LAND APPEAL NO

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

AT DAR ES SALAAM LAND APPEAL NO. 27621 OF 2024 (Arising Application No. 83 of 2023 in the District Land and Housing Tribunal OF Kigamboni at Kigamboni) (Wambili-Chairperson) PHILBERT URASSA...................................................................APPELLANT

VERSUS NINATUBU MATHIAS LEMA................................................. RESPONDENT

RULING 20/1/2025 & 20/02/2025 GWAE, J In this appeal before the Court, the appellant, Philbert Urassa is appealing against the Judgment and Decree of the District Land and Housing Tribunal of Kigamboni, dated on 30th day of October 2024 by Hon. S. H. Wambili, Chairperson declaring the a landed property on Plot No. 864 Block Na. 39-Ferry Street Kigamboni Municipal in Dar es salaam to be lawful property of the late Adili Amos Urassa. Consequently, the trial Tribunal ordered the respondent to be given vacant possession of the suit house. 1 The factual background of the dispute between the parties, goes as follows:-The respondent Ninatubu Mathias Lerna, the husband and an administrator of the estate of the late Adili Amos Urassa, litigated against the appellant, claiming among others for a declaration that, the disputed house located on Plot No. 864 Block "39" Kivukoni P/S road, Ferry Kigamboni, forms part of the estates of the late Adili Amos Urassa (deceased) who passed away on 15th day of June 2020. It was also the respondent's assertion that, the deceased left behind the disputed house which historically was owned by his late father, Amos Urassa who passed away in 1982. On the other hand, appellant fervently disputed the claim by respondent by stating that, Plot No. 864 Block 39 belongs to the late Amos Urassa and not the late Adili Amos Urassa where there is a family house

that, the Trial Tribunal had no jurisdiction to entertain the matter as the same is not land related dispute but it relatively the Probate and Administration of the estate. Aggrieved with the trial Tribunal's decision, the appellant has now appealed to this Court on the seven grounds of appeal, which for a reason to be apparent shortly, I do not wish to reproduce them. 2 Before this court, Mr. Tumaini F. Lyimo and Mr. Alexander Kyaruzi, both learned advocates appeared representing the appellant and respondent respectively. However, hearing of the appeal proceeded by way of written submission. In his reply to the appellant's submission in chief and before addressing on the grounds of appeal, Mr. Kyaruzi raised an issue that, the appeal before the Court has been preferred in the personal capacity of the respondent while at the lower Tribunal he brightly sued as the legal personal representative of the late Adili Amos Urassa. To his view, this anomaly renders the appeal incompetent. He thus prayed the same to be struck out with costs. On his part, Mr. Lyimo submitted that, the instant appeal is against the decision/judgment of Land Application No. 80 of 2023 delivered on the 30th October 2024 of which the respondent never objected. He stated that, since the decision against the appellant was instituted by the respondent as the administrator of the estate of the late Adili Amos

Urassa. Thus, this appeal is properly appeal is against the respondent. Having gone through the arguments advanced by both sides in respect of the preliminary objection canvassed by the respondent's 3 counsel, I am therefore of the firm view that, the issue for determination by the Court revolves around the locus standi of the respondent in the instant appeal. It is evidently clear that, the respondent's grant of letters of administration of estate of the deceased person is through Probate and Administration Cause No. 21 of 2020 filed in Kawe Primary Court in Kinondoni District. It is further patently clear that, the respondent as the administrator of the estates of the deceased person instituted the case against the appellant before the Trial Tribunal in respect of the suit property. However, being aggrieved by the trial Tribunal's decision, the appellant herein has lucidly brought this appeal against the respondent not as the administrator of the estate of the deceased but on his own capacity. It is Mr. Kyaruzi's submission that suing the respondent in his personal capacity and not as the administrator of the estate of the late Adili Amos Urassa is an anomaly which renders the appeal incompetent. I am persuaded that, suing the respondent in his personal capacity amounts to suing a wrong party which vitiates the proceedings of this appeal. Appealing against the respondent,

Mwatubu Mathias Lerna in his 4 personal capacity challenging the judgment and decree rendered by trial tribunal where he merely acted as a legal representative of the estate of the deceased and not the owner of the disputed house is improper since by doing so, the same may multiply unnecessary subsequent disputes even among the deceased person's heirs with the respondent. This situation was faced in Malietha Gabo vs. Adam Mtengu, Civil Appeal No. 485 of 2022 where the Court of Appeal of Tanzania held that:- "On our party, in the event the appellant was the administratix, it was irregular for the respondent to initiate a case against the appellant in her own capacity instead of pursuing action against her as the administratix of the late Gabo Mtengu. l/l/e are fortified in that regard because the only person who can act as a representative of the deceased is the grantee of the tetters of administration as provided under section 71 of the Probate and Administration of Estate Act Cap 352 R.E2002" Guided by the above authority, it follows that once a person is appointed as an administrator, or executor or administratix of estate of a deceased and there is a matter involving the deceased whom he or she stands in that behalf, whatever he or she does that action or omission will be virtue of such capacity. 5 It is trite law that, the parties appearing in the title of

original proceedings should be reflected in the appeal stage unless there are any other reason like death of a party, which also must be an order to that effect after adhering to proper procedure. In the circumstances of the parties' dispute, I entirely endorse to the judicial jurisprudence in case of Joseph Magombi vs. Tanzania National Parks (TANAPA) (Civil Appeal 114 of 2016) [2021] TZCA 464 (14 September 2021) where it was inter alia stressed that:- "................. We think and agree with the Judges in the case of William Godfrey Urassa (supra) that the parties who featured in the initial proceedings should be the same parties featuring before the High Court as well as this Court. We further say, that unless a proper procedure has been followed to change or alter a name, no change of party's name should occur. Nothing convinces us that at any stage of the proceedings in the present situation a change of a party's name was entertained. The change of names in the present appeal is thus unjustified." Section 71 of the Probate and Administration of the Estates Act, Cap 352 R.E 2002 provides that:- 6 "After any grant of probate or tetters of administration, no person other than the person to whom the same shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased..." See also item 5 Part II of fifth schedule to

the Magistrate Courts'Act, Cap 11, Revised Edition, 2029 In the light of the above authorities the capacity to sue or being sued in respect of the deceased person's estate is restricted only to a person who has been granted probate or letters of administration to administer the deceased's estate. Moreover, it is the requirement of law that, parties featuring in the original proceedings should also feature in subsequent proceedings unless there are documented reasons to the contrary. On the strength of the above demonstrations, I find that, an act of instituting this appeal in the personal capacity of the respondent while in the Trial Tribunal the respondent sued as the administrator of the estate of the late Adili Amos Urassa renders the appeal incompetent. In the circumstances, I proceed to strike it out the appeal. In case, the appellant desires to re-file, for interest of costs and time saving, he will 7 lodge his appeal within ten (10) days from the date of this order. Taking into consideration the relationship between the parties, I make no orders as to costs. It is so ordered. Dated at Dar es Salaam this 20th day of February, 2025 8