20130213 TZHC Dar es Salaam

I' ·~ ·-~~~ .:~· 1 IN THE HIGH COURT OF TANZANIA i AT DAR ES SALAAM PC. CIVIL APPEAL NO. 14 OF 2012 (Originating from lfakara District Court, Civil Appeal No. 2 of 2011) KILIAN JOSEPH NGALAPA . . . . . . . . . . . . . . . . . . APPELLANT Vs. SELEMAN MTEREKA . . . . . . . . . . . . . . . . . . . . . RESPONDENT Date of last order-20/ 11/2012 Date of Judgment- 13/2/2013 JUDGMENT Shangwa, J. This appeal arises from the decision of the District Court of Ifakara in Civil Appeal No. 2 of 2011 delivered on 7 th November, 2011 which originated from Probate and Administration Cause No. 41 of 2010 of Ifakara Primary Court. In his decision, Kimicha, RM dismissed the ' i Appellant's appeal against the decision of the aforesaid Primary Court. 2 The dispute between the parties involves a house on Plot No. 138 Block 'A' at lfakara Urban, Kilombero. Before the Primary Court of lfakara, the Appellant objected that the said house did not belong to the late Jafari Salum Mteteleka but his objection was overruled and he appealed to the District Court of Ifakara which dismissed his appeal. Apart from dismissing his appeal, the District Court, Kimicha, RM advised him to file a suit against the Administrator of the estate of th~ late Jafari Salum • Mteteleka in any Court or Tribunal with competent jurisdiction to determine as to who is the owner of the house on Plot No. 138 Block A at Ifakara, Kilombero. In his petition of appeal, the Appellant raised three grounds of appeal against the decision of the District Court of Ifakara. They are as follows: 1. That the Resident Magistrate e-A-ed in law and fact for abdicating his duty to resolve the pertinent issue of i ' 3 jurisdiction of the Primary Court raised by the Appellant. 2. That the Resident Magistrate erred in law and fact for failure to resolve other issues raised in the petition of appeal and dismissed the appeal on unfounded grounds. 3. That the trial Court (District Court) failed to compose a judgment that conforms to the law. Upon these grounds learned couhsel for the Appellant Mr. Kariwa prayed this court to quash the decisions of the District Court of lfakara and of the Primary Court of lfakara with costs. In my view, the first ground of appeal is sufficient to dispose of this appeal. Therefore, I will deal with this ground only and I will leave aside the second and third grounds of appeal. On the first gro-J.nd of appeal, I agree I ' 4 with Mr. Kariwa that the Resident Magistrate did not resolve the issue of jurisdiction which was raised by the f Appellant in his petition of appeal tiated 10 th February, 2011. I agree with Mr. Kariwa that his failure to resolve the said issue amounted to abdication of his duty to· administer justice. Indeed, at paragraph 2 of his petition of appeal filed in the District Court of Ifakara, the Appellant complained that the learned trial Magistrate erred in both law and fact by entertaining proceeo}ings relating to land matters which he had no jurisdiction However, this issue was not resolved. In fact, the Primary Court of Ifakara had no jurisdiction to entertain proceedings relating to land matters i.e. the ownership of the house on Plot No. 138 Block 'A' at lfakara, Kilombero. Moreover, the application ' which was before the Primary Courd of lfakara related to i Probate and Administration matters wherein the late 5 Selemani Mteteleka was applying for; being appointed as Administrator of the estate of the late Jafari Salum Mteteleka. The said application had nothing to do with the claim of ownership of the house on Plot No. 138 Block 'A' at Ifakara, Kilombero. Thus, what the trial magistrate was supposed to do is simply to appoint the administrator of the estate of the late Jafari Salum Mteteleka by granting the application and not to entertain proceedings relating to the ownership of the house on Plot :No. 138 Block 'A' at Ifakara, Kilombero which he did without jurisdiction. As correctly pointed out by Mr. Kariwa at page two of his written submissions, Primary Courts have no jurisdiction to entertain any case founded on registered land. It is so provided under S. 18 (1) of the Magistrates Courts Act No. 2of1984. Under S. 167 of the Land Act Cap. 113 R.E. 2002, the Courts which have jurisdiction to entertain land cases are 6 the High Court and the Court of AP: peal. 1 The Tribunals which have jurisdiction to entertain same cases are the Ward Tribunals and the District and Housing Tribunals. At page 3 of his written submissions, Mr. Kariwa pointed out that the issue of ownership of the house on Plot No. 138 Block 'A' Ifakara, Kilombero had been determined by the Ward Tribunal which granted the Appellant vacant ' l possession and ordered the respon,den ts to vacate the premises by 30 th September, 2009. He also pointed out that the Respondents appealed to the District Lands and Housing Tribunal against the decision of the Ward Tribunal but they lost the appeal. This fact was not disputed by the respondent in his reply written submissions to the appellant's written submissions. In brief, I uphold Mr. Kariwa's 1submission that the trial Primary Court at Ifakara had no jurisdiction to entertain a dispute relating to the ownership of the house 7 on Plot No. 138 Block 'A' Ifakara, Kilombero and that the District Court of Ifakara abdicated its duty for not holding that the Primary Court of Ifakara had no jurisdiction to entertain proceedings relating to the ownership of the said house. Therefore, I quash the proceetjings of the Primary Court of Ifakara which related to the 9wnership of the said f house and the decision of the District Court of Ifakara which failed to hold that the said court had no jurisdiction to entertain those proceedings. Consequently, I allow this appeal but I order that each party should bear its own costs. 13/2/2013 __J 8 Delivered in open court this 13 th day of February, 2013 in the presence of Mr. Magafu for Mr. Kariwa and Mr. Kihyoza 13/2/2013~