judgment LETICIA LUCAS NTEMI

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC CIVIL APPEAL NO.36 OF 2023 (Arising from Civil Appeal No. 19 of 2023 of the District Court of Ilemela District and originating from Civil Case No. 284 of 2022 of Ilemela Primary Court) LETICIA LUCAS NTEMI (Administratix of the Estate of the Late FATUMA ALLY MANYENYE…………………….….……………..….. APPELLANT Versus ALLY ABDALLAH ALLY………………………………………………..1st RESPONDENT ATHUMANI MOHAMMED…………………………………………....2nd RESPONDENT JUDGMENT 12th April & 14th June, 2024 ITEMBA, J. The appellant above, challenges the decision of the District court of Ilemela in Civil Appeal No. 19 of 2023. She has two grounds of appeal that, the trial court and the first appellate court erred in law to entertain the matter without jurisdiction and that the respective lower courts erred in law and fact by not giving weight to the evidence adduced by the appellant. Briefly; the appellant is a biological daughter of the late Fatuma Ally Manyenye (the deceased) whereas the respondents were raised by the deceased since their childhood until the deceased’s death on 2013. The appellant who is said to have neither been present into the deceased’s life nor during her sickness, petitioned for letters of administration before Ilemela Primary Court in 2022. 1 The appellant declared herself to be the sole heir of the deceased estates hence on 22/12/2022 the appellant attempted to evict the respondents from deceased’s house located at Pasiansi Ilemela Mwanza. The respondents filed Civil Case No. 284/2022 before Ilemela Primary Court (the trial court) claiming compensation of Tshs. 25,000,000/= being costs for developments they have incurred to renovate the deceased’s house. The trial court ordered the appellant to pay compensation to the respondents if she wants to remain as a sole heir of the Deceased’s estates. Being aggrieved the appellant unsuccessful appealed to the District court vide Civil Appeal No. 19 of 2019 hence this appeal. I ordered the appeal be argued by way of Witten submissions. parties complied to the scheduled order. The submissions by the appellant were filed by Mr. Daniel Susuma learned advocate whereas the respondents enjoyed representation by Mr. Victor N. Karumuna Learned advocate. I will consider the submissions of parties in the course of determining the grounds of appeal. Starting with the first ground of appeal it is the contention by Mr. Susuma that the court need firstly to determine if it is clothed with jurisdiction to determine the matter before it as stated in the case of Exim 2 Bank (T) Limited vs Agro Impex (T) Limited and another, Land Case No. 29 of 2008 (unreported). That the respondent herein claimed before the trial court for compensation of Tshs. 25,000,000/= being the value for development of a house located at Pansiasi, Ilemela Municipality which was legally owned by the deceased. That according to section 3(1) and (2) of the Land Dispute Courts Act, Cap 216 R.E 2019, (herein the Act) the Primary court is not listed to have jurisdiction over land matters. That, the judgement and ordered of the two lower courts are nullity for want of jurisdiction as stated in the case of Njile Ndaturu vs Kaswahili Kaguna, Civil Appeal No. 215 of 2004 (unreported). That according to section 18 (1) (a) of the Magistrates Courts Act Cap 11 R.E 2019, the primary court has no jurisdiction on matters of civil nature relating to land. That the case of Tega Jenga and another vs. Shaban Tumbi, Civil Appeal No4 of 2020 was wrongly referred by the district court because the matter before trial court was not a probate and administration matter but civil suit. In reply Mr. Karumuna submitted that, the dispute between the appellant and the respondents emanated from compensation out of the value of the house in dispute which is centered on inheritance of the deceased since the respondents have interest as beneficiaries to the said 3 estate. That the case of Njile Ndaturu vs Kaswahili Kaguna (supra) is distinguishable. I have considered the submissions for the parties. Mr. Susuma was correct on the legal principle that, jurisdiction of the court is paramount therefore the court need to ascertain if it has jurisdiction to determine a matter before it before taking any further step. See the case of Patrick Willliam Magubo v Lilian Peter Kitari, Civil Appeal No. 41/2019; and Richard Julius Rugambwa vs. Isaack Ntwa Mwakajila and another, Civil Appeal No. 2 of 1998 (both unreported). The