final judgment EDWARD CHUWA and Another Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI LAND APPEAL NO. 28579 OF 2023 (Appeal from the Judgment of the District Land and Housing Tribunal for Moshi at Moshi dated 4th September 2023 in Consolidation Land Application No. 18, 19 and 20 of 2019) EDWARD F. CHUWA…………………………………………………..1ST APPELLANT ELIZABETH F. CHUWA……………………………………………….2ND APPELLANT VERSUS JOSEPH CHUWA…………………………………………………….1ST RESPONDENT ERIC MATHEW CHUWA…………………………………………..2ND RESPONDENT HAMISI F. CHUWA…………………………………………………3RD RESPONDENT JUDGMENT 30th Sept. & 28th Nov. 2024. A.P. KILIMI, J.: The first and second appellants herein one Edward F. Chuwa and Elizabeth F. Chuwa are son and mother respectively, jointly were sued at the District Land and Housing Tribunal of Moshi ‘the trial tribunal’ in a Consolidated Land Applications No. 18,19 and 20 of 2019 which decided in favour of three respondents namely Joseph Chuwa, Eric Mathew Chuwa and Hamisi F. Chuwa hereinafter first, second and third respondents respectively. Having heard on merit the trial tribunal declared the respondents herein lawful owner of the suit land. 1 Aggrieved by the said decision, the appellants have moved this court by way of appeal basing on the following grounds; first, that the Tribunal erred in law and fact for reaching the decision based on the purported will presented without considering the nature of the dispute in regarding to the validity of the WILL. Second, that the Tribunal erred in law and fact for declaring the respondents herein the owner of the disputed land without considering their locus standi in prosecuting the matter. Third, that the Tribunal erred in law and fact for failure to consider defence and evidence adduced by the appellants during the trial of the said case. Fourth, that the Tribunal erred in law and fact in reaching decision based on unfound evidence. Fifth, that the Tribunal erred in law and facts by declaring the respondents herein the lawful owner of the disputed land without considering the law of limitation. And Sixth, that, the Tribunal erred in law and facts by not abiding to the pleadings and prayers before the tribunal in reaching the decision. Before embarking on determining the above grounds, I find it apposite to narrate brief facts gave rise to this appeal as discerned from tribunal records. At the trial tribunal, the first respondent claimed that the appellants had trespassed into the suit land measuring 53 metres × 53 metres in which the same he inherited from his grandmother Teresia Mafoi. The 2nd Respondent in land application No. 19/2019 claimed the 2 appellants to have trespassed to a suit land measuring 101 metres ×188 metre which he also inherited from his grandmother Teresia Mafoi, and the 3rd respondent claimed the appellants to have trespassed to a Suitland measuring 123 metres×53 metre a land in which he also inherited from his grandmother one Teresia. All these suit lands were located in Shirimatunda area, within Hai District in Kilimanjaro region. As per their filed applications at the trial tribunal, the respondents alleged that they inherited the Suitland from their grandmother Teresia Mafoi who called a clan meeting and handed over the suitland to them through a will (Exh.P1) in the year 2002 and that the said suit lands were left to the appellants as a merely overseers. It was until the year 2017 when the respondents discovered that the appellants trespassed their land by constructing their house therein. In their defence at the trial tribunal, the 2nd appellant stated that, she started to occupy the suit land in 1967 soon after she got married to Francis Chuwa the youngest son of Teresia Kamili Mafoi. Also asserted that Teresia Kamili Mafoi was already distributed her land including the suit land to her youngest son, whereas her other son Mathew Maurus Chuwa was given a land near and adjacent to that of Francis Chuwa. Currently Francis Chuwa, Mathew Maurus Chuwa and their mother 3 Teresia are deceased. After a full trial, the trial tribunal decided in favour of the respondents herein hence the instant appeal. When this appeal was placed before me for hearing, appellants appeared themselves unrepresented while the respondents were represented by Mr. Julius Semali learned advocate. With the leave of this court, it was agreed the same be disposed by way of written submissions. Submitting in support of the appeal, the appellants started with the historical background of the case from where it started at the trial tribunal up to the appeal at hand. They narrated that the second appellant husband one Francis Chuwa who died in 1999 was given the suitland by her mother Teresia Mafoi in the year 1967. That Teresia Mafoi in the same year of 1967 gave other land which was near to the land of Francis Chuwa to her another son Mathew Maurus Chuwa the father of the second respondent Eric Mathew Chuwa. Both of her sons are now deceased including Teresia Mafoi who died in 2002. The appellant further stated that before her death she had already distributed the suitland and that the 2nd Appellant has been occupying the suitland since she got married to