hajjat fatma mustafa lusendera and another vs evance chocha bachunya and 2 others 2020 tzhc 3815 25 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA (APPELLATE JURISDICTION) MISC. LAND APPLICATION NO. 35 OF 2020 (Arising from Land Appeal No. 20 of 2019 of the High Court of Tanzania at Kigoma and Originating from Land Application No. 130/2016 in the District Land and Housing Tribunal for Kigoma at Kigoma Before: M. Nyaruka, Chairman ) 1. HAJJ AT FATMA MUSTAFA LUSENDERA 2. ABUBAKARI MUSTAFA LUSENDERA ........................... APPELLANTS VERSUS 1. EVANCE CHOCHA BACHUNYA n 2. ABASI ALLY JUMA .................................... RESPONDENTS 3. ZUBERI MUSTAFA LUSENDERA J RULING 10th & 25th Nov. 2020 A. MATUMA, J. The Applicants are before me for leave to appeal to the Court of Appeal of Tanzania against the decision of this Court in Land Appeal No. 20/2019. Edina Aloyce learned advocate advocated for the applicants and argued three grounds upon which leave is sought. Page 1 of 5 In the first ground the learned advocate is challenging the competence for the 2nd respondent to have sold the dispute plot to the 1st respondent. She submitted that the 2nd respondent at no time was appointed by the family of the late Mustafa Lusendera who owned the dispute Land to administer the estate in question. The learned advocate conceded however that the 2nd respondent is in possession of letters of administration in relation to the same estate. She submitted however that such letters of administration were illegally obtained and the Court of Appeal should be moved to determine the genuine and legality of such letters of administration. Mr. Kivyiro learned advocate counter argued this ground submitting that this is not the proper forum nor the Court of Appeal can determine whether or not letters of administration were properly procured. I agree with Mr. Kivyiro learned advocate that this ground is uncalled for and leave cannot be granted on it. This Court determined that the 2nd respondent was a dully appointed administrator vide Probate and Administration Cause No. 5/2013 at Kasulu Primary Court and thus disposed of the property as administrator. That fact is not disputed by the Applicants. They are aware that the 2nd respondent has in possession of such letters of administration dully granted to him by a competent Court upon his petition. What the Page 2 of 5 applicants contends is that they never proposed him in a family meeting to petition for such administration as such he fraudulently procured the administration. That being the case, I entirely agree with the observation of Mr. Kivyiro learned advocate that vide this channel the Court of Appeal would not be legally positioned to determine whether or not the 2nd respondent procured letters of administration legally. This is because challenge of the appointment of administrators should be done in its proper channel. The applicants would therefore move the appointing Court (Primary Court of Kasulu) to revoke such letters or move the superior Court to so revoke on whatever ground (s) they would advance. That was not done. I cannot therefore grant leave on this ground and I accordingly dismiss it. The learned advocate abandoned the 2nd ground. She argued the 3rd ground upon which leave is sought in that they would like the Court of Appeal to determine whether the sale agreement was valid in the eyes of the law in terms of section 10 of the law of contract Act Cap. 345 R.E 2019. In arguing this ground, the learned advocate submitted that the contract can only be valid when there is a lawful object in the sale. Page 3 of 5 She was of the view that in the instant matter the lawful object was the dispute property but to the 2nd respondent it was not a lawful object because he was not the owner. Mr. Kivyiro learned advocate disputed this ground submitting that this Court was moved to determine legal capacity of the parties and not issues of lawful object. I agree with Mr. Kivyiro, this ground is awkward. The 2nd respondent did not dispose the suit property in his individual name nor he purported that he was the owner. He sold it as an administrator of the estate of the late Mustafa Lusendera and passed the tittle to the 1st respondent in such capacity. This Court was not moved to determine issues of lawful object in the contract as rightly argued by Mr. Kivyiro learned advocate for the Respondents. In the case of EUsa Mosses Msaki versus Yesaya Ngateu Matee (1990) TLR 90, the Court of Appeal held that leave is not grantable when the ground upon which leave is sought is new and was not raised in the High Court for determination; 'The Court of Appeal will only look into matters which came up in the lower Court and were decided not on matters which were not raised nor decided by either the trial Court or the High Court on apppatC" ige 4 of 5 Guided with such decision of the superior Court on the land, I find it not wealthy to grant leave as sought because the Court of Appeal would not determine issues of lawful object in the contact because neither the trial Court nor this Court on appeal dealt with such issue. Even though, technically this ground has the same effect to the 1st ground in which the competence of the 2nd respondent in disposing the property is questionable. The challenged competence has already been determined in the 1st ground. I therefore, find this application to have been brought without sufficient cause. I accordingly dismiss it with costs. Court: Ruling delivered in chambers in the presence of the 1st Applicant in person and Advocate Edina Aloyce for all applicants, also in the presence of the 1st respondent and advocate Thomas Msasa for all respondents. Right of the second bite is fully explained. Sgd: A. Matuma Judge 25/11/2020 Page 5 of 5