MOHAMED JUMA RAMADHANI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL NO. 4671 OF 2025 (Originating from the decision of the District Land and Housing Tribunal for Geita in Land Application No. 51 of 2024 before Maganya-Chairperson) MOHAMED JUMA RAMADHANI (As an administrator of the estate of the late ZABIBU MSAFIRI SEKIDENDE-------------------------------------- APPELLANT VERSUS RAHMA HARIS SUDI------------------------------------------------------RESPONDENT JUDGMENT Date of last Order: 25/03/2025 Date of Judgment: 03/04/2025 K. D. MHINA, J. This is the first appeal. It stems from the decision of the District Land and Housing Tribunal ("the DLHT") for Geita at Geita in Land Application No. 51 of 2024, whereby, MOHAMED JUMA RAMADHANI (As an administrator of the estate of the late ZABIBU MSAFIRI 1 SEKIDENDE, the appellant in the instant appeal, inter alia, claimed against RAHMA HARIS SUDI, the respondent for the ownership of the land located at Nyamalembo Street - Mtakuja Ward within the District of Geita valued at TZS. 8,000,000/=. After being served with the application, in response, the respondent countered by filing a reply (written statement of defence). She further confronted the application with a notice of preliminary objection predicated on the ground that; “The suit was res-judicata”. Ultimately, the DLHT upheld the preliminary objection and dismissed the suit for being res judicata. Undaunted, the appellant filed this appeal by preferring the following three (3) grounds of appeal. i. The trial tribunal erred in law by ousting its jurisdiction on a case which related to the deceased person's estate, which rendered paragraph 6 of the Fifth Schedule to the Magistrates Court Act [Cap. 11 R.E. 2019] nugatory; 2 ii. The trial tribunal erred in law in holding that the probate court was a competent court to determine a dispute over land alleged to have been outside the deceased’s estate. iii. The trial tribunal grossly erred in law by disregarding natural justice inter-partes on a point of law, ending up condemning the Appellant unheard. The appeal was argued orally. The appellant was represented by Mr. Beatus Emmanuel, a learned Advocate. On the other hand, the respondent was represented by Ms. Angel Mmbaga, a learned advocate. Before hearing the appeal, Mr. Emmanuel prayed to add a new ground of appeal, a prayer that was not objected to by Ms. Mmbaga. Thus, the added ground was; “The decision of the DLHT did not comply with the law by failing to contain the contents of the decision”. In support of the appeal, on the 1st ground of appeal, Mr. Emmanuel submitted that the DLHT had ousted its own jurisdiction, thus offending paragraph 6th to the 5th Schedule of the MCA. He explained that at the DLHT, the appellant filed the land dispute as an administrator to establish ownership of the land in dispute, while the 3 respondent claimed that the same land was not part of the deceased's estate. From above, Mr. Emmanuel claimed that the only authority to decide the dispute was the trial DLHT. He substantiated his submission by citing Ibrahim Kusaga vs. Emmanuel Mweta, 1986 TLR 26, where the Court of Appeal held that when the property in dispute falls outside the ambit of probate, the proper court is not the probate court. Furthermore, he explained that the DLHT erred by establishing that the probate court was mandated to hear the dispute. That was because it is a law that the probate court is not in a position to determine ownership of the disputed land, as held in Chrisant Mwijuki vs. Jane Francisca Alphonce and another, Probate and Administration Cause No. 163 of 2022, HC-Temeke (Tanzlii). Submitting on the 2nd ground, he stated that the DLHT erred in declaring that the probate court was a competent court to determine a dispute over the ownership of the disputed land. He explained that in the Probate Court (PC) in Probate, No. 52 of 2023, it was held that the disputed land was not the property of the deceased 4 subject to probate. Therefore, the appellant was proper in filing the matter at the DLHT to establish that the property was a part of the deceased's estate. Explaining further, Mr. Emmanuel stated that in deciding the issue of res judicata, it was essential for the DLHT to determine whether the previous case was decided by a competent court, as per Section 9 of the CPC. On the 3rd ground, Mr. Emmanuel stated that the DLHT erred by not affording the parties the right to be heard on the point of law raised. Thus causing injustice to the appellant. To amplify his submission, he stated that the right to be heard is a constitutional right, as per Article 13(6)(a) of the Constitution of the United Republic of Tanzania. However, at the DLHT, parties were not afforded the right to be heard regarding the jurisdiction of the DLHT. On this, he cited the decision of the Court of Appeal in Scan-Tan Tours Ltd vs. The Registered Trustees of Catholic Diocese of Mbulu, Civil Appeal No. 78 of 2018 (Tanzlii) at page 9, where it was insisted that courts are required to give the parties a full hearing before deciding a matter in a dispute or issue on its merits. 