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IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL No. 22993 OF 2024 (Arising from the judgement and decree of Kinondoni District Land and Housing Tribunal in Application No. 402 of2021 delivered by Hon. Mbilinyi -Chairman) BETWEEN MASELE MOHAMED MABULA........................................................ APPELLANT VERSUS THOMAS MAX MAC FADDEN (Administrator of the estate of MWAMVITA MOHAMED MABULA............................................. RESPONDENT JUDGEMENT 13/11/2024 & 29/11/2024 A. MSAFIRI. J, The respondent was an applicant in Application No. 402 of 2021 before the District Land and Housing Tribunal of Kinondoni at Mwananyamala (herein the trial Tribunal). He has instituted the said Application against Masele Mohamed Mabula (the appellant) claiming several reliefs including an order against the appellant to vacate from or to give vacant possession of the disputed house located at Plot No 3/37 A Ikungwi Street, Kinondoni Municipality, Dar es Salaam, an order for temporary injunction restraining the appellant from disturbing the respondent regarding the disputed premises, general damages and cost of the suit. 1 After hearing of the application before the trial Tribunal, the Tribunal declared the late Mwamvita Mohamed Mabula and her sister Konga Mohamed Mabula the lawful owners of the disputed house. The appellant herein was aggrieved by the decision of the trial Tribunal and filed the instant appeal basing on three grounds of appeal as follows: - 1. That, Since the disputed house is situated at Plot No 3/37 A Ikungwi Street, Kinondoni Municipality, Dar es Salaam which is registered /and, the trial chairman erred in law by declare (sic) appellant is a trespasser into the disputed house without proof that, the respondent is lawfully owner of the disputed house or respondent with her relative Konga Mohamed Mabula are lawfully owners of the disputed house. 2. That, since the Plot No 3/37 A Ikungwi street, Kinondoni Municipality, Dar es salaam is registered land was distributed instead to be quested in probate and administration cause No 22/1973 and probate case file were not dosed and duplicate file of the same probate and administration cause open, the trial chairman erred in law to entertain the matter for being (sic) the tribunal had no jurisdiction to determine the matter which arising (sic) from probate and administration cause. 3. That, the trial Chairman erred in fact by find that the plot No 3/37 A Ikungwi Street, Kinondoni Municipality was not house ofrespondent mother without regard that, there was testimony of DW2 who is the heir in the estate ofMohamed Mabula in Probate and Administration Cause No 22/1973 2 The appeal was heard by way of written submissions, and the submissions in chief and rejoinder by the appellant were drawn and filed by Mr. Abdul B. Kunambi, learned advocate, while the reply submission by the respondents was drawn and filed by Mr. Philemon Mujumba, learned Advocate. In support of the first ground of appeal Mr. Kunambi submitted that the disputed house is a registered land situated at Plot No.3/37 Ikungwi Street A Kinondoni Municipality at Dar es Salaam and the respondent failed to prove the ownership of the house. He stated that the provision of Section 2 of the Land Registration Act [Cap 334 R.E 2019] provides the definition of "owner" in relation to any estate or interest, to mean the person for the time being in whose name that estate or interest is registered. The counsel for the appellant referred the case of Amina Majid Ambali & Others vs Ramadhani Juma, Civil Appeal No. 35/2019 Court of Appeal of Tanzania at Mwanza, whereby the Court of Appeal held that, when two persons have competing interest in a landed property, the person with a certificate of occupancy will always be taken to be a lawful owner. He argued that there is no certificate of title or letter of offer tendered over Plot No 3/37 Ikungwi Street A Kinondoni Municipality at Dar es Salaam by the respondent folk- 3 The counsel contended further that for the person to be declared a trespasser, ownership should first be established, and he supported this argument by referring to the case of James Marwa Mahando vs Ben M. Ngereza, Land Case No. 12 of 2020, High Court of Tanzania at Dar es Salaam. He argued that the trial Tribunal was wrong to declare that the appellant was a trespasser and order the appellant to vacate the disputed house. Regarding the second ground of appeal, Mr Kunambi argued that the trial Tribunal had no jurisdiction to determine the matter arising from probate and administration cause. He claimed that the claim of ownership of Plot No.3/37 A Ikungwi, Kinondoni Municipality Dar es Salaam was dealt with inheritance which is not within the jurisdiction of the District Land and Housing Tribunal. He stated further that the disputed land was distributed by the administrator to Shida Khalfani, Konga Mohamed Mabula and Mwamvita Mohamed Mabula. Mr. Kunambi contended that bequest on registered land is done by changing ownership from the name of the deceased to the name of the administrator and then into the name of the heir. He insisted that there is no evidence tendered in the trial Tribunal established that the respondent and Konga Mohamed Mabula are lawful owners of Plot 3/37 A Ikungwi Street, Kinondoni Municipality Dar es Salaam. He referred to the case of 4 Dorice Keneth Rwakatarwe vs Nurdin Abdallah Mushi and 4 Others, Civil Application No. 403/17 of 2021, Court of Appeal of Tanzania where the court held that; - a person claiming any interest in the estate of deceased must trace the root of title to the letter of administration, where the deceased died interstate orprobate where the deceasedpassed away testate. Regarding the third ground of