a11 PETRO ROBERT MYAVILWA VS

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA LAND CASE NO. 5 OF 2020 PETRO ROBERT MYAVILWA (As Administrator of the Estates of the late Robert Petro Myavilwa).......................................... PLAINTIFF VERSUS ABEL MWALIBETI......................................................................................... 1stDEFENDANT ERICA MYAVILWA....................................................................................... 2ndDEFENDANT ZERA MYAVILWA................................................................... 3rd DEFENDANT RAHIM A. MCHALIKWAO............................................................................. 4thDEFENDANT FAGIO AUCTIONEER CO. LTD............................................... 5th DEFENDANT RULING Date of Last Order: 30/05/2024 Date of Ruling: 04/07/2024 NDUNGURU, J. This is a ruling in respect of the issue raised by this Court suo motto and the addresses made by the parties about the jurisdiction of this court. Previously, in 2021 this very Court pronounced a judgment on 28/08/2021 in which it resolved that the claims preferred by the plaintiff i Petro Robert Myavilwa were probate in nature of which the Primary Court which entertained the Probate and Administration Cause by appointing the plaintiff and the 1st defendant as co-administrators of the estates of the late Robert Petro Myavilwa was clothed with jurisdiction to determine the plaintiff's claims. The decision however, was nullified by the Court of Appeal of Tanzania since parties were not availed with an opportunity to address the court regarding the issue of jurisdiction. The Court of Appeal directed this court to avail the parties with opportunity to address on it. Now, before determining the merits of the matter in so far as the issue of jurisdiction is concerned, I find it demanding to provide brief facts of this case. It is that; although the deceased Robert Petro Myavilwa died way back 07th April, 2003, almost 20 years now, the fate of his estates is not yet settled. The plaintiff in this case, Petro Robert Myavilwa is suing at the capacity of administrator of the estate of the deceased Robert. He claims that Abel Mwalibeti, Erica Myavilwa, Zera Myavilwa, Rahm A. Mchalikwao, Fagio Auctioneer Co. Ltd (1st, 2nd, 3rd, 4th and 5th defendant respectively or defendants accumulatively) conspired and disposed of a house located at Chimala village in Mbarali District (the suit house). The 2 suit house is among the properties forming the estates of the deceased Robert. The plaintiff, the 2nd defendant (now a deceased) and 3rd defendants are children and lawful heirs of the deceased Robert. While the 1st defendant is an administrator of the estates of the same deceased, the 4th defendant is the purchaser of the suit house and the 5th defendant is the auctioneer who auctioned the suit house. It is however alleged by the plaintiff that the 1st defendant was temporarily appointed by Chimala Primary Court to administer the estate of the deceased only to prevent the sale of the suit house from being sold by Chimala Saccos Ltd as it had been used as collateral for the loan secured by the 3rd defendant. He alleged further that the 1st defendant administration had been revoked and the plaintiff appointed as a sole administrator. It is further alleged by the plaintiff that the defendants intentionally conspired and sold the suit house to the 4th defendant without his consent and knowledge being the co-owner with the 2nd defendant of the suit house. That following the alleged illegal sale, the 5th defendant illegally and unprocedural evicted him (plaintiff) from the 3 suit house thus caused him to suffer great loss of the properties and monev. i The plaintiff claims against the all defendants jointly and severally for the following orders: (a) General damages of 50,000,000 (fifty million) (b) An order that the disputed house belongs to the estate of the late Robert Petro Myavilwa as per his will. (c)That the sale and eviction order by the 1st, 2nd, 3rd, 4th and 5th defendants of the house in dispute is illegal thus it is null and void. (d) That the plaintiff be compensated with Tshs 120,000,000/= by the defendants for disturbances and inconvenience for unlawful eviction. (e) That the compensation a total sum of Tshs 52,932,100/= being of properties destroyed. (f)That the declaration order that the plaintiff and the 2nd defendant are the solemnly rightful owner of the disputed property. (g) That the declaration order that the sale agreement made between the 1st and 4th defendants is illegal. 4 (h) As interest of 30% of decretal amount from te date of judgment till final payment. (i) Costs of the suit be in the course. 0) Any other relief(s) that this honourable court deems fit to grant. The plaintiff's claims were strongly disputed by the defendants through their joint written statement of defence. They averred that the 1st defendant's administration of the deceased's estates had never been revoked by the court thus that the sale of the suit house was lawful and legal for that capacity. Also, that the plaintiff had never been the owner of the suit house but he had been using it for his own benefit. The case went to a full trial and the parties called their respective witnesses. At the stage of composing the judgment after considering the pleadings and the evidence of the parties, it came out to the view of this court that the surrounding circumstances suggest that the matter would be conveniently resolved if placed before the Primary Court which entertained the probate and administration of estates of the deceased Robert Petro Myavilwa. It was the view of this Court thus; it lacks jurisdiction to determine the case. Up on the direction of the Court of 5 Appeal about availing opportunity/ to the parties, they were invited to address it. When the parties were called to address this Court, Mr. Mashaka Ngole learned advocate represented the plaintiff while the defendants were represented by Mr. Alfred Chapa also learned advocate. It