makoye joseph administrator of the estate of joseph nyara vs bertha ndodi administratrix of the estate of ndodi itaba 2022 tzhc 14160 20 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA LAND APPEAL NO. 63 OF 2021 (Arising from the judgment and Decree o f the District Land and Housing Tribunal for Geita, at Geita in Land Application No. 17 o f 2019) MAKOYE JOSEPH (Administrator of the estate of the Joseph Nyara)................................................. APPELL VERSUS BETHA NDODI (Administratix of the estate of Ndodi Itaba........... ....................... RESPONDENT JUDGMENT l4 hJuly & 2Cfh October, 2022 ITEMBA, J. This appeal originates from the District Land and Housing Tribunal for Geita in Land Application no. 17/2019 (the Tribunal). The background, albeit brief one, is that; initially, the respondent as anadministrator of estate of Ndodi Itaba, had filed an application against the appellant, claiming to be pronounced the owner of the suit land. The appellant was sued under the capacity of administrator of estate of Joseph Nyara. At the Tribunal, the respondent supported by her witnesses testified that the suit land comprises 30 and it belonged to her father Ndodi Itaba, who acquired it in 1939 and that he later died in 1967. The respondent produced form no. IV issued by Busisi Primary Court to support that she was appointed an administrator of estate of his late father. She added that she had used the same land with her other relatives including her brother Joseph Nyara, for over 30 years. That, the dispute over the suit land arose after the death of the said Joseph Nyara who is the father to the appellant. On the other hand, the appellant testified that his father owned the suit land since 1943 and in 2014 when his father died, he was appointed an administrator of estate and divided the suit land and that is when the dispute arose. At the end, the Tribunal issued a decision in favor of the respondent. The appellant being dissatisfied has filed this appeal with six grounds as reproduced hereunder. 1. "That the learned District and Housing Tribunal Chairman made a grave error in law and in fact by holding that the disputed piece o f land belonged to Ndogi Itaba contrary to the overwhelming evidence by the defense, and which was supported by PW3, to the effect that the disputed piece o f land had been under the use and occupation o f Joseph Nyara ever since he was a young man until his death in the year 2014. 2. That the learned District and housing Tribunal Chairman made a grave error in law and fact by holding that the suit piece o f land was the property o f Ndodi Itaba in complete disregard to the undisputed and uncontested evidence and testimony from Dw2 who categorically pointed to the trial court that he was biological son o f Ndobi Itaba, and that the disputed piece o f land did not belong to his father as claimed by his younger sister, the Respondent herein. 3. That the trial District and Housing Tribunal Chairman erred in law and in fact by disregarding the undisputed and uncontested evidence that the estate o f the late Ndodi Itaba had been distributed to his heirs in the year 2010, and that during that distribution, the disputed piece o f land was never included in the said estate as it never formed the estate o f Ndodi Itaba, and it was never even discussed then as a property o f Ndodi Itaba. 4. That the trial District Land and Housing Tribunal made a grave error in law and in fact failing to find and hold that the Respondent's suit was hopelessly barred by limitation given the overwhelming evidence proving that the alleged Ndogi Itaba died in the year 1967, and since Joseph Nyara, the Appellant's father had been in uninterrupted use and occupation o f the same since all along. 5. That the learned District and Housing Tribunal Chairman made a gross error in law and in fact by failing to sustain the Appellant's 3 preliminary objection on points o f law that the Respondent had no cause o f action against the Appellant, going by the crystal-clear facts as contained in the Respondent's pleadings. 6. That generally, the trial District Land and Housing Tribunal Chairman grossly erred in law and in fact by failing to thoroughly, exhaustively and adequately scrutinize the whole pleadings from both parties, hence failing to find and realize that the Respondent's was dead on arrival, hence the trial tribunal consequently reached an unfair and unjustifiable decision against the Appellant". When the appeal was called up for hearing, the appellant had the services of Mr. Yona Shekifu, learned advocate, while the respondent was reported to be sick and unable to walk and she was represented by Mr. Paulo Misungwi who had a power of attorney for that purpose. By consensus, the appeal was heard through written submissions. The appellant chose to start with the 6th ground of appeal. I believe it is for the reason that this ground touched the issue of court's jurisdiction. For similar reasons I will start to determine the same ground. The appellant's counsel states that the Tribunal erred in law by entertaining the suit between the parties herein, without having jurisdiction. He submitted that based on respondent's own words, she stated that she is suing under the capacity of an administrator, over a piece of land