Moshi Fyifyitale

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 000013496 OF 2024 MOSHI FYIFYITALE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS MWAJUMA KASIMU SANYE & 2 OTHERS .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J, 05/12/2024 & 30/01/2025 In the primary court of Kigoma district at Ujiji, the appellant instituted a probate and administration cause with a view of being appointed administrator of the estate of the late Kassim Sanye Tumvile. The cause was assigned number 106 of 2023. The deceased lost his precious life on 16th October 2022. He is survived of a widow and nine issues. The respondents did not attend a family meeting, which is exhibited as exhibit D.2, though attempts to notify them about the meeting were made. That meeting, which was held on 16th September, 2023, proposed the appellant be appointed administrator of the estate of the deceased. A month later, that is, on 16/10/2023, the appellant filed the probate and administration cause. Nonetheless, the respondents filed, in the trial court, an objection against the appointment of the appellant assigning four reasons I re-echo: 1. That the probate and administration cause touches on a house on plot No. 61 Kitambwe – Mwanga which is not the property of the deceased rather it is owned by the objectors. 2. The objectors were not involved in the family meeting which proposed the applicant of the probate and administration cause. 3. The applicant filed this administration cause with ill intention against the heirs of the deceased Kasimu Sanye. 4. The applicant has started using the estate of the deceased for his personal benefit. They revealed their desire to the trial court that the probate and administration cause be struck out for being incompetent at law. They pressed too for any other reliefs as the trial court would deem fit to grant to the objectors. Page. 1 In its decision, the trial court held a stance that the district land and housing tribunal is the quasi-judicial body with the jurisdiction to entertain and determine the dispute over the ownership of the house on plot No. 61 Kitambwe Mwanga within Kigoma/Ujiji Municipality, that is, to determine the issue whether the house is the property of the objectors or the property of the deceased. It further found that having a family meeting is not a legal requirement but a good practice that mitigates disputes between family members over deceased’s estates and since the objectors were listed as heirs, it dismissed the objection for want of merits at law. It proceeded to decide that the appellant is suitable to be administrator of the estate as he was proposed by the family and hence, it appointed him administrator of the estate. The respondents were unhappy with the decision of the trial court. They successfully appealed to the district court. Relying on the decision of Mgeni Seifu v. Mohamed Yahaya Khalfani, Civil Application No. 1 of 2009, CAT (unreported), the district court found that the respondents had proved ownership of the house in question. It declared the respondents owners of the disputed house and directed that the house should not be included in the estate of the deceased. It, however, found that the appellant is suitable to be administrator of the estate, it dismissed the complaint that he is unsuitable and ordered that he proceeds to act as administrator of the estate. Affronted by the verdict of the district court, the appellant launched this appeal. He has five grounds of appeal. The counsel for the appellant abandoned the 5th ground of appeal in the submissions in chief. I would let the submissions by counsel reveal the grounds of appeal. When the appeal was called on for hearing, the appellant was represented by Mr. Moses Rwegoshora, learned advocate. The respondents were represented by Mr. Sadiki Aliki, also learned advocate. I am grateful for their submissions. On the 1st and 3rd grounds of appeal which Mr. Rwegoshora argued together, he forcefully maintained that there is a land dispute but the district court decided in favour of the respondents. He mentioned the land dispute to be Land Application No. 87/2023 (exhibit D.1). He clarified the center of the complaint when he stated that it was wrong for the respondents to be declared lawful owners of the disputed piece of land (house). The 1st appellate court had no jurisdiction to make that decision, that should be done by land courts, he reinforced. Mr. Rwegoshora exemplified the case of Tausi Ismail Tangila v. Agnes Simon & 3 Others, PC. Civil Appeal No. 10 of 2022 (HC). Page. 2 It was the reply by Mr. Aliki overthe 1st and 3rd grounds of appeal that the district court was correct to decide over the ownership of the plot. He explained that the deceased had done transfer of the plot/house. Despite the case of Michael Ngoti v. Mariam Kimaro, Civil Appeal No. 7 of 2003 (PC) Moshi registry, where Rutakangwa, J., as he then was, categorically stated that “… in a probate matter …court should confine itself to the suitability of a person to administer the estate ...” Regardless the decision in Mariam Juma v. Tabea Robert Makange [2016] T.L.R. 517 CAT where it was underscored that “… in fact, the trial court was supposed to determine one crucial issue, that is, to appoint an administrator who will diligently and faithfully administer the estate of the late Robert Makange. This was to be done after making a decision on the caveat opposing the application. … The High Court Judge did not have any mandate to determine who should be a beneficiary from the deceased’s estate. This role was to be played by the Administrator of the deceased’s estate.” Mr. Aliki was strong willed. Put aside, Mr. Aliki booted, the decision of Kisanga J, as he then was, in George Kumwenda v. Fides Nyirenda [1981] T.L.R. 