was argued by way of written submissions. In his submission, Mr. Ngole had the view that this court is clothed with jurisdiction to entertain the suit as a land dispute since it is vested with the same jurisdiction by the Constitution of the United Republic of Tanzania, the Land Act, Cap. 113 R.E 2019 and the Land Disputes Courts Act, Cap 216 R.E 2019. He referred to section 3 (1) and (2) of Cap. 216, that this court has power to determine land disputes like the one at hand. Mr. Ngole went further expounding that, courts which have probate and administration jurisdiction their powers are limited to the appointment of the administrator, declaring the listed properties if was owned by the deceased and declaring beneficiaries of the deceased estates. That the probate and administration court can neither distribute the estates nor determine ownership of the properties. He reinforced his 6 argument with the case of Nasiri Nassor Amran and 3 others v. Sabri Nassor Amran, PC. Civil Appeal No. 1 of 2021. In his submission, Mr. Ngole has also gave a recognisance of the case of Mgeni Seif and Mohamed Yahaya Khaifani, Civil Appeal No. 1 of 2009 CAT (unreported) that in that case the holding that "as we have said earlier, where there is a dispute over the estate of the deceased, only probate and administration court seized of the matter can decide on the ownership" mean that the probate and administration court jurisdiction is limited to where the beneficiary of the deceased estates have dispute over the estates or where they have dispute concerning with the distribution of the estates. According to him, since jurisdiction is a creature of statute conferring the power to a certain court this court has jurisdiction over the matter as it a land dispute. On the other side, Mr. Chapa had different views, he was straight forward that this court has no jurisdiction to entertain the instant suit on the reasons that; the suit house formed the estates of the late Robert and was the subject in the Probate Case No. 7 of 2014, which was not challenged by the plaintiff that the suit house was sold vide Probate Case No. 7 of 2014, and the court declared the sale successfully done by 7 the 1st defendant as the administrator, that the plaintiff seeks inter-alia an order that the suit house belongs to the estates of the late Robert while knowing that this Court is not a probate court, that there was no dispute regarding the ownership of the suit house, that there is an order of the Primary Court in respect of the suit house and the same is still in force and that the issues which was framed in this matter cannot be resolved while the sale was done by the 1st defendant in his capacity of administrator of the deceased estates. According to Mr. Chapa the circumstances of this case are akin to that in the case of Ally Omari Abdi v. Amina Khalil Aliy Hildid ( as an Administrator of the Estate of the late Kalile Ally Hildid) Civil Appeal No. 103 of 2016 CAT at Arusha where the Cout of Appeal held that this court had no jurisdiction to determine a suit before determining probate matter which the parties had already submitted before the primary courts and had never been completed by completion full accounting to close the probate before the primary courts. Also, that in the case of Erick Augustine v George mbekiki, Criminal Appeal No. 02 of 2023 HCT at Bukoba, this court said that if the land involves probate issues the proper forum is the probate court and not land court. 8 In his conclusion Mr. Chapa candidly as an officer of the court dutifully to assist the court in administration of justice and fair decision informed this court that the plaintiff is ridding two horses at a time as he filed an application through Miscellaneous Civil Application No. 1236 of 2024 seeking an extension of time to apply for certificate on point of law to challenge the decision in Probate Cause No. 7 of 2014 in which the suit house is a subject matter. In rejoinder submissions, Mr. Ngole conceded to the submission by Mr. Chapa that the suit house was sold following the order of the Primary Court made in the Probate Cause No. 07 of 2014. He also noted that the suit house formed the estate of the deceased and that the plaintiff, 2nd and 3rd defendants are beneficiaries of the deceased estates. He however argued that there is no dispute over the distribution of the estates among the beneficiaries. Also, that a probate and administration court have no jurisdiction to decide on the ownership of the properties listed as the estates. He said that the cited case of Ally Omari Abdi (supra) is distinguishable with the case at hand on the ground that in that case parties themselves submitted their disputes to the probate court and the dispute was probate in nature and the dispute had not completely determined by the primary court. That unlike this 9 matter where the plaintiff's claims are over the legality of sale macle by the 1st defendant and the legality of the purchaser and the auctioneer who are not parties to the estates. Mr. Ngole further rejoined that the decision in Mgeni Sefue's case (supra) was misconceived by the defendants. He reiterated his previous stance that the instant dispute is not probate dispute but a dispute over ownership of land. He relied on this court decision in the case of Tatu Seiemani and 3 others v. Mwanahamis Selemani, PC Civil Appeal No. 76 of 2016 that if there is dispute of ownership of the deceased estates one may sue an administrator. Therefore, that this court has jurisdiction to entertain the suit. I have taken on board the rival submissions by the parties. And I have thoroughly went through the pleadings, the plaintiff's plaint and the defendants' joint written statement of defence. At this juncture, the issue for consideration is none other than whether this court has jurisdiction to entertain the suit. The basis for determination of this issue is the Court of Appeal of Tanzania decision in the case of Mgeni Sefue vs Mohamed Yahya Khaifani (supra) where it was essentially