mtingita mbwana abdallah vs mkumba juma mbwana 2022 tzhclandd 12717 30 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 406 OF 2022 (Pursuant to the order of the Court dated 6th day of October, 2022 by Hon. Arufani, J) MTINGITA MBWANA ABDALLAH......................................... APPLICANT

VERSUS MKUMBA JUMA MBWANA.............................. RESPONDENT

RULING l(Jh & 3ffh November, 2022 L. HEMED, J. This application was brought under section 78 (4) of the Land Registration Act, [cap. 334 R.E. 2019] by one MTINGITA MBWANA ABDALLAH seeking for orders against one MKUMBA JUMA MBWANA that: - "1. ... this Honorable Court be pleased to summon the respondent in Court and to show cause why the caveat filed in the land Registry and registered the same on 17h day ofJune, 2021 should not be removed. 2. ... this Honorable court be pleased to grant an order to remove the caveat filed by the i respondent in the land Registry and Registered the same on 17th day of June, 2021. 3. .... 4....." The respondent countered the application by filing the counter affidavit on 5th day of September, 2022. The matter was argued by way of written submissions. The applicant was represented by Mr. Peter Nyanyi, learned advocate while the respondent enjoyed the service of Mr. Kessy, learned advocate. The applicant's submissions in chief was filed on the 13th day of October, 2022 while the reply submissions were lodged on 17th October, 2022. On the 8th day of November, 2022, the applicant rejoined by filing his rejoinder submissions. I have gone through the submissions and found, in brief, the applicant has been registered as legal personal representative in Plot No. 78 Block 1, House No.2, Muhoro Street, Kariakoo Area, Dar es Salaam. The property at issue was

previously owned by the late 2 Mbwana Abdallah, the father of the applicant, who passed away in 1990= That, on 17th June, 2021 the respondent filed a caveat to the Registrar of Titles claiming that the said property belonged and is part of the state of his grandfather one Abdallah Mbwana. It is also evident that in 2007 there was a dispute between Juma Mbwana and Nyawaba Mbwana, in Land Case No. 164 of 2007 before this Court (Hon. Mjemas, J). In the said case, the disputed property was found to be part of the estate of the late Mbwana Abdallah. The said decision has never been challenged. Therefore, the disputed landed property is still part of the estate of the late Mbwana Abdallah under the administration of the applicant who is the registered personal representative. The submissions and the affidavit of the respondent show that he filed the disputed caveat because he was aggrieved by the decision of this Court in Land case No. 164 of 2007. In order to challenge the said decision, he applied to be appointed as the administrator of the estate replacing one Juma Abdallah Mbwana but the Court has been reluctant to appoint him. According to the Respondent, he has applied for 3 revision before the District Court for Ilala against the reluctance of Kariakoo primary Court in granting letters of administration to him. The respondent submitted that he filed the caveat in order to

protect the land in dispute from being affected pending the probate proceedings. Section 78 (4) of the Land Registration Act, [ CAP 334 RE 2019] provides thus: "... The High Court, on the application of the owner of the estate or interest affected, may summon the caveat to attend and show cause why such caveat should not be removed and there upon the High Court may make such order, either ex-parte or otherwise as it thinks fit." From the above provision, the question is whether the respondent (caveator) has shown cause to warrant this Court refrain from ordering removal of the caveat at issue. For the caveator to succeed, he must show that there is an arguable case for a caveable interest and it is upon the caveator to show such an arguable case. 4 As aforesaid, the caveator filed the caveat so as to protect his interest over the suit property which he believes to be part of the estate of his late grandfather. However, the caveator is not the administrator of the estate of the deceased person he alleges to be the owner of the property in question. Since he is neither claiming ownership of the disputed land nor he is the administrator of the estate of the late Abdallah Mbwana then, he had no justification to lodge the caveat. Again, the caveator also alleged that the main reason for him to file caveat was his determination to challenged the decision of this Court in Land Case

No. 164 of 2007, Juma A. Mbwana vs. Nyawaba Mbwana, where it was found that Nyawaba Kibwana the lawful owner of the disputed property comprised on Plot No. 78 Block L. House No. 2 Muhoro Street, Kariakoo Area, Dar es Salaam. The question that arises is whether filing caveat among the ways of challenging decisions of Courts. The answer to this question is straight forward that decisions of Courts are challenged only through judicial processes. Filing of caveat in the land registry is not among the ways of challenging court's orders. 5 From the foregoing, I find that the respondent had no justifiable ground or cause to lodge the caveat in question. I do hereby proceed to grant the application with costs. Caveat lodged in the land Registry regarding Plot No. 78 Block 1 House No. 2 Muhoro Street Kariakoo Area, Dar es Salaam is hereby removed. It is so ordered. DATED at DAR ES SALAAM this 30th day^rf November, 2022. r' flOm'I’ a'Sx

JUDGE Court: Ruling delivered this 30th day of November, 2022 in the presence of Mr. Peter Nyanyi, learned advocate for the applicant and the respondent appearing in person. Right of appeal explained.

HEMED

JUDGE 30/11/2022 6