Francis Chuwa in the year 1967 wherein jointly built a house in the said disputed land. 4 Submitting on the first ground of appeal, the appellants submitted that the trial tribunal erred in law and fact for reaching the decision based on the purported WILL without considering the nature of the dispute. They submitted also that the nature of the dispute was on Land disputes and not on the validity of the WILL. They said that this was not a probate case as the District Chairman based his findings on the purported WILL which were not cleared on its validity by any probate court. They further commented that none of the court competent to try probate case appointed the respondents or scrutinized the validity of the said WILL of Teresia Mafoi to be genuine WILL, thus the trial tribunal erred in determining the matter without having jurisdiction, since it relied on a WILL to determine the dispute. The appellant backed up their submission with section 3 (1) of the Land Disputes Courts Act Cap 216 which requires all disputes concerning land disputes to be instituted in the court of competent jurisdiction to determine it. Responding to the above first ground of appeal, Mr. Semali learned advocate for the respondents argued that it was true that the forum which has jurisdiction to determine the validity of will was the 5 probate court, but in the scenario at hand the dispute before the trial tribunal was ownership of land and not on the validity of the WILL. Mr. Semali further said that the WILL tendered by the respondents at the trial tribunal were used to prove ownership of the suit land and since the said WILL was never challenged in any court, it remained as a legal proof of the respondent’s ownership of the Suitland, thus he concluded that the appellants arguments were misconceived and made out of context. Submitting on the second ground, the appellants argued that the trial tribunal erred in law and fact by declaring the respondent owners of the suit land without considering their locus stand in prosecuting the matter. They argued that the respondent had no locus stand to prosecute the matter before the trial tribunal since they purported to inherited the said land through a WILL which were neither cleared by any of probate court and no letters of their appointments as administrators of the late Teresia Mafoi were presented during trial. They further added that no forms used in probate like form number 5 and 6 used in administration of estate were submitted to prove that they were allocated the disputed lands as legal beneficiary. Attacking the appellants argument on the second ground, Mr. Semali argued that the respondents had locus stand as they had interest 6 in the disputed land as owners after being allocated the same by their grandmother Teresia Mafoi. He contended that the WILL presented as exhibit 1 at the trial tribunal were genuine and not a forged one as there were no criminal trial to prove the same was a forged will. He argued that there was no proof presented by the appellant that they own the Suitland since 1967. For ground number 3 and 4 in which the appellants argued them conjointly and averred that Trial tribunal erred in law and fact for failure to consider defense and evidence adduced by the appellants and thus reaching unjust decision basing on unfound evidence. They submitted that the trial tribunal did not consider their evidence as appellants and that of their witnesses like the time 2nd appellant has been living on the suit land for more than fifty years, while the 1st appellant lived on the suit land for more than thirty years. They added that the trial tribunal failed also to consider that the appellants had already have the case with Teresia Mafoi in Civil Case No 17/2001 at the District Court of Moshi at Moshi over the same suit land wherein the appellants were declared lawful owners and that the decision was appealed against but was struck out in 2003. 7 Contending on the above, Mr. Semali argued that the evidence of both parties was considered by the trial tribunal and thereafter the tribunal chairman analysed the evidence of both and found the testament of the appellants weaker than of the respondents. He added that their proof based on the documentary evidence (exhibit 1) which was a ‘WILL’ of Teresia Mafoi which was witnessed by clan and local government leaders together a Notary public, thus proved their ownership over the suit land. He argued that the said WILL were never challenged by any court nor revoked. Mr Semali further expounded that the Civil Case No. 17 of 2001 “exhibit D1” were not relevant to this case at hand as the area in dispute were different from the suit land at hand which is consolidated Land applications No. 18, 19 and 20 of 2019. He added that the allegation that the appellant has been using the suit land since 1967 were not true because the same was being owned by Teresia Mafoi since 1967 up to her demise in 2002, whereby before her demise she gave it to the respondents who permitted the appellants to use the suit land since they reside at Dar es salaam, but in the year 2017 appellants sold their land and build residential house