john jonas and 4 others vs masabo administratrix of the estate of the late jonas balijora and 2 others 2020 tzhc 3632 9 november 2020

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA DISTRICT REGISTRY) AT KIGOMA LAND DIVISION (APPELLATE JURISDICTION) LAND APPEAL NO. 13 OF 2020 (Original application No. 39/2015 of the District Land and Housing Tribunal for Kigoma, before Hon. F. Chinuka, Chairperson.) JOHN JONAS and 4 others.......................................... APPELLANTS VERSUS CLEMENSIA MASABO (administratrix of the estate of the late Jonas Balijora) and 2 others.................... RESPONDENTS JUDGMENT 19/10/202 & 9/11/2020 I.C. MUGETA, J. The following is the case background leading to this appeal. On the 17th day of December, 2014 at lljiji primary court Keremensia Masabo was appointed to be administratrix of the estate of her husband the late Jonas Balijora who died on 13/4/2013. The letters of the administration was issued on 17/12/2014, through Probate and administration cause No. 101/2014. The estate of the deceased included a house located at Katubuka area within Kigoma Ujiji Municipality which is the subject matter of the dispute. The heirs allege that the administratrix together with the 2nd respondent (the son of the decease) conspired against the other heirs and sold the house to the 3rd respondent without their consent. Consequently, the appellants filed land application no. 39/2015, in the District Land and Housing Tribunal for Kigoma at Kigoma which was dismissed for wants of merits, hence, this appeal which seeks to impugn the decision of the District Land and Housing Tribunal on the following grounds: - /. That, the trial tribunal grossly erred in law and fact when it was failed to scrutinize the evidence as it was adduced by appellants which also corroborated by the 1st and 2nd respondents, hence declared the impugned sale of the suit premises to be lawful without considering the consent of the Appellants as a legal heir of the late JONAS BILIJORA were not obtained accordingly. il. That, since the 1st respondent in collaboration with 2nd respondent erected another house at Kasulu from the proceeds obtained from the suit premises, the trial tribunal ought to order the said house be sold and 2 the proceeds be distributed to the legal heirs of the late JONAS BILIJORA. Hi. That, the trial tribunal grossly erred in law and fact to take over the matter and proceed to determine the same while assessors and the presiding chairman have been changing and the same did not set the reasons to the effect. Hence the judgment is nullity. iv. That the trial tribunal grossly erred in law and fact when it allowed the assessors to cross-examine the witnesses contrary to the law hence the judgment and decree is nullity. v. That, the trial tribunal grossly erred in law and effect to relying on the opinion of the assessors while the same are not reflected from the proceeding and the same were not read before the parties herein, hence the judgment and proceedings are nullity. During hearing of the appeal, the appellants were represented by Mr. Silvesta Damas Sogomba, learned advocate while the respondents were represented by Mr. Daniel Rumenyela, learned advocate. Mr. Damas Sogomba, after dropping grounds No. 4, 5, and 6, submitted on the 1st,2nd and 3rd as here under. 3 The learned advocate submitted on the first ground that the family agreed the house to be sold at the price of Tsh. 21,000,000/=, but due to the conspiracy between the 1st and 2nd respondents, the house was sold at Tsh.11,000,000/=. Regarding the second ground he submitted that the money obtained were not divided among the heirs instead they used it to build a new house at Kasulu town. That on the weight of the evidence the tribunal ought to have ordered the same to be sold. On the third ground, the advocate submitted that there was a change of the assessors and the chairman but the reasons for changes were not expressed in the judgment. To buttress his argument, he cited the case of Said Selemba V. Rumako agricultural Marketing Cooperative Society, Civil Appeal 92/2017 Court of Appeal, Tabora (unreported), where it was held that change of magistrate ought to be explained. In reply, Mr. Rumenyera submitted that the tribunal chairman rightly dismissed the application because the appellants filed the case in a wrong forum. That since the dispute concerned distribution of the deceased estate, they ought to go to the civil court. He further submitted that there was no common agreement among the heirs to sell the house at the price of 21,000,000/= and finally he submitted that the house at Kasulu was not pleaded because per application the dispute house is located at Katubuka, 4 Kigoma and not at Kasulu. Concerning the change of the chairperson and assessors, the learned advocate submitted that no change was affected as the hearing was done before the same chairperson. He, therefore, distinguished the case of Said Selemba (supra) and finally prayed the appeal to be dismissed with cost as it was misconceived. In the case of AZIZ DAUDI AZIZ vs. AMINA AHMED ALLY, Civil Appeal NO. 30 of 1990 Court of Appeal (unreported) it was decided that the administrator of the estate once appointed, he shall have the discretion to administer the estate in the best way he can. Also, in the case of MOHAMED HASSAN VS. MAYAZA MZEE AND MWANAHAWA MZEE (1994) TLR 225, among other things, it was held that the administrator is not legally required to obtain consent of all the heirs before sale of a house. It follows, therefore, that even if prudence so demands, there is no legal requirement to obtain the consent of all the heirs to sell the house of the deceased. On that account, there was nothing wrong with the sale of the house in this case. Further, the house was sold at Tsh 11,000,000/= which Mr. Sogomba complain was on the low side. However, in the application at the tribunal, the applicants/appellants stated the estimated value of the house to be Tsh. 10,000,000/=. It follows, therefore, that the complaint on the purchase price has no merits. The rights of the heirs 5 regarding the proceeds of the sale ought to be pursued through Probate Cause No.104/2014 at the Primary Court of Kigoma District at Ujiji. The first and the second grounds of appeal has no merits. The complaint on change of the assessors and the chairperson in the third ground is wholly misconceived. According to the Tribunal's proceedings dated 4/9/2020 it is recorded: - "Tribunal: This case is coming for hearing. Let us frame the issues and start afresh as the previous chairman has transferred" The parties agreed to this directives of the tribunal, fresh issues were framed and evidence was recorded before F. Chinuku, chairperson assisted by Juma and Kasongo as assessors throughout. No change of either assessors or the chairperson is reflected on the record thereafter. In the light of the foregoing, I hold that the appeal is wholly barren of merit and I dismiss it. No order as to the costs as it is a family matter. 6 Court: Judgment delivered in chambers in the presence of the first and fourth appellants and in the absence of the second and the third appellants and in presence of the first and third respondents and in absence of the second respondent. Sgd I.C. Mugeta Judge 9/11/2020 7