jamila shego luhizo vs mkomwa hussein mganga 2021 tzhclandd 173 27 january 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 270 OF 2017 JAMILA SHEGO LUHIZO.......................................PLAINTIFF VERSUS MKOMWA HUSSEIN MGANGA (As an Administrator of the Estate of the late SHARIF MOCHIWA MGANGA) ................... ................................... RESPONDENT Date of Last Order: 21.12.2020 Date of Ruling 27,01.2020 RULING V.L. MAKANI. J When the matter came for framing of issues, Counsel for the defendant, Mr. Twarah Yusuf, prayed for the court to add another issue as to whether the court had jurisdiction to entertain the matter at hand. Since the issue was on jurisdiction, the court found it prudent for the parties to address the issue by way of written submissions. Mr. Twarah Yusuph, Advocate drew and filed submissions on behalf of the defendant and Mr. Daniel Ngudungi, Advocate drew and filed submissions on behalf of the plaintiff. Mr. Twarah submitted that the plaintiff is claiming ownership of 50% shares in a house built at Mtoni Mtongani area (close to Marina Bar) in un-surveyed area demarcated as House No. MTM/MTN/76 (the suit house). He said the claim by the plaintiff is by way of inheritance from his deceased father one Shego Luhizo Mganga who died in 1984. He said the deceased had equal shares with Sharifu Mochiwa Mganga who died in 1982. In essence therefore the equal sharing started in 1982. He said according to the plaintiff the suit property was owned by one Mkomwa Mganga but there is no indication how the suit property was bequeathed to Shego Luhizo Mganga and Sharifu Mochiwa Mganga that is, whether it was by way of a Will, Deed of Gift or any other way. And further there is nothing to show in the plaint that as original owner Mkomwa Mganga left lawful heirs either in Islamic, customary or statutory way and disinherited his lawful heirs the children and wife if any. Mr. Twarah said the plaintiff failed to show if she is the sole child of the late Shego Luhizo Mganga and that whether she was permitted to pursue the matter in her favour alone or on behalf of the other blood relatives from his late fathers line who are also supposed to inherit the alleged 50% shares. Mr. Twarah said if the plaintiff is claiming the 50% shares then she was supposed to open a probate case so that she could be appointed the administratix of the estate of his father. He said the plaintiff has no locus standi as she has no mandate to move this court to make justice in her favour. And since she is claiming 50% shares of his father in the suit property then her claim is more of probate in nature as it concerns inheritance of her father's shares in the suit property. He went on saying that upon the death of the Sharifu Mochiwa Mganga the plaintiff attended the clan meeting and the issue of inheritance over the suit property did not arise and when the defendant was appointed the Administrator of the Estate of the late Sharifu Mochiwa Mganga by Temeke Primary Court in 2014 the plaintiff did not raise any objection then. The filing of this case according to Mr. Twarah was a revenge against the defendant as he was appointed the Administrator and chased away the plaintiff. Mr. Twarah said this matter cannot be a land matter to be filed in a land court but rather the plaintiff was supposed to challenge the existing probate case that appointed the defendant as administrator. He said the court has no jurisdiction to entertain the matter and he prayed for the suit to be dismissed with costs. 3 In response Mr. Ngudungi pointed out that this was not a preliminary point in the sense of Mukisa Biscuits Manfuactureing Company Limited vs. West End Distrubors Linmited (1969) EA 696 and Karata Ernest & Others vs. Attorney General, Civil Revision No. 10 of 2010 (CAT-DSM) (unreported) because the submissions are on evaluation of facts and evidence which is to be adduced during trial and not at this stage. He prayed for this preliminary objection to be dismissed with costs. He said this court is seized with jurisdiction and the plaintiff has locus standi to claim whatever rights if she believes to be entitled to inheritance of his late father. Mr. Ngudungi pointed out that the plaintiff stated that she was the sole heir of the estate of her late father therefore she has interest over the suit house. He relied on the cases of AM Ahamad Bauda (Administrator of the Estate of the late Amina Hussein Senyange vs. Raza Hussein Ladha Damji & @ Others, Civil Application No. 525/17 of 2016 (CAT- DSM)(unreported) and Abdallah Said Juma vs. Hamis Hamad & Mwanamkuu Mkame Kombo, Land Appeal No. 124 of 2008 (unreported). He said from these cases the plaintiff is not supposed to sit back and see the property which she is entitled with is misused 4 or taken without doing anything. He emphasized that the plaintiff has locus standi. As for jurisdiction of this court, Mr. Ngudungi stated that the claim by the plaintiff is for declaration that she is the lawful owner of the suit property and thus it is not probate in nature and the probate court cannot determine matters on ownership of land because it lacks jurisdiction. He relied on the case of Pazi Ally vs. Hidaya Ally, Civil Revision No. 13 of 2010 (HC-DSM) (unreported). He pointed out that from the cited cases no probate