on the suit land. Therefore, the Appellants used the Suitland since the year 2002 until 2017 under 8 permission of the Respondents. However, the dispute arose when the Respondent became aware of the residential house construction onto the Suitland by the Appellants without their consent. Submitting on the fifth ground of appeal the appellants submitted that the trial tribunal erred in law by declaring the respondents the lawful owners of the suit land without considering the law of limitation. They commented that the tribunal erred in declaring the respondents’ lawful owners without considering that the matter before them was time barred as per the law of Limitation Act Cap 89 R.E 2019 as per part 1 item 22 of the schedule of Cap. 89 which provides for time to file a suit for recovery of land to be twelve years. That the respondent applications for recovery of land at the trial tribunal were filed in 2019 and they were claiming that they inherited the said land in the year 2002 which was seventeen years later for them to file the case in 2019. They argued that the respondents were already time barred thus the trial tribunal erred in declaring the respondents as a lawful owner whilst they were out of time to institute the case for recovery of land in dispute. Rebutting the above, Mr. Semali argued that any person seeking to acquire a title by adverse possession has to prove that there was abandonment, the actual possessor had been in actual possession of the piece of land and had no colour of right, the statutory period of 9 limitation of twelve years have lapsed without interruption in between and then nature of property was such that adverse possession would result, but in the present case the 2nd Appellant claimed to be the owner of the suit land after been granted the Suitland by Teresia Mafoi in the year 1967, something which was strongly disputed by the Respondents at the trial Tribunal and in this Appeal. Therefore, the issue of adverse possession cannot arise. The counsel for respondent commented further that, since the respondents testified at the trial Tribunal that they reside at Dar es salaam and they permitted the appellants to use the Suitland. The appellants were merely licensee, hence and they cannot claim the ownership of the Suitland by adverse possession. To bolster his stance the counsel referred the decision of Registered Trustees of the Holy Spirit Sisters Tanzania versus January Kamili Shayo and 139 others, Civil case No. 193 of 2016, Court of Appeal Tanzania at Arusha. In regard to the sixth ground, the appellants submitted that the trial tribunal erred in law and fact by not abiding to the pleadings and prayers before the tribunal in reaching the decision. In regard they submitted that courts are guided by the pleadings which are filed before it and not to grant prayers which were never prayed for. The appellant 10 argued that the trial tribunal in her judgment awarded the prayers which were never prayed for by the respondents such as the order for by the tribunal to demolish the house of the 1st appellant which in their view was a procedural fatal as it were never prayed by the respondents. The appellants then prayed for the decision of the trial tribunal to be quashed and set aside and the appellants be declared the lawful owners of the suit land with costs. Rebutting on this last ground, Mr. Semali argued that the tribunal chairman order of demolition of the 1st appellant house was proper as it was within his scope of his work as the trial court since it was in the limb and prayers prayed for as just fit to be granted. Then the counsel concluded by praying for this court to dismiss the appeal with costs for lack of merits. Having considered the rival arguments from both sides, the main issue for determination is whether the appeal at hand is meritorious. For convenience purpose I will deal with grounds of this appeal interchangeably, I wish to start with ground number two which the appellants are faulting trial tribunal when failed to consider that the respondents had no locus stand. Upon perusing the trial tribunal records, similar to argument by Mr. Semali above, both respondents filed their applications at the trial tribunal stating that they inherited the 11 suit land from Teresia Mafoi their grandmother through a WILL. For instance, in Land Application No. 18 of 2019 filed by the first respondent herein at the trial tribunal in paragraph 6(b) and (c) of the application, he stated as follows; “6(b) That, the applicant is the lawful owner of the disputed premises after inheriting the land from her grandmother namely TERESIA MAFOI since 2002 6(c) That, after the demise of the said TERESIA MAFOI she had left a will in which the deceased stated categorically on such will that the land belongs to the applicant herein. Further in Land Application No. 19 of 2019 by the second respondent herein Eric Mathew Chuwa at paragraph 6(b) of his application at the trial tribunal, he stated as follows; “6(b) that the applicant is the lawful owner of the disputed premises after inheriting the land from his grandmother namely TERESIA MAFOI since 2002” 12 The same are