Farida A

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY

AT MOROGORO PC CIVIL APPEAL NO 7349 OF 2024 (Appeal from the decision of the District Court of Morogoro at Morogoro in Civii Revision No 5797 of 2024 and Originai Probate Cause No 6 of 2018 of Chamwino Primary Court)

BETWEEN FARIDA A. IBRAHIM APPELLANT

VERSUS

ASHABANU ISMAIL MOHAMMED RESPONDENT

JUDGMENT MRUMA,J. The Respondent herein Ashabanu Ismail Mohammed was granted letters of administration of the estate of her husband Selemani Ahmed who died intestate on Z?''' June 2014. The Appellant Farida Ahmed was not amused by that grant and she challenged it vide Civil Appeal No 17 of 2018 of the District Court of Morogoro before honourable J. J. Mkhoi Esquire Resident Magistrate on the ground that the Respondent's appointment was not supported by the deceased's farhily. Her appeal was dismissed on 30^"^ May 2018. Being aggrieved by the decision of the District Court she filed Miscellaneous Civil ApplicationNo 18 of 2018 before the Resident Magistrate Court of Morogoro (Hon Waziri A.H. Waziri Esq RM which was dismissed on 13^^ August 2018. Disgruntled by the decision of Waziri Esq Resident Magistrate she filed a civil Revision No 30 of 2018 in this court before MIyambina J (by then at Dar Es Salaam District Registry) which was dismissed too after it was found that the trial court and the first appellate court correctly exercised their discretions to appoint and confirm Respondent as an administrator of the estate of her husband taking into account that the Applicant and Respondent were not in good terms. Still aggrieved the present Appellant filed Miscellaneous Civil Application No 665 of 2020 seeking for certification by this court a point of law to enable her to access

to the Court of Appeal. This court Masabo 3, dismissed her application on the ground that there was no point of law fit for consideration by the highest court of the land. Apparently, after hitting snag in her efforts to challenge the Respondent's appointment, the Appellant went back to the grant court, i.e. Chamwino Primary Court and on 8^^^ March 2024, that is four years after her application for certification of a point of law was dismissed by this court (Masabo J), she went back to the trial court and resisted execution of that court's decree. She refused to give vacant possession of house No 3 Block G on the ground that it was not part of the estate of the late Selemani Ahmed Ibrahim as it belonged to her late father Ahmed Ibrahim. The trial court gave an order to the effect that dispute over ownership of that house should be referred to an appropriate forum for determination. Apparently, the Respondent Ashabanu Ismail Mohammed was aggrieved with that decision and she wrote a letter to the District Court of Morogoro complaining that while determining Probate Cause No 6 of 2018, the Chamwino Primary Court did give an arbitrary order regarding house No 3/G standing at Sultan Street. In its ruling the District court(Kallomo Esq RM) dismissed the Application for revision and held that the learned trial magistrate was correct in advising parties to litigate ownership of house

No 3G Sultan Street before appropriate forum and that if the objector was interested to challenge ownership of the disputed property she was at liberty to initiate legal proceedings before a competent court to determine land ownership. The Appellant Farida Ibrahim was aggrieved with that decision and she has come to this court to challenge it on the following grounds: 1. That the learned Magistrate erred in law and fact to pronouncing ruling in the Respondent's favour for considering the Probate court has no locus to deal with land matters; 2. That the honourable trial court erred In both law and fact for not considering the caveat brought before Chamwino Primary Court; 3. That the honourable trial court erred In both law and facts for not considering and adhere to the principles of natural justice and; 4. That the trial court erred In both law and facts by pronouncing judgment without reasoning thereof. At the hearing of this appeal parties were represented. The Appellant was represented by Mr Shaban Hamza Shaban learned advocate, while the Respondent was represented by Ms Levina Leo Mtweve, also learned advocate. The appeal was argued by way of wrotten submissions. Submitting in support of the appeal Mr Shaban contended that powers of primary courts in probate matters are limited to the appointment of administrators only and not to determine ownership of the landed property

which fall under the estate of the deceased. He cited the case of Jackson Lenyemela Versus Vumilia Sadock PC Civil Appeal No 2 of 2021(HC Kigoma Registry unreported). Responding to Mr Shabani's submissions Ms Levina Mtweve, counsel for the Respondent submitted that counsel for the Appellant misconceived the gist of both courts below because the two courts did not decide on the ownership of the landed property but they correctly advised parties to go and litigate about ownership of the property in the appropriate forum. I have carefully considered the records regarding the dispute between the Appellant and the Respondent, the grounds of the Appellant's appeal and the submissions made on behalf of the parties. As narrated above, this matter has a chequered history. It all started with the demise of Selemani Ahmed on 26. 6.

2014. The late Selemani died intestate. Following his death his wife Ashabanu Ismail Mohammed the Respondent herein was appointed as an administratrix of his estate in 2018. The Appellant contested her appointment in various avenues till her application to go to the court of appeal was dismissed by this court and she didn't seek for the second bite which is available in the Court of Appeal. Four years after the matter was closed, the Appellant went back to the grant court for execution of a decree. The Respondent objected by refusing to give vacant possession of house No 3G at Sultan Street. The trial court advised parties to litigate over ownership in a different forum. As correctly submitted by both counsel, in Probate and Administration of estates Causes duties of primary courts is limited to appointing the administrators of the estate of the deceased. In terms of sections 99 and 100 of the Probate and Administration of Estates Act[Cap 352 R.E. 2019], and Rule 6 of Part I of the Fifth Schedule of the Magistrates' Courts Act (Cap 11 R.E. 2019) which deais powers and duties of courts' appointed Administrators, the executor or administrator of a deceased is his legal representative for all purposes and all property of the deceased person vests in him and can sue or be sued in respect of any property of the deceased as if he is the deceased himself. Thus, once appointed,

the administrator of the estate of the deceased assumes powers of the deceased for purposes of suing or being sued. In this respect therefore, the appropriate remedy for the Appellant was to institute land dispute against the Administrator of the estate of the late Seleman Ahmed in appropriate land court. That being the case I agree with both courts below that if there is any dispute over ownership of house No 3 G along Sultan Street any person who thinks that he/she is interested in that house should institute a land dispute in land courts against the administrator of the estate to whom the property in the estate has vested in. That said the appeal is dismissed and given the history of the matter I am of the view that this is a fit case which court may order advocates to pay costs of the case because had the learned advocate being a bit diligent he would have advised his client (who is a lay person) much better than he did in this case. However before making orders as to the costs I wish to invite counsel for the Appellant to address me on that issue. 6 A. R. MRUMA //,S\

JUDGE Vr^ '::r.:«:M.-■■• /Hi /.' 04.12.2024