court has jurisdiction to determine the issue of ownership of a property like in the present case. He thus prayed for the objection to be overruled with costs. In rejoinder, Mr. Twarah pointed out that there was no preliminary objection that was raised. Rather he prayed for jurisdiction of this court to be among the issues framed but the court ordered this issue of jurisdiction to be disposed of first. He further went on to reiterate that the nature of the plaintiff's claim is purely probate in nature and added that since the plaintiff was claiming in the plaint that she was claiming 50% ownership of the disputed property from her late father through inheritance then the plaintiff did not have the power to sue 5 on land she was supposed to file probate case and be appointed adminsitratix of the estate of her father Shego Luhizo Mganga. Mr. Twarah proceeded to state what the importance of death certificate and cian minutes when filing a probate case and he said without a decision from a probate that the plaintiff is a sole heir and has been granted 50% shares of the house by inheritance then this court will arrive at an absurd decision. He observed that if whoever has an interest in land may file a land case and such rule extends to probate cases then lawful heirs may be denied opening probate cases alternatively, they would open land cases. He insisted that this is a probate case and the plaintiff ought to challenge the existing probate case that appointed the defendant as an administrator. He emphasized that this court has no jurisdiction to entertain the matter and the suit should be dismissed with costs. I have heard the rival arguments by the learned Advocates. From the outset I would wish to point out that the point which is subject of these submissions was not a preliminary objection in the sense of Mukisa Biscuits (supra) but it was a point that was raised to be a framed issue. However, since the issue was on jurisdiction the court found it prudent for it to be disposed of at the earliest. In that respect, 6 Mr. Ngudungi's arguments that it is a preliminary objection on a point of law cannot therefore hold water. It is not in dispute that the matter before this court finds its foundation on the claim by the plaintiff that she is the heir of his father Shego Luhizo Mganga who died in 1984. The father of the plaintiff allegedly had equal shares with his brother Sharifu Mochiwa Mganga in the house built by Mkomwa Maganga and bequeathed to these two brothers. It is also not in dispute that the defendant was appointed the administrator of the estate of the said Sharifu Mochiwa Mganga by Temeke Primary Court. It is the plaintiff's contention that the defendant has forcefully claimed that she does not own the 50% shares of the suit house while the defendant has been taking the proceeds from the tenants in the said suit house. The issue is whether this is a land matter and whether this court has jurisdiction to proceed to entertain the matter. I am settled, in my mind that this issue ought to have been dealt with in the Probate Court which is Temeke Primary Court whereby the defendant was appointed the administrator of Sharif Mochiwa Mganga 7 and the plaintiff claims to have interest as a beneficiary of the suit house which is part of the estate of Sharif Mochiwa Mganga. In my considered view, this court cannot establish who is the owner of the suit house without first knowing that the plaintiff is the only heir of the late Shego Luhizo Mganga and a beneficiary of the 50% shares in the suit house which is part of the estate of the late Sharifu Mochiwa Mganga. Secondly, the probate court on its own motion or on application by an interested party, has powers under the 5thSchedule to the Magistrates Courts Act CAP 11 RE 2019 (the MCA) to revoke any appointment of an administrator or make orders as to the administration of the estate as to the distribution of the properties in the estate to the beneficiaries if the administrator is not performing his duty according to the law (see Paragraph 2(b)(c) and (d) of the Fifth Schedule to the MCA). There is no indication by the plaintiff that there has been any objection relating to the performance of the defendant as an administrator which the Probate Court has failed to attend to. In that respect the jurisdiction of the jurisdiction of this court is wanting. In my view therefore, since both parties are claiming interest on the suit house; the plaintiff as part owner of the suit house and the 8 defendant by virtue of being an administrator of the estate of the deceased the issue therein involved is a pure succession issue which is within the ambit of the Probate Court. The claim by the plaintiff is of probate in nature as it concerns inheritance of her late father's shares in the suit house. The plaintiff was listed as the beneficiary at the Probate Court and the suit house was among the properties in the estate so the issue of the plaintiff being the only heir and the 50% shares of his father in the suit house ought to have been addressed by the Probate Court. In the result, I proceed to strike out the suit with costs for want of jurisdiction. The parties may make use of the probate cause at Temeke Primary Court to have the dispute resolved. It is so ordered. KA V.L. MAKANI SE JUDGE 27/01/2021 9