held that where there are competing claims over deceased person's estate, only a probate and administration court can explain how the deceased io person's estates passed on to a beneficiary or a bona fide purchaser of the estate for value. It is thus, that, when there is a dispute over ownership through inheritance between or among the heirs of the deceased estates or ownership by purchase of the estate from an administrator of the deceased estates. And when probate and administration of the estates process is incomplete, that is, it is pending, then it is the probate and administration court in which the probate is pending can effectively resolve the dispute. Conversely, as to the matter at hand, it has been correctly argued by Mr. Chapa, and the opinion of this court that the available circumstances, the suit preferred by the plaintiff is probate matter than a mere land dispute. I will demonstrate. From the parties' pleadings, it is quite clear that the plaintiff is challenging the sale of the suit house done by the 1st defendant on the claim that the 1st defendant did so without locus. It is nonetheless, undisputed that the 1st defendant was appointed by the Primary Court to administer the deceased estates which the plaintiff is also the administrator. The plaintiff, however, claims that he (1st defendant) was appointed just for the purpose of preventing the suit li house from being sold to recover loan secured by the 2nd defendant and not to administer the whole estates. In the parties' pleadings therefore, it is not at variance that the plaintiff and the 1st defendant were both appointed as administrators of deceased estates at different times. The plaintiff was appointed on 04/04/2017, while the 1st defendant was on 17/11/2014. They were appointed vide probate cause No. 7 of 2014. It is thus, that the plaintiff sues his co-administrator. My scrutiny of the parties' pleadings seems clear to me that there are competing claims between the plaintiff and the defendants over the deceased estates. The competing claims are rooted on how the deceased estates passed on to the bona fide purchase of estates for value, that is the 4th defendant. All the claims of title of the suit house owed their genesis to the inheritance of the estates and purchase for value from the administrator. It seems to me that the probate and administration court could be placed at the better position to determine on appointment of the plaintiff and the 1st defendant as administrators of the same estates, where the 1st defendant was appointed as administrator "pendent lite" or otherwise and whether upon appointment of the plaintiff revoked the appointment 12 of the 1st defendant further whether the 1st defendant had authority to dispose the suit house not this court. It was Mr. Ngole's view that the defendant misconceived the decision in Mgeni Sefue's case, but it is my firm view that it is him who did not understand the decision. On the available facts, it needs no rocket science to find that the present claimed land ownership dispute is purely a probate matter for the facts I have enunciated hereinabove. I need not repeat that the plaintiff and the 1st defendant are co- administrator of the deceased estates. It is common ground that the plaintiff claims that the suit house is owned by him and 2nd defendant through a Will, but he did not say if the said Will was confirmed by the probate court (Primary Court). The plaintiff also, claims among other reliefs that this court should declare him and 2nd defendant as lawful owner of the suit house. The 1st defendant sold the suit house to the 4th defendant by virtual of his office as an administrator. The Primary Court at Chimala had confirmed the sale and the proceeds of the sale were distributed to the 2nd and 3rd defendants as legal heirs. All these circumstances shade the light that the Primary Court at Chimala is the appropriate court to settle the dispute. Or the plaintiff would have appealed against the order of the Primary Court confirming the sale and 13 adduce the proof that the 1st defendant sold the suit house while he had already been revoked from administering the deceased estates. Adding to the above findings, I am abreast the position of the law pointed out by Mr. Ngole that not all disputes involving the deceased estates are determined by the probate and administration court. An example is where the property of the deceased is in dispute or where the probate and administration cause has been closed by filing and approval of final account, the probate court cannot have jurisdiction. The question on what to do when a dispute over title of the property of the deceased estates arises was delt in the case of Ibrahim Kusaga v. Emmanuell Mweta [1986] TLR 26 where it was held: ”... there may be case where the property of deceased may be in dispute. In such cases ail those interested in the determination of the dispute or establishing ownership may institute proceedings against the administrator or the administrator may sue to establish claim of the deceased's property." The situation in the case at hand is different. In the instance case there is no dispute involving the deceased's estates. The parties are at one that the suit house belonged to the deceased hence forming his 14 estates. The point at issue is the claim by the plaintiff that he acquired ownership of the suit house by inheritance also that the 4th defendant unlawfully purchased the suit land from the 1st defendant whose administration capacity has been revoked. The primary court on these claims was still seized with jurisdiction to resolve them. That being said and done, I find this court has no jurisdiction to entertain the instant suit. I hereby strike it out. The plaintiff is advised to go back to the Probate and Administration Court, if he still has interested on the matter. Considering the fact that the issue which disposed of the case was raised by the court suo motto, I make no order as to costs. It is so ordered. D. B. NDUNGURU JUDGE 04/07/2024 15