mwajuma yusuph mbondike an administratrix of the estate of juma yusuph mbondwike vs rukia shamte mbwela an administratrix of the estate of moshi juma yusuph mbondwike

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 300 OF 2021 (Arising from the decision of Temeke District Land and Housing Tribunal in Applications No. 26&37 of 2021 dated on 9th November, 2021 by Hon. Chenya - Chairman) MWAJUMA YUSUPH MBONDIKE (An Administratix of the estate of Juma Yusuph Mbondwike ........... APPELLANT VERSUS RUKIA SHAMTE MBWELA (An administratix of the estate of Moshi Juma Yusuph Mbondwike)............................................................ RESPONDENT JUDGMENT Date of Last Order: 19/5/2022 Date ofJudgment: 28/6/2022 K, MSAFIRI, J The appellant one Mwajuma Yusuph Mbondikwe initially instituted Land Application No. 26 of 2021 in which she was suing the respondent Rukia Shamte Mbwela. The said application was before the District Land and Housing Tribunal of Temeke (the District Tribunal). In the application, the applicant claimed that the respondent has unlawfully trespassed over the suit house which is the property of the applicant through her administrating the estate of the late Juma Yusuph Mbondikwe i who was the lawful owner of the suit house. The applicant among other reliefs sought to be declared the owner of the suit house and that the respondent is a trespasser. In her written statement of defence, respondent raised a preliminary objection to the effect that the suit is void on the grounds that the applicant is a fictitious party and hence the suit is also fictitious. Along with the Land Application No. 26 of 2021, the applicant also instituted Misc. Application No. 37 of 2021 before the same District Tribunal seeking for temporary restraining orders against the respondent. The respondent also raised a preliminary objections that; first; the District Tribunal does not have jurisdiction on the matter because the application is a fictitious proceedings for the reason that the applicant does not exist, and second; that the application is abuse of the court process for the reason that, the applicant was personating Mwajuma Yusuph Mbondikwe (Administratix of the estate of the late Juma Yusuph Mbondikwe) who does not exist. The two matters i.e. Application No. 26 of 2021 and Misc. Application No. 37 of 2021 was heard by way of written submissions. On the consolidated judgment/ruling of the District Tribunal, the trial Chairperson found the preliminary objections to have merits, sustained them and dismissed the applications with costs. The applicant was aggrieved and lodged the present appeal supported by three grounds of appeal namely; 2 1. That, the Hon. Chairman erred in law and facts for dismissing applications while the preliminary objection was not based on a point of law. 2. That, the trial Chairman erred in law and facts for dismissing the application based on Mirathi No. 458/2016 dated on 31/08/2021 without giving opportunity to the appellant to dispute against the same document. 3. That, the trial Chairman erred in law for holding that the appellant has no right to claim in respect of the property of the deceased for reason that she is not administrator of the deceased (sic). The appellant prayed for this Court to uphold the appeal, quash and set aside the decision of the District Tribunal; declaration that the property in dispute was the property of the late Juma Yusuph; permanent injunction restraining the respondent from disposing off the suit property; and costs. The hearing of the appeal was by way of written submissions whereby the appellant was represented by her advocate Yuaja Balankiliza and Mohamed Sultani Mkali appeared under special power of Attorney on behalf of the respondent. Having gone through the rival submissions, and the proceedings of the District Tribunal, the major issue is whether the appeal has merit. The 1st ground of appeal is that the Hon. Chairman erred for dismissing the preliminary objections which were not based on point of law. Jv/L • 3 Submitting on that, Mr. Balankiliza, learned advocate for the appellant cited the famous case of Mukisa Biscuits Manufactures Ltd vs. West End Distributors Ltd (1969) EA 696. He said that according to the principle in the cited case, a preliminary objection cannot be raised if any fact had to be ascertained. He argued that, the preliminary objections raised by the respondent depended on the evidence to ascertain it. That, the respondent tendered the decision of Mirathi Case No. 458 of 2016 of Magomeni Primary Court which appointed the appellant as administrator and then revoked the letters of her administration. In the counsel's opinion, the case tendered amounted to the evidence which required proof. He added that, the case of Mirathi No. 458 of 2016 which was a basic reason for dismissing the application was not proper facts to dismiss the matter at preliminary objection stage because the same was the evidence which required the part to prove, as even the respondent was not part to Mirathi No. 458 of 2016. The respondent replied that, the applications by the appellant were dismissed after the District Tribunal took judicial notice of the decision of Magomeni Primary Court in Mirathi No. 458 of 2016, which revoked the appointment of the appellant as the administratix of the late Juma Mbondwike. According to the respondent, the applicant does not exist following the said decision of Magomeni Primary Court. Mh- 4 At pages 8,9 and 10 of the judgment, the trial Chairperson took judicial notice of Mirathi No. 458 of 2016 and found that since the applicant's administratorship was revoked, then she had no right to claim ownership of the property of the deceased. So, the preliminary objection was upheld. In this, it is my view that the preliminary objection raised by the respondent was on a point of law as it was based on locus standi on the part of the appellant. The respondent argued that, the appellant as administrator did not exist/was a fictitious person as her administratorship was revoked by the court of law. The trial Chairperson took judicial notice of the judgment/Ruling of Magomeni Primary Court in Mirathi No. 458 of 2016. This needed no evidence to prove it. As per section 58 and 59 of the evidence Act, Cap 6 R.E 2019, no fact which a Court takes judicial notice need be proved. If the appellant is questioning the validity of the decision of Mirathi No. 458 of 2016, then the right approach was to appeal against the same. It is my finding that the trial Chairperson was right to uphold the preliminary objection, and hence, the 1st ground of appeal has