211 where he held that: “But, as we said earlier, the district court went further to order that that house should be under the ownership and control of the respondent and her child. I think that this was equally wrong. This logically follows from the view that there had been no application to the court by anyone for the direction as to how the said house should be dealt with. Not only that. Such an order tends to defeat the whole purpose of appointing an administrator. For, if the appellant’s appointment as administrator is upheld, then such an order would tend to limit his powers to deal with the deceased’s estate. ..., Accordingly, I would set aside the direction of the district court vesting ownership and control of the house in the respondent and her daughter.” Mr. Aliki was explicit that the administrator cannot transfer the house, due to the exhibit tendered by the respondents, the district court was right, though he revealed that they may somehow agree with the submission of the counsel for the appellant for resolving the dispute of ownership of the plot. He went on to say that they see that the appellant may file a land case. Mr. Aliki rested his submission on the 1st and 3rd grounds of appeal to say that the land dispute ought to be decided by competent court or tribunal. In replication, Mr. Rwegoshora confirmed that indeed, the judgment of the district court mentions the appellant as administrator of the estate while he was not. I have considered the arguments of both parties. I have also examined the record. The advocates of both parties, unmistakably agree with me that in decision making, courts are guided by the written laws (statutory law) and decisions of Courts of record of the land. That being the position in Said M. Mnyone v. Salum Nassoro Page. 3 Mgonza [2010] T.L.R. 366, CAT, it was held that: “(ii) There may be cases where the property of a deceased person may be in dispute. In such cases all those interested in determination of the dispute or establishing ownership may institute proceedings against the administrator or the administrator may sue to establish claim of the deceased’s property.” See also Grand Regency Hotel Limited (supra). In the present matter, parties clearly dispute as to who is the legal owner of the house on plot No. 61 Kitambwe Mwanga within Kigoma/Ujiji Municipality whether it is the property of the respondents or the property of the deceased Kassim Sanye. Under the authority of Mnyone (supra) that controversy should be left to the court or tribunal competent to try the matter. Clearly, the administrator of the estate or the ones who are claiming to own the same (the respondents) in this appeal may institute a land case against the other party for the determination of who is the lawful owner of the house. Mr. Aliki was helpful when he submitted that the land dispute should be entertained and decided by a competent court. All I can advice the parties here is that, if the so alleged interest of the respondents in the disputed house was registered, parties should have in mind the decision in Nestory Msoffe & 5 Others v. The Registered Trustees of Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019, CAT, where it was emphasized that: “... it was incumbent on the High Court to be keen enough and require the parties to amend the pleadings and join the Registrar of titles who is alleged to have registered the respondent’s property in question held under Certificate of Title. Since it is clear that the Registrar of Titles had a role in the registration of the land in question, the non-joinder of her in the suit before the High Court means that the Registrar was not heard which occasioned a miscarriage of justice which cannot be condoned by the Court and determining the present appeal. In the result, we have no option but to annul the trial proceedings and the impugned judgment.” Now, was the district Court justified to hold that the respondents owners of the disputed house and its direction that that house should not be included in the estate of the deceased? The answer to that question is palpably that the district court was not justified to hold as it did and its direction that the house should not be included in the estate of the deceased is illegal because the district court sitting as an appellate court in probate and administration cause had no jurisdiction so to hold and to direct. The decision of the district court to that extent is nullified. Pertaining to the 2nd ground of appeal, Mr. Rwegoshora clarified the appellant’s grievance that the 1st appellate court granted reliefs which were not prayed for. He pointed out that the ownership of the plot granted by the District Court which was not prayed for. He went on to say that even the grounds of appeal did not pray for ownership of the plot. The relief to be granted under the phrase any other relief, should be related to the prayed reliefs, pressed Mr. Rwegoshora. He distinguished the decision of the Court of Appeal in Mgeni Seif (supra)to the present matter by explaining that in Mgeni Seif (supra), litigants were litigating under their own titles, while in this case the appellant was litigating with intent to protect the interest of the deceased. He elucidated further that litigation was over value of purchase, that the land was bought from the administrator. Mr. Rwegoshora recited the Page. 4 case of Grand Regency Hotel Ltd v. Pazi Ally & Another, Civil Application No. 368/01/2019 CAT at page 10 to support his argument. Responding to the submissions in chief with reference to the 2nd ground of appeal, Mr. Aliki contended that the relief is covered in the prayer of any relief deemed fit to be granted. He pressed that granting that relief was proper. He also revealed his stand view that the names of the parties as indicated in the appeal are correct because, when the probate and administration cause was instituted, the administrator had not been appointed. Mr. Aliki, however, stressed that the case of Mgeni Seif (supra) was properly applied by the District Court. In refutation, Mr. Rwegoshora placed reliance on Grand Regency’s case (supra) to say, any person may sue. He likewise underlined that there is already a land dispute which was still pending. I have weighed the foe submissions. I have also gone through the record. Truly, in the first appellate court, the respondents had as a goal for the reliefs thus: 1. The appeal be allowed. 