LAND CASE NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA LAND CASE NO. 25 OF 2023 MARY LOUISE ELIKANA MKONO................................................. PLAINTIFF VERSUS PILLY ALEX.................................................................................. DEFENDANT RULING 13th March & 12 April, 2024 M. L, KOMBA. J.; Above named plaintiff is claiming ownership over a piece of land measured 200 by 210 meters located in Kigori Village within Butiama District in Mara Region and one acre measured 70 by 70 meters at Buhuzi hamlet within Kigori village. The two plots of land which are joined, were jointly purchased by plaintiff and her husband (who is now deceased) and were taken care by Waryoba Nyamangedere. The referred two pieces of land are subject of this suit hence will be referred as disputed land. On the other side, plaintiff presented that the Defendant surrendered her plot of land to..rBuswege Village Council for construction of Chief Ihunyo Secondary School on agreement that the later would build for her a three- bedroom house. Plaintiff husband as a member of Parliament, by then, Page 1 of 10 implemented the said terms of the contract by building the three-bedroom house and handle to the defendant. In the year 2017 defendant trespassed in disputed land which are jointly owned by plaintiff and her deceased husband and started to cultivate and cut trees claiming that she owns the said piece of land through exchange of land by the plaintiff's husband when he was a member of Parliament. Among other reliefs, plaintiff seeks a declaration by this court that she is the legal owner of the whole land in dispute. Written Statement of Defence filed by the defendant has a Preliminary Objection that; 'The plaintiff has no locus stand to claim property which they jointly owned with the deceased Nimrod Mkono without being duty appointed as administratrix of the deceased estate.' When the matter was placed before me for hearing, plaintiff had legal service of Mr. Gervas Emmanuel while the defendant enjoyed the service of Mr. Cosmas Tuthuru both being advocates. As the tradition, the Preliminary Objection should first be entertained as was in the case of Khaji Abubakar Athumani vs. Daudi Lyakugile TA D.C Aluminium & Page 2 of 10 Another, Civil Appeal No. 86 of 2018, CAT at Mwanza, this court allowed counsel for defendant to submit over the preliminary objection. Mr. Tuthuru submitted that when he read pleading, he found the plaintiff was jointly owning the disputed land with her husband as per paragraph 6, 7 and 8 and they vested their land to Waryoba Nyamangedere for him to take care. Further at paragraph 12 of the plaint the plaintiff explain that her late husband was the main sponsor of construction of Chief Ihunyo Secondary School and implemented the defendant's agreement. Basing on those assertion it is clear that the plaintiff's husband implemented the agreement with the defendant and plaintiff cannot claim ownership over the land without first be appointed administratrix. She did not own the disputed land in isolation with her deceased husband and therefore the share of his husband has to be legally administered. Moreover, he submitted that plaintiff is praying to be declared a legal owner of land in dispute while there is agreement with the third part the prayer cannot be entertained as she has no locus over the disputed land. Page 3 of 10 In justifying his submission, he said it is the position of the law that because the property has connection with deceased the plaintiff has to be appointed as administratrix of the estate as per S. 71 of Probate and Administration of Estate Act, Cap 352 and paragraph 6 of the second schedule of the Magistrates' Courts Act, Cap 11 R.E 2019. Mr. Tuthuru cemented his submission by citing the decision in Malietha Gabo vs Adamu Mtengu, Misc. Land Appeal No. 21/2020 where court cited the case of Ibrahim Kusaga vs Emmanuel Mwita (1986) TLR 26. Further, in Omary Yusuph vs Albert Munuo, Civil Appeal No. 12 of 2018 Court of Appeal is of the position that only administrator can sue according to section 71 of the Probate Act and this court (High Court Musoma Sub registry) in Maria Chacha Paka vs Paulo Chacha Paka, Land Appeal No. 53 of 2021 ruled that so far as the husband has died, the wife cannot assume ownership without bearing appointed as administratrix. He supplied also decision in Victoria Daudi Chanila vs Doroth Biseko Mazula, Land Case No. 9 of 2005. He finally submitted that the plaintiff is claiming right over the deceased property without being appointed as administratrix and therefore he prays this court to struck out the plaint. Page 4 of 10 On the other side Mr. Gervas raised issues which led him in his argument that whether the PO has qualities to be PO, whether submission by counsel is enough to struck out the suit and whether the plaint deny the plaintiff right to sue the defendant. Arguing for the 1st issue he submitted that in the case of Mukisa Biscuit there are list of qualities of PO and in the case of Rali Estate Ltd vs Leonard Clement Mususa, Land Case No. 16 of 2008 there is qualities of legal objection. Further he said in the case of National Insurance Corporation of (T) Ltd vs Shangena Civil Application No. 20 of 2007 the court reiterate the position in Mukisa Biscuits case that the PO must be pure point of law, must be seif-proved and must not need evidence. Counsel further submitted that paragraphs 