reflected in land application No. 20 of 2019 filed by the third respondent herein at the trial tribunal both claiming that they inherited the suit land from one Teresia Mafoi who is their grandmother through a WILL. Basing on the above trial tribunal records, the respondents have made it clear that they had interest to the disputed property through the alleged WILL from their grandmother one Teresia Mafoi in 2002. This is further evidenced in an impugned decision of the trial tribunal at page 6 where the trial Chairman when answering one of the crafted issues on whether the respondents had locus stand to sue. In this aspect on the issue of locus stand, I join hands with the trial Chairman that the respondents had locus stand to file their case at the trial tribunal since they believed that their interest in the disputed land accrued from the said WILL were at jeopardy, thus for the forgoing in my view the second ground fails forthwith. Moving forward to ground number three, appellants are faulting the trial tribunal decision for failure to consider defence and evidence adduced by the appellants during the trial of the case. I had time to scan the impugned decision and the trial proceedings. As per the trial proceedings, the 1st appellant Edward Francis Chuwa (DW1) said that the disputed land belongs to his late 13 father Francis Chuwa and her mother who is Elizabeth Francis Chuwa (DW2) whom they were given in the year 1967 by Teresia Mafoi upon marriage and they were occupying it undisturbed up to the death of her husband in 1999. He further told the trial tribunal that one Mathew Chuwa who is the brother to his father sued both appellants at Moshi District Court vide Civil Case no. 17 of 2001, DW1 tendered a copy of the said Judgment which was admitted as ID1. He further said that the prayer in that case was to evict the appellants on the suit land but the court rejected and declared them as lawful owners. Then he said, the said appointed attorney by deceased was aggrieved and lodged an appeal at the High Court on 2008 which again as appellants won the case. The respondents strongly denied that she was given the said land rather it belongs to Teresia Mafoi who distributed to her heirs including 1st, 2nd and 3rd respondents herein in the year 2002. In the impugned decision, the trial chairman at page 6 held that since no evidence by DW2 were tendered to prove that she and her husband Francis Chuwa were given the suit land by Teresia Mafoi in the year 1969, then proceeded to hold that no other proof were to correlate that they were the rightful owners. 14 In my perusal of the trial tribunal judgment, there are evidence which I think were not considered. However, this being the first appeal, court is mandated to reconsider the evidence which was adduced in the trial court, evaluate it and draw its own conclusion. See Allen Rutatekururwa Rugazia vs Parfects Ruteganya (Civil Appeal No. 530 of 2022) [2024] TZCA 530 (TANZLII) at page 24. I have been prompted about the facts claimed by appellant that earlier existed cases in respect to the land in dispute. Thus, I have taken judicial notice that there was an appeal which was filed in this court registry, this was the appeal vide DC Civil Appeal no. 14 of 2003 between one Mathew Maurus Chuwa sued as personal representative of Theresia Kamili Mafoi versus Edward Francis Chuwa and Elizabeth Francis Chuwa, according to the record on 5th August, 2008 the judgment was delivered and struck out the said appeal for being incompetent. I have also taken judicial notice on the original case which the said appeal emanated, it was a Civil Case no. 17 of 2001 of District Court of Moshi. In that case the district court noted in respect to the WILL tendered at the trial tribunal in this matter when said at page 3 of its judgment that it was alleged that on 4/3/2000 Theresia Kamili Mafoi convened a meeting of clan members aimed at disposing her land by 15 way of WILL. The same is reflected on the tendered WILL (exhibit P1) in item 8 which stated; “Mgao huu unaendana na maagizo niliyotoa kwenye kikao cha ukoo wa Wafoi wa Shiri Mgungani cha tarehe 4 Machi, 2000, na kushuhudiwa na Uongozi wa Kitongoji” In its judgment, the said District court observed that the appellants herein were occupying a portion of the land other than the one allocated to Francis Chuwa. According to the said judgment, prayer sought therein was to eject appellants from that piece of land and restrain them permanently from interfering. The holding of the trial court in that regard is stated at page 3 and I quote; “ My answer to the first question is that the plaintiff had no right to dispossess the defendants of the piece of land they have occupied for than thirty years. The land they have developed and nurtured. The attem pt to eject the defendants from this piece of Land w here their beloved one is buried is not only a m anifestation of m oral decadent on the part of those behind it but legally offends the lim itation law s. It offends principles of Universal Declaration of Human 16 Rights Article 17 (2) of which states; No one shall be arbitrarily deprived of his property. Plaintiff’s