mohamed said ngozi administrator of the estate of the late sultan said mchelemchele another vs gurisha mvungi another 2023 tzhclandd 17241 19 december 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC LAND APPLICATION NO. 605 OF 2023 (Arising from Kibaha District Land and Housing Tribunal in Land Application No, 136 of 2017) MOHAMED SAIDI NGOZI (Administrator of the Estate of the Late SULTAN SAID MCHELEMCHELE).......................................................... Ist APPLICANT HALIMA SULTANI MCHELEMCHELE (Administrator of the Estate of the Late SULTAN SAID MCHELEMCHELE).............................................................2ND APPLICANT VERSUS GURISHA MVUNGI......................................................................... 1st RESPONDENT MWANAMISI ALLY SEIF............................................................... 2nd RESPONDENT .q RULING 08th to 2frh December, 2023 E.B. LU VAN DA, J On 10/10/2023 the First Respondent filed a notice of preliminary objection on point of law, thus: The Applicants in this matter have no letter of administration since they prosecuted the entire Application No. 136/2017 to this matter, hence force they have no locus standi to stand and prosecute this application contrary to section 71 of the Probate and Administration of Estate Act, Cap 352 R.E 2019. The first Respondent submitted that the Applicants did not tender letters of administration evidencing them as administrators of the estate of the late Sultan Said Mchelemchele, during the hearing of Application No. 136/2017 and when bringing this application. He submitted that the Applicants have demonstrated no legal capacity to bring the matter before the Court, hence they lack legal capacity to stand before the Court as legal administrators of the alleged deceased namely Sultan Mchelemchele. He cited among others, a case of Rael Joseph (As Administrator of the Estate of the Late Joseph Thomas) v. 26 Others, vs. Emoreet Village Council and Two Others, Misc. Land Application No. 76/2021, HC Arusha. In reply, the Applicants submitted that the preliminary objection raised by the First Respondent is based on ascertaining the facts and evidence that the Applicants are administrators of the estate of the late Sultan Said Mchelemchele, arguing it undermines the principles that a preliminary objection must be raised on pure point of law, citing Mukisa Biscuits Manufacturing Company Ltd vs. West End Distributors Ltd [1969] EA 696. On the title of this application, Mohamed Said Ngozi and Halima Sultani Mchelemchele (First and Second Respondent) appear under a capacity of administrators of the late Sultan Said Mchelemchele. However, in the affidavit, there is no statement which was made showing that they appear under that capacity, neither attached a letter of administration granting them to administer the estate of the late Sultan Said Mchelemchele. 2 In the case of Rael Joseph (supra) this Court speaking through Honourable Kamuzora, J at page 18 to 19 cited the case of Ramadhani Omary Mbuguni (a legal Representative of the late Rukia Ndaro) vs. Ally Ramadhani and Asia Ramadhani, Civil Application No. 173/12 of 2021, Court of Appeal, propounded that, 'Letter of administration being the instrument through which the Applicant traces his standing to commence proceeding, was in our view an essential ingredient of the application in whose absence the Court cannot have any factual basis to imply the asserted representative capacity. It is now a settled law that, where, like the instant case, a party commences proceedings in representative capacity, the instrument constituting the appointment must be pleaded and attached. Failure to plead and attach the instrument is a fatal irregularity which renders the proceedings incompetent for want of the necessary standing' As I have said above, the Applicants herein did not plead specifically that they are appearing under a capacity of legal representative or administrators of estate, neither attached a letter of administration or probate, as a case might be. 3 The omission to my view, is fatal and render the application incompetent. In his preliminary objection, the First Respondent was grounding to implore even the proceedings at the Tribunal below, to wit Application No. 136/2017 proceeded without the Applicants tendering letters of administration. Unfortunate this is not a proper forum and I have no lower tribunal records for my appraisal on the subject. However, it is in records of the tribunal's proceedings that the First Applicant herein who testified as PW1 at the tribunal at the opening statement while under oath, introduced himself as the administrator of the estate of the Late Sultan Said Mchelemchele (alleged passed away in 1994), alleged to have been appointed vide Probate Cause No. 21/2016. Be as it may, the application at hand, is incompetent for the omission aforestated. The Applicants are advised to remedy the fault. The application is struck out. In view of the fact that the Applicants are under pro bono, I make no order as to costs. 4