2. Probate cause No. 106 of 2023 or any proceedings thereto be stayed pending determination of this appeal. 3. Any other relief this honourable court may deem fit to grant. Mr. Aliki is conceding that there was no prayer for the relief for declaration that the respondents owners of the disputed house and direction that that house should not be included in the estate of the deceased. He does not oppose the position of the law that courts have to determine the suits and decide them basing on what the parties had pleaded as amplified in Masaka Mussa v. Rogers Andrew Lumenyela & 2 Others, Civil Appeal No. 497 of 2021, (Unreported) (CAT). He however, justified the decision of the first appellate court under the relief termed as “any other relief this honourable court may deem fit to grant.” I think that when Mr. Rwegoshora was raising the complaint, he had in mind the decision of the Court of Appeal in Dew Drop Co. Ltd v. Ibrahim Simwanza, Civil Appeal No. 244 of 2020, CAT, where it was pressed home that: “The respondent was supposed to list down in his Form No. 1 all the reliefs which he sought to be awarded by the CMA. It is trite law that, as a general rule, relief not founded on the pleadings and which are not incidental to the specific main prayers sought in the plaint should not be awarded (see the case of Kombo Hamis Hassan v. Paras Keyoulous Angelo, Civil Appeal No. 14 of 2008 (unreported)). That position of the law was retold in Masaka Mussa’s case(supra) where it was stated that: Page. 5 “It is settled position of the law that a relief not sought on the pleadings and which is not incidental to any specific prayer in the pleadings cannot be awarded.” Presently, Mr. Aliki concedes that that relief was not specifically pleaded in the petition of appeal, and indeed, on my perusal of the record, even in the objection in the trial court, that relief was not specifically pleaded. Could such relief be granted under the phrase, “any other relief the court deems fit”, which implies incidental one as per Masaka Mussa’s case (supra) The answer to that query should be assuredly in the negative. I therefore accept Mr. Rwegoshora’s stand view that it was erroneous for the first appellate court to have granted a relief which was neither been specifically pleaded nor incidental relief. To do with the 4th ground of appeal, Mr. Rwegoshora opined that it was wrong for the district court to make a decision on a deed of gift. He urged the appeal be allowed. He emphasized that the decision of the district Court in respect of plot No. 61 be nullified. Mr. Rwegoshora did not end there, he also implored this Court for any relief as the Court wishes to grant. Mr. Aliki dueled the arguments of Mr. Rwegoshora on the 4th ground of appeal. He said, the exhibits proved ownership to the respondents. Mr. Aliki yearned that the appeal be dismissed. In witty remark, Mr. Rwegoshora reiterated that the appeal be allowed and the decision of the district court be nullified. To clearly illustrate my position, at this point, I am forced to quote the 4th ground of appeal. It reads thus: That, the 1st appellate Court erred in both law and facts by holding that the respondents herein tendered deed of gift among other tendered documents while the same which is the center of dispute was not tendered as an exhibit and the alleged transfer document shows that the consideration was a sum total of Tanzania shillings 60,000,000/= and not love and affection. I have already held that the district court had no jurisdiction to entertain the issue about who is the rightful owner of the disputed house. The trial court had only the power to determine who was the suitable person to administer the estate of the deceased. So, everything that was done to further other than that end was a nullity, done without the mandate. The first appellate court too fell into that error. To that end, I confirm that that was a digression. Mr. Aliki pressed home his view that the exhibits proved ownership of the house to the respondents. With utter respect to Mr. Aliki, proof should be done in a land cause (case) and not in a probate matter. Page. 6 Despite my above findings, I should make it as plain as a pikestaff that I am unable to go along with the prayer of the appellant that the decision of the trial court that the ownership of the plot No. 61 be determined by the District Land and Housing Tribunal in Land Application No. 87 of 2023 be maintained because I am not sure if the appellant, in Land Application No. 87 of 2023 is sued in his capacity as administrator of the estate of the deceased. All I can stress is my advice that the dispute over ownership of the house situated at plot No. 61 Kitambwe street - Mwanga within Kigoma/Ujiji Municipality be determined by a competent land tribunal or land court after any party who institutes that land matter has taken into consideration Msoffe’s case (supra). Consequently, the appeal is partly allowed as herein above stated. As this is a probate matter, I make no order as to costs. It is so ordered. Dated at KIGOMA this 30th of January 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 7