5,6,7 and 8 of the plaint is about ownership of the land in dispute and the plaintiff purchased the two plots with her husband. On the death of the husband, she remains as a sole owner and is now claiming his right and not the right from the deceased estate. On second issue he submitted that the plaintiff bought the land together with her husband and therefore she has share on the land and she is claiming her share over the land. The fact the husband had an agreement Page 5 of 10 with the defendant and has implemented it is a matter of fact which need evidence and not a matter of law. Mr. Gervas distinguished the case of Maiietha Gabo vs Adamu Mtenga (supra) and Maria Chacha Paka vs Paulo Chacha Paka (supra) on the sense that the properties in the cited case was in names of late husband but in the case at hand plaintiff has bought the land, it belongs to her. Case of Omary Yusuph vs Albert Munuo (supra) is distinguishable because there was contractual issue. It was his further submission that plaintiff has right to claim her land which she bought and the doctrine of survivorship allow the remaining partner to own the property. Addressing the issue of the agreement with the defendant counsel argue this court to read pleading as it is clear and reminds this court of the principle that parties are bound by their own pleading. He insisted that plaintiff has right to prosecute this case and prayed the PO to be found devoid of merit and be overruled with costs. I have carefully gone through the submissions advanced by counsels for both parties. My duty is to determine if the PO has merit. The law governing PO is well addressed in the case of Mukisa Biscuit Page 6 of 10 Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A 696 where Sir Charles New Bold stated that; 'A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point oflaw which is argued on the assumption that all the facts pleaded by the other side are correct It cannot be raised if any fact has to be ascertained or if what is sought is the exercise ofjudicial discretion'. Further in the same case it was said that; 'So far as am aware a Preliminary Objection consists of a point of law which has been pleaded or which arise by dear implication out of pleadings and which if argued as Preliminary Objection may dispose of the suit.' In the case of Selcom Gaming Limited vs. Gaming Management (T) Limited & Gaming Board of Tanzania, Civil Application No. 175 of 2005, (unreported), the Court observed that: - 'A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but on stated legal, procedural or technical grounds. Any alleged Irregularity, defect or default must be apparent on the face of the application.' Page 7 of 10 The aim of a preliminary objection is to save time of the court and of the parties by not going into the merit of an application because there is a point of law that will dispose of the matter summarily. See Shahida Abdul Hassanali Kasam vs. Mahed Mohamed Gulamali Kanji, Civil Application. No. 42 of 1999 (unreported). Back to the case at hand, as submitted by Mr. Gervas that PO should not need evidence and I add should not depend on court discretion. The Principle in Mukisa Biscuit case is binding as was acknowledged by the Court of Appeal in various cases within our jurisdiction. Mr. Tuthuru who objected the suit submitted that he had read plaint and found the disputed land was jointly owned by plaintiff with her husband. Following the death of the husband, the plaintiff needs to be appointed as administratrix as there might be other beneficiaries in the estate of the deceased. Counsel for the plaintiff said the issue that there are other beneficiaries over the disputed land need evidence and argue this court to overrule the PO while insisting that pleading is clear. Both counsel in their submissions discussed plaint. .1 had ample to read plaint with its annextures which complete the pleadings. At paragraphs 3, Page 8 of 10 4, 5,6 and 7 of plaint I find the plaintiff informing this court that part of the disputed land was bought by his husband who as per paragraph 5 is now deceased and another part of the land was bought by the plaintiff. The two plots were joined to form disputed land. So far as part of the disputed land was bought by the deceased, deceased rights cannot automatically be conferred to the plaintiff, she had to follow the requisite legal procedures governing probate matters so that plaintiff may assumes ownership of deceased estate including the land in dispute. The same was the position in Omary Yusuph vs Albert Munuo (supra). A mere assumption that plaintiff and deceased were married then she (plaintiff) is the owner of the land in the absence of specific legal grant is not acceptable. See Mgeni Seif vs Mohamed Yahaya Khalfani, Civil Application No. 1 of 2009 and Maria Chacha Paka vs Paulo Chacha Paka (supra). From the pleading, I find the PO has merit, the plaintiff has no locus over the disputed land as the deceased died intestate and probate was not preferred. For that matter the suit cannot proceed and I find the PO has meri and I uphold it. Consequently, I struck out the suit for want of locus by the plaintiff. Each part to bear its own costs. Page 9 of 10 DATED a PMA this 12th day of April, 2024. 3 M. L. KOMBA Judge Ruling chamber in the presence of Mr. Gervas Emmanuel who represent plaintiff and defendant who appeared in person. M. L. KOMBA Judge 12 April, 2024 Page 10 of 10