on Sections 67 and 68(1) of the Land Registration Act was both misleading and without merit. He emphasized that these issues were never raised before the first appellate court, and thus, the first appellate court could not have nullified the sale, as this was not part of the complaints presented to it. On the 2nd ground, Mr. Enock stated that the respondent's appointment as the estate administrator did not affect the validity of the sale to a bona fide purchaser. He argued that the provisions cited by the appellants were not applicable because the case pertained to the administration of an estate, not a land dispute. He further noted that the cases cited by the appellants, 8 including Consolata Daud Mallya vs. Mathew Silayo and Others, were related to land matters and did not apply to the current probate case. Responding to the 3rd through eighth grounds of appeal together, Mr. Enock asserted that all these issues had already been fairly determined by the lower courts. He concluded by stating that the appeal was without merit and should be dismissed with costs. In his rejoinder submission, Mr. Kessy contended that both the trial court and the first appellate court erroneously confirmed the sale of the deceased's registered land and granted the purchaser the right to collect rent from tenants, despite the absence of legal proof for the sale. For the 1st ground of appeal, he argued that the courts lacked legal justification for confirming the sale. In the second ground, Mr. Kessy asserted that the first appellate court mistakenly upheld the trial court's declaration that Michael Nyamika was the legal buyer of the property without evidence of registered title in his name. He cited Consolata Daud Mallya v. Mathew Silayo (Land Appeal No. 16 of 2022), Mwinihatibu Jumaa Hatibu v. Ridhiwani Juma Hatibu (Civil Appeal No. 70 of 2020), and Jane Kimaro v. Vicky Adili (Civil Appeal No. 212 of 2016) to support his position, claiming the respondent failed to refute these precedents. —(cff 9 For the remaining grounds, Mr. Kessy reiterated that the deceased's will is valid. He concluded by requesting the court to allow the appeal, nullify the orders confirming the sale, revoke the order allowing the purchaser to collect rent, and provide directives regarding the deceased's valid will registered with the Ministry of Lands and Human Settlements. Having carefully examined the submissions of both parties, and acknowledging that this is the second appellate court, where the general rule is that a second appellate court, in exercising its duties, is always reluctant to interfere with the concurrent findings of fact made by the courts below unless there has been a complete misapprehension of the evidence or the courts applied erroneous principles of law. This principle was well articulated in Julius Josephat vs Republic (Criminal Appeal 3 of 2017) Court of Appeal at Arusha [2020] TZCA 1729 (18 August 2020), which emphasizes that the second appellate court will only intervene when there is clear evidence of misdirection or a gross miscarriage of justice. With this guiding principle in mind, I will now proceed to consider the grounds of appeal. I will begin with the 5th and 6th grounds, which were addressed jointly by Mr. Kessy, who criticized the lower courts for io disregarding the existence of a will allegedly left by the deceased. The appellants' counsel argued that this will should have impacted the administration of the deceased's estate, particularly with regard to the wakf. In contrast, Mr. Enock defended the decision of the first appellate court, asserting that it appropriately addressed the grounds raised by the appellants. Upon reviewing the record and the arguments, it is evident that the issue of the will was raised for the first time during the revision application before district court vide Civil Revision No. 12 of 2022 and subsequently during the appeal before the first appellate court, subject to this appeal. Despite the fact that the issue regarding the will was raised for the first time in the revision court and the first appellate court, the first appellate court, recognizing its role as a rehearing body, undertook the responsibility of stepping into the shoes of the trial court to address this complaint. In resolving the matter, it concluded that the appellants had intentionally concealed the will during the initial trial, thereby dismissing the complaint. It is also the common ground that the second appellant was the first administratrix of the estate of the deceased through Letters of Administration Cause No. 60 of 2019. This raises questions as to why, when seeking li appointment as administrators, she did not disclose the existence of the will which she knew it existed all along. These inconsistencies raise doubts, leading me to agree with the first appellate court's decision, which was correct in its conclusion regarding this complaint. Therefore, I find these grounds to be without merit. Accordingly, the 5th and 6th grounds of appeal are dismissed for lack of merit. Moving to the 1st, 2nd, 4th, and 7th grounds of appeal, these grounds should not detain me much, as they were never raised or addressed and considered by the first appellate court. It is a legal principle that a complaint which has never been a ground of appeal nor addressed by the first appellate court cannot be brought before the second appellate court. This aligns with the decision made in the case of Raphael Enea Mngazija v. Abdallah Kalonjo Juma (Civil Appeal No. 240 of 2018). Based on this, I hereby struck out the 1st, 2nd, 4th, and 7th grounds of appeal. Turning now to the 8th ground, Mr. Kessy argued that the first appellate court improperly dismissed their appeal based on extraneous information not part of the official record. Specifically, they take issue with the court's reliance on the respondent's submission regarding the sale of the deceased's 12 house which was informally raised. For the respondent, Mr. Enock contended that the first appellate court properly determined the matter. The court noted that the issue was initially raised by the appellants in a complaint letter and later in the respondent's reply submission, although the appellants did not pursue it further. The first appellate court concluded that the sale of the house was never raised on the grounds, and therefore, the appellants' complaint on this issue was dismissed. It is the cardinal principle that parties are bound by their own pleading. This was also stressed in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) Court of Appeal at Mwanza [2019] TZCA 453 (11 December 2019). The decision of the first appellate court was not based on the respondent's submission, which raised new issues not included in the grounds of appeal. The first appellate court thoroughly examined the grounds of appeal presented before it, and after conducting an analysis and evaluation, it reached the decision to dismiss the appeal, concluding that it was unsubstantiated. Upon reviewing the findings of the first appellate court, I find no reason to fault it, the 8th ground is without a merit as well. 13 Finally, I will address the 3rd ground, where the main complaint centers on allegations that the respondent's appointment was based on a forged death certificate and that the will was not properly considered. As for the issue concerning the will, I have already discussed it in detail when addressing the 5th and 6th grounds above, so I will not repeat it here. Regarding the allegation that the respondent was appointed based on a forged death certificate, I find this claim to be without merit. After reviewing the trial court's records, it is clear that the respondent was appointed as the administrator of the deceased's estate after the appellants had their letters of administration revoked due to the grounds for revocation presented before it. Given these circumstances, it is evident that the respondent did not submit a death certificate during the usual process of applying to be appointed as the administrator. Consequently, I find this ground lacking substance, and it is hereby dismissed. In summary, having considered the submissions and the record before this court, I find that the appeal lacks merit. I find no reason to fault the findings of the lower court based on the grounds of appeal presented. Accordingly, the appeal is hereby dismissed in its entirety. — 14 It is so ordered. ted at Temeke this 11th of October, 2024. . N. BARTHY JUDGE 15