majura isanda vs jumapili charanga marumbo administrator of the estate of the late marumbo nyamsarya mbasa 2021 tzhc 2815 19 april 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA LAND APPEAL NO. 86 OF 2020 (Arising from decision of the District Land and Housing Tribunal for Mara at Musoma in Application No. 175 of 2017) MAJURA ISANDA........................................................ APPELLANT VERSUS JUMAPILI CHARANGA MARUMBO (Administrator of Estate of the late Marumbo Nyamsarya Mbasa).................................. RESPONDENT RULING 14th and 19th April, 2021 KISANYA, J.: The respondent, Jumapili Charanga Marumbo (Administrator of the Estate of the Late Marumbo Nyamsarya Mbasa), successfully sued the appellant, Majura Isanda before the District Land and Housing Tribunal for Mara at Musoma for trespassing into his piece of land located at Makene Village in Musoma Rural District. The tribunal's decision was delivered on 15th February, 2019. Majura Isanda delayed to appeal within time prescribed by the law. On 16th July, 2020, he applied for extension of time within which to appeal. His i application was found meritorious and granted leave to the appeal within forty five (45) days from 3rd November, 2020 when the ruling was delivered. Following that ruling, this appeal was lodged on 11th December, 2020 in the name of Majura Isanda. Upon being served, the respondent file a notice of preliminary objection on the following point of law, in verbatim: "That the appeal is improperly (sic) before this Court as the appellant has passed away and no administrator of estate has appointed (sic) to proceed with this appeal." When the appeal was called on for hearing on 14th April, 2021, Mr. Emmanuel Werema, learned advocate appeared for the appellant while the respondent appeared in person. At the very outset, Mr. Werema conceded the appellant died on 18/10/2020. However, he prayed for leave to amend the petition of appeal for purposes of joining Albinus Majura Isanda (administrator of estates of the late Majura Isanda). In terms of the copies of letters of administration availed to this Court by Mr. Werema, the said Albinus Majura Isanda was appointed to administer the estate of the late Christopher Majura Isanda on 16th March, 2020. When probed by the Court on the preliminary objection raised by the respondent, Mr. Werema was of the view that the appeal was competent. 2 He contended that the petition of appeal was filed by an advocate who was not aware that Majura Isanda had passed away. Responding, the appellant was of the view that the appeal is incompetent. He submitted that the petition of appeal was filed by the learned advocate who had an information that Majura Isanda was dead. In the light of the above background facts and the submissions by both parties, I am of the view that, the issue for consideration is whether the appeal was lodged by a competent person and hence, competent before the Court. It is common ground that Majura Isanda died on 18th October, 2020. In terms of section 100 of the Probate and Administration of Estate Act [Cap. 351, R.E. 2002] the power to sue in respect of a cause of action that survived by him is vested in the administrator appointed to administer his estates. The said provision reads: "An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same powers for the recovery of debts due to him at the time of his death, as the deceased had when living." Reading from Order XXII, Rule 11 of the Civil Procedure Act [Cap. 33, R.E. 2019), I am of the view that, the power to sue stated in the above quoted 3 provision extends to appeals in respect of a case survived by the deceased. Therefore, upon the demise of a party to the case, his interests including those related to appeal or defending the appeal arising from the case instituted by the deceased are taken care of by his administrator. The deceased cannot resurrect and file the required appeal. As stated earlier, the petition of appeal in the present case was filed on 11th December, 2020 in the name of Majura Isanda who had died on 18th October, 2020. It is my humble view that, the appeal is incompetent for being lodged by the deceased who had no capacity of filing the same. That action was required to be taken by the administrator of the deceased person after complying with the required procedure set out by the law. As regards the prayer to amend the petition of appeal to include the name of administrator of the estates of the deceased, I am of the opinion that, since the appeal is incompetent, the said prayer cannot be granted. The law is settled that an incompetent matter cannot be amended, adjourned or withdrawn. See for instance, the case of Ghati Methusela vs. Matiko w/o Marwa Mariba, Civil Application No. 6 of 2006, CAT at Mwanza (Unreported) where the Court of Appeal held that: 4 "It is now established that an incompetent proceeding, be it an appeal, application, etc., is incapable of adjournment, for the court cannot adjourn or allow to withdraw what is incompetently before it." For the above stated reasons, I hereby strike out this appeal with costs. DATED at MUSOMA this 19th day of April, 2021. E. S. Kisanya JUDGE COURT: Ruling delivered this 19th April, 2021 in the presence of Mr. Emmanuel Werema, learned advocate for the appellant and the respondent in person. E. S. Kisanya JUDGE 19/04/2021 5