rationale behind is easy to fetch; hearing and determination of a matter in dispute is not an academic exercise, it intends to resolve the matter in controversy. Entertaining a matter without jurisdiction unnecessarily consumes not only valuable time of the court but also of the litigant and causes unnecessary costs. It is also a settled law that, Jurisdiction is a creature of statute. Parties cannot vest jurisdiction to the court by their choice. Even the court cannot grant jurisdiction upon itself. See the case of the National Bank of Commerce Limited and 4 others vs National Chicks Corporation Limited, Civil Appeal No. 129 of 2015, and Abdallah Ally Selemani t/a Ottawa enterprises (1987) vs Tabata Petrol Station Co. Ltd and another, Civil Appeal No. 89 of 2017 (both unreported). 4 Back to the matter at hand, there is no dispute that the respondents filed civil suit before the trial court claiming compensation of Tshs. 25,000,000/= which is alleged to have been incurred to develop the houses which forms part of the deceased’s estate. According to the appellant the trial court lacked jurisdiction. The respondent insists that the matter originated from probate and administration proceedings hence the trial court was clothed with jurisdiction. It was correctly argued by Mr. Susuma that, section 3(1) and (2) of the Act lists proper forums for land disputes; it provides; “3. -(1) Subject to section 167 of the Land Act and section 62 of the Village Land Act, every dispute or complaint concerning land shall be instituted in the Court having jurisdiction to determine land disputes in a given area. (2) The Courts of jurisdiction under subsection (1) include- (a) the Village Land Council; (b) the Ward Tribunal; (c) the District Land and Housing Tribunal; (d) the High Court; or (e) the Court of Appeal of Tanzania.” 5 Therefore, the Primary court has no jurisdiction over a dispute or complaint concerning land. Further section 18(1) (a) forbids primary court from hearing civil disputes concerning land it reads; “18. -(1) A primary court shall have and exercise jurisdiction (a) in all proceedings of a civil nature- (i) where the law applicable is customary law or Islamic law: Provided that no primary court shall have jurisdiction in any proceedings of a civil nature relating to land” This court in the case of Charles Rick Mulaki vs. William Jackson Magero, HC Civil Appeal No. 69 of 2019 (unreported) had the following to say at page 8 and 9; “The phrase “matters concerning land’’ was defined by my Lord Mlay, J. as then was in Anderson Chale vs Abubakar Sakapara, Civil Appeal No. 123 of 2014 to mean a matter on which a right on land or interest thereon is in dispute…” In the present matter the respondents are claiming compensation for the developments they have made to the deceased’s houses. It is my considered opinion that they claim to have an interest on land. The trial court had the following to say at page 4 and 5 of the judgement; 6 “hivyo basi mahakama hii kwa kuzingatia ushahidi wa pande zote kwa umakini na haki kabisa inaelewa kuwa ni wazi wadai kama watu wazima waliweka juhudi zao katika mali ya marehemu wakiamini nyumbani kwao kwani marehemu alikuwa mama yao,…” The District Court also observed at page 6 of the judgement that; “…they did develop the house of the deceased as their guardian, hence they have interest on the said house and that is the reason they advance the claim of compensation against the appellant who is the administratix of their deceased guardian one Fatuma Ally” (emphasis added) Obviously; the matter before the trial court was not a probate or administration cause/application rather it was a civil dispute on compensation in a civil suit file. I therefore agree with the appellant that the trial court had no jurisdiction to entertain the suit. Consequently, the appeal is hereby allowed basing on the first ground of appeal only. I have no justification to determine the remaining ground of appeal. I proceed to quash the proceedings, judgement and orders of the District court in Civil Appeal No. 19 of 2023 and that of trial court in Civil Case No. 284 of 2022 for want of jurisdiction. The proceedings having its root on probate, I order no costs. It is so ordered. Right of Appeal fully explained to the parties. 7 DATED at MWANZA this 14th June, 2024. L. J. ITEMBA JUDGE Judgment delivered this 14th Day of June 2024, in the presence of the applicant, 1st respondent and Ms. G. Mnjari, RMA. L. J. ITEMBA JUDGE 8