Raymond

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA-SUB REGISTRY) AT BUKOBA LAND APPEAL NO. 34 OF 2023 (Arising from Land Application No.35 of2020 of the District Land and Housing Tribunal for Muieba at Muieba) RAYMOND PASTORY (Administrator of the estate of the late PASTORY BUDOMI)....................... Ist APPELLANT YASINI PASTORY.......................................................... 2nd APPELLANT VERSUS MSWADIKU PASTORY RESPONDENT JUDGMENT 15/10/2024 & 05/11/2024 KIWONDE, J. The appellants named above, being dissatisfied with the decision of the trial tribunal, delivered on 3rd May 2023, have preferred an appeal to this court based on four (4) grounds of appeal namely: i. That the trial tribunal erred in law by admitting, conducting the proceedings and eventually delivered the judgment without being clothed with jurisdiction on purely inheritance matters. 1 ii. That in essence the lower tribunal had faulted (sic) in law and facts by dealing with the subject matter which the specific boundary marks were not prior pleaded in the prescribed form causing the entire proceedings a nullity. iii. That even having found that the respondent had no cause of action against the appellants by failure to prove the alleged claims, the lower tribunal misdirected itself by declaring the excusive (sic) ownership right of the suit land to him albeit the perusal of the tendered Will. iv. That the trial tribunal had delivered the judgment of which its decree will not be executed. The appellants prayed this court to allow the appeal with cost and the judgment of trial tribunal be quashed and set aside. During hearing of the appeal, the appellants were represented by Mr. Lameck John Erasto learned counsel, while the respondent was represented by Mr. Derick Zephurine, advocate. In arguing the first ground of appeal, the counsel for the appellants said the trial tribunal had no jurisdiction to entertain the matter since it related to probate and administration cause. The counsel submitted that the suit land was said to be among the properties of the deceased person one 2 Pastory Budomi and the respondent complained that the appellants trespassed onto land which he was given by his father and there was Probate Cause No. 10 of 2014 at Kashasha primary court in Muleba. Also, the counsel argued that in probate causes, the probate court only has jurisdiction to determine the deceased properties. He cited the case of Maria Gabriel Mzaura and another Versus Magdalena Gabriel Mzaura, Land Appeal No. 62 of 2022 [2023] TZHC18388 (23rd June 2023) which referred to the case of Mgeni Seif Versus Mohamed Yahaya Khalfani, Civil Appeal No. 1 of 2009, Court of Appeal of Tanzania sitting at Dar-es Salaam (unreported). The counsel submitted that in this appeal, the landed property is said to have been left by the deceased person. So, the proceedings, decision and orders of the trial tribunal were a nullity. In reply, Mr. Derick Zephurine argued that the trial tribunal had powers to entertain the matter because the District Court overturned the decision of the primary court on reason that it lacked jurisdiction over land disputes. He added that this court should not condone technicalities., From the records and oral submissions, the issue here is whether the appeal has been merited. 3 It is apparent from the records and not in dispute that the ownership of suit land is in dispute. The respondent had a Will which Indicated that he was given the land by his deceased father Pastory Budomi, and it is clear that there was initiated at Kashasha Primary Court, Probate and Administration Cause No. 10 of 2014 where the first appellant raised caveat against the distribution of the suit property on ground that it was not among the deceased estate. The primary court determined the caveat is when the appeal was preferred to the District Court, Civil Appeal No. 6 of 2020. In that appeal, the first appellate court found that the primary court had no jurisdiction to try land disputes as to ownership of the land in dispute. It quashed the decision of the primary court and directed the parties to refer their dispute to the District Land and Housing Tribunal to decide on the ownership of the suit land. I concur with the counsel for the appellants that where ownership over the property of the deceased person arises, it is the probate court which is clothed with jurisdiction to determine the same upon receiving and evaluating evidence.: This was a position of the Court of Appeal of Tanzania in the case of Mgeni Seif Versus Mohamed Yahaya Khalfani (supra), followed by the High Court in Maria Gabriel Mzaura 4 and another Versus Magdalena Gabriel Mzaura, Land Appeal No. 62 of 2022 [2023] TZHC18388 (23rd June 2023) (Banzi, J.) which I also subscribe to. For that matter, the trial tribunal acted without jurisdiction to try the matter before it. Likewise, the District Court wrongly directed the parties to refer their dispute to the District Land and Housing Tribunal which had no jurisdiction to determine ownership of the deceased property. It follows that the first ground of appeal is meritorious. Since the issue of jurisdiction suffices to dispose of the entire appeal, it is not necessary to go on determining the rest of the grounds of appeal. To that end, the appeal is meritorious and it is hereby allowed with cost. The trial tribunal proceedings are revised and nullified, its judgment is quashed, decree thereto is set aside. The decision of the District Court is also quashed and orders thereto are set aside. Dated at Bukoba this 5th November 2024. F. H. K^VONDE JUDGE 05/11/2024 5 Court: Judgment is delivered in chamber in the presence of the second appellant, the respondent and Grace Mutoka (RMA) but in the absence of the first appellant this 5th November 2024 and the right of further appeal is explained. 05/11/2024 6