5 Regarding the 4th ground, Mr. Emmanuel submitted that the decision of the DLHT did not adhere to the requirements of the judgment as per Order 20 Rule 4 of the CPC. He explained that, under the mentioned provision, a judgment must contain the facts of the case, points for determination, a decision, and reasons for the decision. Also, the same was held in Stanislaus Rugaba Kasusura and another vs. Phares Kabuye, 1982 TLR 338. Commenting on the DLHT decision, Mr. Emmanuel stated that the decision only contained only the part of the decision of the DLHT. Thus, the decision lacked the facts of the case, points for determination, and reasons for the decision. Therefore, that anomaly renders the decision defective, as was elaborated in Scan-Tan Tours Ltd (Supra). In response to the 1st ground, Ms. Mmbaga submitted that the DLHT did not have jurisdiction to determine the issue in dispute as it had already been decided by the probate court. She explained that the dispute over land ownership had already been decided in the probate court. 6 On the 2nd ground, she stated that the DLHT did not have jurisdiction to determine that land dispute. Further, the DLHT was proper in determining that the matter had already been decided by the probate court, which was a competent court. She explained that the gist of the dispute was a probate matter, where, at the Primary Court in Probate case No. 52 of 2023, the probate court decided and ordered that the disputed land, which the deceased had given to the respondent as a gift during her lifetime, be excluded from the deceased's property. Therefore, the matter filed at the DLHT was a res judicata, as elaborated in the case of Deocles Kamuhabwa vs. Theonest Kamuhabwa, Civil Appeal No. 436 of 2022 (Tanzili), at page 18, where the Court of Appeal elaborated on how the doctrine of res judicata operates. Furthermore, she explained that in the instant appeal, the parties in both cases were the same, and the disputed land was also the same. Further, the Primary Court was competent to decide that the disputed land belonged to the respondent. Therefore, the DLHT was proper in holding that it had no jurisdiction to try a matter that the probate court had already decided. 7 Regarding the 3rd ground, Ms. Mmbaga submitted that parties were afforded the right to be heard on the preliminary objection raised as indicated in the DLHT. On the last ground, she argued that the DLHT gave the reasons for a decision and the decision itself. Therefore, the decision was proper. In a rejoinder, Mr. Emmanuel submitted only on the last ground by arguing that the DLHT was contrary to the law. Having considered the submissions made by both learned counsel for the parties and the entire record of appeal, I will begin with the 3 rd ground regarding the right to be heard. The entry point on this is the decision of the Court of Appeal in Salhina Mfaume and seven others vs. Tanzania Breweries Co. Ltd, Civil Appeal No. 111 of 2017 (Tanzlii), where it was held that; “The right to be heard is a cardinal principle of natural justice which is entrenched as a fundamental right and it includes the right to be heard amongst the attributes of equality before the law in terms of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 (the Constitution)”. 8 Therefore, in the event of a clear violation of the right to be heard, it normally renders the entire proceedings null and void, thereby vitiating the resultant decision. See Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No. 161 of 2016 (Tanzlii). In the instant appeal, having gone through the DLHT records flatly, there was no violation of the right to be heard as the 3rd ground of appeal was couched and as Mr. Emmanuel asserted in his submission. What was contained in the DLHT records was contrary to what was submitted by the appellant’s counsel. The record of the DLHT indicates that after the respondent raised a preliminary objection on the ground of res judicata on 25 January 2025, the matter was called for the hearing of the preliminary objection. That day, the appellant appeared in person, and the respondent was represented by Ms. Mmbaga. Furthermore, the record reveals that the parties were invited to submit arguments for and against the preliminary objection, and they did so. Therefore, parties were afforded a right to be heard, and they exercised that right. 