W I LL if upheld by this court is an arbitrary deprival of the land from the defendents. For this reason, this suit must fail” [ Emphasis added] From the above holding the said District Court dismissed that case. As alluded above the appeal therefrom was struck out by this court for being incompetent. I am mindful the said District court did not sit a probate court, but its decision remained unaltered todate, thus the status quo of the said land which the deceased sought to dispose from the appellants is unchanged. In my considered opinion since at that time the said court had jurisdiction on land matters, therefore that decision remains the decision of the court which has never overturned by any court. However, in his submission Mr. Semali contended that the said civil case no 17 of 2001 dealt on different land from the present Suitland, he said further that, it is because there was no any evidence to prove that the disputed land in that case was the same land in the land 17 case no 18,19 and 20 of 2019. He further added that the boundaries and the size of the Suitland in that case were not specifically detailed in the said judgment. I have considered the evidence of the appellants in their defence at the tribunal, the first appellant said, ID1 there is nowhere mentioning the size of suit land but the boundaries are obvious, also said the whole land had a dispute at the district court. Whereas the second appellant in examination in chief said if the suit land is handed to applicants she will remain with no land. She further added that the respondents intend to confiscate her land with her house and her husband’s grave. And when she was crossed by Mr. Semali, she said that there is no any last WILL of Teresia Mafoi, and she further said that they complained against the WILL and won the claims. From the above appellants evidence wherein the appellants claimed it was the whole land respondents sought them to be evicted, while the respondents endeavoured to show that it was not the same land dealt by the District court. I think under the above circumstances it was necessary and appropriate for a tribunal to visit the locus quo to discovered whether the land ascertained by the District Court in Civil Case no. 17 of 2001 is not the same claimed by respondents. (See Nizar M.H. vs. Gulamali Fazal Janmohamed [1980] TLR 29). 18 And since it was the respondents alleged that it is not the same land, they ought to have proved on the same, this is because in civil suits the burden of proof of any particular facts lies on that person who desires the court to believe in its existence. (See - Paulina Samson Ndawavya vs. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 and The Registered Trustees of Joy in the Harvest vs. Hamza K. Sungura, Civil Appeal No. 149 of 2017. (both unreported). Be it as it may, each of the respondents and their witnesses testified in regard to the size and neighbours surrounding the land claimed, in my view therefore it could have been convenient to ascertain the land in dispute if the trial tribunal could have visited the claimed area by both parties’ appellants and respondents. Nevertheless, the trial tribunal visited the locus in quo but the intention of visiting was not to ascertain the above main dispute of this matter, this is because the said visit was prompted by complaints raised of not obeying experte temporary order issued by the trial tribunal on 23rd day of January, 2019. Therefore on 13/12/2021 the trial tribunal visited the land in dispute, thereat appellants said on how they use land surrounding their residential houses, the facts which was not objected 19 by Mr. Semali. Then the tribunal ruled out that appellants are at liberty to take care the land surrounding their residential premises. Therefore, in my considered view had it the trial tribunal considered the appellants defence in lieu of the respondents’ claims that the land ascertained in Civil Case no. 17 of 2001 is different to the one claimed, the trial tribunal could have not hesitated to visit the locus in quo. Thus, from what I have endeavoured to discuss above, I find the third ground meritorious and consequently is hereby sustained. Now moving back to ground number one, which principally the appellants are claiming that the trial tribunal lacked jurisdiction to determine the case by basing solely its decision on the purported ‘WILL’ which were required first to be cleared in a probate court. In my perusal, the matter of a ‘WILL’ as per handwritten proceedings of the trial tribunal, it was raised by the appellant counsel at the trial tribunal and the same was overruled with a reasoning that the trial tribunal was not barred from admitting any document as evidence and proceeded to admit the purported WILL as ‘exhibit P1’. Now the question which follows is whether it was proper for the trial tribunal to rely its decision on the said submitted WILL ‘exhibit P1’. 