appeal, the counsel for the appellant is of the view that the trial Tribunal erred in fact by finding that Plot No. 3/37 Ikungwi Street Kinondoni Municipality was not the house of the respondent's mother without regarding the testimony of DW2 who was heir of the estate of late Mohamed Mabula in Probate and Administration Cause No. 22 of 1973. He argued that DW2 testified that Shida Khalfan was among the heirs in the estate of Mohamed Mabula whereby the disputed house was distributed to Shida Khalfan, Konga Mohamed Mabula and Mwamvita Mohamed Mabula. He was of the view that the trial Tribunal erred in holding that the respondent's mother was not involved in the disputed house. Therefore, he prayed for an appeal to be allowed with costs. In reply, counsel for the respondent opted to consolidate all grounds of appeal and argued that the trial Tribunal was correct in determining the issue of ownership. That, according to the testimonies and exhibits 5 tendered, the trial Tribunal declared that the disputed land was distributed to two children, and their mother had no right over the disputed land. He lastly prayed for the court to dismiss the appeal for lack of merits. In rejoinder, Mr. Kunambi reiterated his submission in chief and stated that, during the trial there was no evidence tendered to establish that the bequest over the disputed property to the respondent was complete and no proof that the respondent was registered the owner of the disputed property after the file of probate and administration Cause No. 22 of 1973 was closed. Lastly, he prayed the court to allow the appeal with costs. Having considered the submission of both parties, the issue for determination is whether this appeal has merits. In determining this appeal, I will consolidate the first and third grounds and second ground of appeal will be determined separately. In the first and third grounds of appeal, the counsel for the appellant argued that the trial Tribunal erred in ruling that the respondent was the lawful owner of the suit property. I took to revisit the record of Land Application No. 402 of 2021. According to the testimony of PWI (the respondent) and Exhibit PI tendered at the trial, it shows that the five (5) houses of the late Mohamed Mabula (including the suit house) were divided among the children of their late father Mohamed Mabula. While their mother Shida Khalifani was not among the beneficiaries. The fact 6 that the appellant started to live in the disputed house since 1986 does not give him the legal claim that he is among the beneficiaries of the disputed premise. According to the testimony of the respondent, he was the one who received rent from the tenants, the fact which was not disputed by the appellant. The counsel for the appellant has referred this court to the provision of section 2 of the Land Registration Act [Cap 334 R.E 2019] and the case of Amina Majid Ambali & Others vs Ramadhani Juma, (supra) whereby it is provided that the person with the certificate of occupancy in the registered land will always be regarded as the owner. As per the cited provision of the law and case law, the respondent did not tender a certificate of title but she managed to prove the way she acquired the disputed land through inheritance from their late father. The argument of the appellant that their mother Shida Khalfani is among the owners of the house is not supported by the evidence, the testimony shows that the house belongs to the respondent and her sister only. In this circumstance, I find that the first and second grounds lacks merit. On the second ground on whether the trial Tribunal had jurisdiction to entertain the dispute, in the case of Exim Bank (T) Limited vs Agro 7 Impex (T) Limited and Two Others, Land Appeal No. 29 of 2008, that:- T.. Two matters have to be looked upon before deciding whether the courtis clothed with jurisdiction. One, you look at the pleaded facts that may constitute a cause of action. Two, you look at the reliefs claimed and whether the court has power to grant them and whether they correlate with the cause of action." I have perused the Application form used to institute Land Application No. 402 of 2021 and found that the applicant (now the respondent) was claiming ownership of the disputed house by inheritance. That the disputed house was inherited from her late father Mohamed Mabula. Among the reliefs sought were order against the appellant to vacate from the disputed house or to give vacant possession, and an order for temporary injunction restraining the appellant from disturbing the respondent regarding the disputed house. The trial Tribunal declared the respondent as the owner of the disputed house. The counsel for the appellant challenged the jurisdiction of the trial Tribunal and claim that the trial Tribunal had no jurisdiction to entertain the matter since it is a probate issue. He relied on the decision of Dorice 8 Keneth Rwakatare vs Nurdin Abdallah Mushi and 4 Others (supra). Basing on pleadings and the evidence, it is clear that the dispute before the trial Tribunal was on the ownership of the disputed house. The respondent claimed ownership of the disputed house inherited from her late father Mohamed Mabula, and managed to establish the root of the said ownership by the testimony of PWI and Exhibit PI which is a letter to the District Court of Kinondoni requesting the duplicate of the probate file which shows that the respondent inherited the disputed house. From the foregoing, the evidence tendered was based on ownership of the disputed house not on the probate matter. Thus, the trial Tribunal had the jurisdiction to entertain the suit since it was a land matter. I find this ground also lacks merits. From the above findings, the entire appeal has no merit and I hereby dismiss it with costs. 9