busapare daudi vs ester medadi 2022 tzhc 15842 13 december 2022

IN THE HIGH COURT OF TANZANIA SHINYANGA REGISRTY AT SHINYANGA LAND APPEAL NO. 11 OF 2021 BUSAPARE DAUDI ••••.•••••.•..• II II II ••••••• II. 11.11 •••• II. II. II' ••• APPELLANT VERSUS ESTER MEDADI •••.•••••..••.••••..•• 1 II •• II •••• 11.11. II ••••••• II ••• RESPONDENT [Appeal from the decision of the District Land and Housing Tribunal for Shinyanga.] CHon. P.L.S. Lekamoi, Chairman.) dated the 16th day of August, 2021 in Land Appeal No. 34 of 2020 JUDGMENT . 29th August& 13th December, 2022. S.M. KULITA, J. This is an appeal from the decision of the District Land and Housing Tribunal for Shinyanga in the Land Appeal No. 34 of 2020 delivered on the 16th day of August, 2021. The story behind this appeal in a nut shell is that, the appellant is an administrator of the estates of the late Denja Busapare, The records provide that, through land case No.1 of 2020, the 1 Appellant sued the respondents at the Ward Tribunal for Salawe over a house, three acres of land and the things attached thereon. The ward tribunal gave victory over the appellant. That decision aggrieved the respondent, hence appealed at the District Land and Housing Tribunal for Shinyanga through the Land Appeal No. 34 of 2020. At this stage victory went to the respondent. This was on the 16th day of August, 2021. That decision aggrieved the appellant, hence appealed to this court with five grounds which can be summarized as follows; one, the appeal at the Land and Housing Tribunal was time barred, two, the appellate tribunal wronged for not considering ground number 4 of appeal that challenged quorum at the Land case No. 1 of 2020 of Salawe Ward Tribunal, three, the appellate court erred to entertain the matter on merits while the trial tribunal was not properly constituted, four, according to the evidence adduced, the trial and appellate court had no jurisdiction to entertain the case, five, in the alternative, the appellate tribunal decided against the weight of evidence. On the 6th day of June, 2022 the matter came for hearing. Mr. Audax Constantine, learned Advocate represented the Appellant, whereas the respondent appeared in person, unrepresented. . ,. 2 In support of the appeal Mr. Audax started by abandoning his first ground of appeal. He then went on submitting on the rest. With regard to the second ground of appeal he stated that, the respondent at the District Land and Housing Tribunal raised the ground of appeal that the trial tribunal was not properly constituted. The Counsel said that members were only 2 (two) instead of 4 (four). He went ahead stating that, the District Land and Housing Tribunal never determined that point. He further stated that, the trial tribunal ought to have been constituted with 4 to 8 members as per section 4(1)(3) of the Ward Tribunals Act and Section 11 of the Land Dispute Court Act. On the third ground of appeal Mr. Audax claimed that, the proceedings of the ward tribunal do not provide for how many members attended the session. He alleged that there is only an attached paper with the names of attendants, but does not show to what case it belongs. As for the copy of Judgment, Mr. Audax stated that the same shows at its end that it was signed by 3 (three) members. He added that, it is because the secretary is not a member as per section 9 of the Ward Tribunals Act. He added that, this is contrary to the purported 4 (four) members appearing in the attached piece of paper. 3 As for the fourth ground Mr. Audax submitted that, the dispute was about the properties left by the deceased, one Denja Busapare who had two wives. He said that the issue is who should take what among the widows. On that, he said, that is determination of the division of the deceased's estates which was not the duty of the Ward Tribunal but normal civil courts. In reply the respondent stated that, she does not know the number of members who attended at the ward tribunal. As for the fifth ground she stated that, it is not her who had filed a case at the ward tribunal. She added that, the deceased was her husband who had given her the houses located at a single premise. She said that, it was the administrator who did not consider that thing during the distribution of the estates. In rejoinder Mr. Audax stated that, the respondent's issue is that the properties she was bequeathed by her late husband were not supposed to be distributed to other heirs. On this account, Mr. Audax stated that, that stand proves his contention that, this matter was a Probate and Administration case, the Ward Tribunal does not have jurisdiction to entertain. On that account, he prayed for this court to quash and set aside the proceedings, decisions and orders of the Ward Tribunal, as well as those of the District Land and Housing tribunal. 4 I have earnestly gone through the records pertaining to this case. I have also gone through the parties' submissions as well. What can openly be seen is that, from the respondent's submission, she said that, the deceased had given her the properties at issue. That was of course, before he died. But the appellant who is the administrator of the deceased's estates, upon dividing the deceased's estates, did not give those properties to the respondent. The question is thus, what is that dispute all about? Mr. Audax Constantine stated that, that was the issue of distribution of the deceased's estates. As such, to him, it is the issue that falls under the probate and administration of estates. The records provides that, the respondent is the deceased's second wife. Further the records provide that, the appellant has been appointed by the Primary Court an administrator of the estates of the late Denja Busapare. However, division of the deceased'sestates is among the duties of the Administrator of the deceased's estates. This is per rule 5 of part II to the fifth schedule to the Magistrate's courts Act [Cap 11 RE2019] which provides; 'f1n administrator appointed by a primary court shall, with reasonable diligence/ collect the property of 5 the deceased and the debts that were due to him/ pay the debts of the deceasedand the debts and coasts of the administration and shall thereafter distribute the estate of the deceased to the persons or for the purposes entitled thereto and, in carrying out his duties; shall give effect to the directions of the primary court. // Further, rule 8 (f) of The Primary Courts (Administration of Estates) Rules GN. No. 49 of 1971 provides for the matters that should be determined by the primary court that has appointed the administrator of the estates of deceased. The said provision provides; ''8. Other matters to be decided by the court. Subject to the provisions of any other law for the time being applicable the court may, in the exercise of the jurisdiction conferred on it by the provisions of the Fifth Schedule to the Act but not in derogation thereof, hear and decide any of the fol/owing metiers; namely- (a) N/A . 6 (b). N/A . (c). N/A . (d). N/A . (e). N/A . (f) any question relating to the sale, partition, division or other disposal of the property and other assets comprised in the estate of the deceased person for the purpose of paying off the creditors or distributing the property and assets among the heirs or beneficiaries;" The quoted excerpt of law gives answer to our question that, whoever. is aggrieved with the administrator's duty of dividing the deceased's estates, that matter should be tabled and decided by the same primary court which determined the Probate and Administration cause. . The records show that the respondent was the deceased's second wife; As there is no dispute that, the disputed properties are among the deceased's estates, then the question as to whether the respondent is entitled Or not, to the share of the said estates, is a question that should have been determined by the primary court that has appointed the 7 appellant as an administrator. It follows therefore that, it was not proper for this issue to be determined as a land matter. On that account, it is hereby declared that, the trial tribunal and the appellate tribunal had no jurisdiction to entertain the matter. Thus, their proceedings, decisions and orders are hereby declared a nullity, hence quashed and set aside. The division of the deceased's estates that has been done by the administrator should remain intact and the aggrieved party should challenge it at a proper forum. In upshot, the appeal is hereby allowed with no order as to costs. -tJL S.M. KULITA JUDGE 13/12/2022 tfL S.M. KULITA JUDGE 13/12/2022 8