20 According to page 6 and 7 of the impugned decision, the trial chairman stated the following in determining the lawful owner of the disputed land, he stated that; “Sikubaliani na hoja za mdaiwa kwa sababu haw ajaw ahi kulalam ikia w osia huo kw enye vyom bo vya jinai ili w osia huo ubatilishw e… … Kuhusu kiini cha mgogoro cha tatu(3) ambacho ni “iwapo eneo lenye mgogoro umiliki wake alipewa mdai” ninakubaliana na maoni ya wajumbe kwamba umiliki wa eneo la mgogoro walipewa wadai kam a ilivyothibitika kw enye w osia am bao haujapingw a kw enye chom bo chochote cha kisheria” [ Emphasis added] From the wordings above seemingly the trial tribunal chairman relied on the said will tendered before him to determine the ownership of the appellant. Now by so doing and for purpose of discussion to ascertain the arguments submitted, two points are gleaned from the above extract, first, whether the deceased was in possession of the suit 21 land and bequeathed to the respondent by WILL, and second, whether the said WILL because was never challenged in any court thus is valid. In my scrutiny of the typed record of the trial tribunal, on 6th October, 2020 when one Eric Mathew Chuwa (PW1) was testifying prayed to tender the said will, what transpired after the said request are as follows; “Greta Msuya, Advocate:- We objected it because it w as never a tested in a probate court to verify its validity…………………….. Mr. Semali, Advocate:- We pray this documents be admitted. This is a land matter but the Advocate did not give proper provision which requires the test of validity. She could not tell if there was a probate matter. She did not specify the provisions. The Tribunal has to get opportunity to go through the documents…………. Greta Msuya, Advocate: - I insist that these documents cannot be admitted as exhibit. On the same hearing day, the trial tribunal ruled on above rival arguments and said; “This is the ruling on point of objection raised by Greta Msuya, Advocate. Though 22 we agree with Greta Msuya that the last w ill validly can only be tested at the P robate Court but also this Land Tribunal in this land dispute cannot be legally barred from admitting such a document because the R espondent still has a chance to challenge its validity during defence. I therefore overrule the point of preliminary objection and the same is admitted as “P1” collectively. [ Emphasis added] In my view of the above ruling, I am settled that the trial tribunal directed itself properly on admission of the said WILL. The next question follows did the trial tribunal had an authority to test the validity of the tendered will?. I have scanned the trial tribunal record, as shown above its validity was questioned by the appellants’ counsel when tendered as above, further in cross examination various questions were asked on its validity, and lastly during appellants defence, they said the same is not valid because it was forged. Whilst there is no dispute that respondents’ evidence shows that they acquired ownership of the said suit land through inheritance by the WILL made by the deceased. Therefore, in my considered view the 23 respondents cannot escape that the dispute between the parties at the trial tribunal touched issues of inheritance. Now my next point for consideration is whether under these facts stated, was it right for the trial tribunal to proceed in its decision to rely on the said WILL which is challenged? I have asked the above question because, according to page 7 of the trial tribunal judgment, the learned chairperson said conspicuously that the WILL tendered by the respondents has force of law and gave the reasons, which in my considered view the trial tribunal ascertained on the validity of the said WILL. For purpose of clarity, I reproduce the very part of trial tribunal judgment said so at page 7; “ W osia w alioutoa w adai una nguvu kisheria kwa sababu ulishuhudiwa kikamilifu mbele ya wakili na mashahidi wafuatao; 1. Marki Aloisi Mushi - Kaka wa Theresia Mafoi 2. John Paulo Chuwa – Katibu wa ukoo wa Chuwa. Pia wako mashahidi ambao ni viongozi wa Kitongoji.” In accordance with the Primary Courts (Administration of Estate) Rules GN. No.49 of 1971, rule 8 regulate matters and conduct of 24 probate and administration of deceased estates in Primary Courts. The said rule provides as follows; “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 provision of Fifth Schedule to the Act, but not in derogation thereof, hear and decide any of the following matters, namely- (a) whether a person died testate or intestate (b) w hether any docum ent alleged to be a W I LL w as or w as not a valid or subsisting w ill; (c) any question as to identity of persons named as heirs, executors or beneficiaries in the will; (d) any question as to the property, assets or liabilities which vested in or lay on the deceased person at the time of his death; (e) any question relating to the payment of debts of the deceased person out of his estate; (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 25 distributing the property and assets among the heirs or beneficiaries; (g) any question relating to investment of money forming part of the estate; or (h) any question relating to expenses to be incurred on the administration of the estate." (Emphasis added) See also the case of Ibrahim Kusaga vs Emanuel Mweta (1986) TLR 26 when this court held as