9 Therefore, the 3rd ground is not only meritless but also contrary to what happened at the DLHT on 25 January 2025. Now, reverting to the 1st and 2nd grounds of appeal, which I will determine them jointly since they are intertwined and both revolve around the issue of jurisdiction. In the 1st ground, the appellant complained that the DLTH ousted its jurisdiction in relation to the matter before it, and in the 2nd ground, he complained that the DLHT erred by holding that the probate court was a competent court to determine a dispute over land alleged to be outside the deceased’s estate. In my view, based on the nature of the preliminary objection that disposed of the matter at the DLHT, the two grounds are misconceived, as I will elaborate. What Ms. Mmbaga submitted at the DLHT to support the preliminary objection was that the issue of ownership of the land in dispute was already decided by the Nyankumbu Primary Court in Probate No. 52 of 2023, whereby the Primary Court held that the suit land was given to the respondent by the deceased who was the respondent’s grandmother as a gift during her lifetime, therefore it ordered the same be excluded from the 10 deceased's property in which the appellant was an administrator. The parties were the appellant and the respondent. What was submitted by Ms. Mmbanga at the DLHT to support the preliminary objection was also reflected in the annexures attached to the WSD. That is the decision of Nyankumbu Primary Court dated 17 November 2023 at page 8 which indicates the decision of the Primary Court ordered the exclusion of the suit land from the deceased’s estate. It appears that the appellant was aggrieved; therefore, he appealed to the District Court of Geita in Probate Appeal No. 4945 of 2024, dated 25 June 2024. However, his appeal was dismissed for want of merit. Relentlessly, the appellant attempted to appeal to this Court via Probate Appeal No. 18179 of 2024. However, on 12 August 2024, the appeal was dismissed for non-appearance. Again, the appellant filed Misc. Civil Application No. 22308 of 2024, seeking to set aside the dismissal order. However, on 23 September 2024, the application was dismissed for lack of merit. Then, the appellant rushed to the DLHT to file the dispute (subject to this appeal), which had the same subject matter and parties. 11 In its decision, the DLHT held that the matter had already been tried and decided by a competent court; therefore, it cannot be reheard. From the brief background of facts above, as I previously alluded to, the 1st and 2nd grounds of appeal are misconceived. The issue before the DLHT was whether the matter was res judicata and not the DLHT jurisdiction on a case which related to the deceased person's estate, thus paragraph 6 of the Fifth Schedule to the Magistrates Court Act [Cap. 11 R.E. 2019] nugatory or an issue whether or not the probate court was a competent court to determine a dispute over land alleged to have been outside the deceased’s estate. This is because; One, whether the DLHT had jurisdiction or not, the matter was already decided by the Primary Court in a Probate Court. Two, whether the primary (probate) court was a competent court to determine a dispute over land alleged to have been outside the deceased’s estate was also a matter not to be discussed and decided by the DLHT. The proper channel was to challenge that decision of the probate court. Therefore, the 1st and 2nd grounds are devoid of merit. 12 The last ground should not detain me long. This is because the decision of the DLHT was made by way of an order rather than a judgment. That order was brief as follows; “Shauri lilishasikilizwa na Mahakama yenye mamlaka, hivyo haliwezi kurejeshwa tena, nalitupilia mbali kwa gharama”. Unlike judgments, orders are not covered by Order 20 Rule 4 of the CPC. Therefore, it is not mandatory for orders to contain facts of the case, points for determination, decision, and reasons for the decision. Therefore, the 4th ground of appeal is also devoid of merit. From the above discussion, the appeal is entirely without merit; both grounds of appeal fail to persuade this Court to intervene and interfere with the decision of the trial DLHT. Consequently, the appeal is dismissed with costs. It is so ordered. 13 K. D. MHINA JUDGE 03/04/2025 Court: The right to appeal is fully explained. K. D. MHINA JUDGE 03/04/2025 14