which is part of the estate of the late Ndodi Itaba. He argued that, that being the case, the legal position is that all disputes relating to the estate of the deceased person can only be determined by the probate and administration court. In this, he referred us to the case of Mgeni Seif v Mohamed Yahaya Khalfani, Civil Application No. lo f 2009 (unreported). In reply, the respondent stated that the Tribunal had jurisdiction to hear the dispute between the parties because the suit was not over the estate of the deceased but it was the dispute on ownership of land and for that reason, he distinguished the case of Mgeni Seif v Mohamed Yahaya Khalfani. He explained that, at the tribunal even the very first issue was who is the lawful owner of the suit land. He cited sections 3(1) and 32 of the Land Disputes Courts Act (Cap 216 R.E 2019) and 167 of the Land Act (Cap 133 R.E 2019) and 62 of the Village Land Act (Cap 114 R.E 2019) which he said the sections empower the Land courts with jurisdiction over disputes relating to land titles. The respondent's counsel also cited the decision in Malieta Gabo v Adam Mtengu Misc. Land Appeal No. 21 of 2020 High Court, Kigoma (unreported) which stated that a Primary Court 5 exercising Probate and Administration jurisdiction has no powers to determine a dispute over title or ownership of property. Based on records, as explained herein above, indeed the respondent claims before the DLHT was over ownership of the suit land. However, that fact does not negate the fact that the said suit land was once owned by Ndodi Itaba, who is now the deceased and the probate case no. 2 of 2018 over his estate is still pending before Busisi Primary court. Under these circumstances, I would agree with the appellant that this is a dispute over land but the land which is claimed to be owned by the deceased. The landmark case of Mgeni Seif Mohamed v Yahaya Khalfani cited by the appellant has clearly illustrated that when there is claim of ownership originating from the right of inheritance while the probate and administration court is still determining the application, that is, when the administrator of estate thereof has not filed the final account and closed the office, it is the same probate and administration court which will determine whether the title has passed through the administration of estate. In the present case, although the deceased Ndodi Itaba had died since 1967 his estate was never administered until 2019 when the respondent herein filed a probate cause before Busisi Primary Court. This application is still pending before the court. In the said case of Mgeni Seif v Mohamed Yahya Khalfan at page 14 it was held inter alia that: where there is a dispute over the estate o f the deceased, only the probate and administration court seized o f the matter can decide on the ownership' The grounds which led the Court to decide this way are found in the previous page 8 of the same Judgment where it was stated as follows: "/£ seems to us that there are competing claims between the applicant and the respondent, over the deceased person's estate. In the circumstance, only a probate and administration court can explain how the deceased person's estate passed on to a beneficiary o f a bona fide purchaser o f the estate for value. In other words, a person claiming any interest in the estate o f the deceased must trace the root o f tittle back to the letters o f administration, where the deceased died intestate or probate, where the deceased passed away testate." It follows therefore, the law is settled that a land dispute which involves the unadministered deceased estate have to be determined by the probate and administration case. This means, both the Tribunal and this court do not have jurisdiction to determine the dispute between the parties. That being the position, I find the 6th ground of appeal to be meritorious. Therefore, I see no need to discuss the other grounds of appeal raised by the appellant as the 6th ground which touches the jurisdiction of the court, disposes this appeal. As Busisi Primary Court in Probate Cause No. 02 of 2018 is seized with administration of the estate of the deceased Ndodi Itaba, it should be allowed to complete the said application which is still pending. Under section 43(l)(b) of the Land Disputes Act (supra), I quash and set aside the proceedings and Judgement in Land Case no. 17 of 2019 at the District Land and Housing Tribunal for Geita. I order the Busisi Primary Court to determine the administration of estate of Ndodi Itaba in Probate Cause No. 02 of 2018 including the issue of ownership of the suit land, in accordance with the law. In doing so, the said primary court shall afford the appellant, respondent and any other person interested with the estate of the deceased an opportunity to be heard. As this matter has taken a long time, Busisi Primary Court should make it a priority and finalise it within six months from the date of this judgment. Considering the nature of the appeal, I make no orders to costs. It is so ordered. DATED at MWANZA this 20th day of October, 2022. Judgment delivered under my hand and seal of the court in chambers, in absence of the appellant and in the presence of Paulo Misungwi who represents the respondent under power of attorney and Ignas, RMA.