no merit and I dismiss it. The 2nd ground of appeal was that the trial Chairman erred for dismissing the application based on Mirathi No. 458/2016 dated on 31/08/2021 5 without giving opportunity to the appellant to dispute against the same document. Mr. Balankiliza submitted that, the trial Chairman erred for failure to put into consideration that the appellant was not given a proper opportunity to dispute against the said Judgment of Magomeni Primary Court. That, the appellant was denied right to be heard in respect of the said judgment. That, the Primary Court had no power to quash and set aside its own judgment which it has delivered. That, under the principle of functus officio, when the Court finally determine the matter, it ceased to have jurisdiction. On the issue of right to be heard, the appellant was not caught by surprise on the issue of Mirathi Na. 458/2016. During the trial, the objection was raised that the administratorship of the appellant was revoked by Magomeni Primary Court. The objections was argued by way of written submissions where the appellant filed his submission and argued on the raised objections. It is my finding that the appellant was availed with a right to argue on the raised objections. The appellant's counsel argued that, the appellant was condemned by the Tribunal without being heard on the said judgment. But, as I have already observed, the appellant's opportunity to challenge the raised objection concerning the disputed judgment was during the hearing of the objections before the trial Court, which I believe the appellant did. A/f I n 6 The appellant was aware of the judgment of Mirathi Na. 458/2016 as she was part of it. According to the proceedings of the said matter, the appellant even prayed for the matter to be shifted to Temeke Primary Court so that she can file her objection there. The appellant did not dispute the validity or authenticity of Mirathi Na. 458/2016, all she said was that she was not given an opportunity to be heard in respect of the said judgment. However, the judgment was final and the trial Chairperson took judicial notice of the same and give out her decision. Again, if the appellant wanted to dispute the said judgment, the proper forum was not the District Tribunal but to do so before the probate court. On the issue of functus officio, the counsel for the appellant stated that, the Primary Court had no power to quash and set aside its own judgment. However, sitting as a probate court, the Primary Court of Magomeni had power to revoke the letters of administration of the appellant as it did. This is per the Fifth Schedule of the Magistrates Courts Act, Cap 11 R.E 2019 Part 1 which provides for powers of Primary Courts in administration cases. Part 1, Item 2 of the said Act provides thus; "4 primary Court upon which jurisdiction in the administration of deceased's estates has been conferred may:- (a) Either of its own motion or on application by any person interested in the administration of the estate, appoint one or more persons interested in the estate of the deceased to be the administrator or administrators..... Af Io- 7 (b) N/A (c) Revoke any appointment of an administrator for a good and sufficient cause and require the surrender of any document evidencing his appointment". From the above provisions, the Magomeni Primary Court, vested with jurisdiction in the administration of deceased estate had powers to appoint and revoke the administrator of the appellant. The court was not functus officio. For these reasons, I also reject the 2nd ground of appeal and dismiss it. On the 3rd ground of appeal, it was stated that the trial Chairman erred in holding that the appellant has no right to claim in respect of the property of the deceased for a reason that she was not an administrator of the deceased (sic). In this, the counsel for the appellant stated that, the case of Mirathi No. 458 of 2016 dated 31/08/2021 need to be proved thereof and ascertain its truthfulness. This is because it shows that the claimant at the Primary Court was Hashim Ally Msumi. He argued that, this person was not a part to the application at hand, and that the said Hashim Ally Msumi in 2018 tried to file appeal against the appellant before Kinondoni District Court against the appointment of the appellant but the matter was dismissed by the Court. /xUr 8 In response, the respondent submitted that, the District Tribunal and this court does not have jurisdiction to determine dispute over revocation of appellants appointment as the administrator of the estate of the late Juma Yusuph Mbondikwe. In this, I totally agree with the submissions by the respondent that the District Tribunal and this Court as appellate Court cannot determine over the dispute of the administration of the estate of the late Mbondwike. Although the respondent was supposed to raise this point of law during the hearing at the trial Tribunal, since it is the issue of jurisdiction I have to look into it. Having read the submissions by the counsel for the appellant, with due respect, the appellant's counsel believes that the trial Tribunal should have probed into the case of Mirathi No. 458/2016 and determine on its truthfulness or otherwise. However, the trial Tribunal has no powers to determine the issue of the administration of the estate as its jurisdiction is confined on the land disputes. If the appellant was doubting the claims of administrator of Hashim Ally Msumi, she should have filed her claims before the probate Court. In the consolidated Application No. 26 & 37 of 2021, the dispute before the trial Tribunal was on the ownership of the suit premises which was under the estate of the deceased Juma Mbondwike. The respondent raised objection that since the administrator of the appellant was revoked, then she had no capacity to sue, or claim ownership of the suit premises. The 9 trial Tribunal took judicial notice of Mirathi No. 458/2016 in which the administrator of the appellant was revoked and upheld/sustained the preliminary objections. It is my view that, the appellant who was also an applicant before the District Tribunal, filed the applications prematurely before the probate matters have not been settled by the probate Courts regarding the estate of the late Juma Yusuph Mbondwike. I also find the 3rd ground of appeal to have no merit and I dismiss it. On hereinabove explained reasons, I find this appeal to have no merit and I dismiss it in entirety. I make no order for costs as the appellant is on legal aid. Right of appeal explained. Dated and Signed at Dar es Salaam this 28th day of June, 2022. A. MSAFIRI, JUDGE io