follows; “The Primary Court may hear and decide matters relating to: (a) whether deceased died testate or intestate and all m atters relating to the W I LL of the deceased. (b) ascertain all property belonging to the estate and all persons w ho are entitled under the W I LL or upon intestacy.” According to the Probate and Administration of Estate Act, Cap. 352 "WILL" is defined under Section 2 (1) to mean: "The legal declaration of the intentions of a testator with respect to his property, which he desires to be carried into effect after his death." Under the above law the Court of Appeal in the case of Mark Alexander Gaetje and Two Others vs Brigitte Gaetje Defloor, 26 Civil Revision No. 3 of 2011, CAT at Dsm (unreported) did set out tests to be applied for determination of the validity of the will when had this to say: "In a petition for probate, the court is concerned with the validity of the will as annexed to the petition. The questions which will come up are w hether or not the w ill has been properly executed; w hether or not the testator had the capacity to m ake the w ill; in the case w here the testator has disabilities like blindness, deafness or illiteracy, w hether or not the contents of the w ill w ere m ade know ledgeable to him by reading over, etc and he had granted his approval; w hether there w as undue influence or not; w hether there w as forgery and fraud or not; and w hether the w ill has been revok ed or not. If the will passes all the tests enumerated above it is taken to be proved, and the court grants the executor the power to administer the will. These requirements of the law are reflected in Sections 24 to 28 of the Probate and Administration of Estates Act, chapter 352 R.E. 2002 of the Laws." [Emphasis added] 27 See also Allen Rutatekururwa Rugazia vs Parfects Ruteganya (Civil Appeal No. 530 of 2022) [2024] TZCA 530 (TANZLII). Reading the provisions of the law and authority quoted herein above, it is apparent that the determination of validity of a WILL is vested into the probate court and not otherwise as the trial tribunal endeavoured to hold that the same was witnessed by notary public and witnesses including local leaders. In view of the above, I cannot hesitate to hold that the trial tribunal usurped the power which it did not have to determine the validity of the said will and proceeded to declare respondents as lawful owners of the disputed land, with respect in my view that was a fatal misconception. The reason advanced by Mr. Semali and supported by the trial tribunal that the said WILL was never challenged anywhere, in my view this reason was misplaced, this is because first, in the said will named an executor to be one Mathew Maurus Chuwa, there is no evidence whether he executed the said will or filed a probate cause seeking the said will be confirmed. According to the Halsbury's Laws of England (3rd ed.), Vol. 16 at p. 133, para. 202 points out that "An executor derives his title from the will and not from the grant of probate, he may commence an action as 28 executor before probate. Taking regard according to the testimony of the second respondent at the tribunal on 6/10/2020 he was aged 38 which means he attained the age of majority on the year 2000, whereas the first and third respondent testified at the trial tribunal to be aged 53 and 52 respectively, therefore they attained the age of majority in the year 1985. Second, no evidence stated by the respondents at the trial tribunal that the said WILL was availed to the appellants to see it, therefore this court cannot ascertain that appellants had a chance to challenge the said WILL anywhere. Therefore, since it is the respondents who alleged that they have a valid WILL bequeathed to them the said land in dispute, in my view the burden of proof that the said will is valid is placed on them rather than the appellants who disputed it. (See Paulina Samson Ndawavya vs Theresia Thomasi Madaha (supra). Therefore, in that regard it is my firm view appellants had no opportunity to challenge the same except in this matter which was filed at the tribunal and indeed they did challenge it as alluded above. In the premises and from what I have endeavoured to discuss above, I find this ground with merit and thus hereby sustained forthwith. 29 In the premises, it is my finding that having determined grounds 1, 2 and 3 of this appeal in the foregoing manner, I find no necessity of considering other remaining grounds which in my firm view have been rendered redundant and inconsequential. All said and done, I allow this appeal. Consequently, I hereby quash the findings of the trial tribunal and set aside its judgment and decree thereof. After considering the circumstances of this matter, I order each party to shoulder his/her own costs. It is so ordered. DATED at MOSHI this 28th day of November, 2024. X JUDGE Signed by: A. P. KILIMI Court; Judgment delivered this 28th day of November, 2024 in the presence of Mr. Julius Semali learned advocate for all respondents, also all appellants present in person. Sgd; A. P. KILIMI JUDGE 28/11/202 30 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 28/11/2024 31