final judgment 1 RENATHA NGOWI VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI LAND REVISION NO. 2075 OF 2024 (Arising from the decision of the District Land and Housing Tribunal of Moshi at Moshi dated 29th November, 2023 in Application No. 102 of 2023) RENATHA NGOWI (Suing through Jane Kirama Ngowi and Veronica Gerald Rwegasore holders of her power of attorney) ……….... APPLICANT VERSUS GILLIAD SHIJA MIHAMBO…………….…….……………….……… RESPONDENT RULING 4th Sept & 3rd Oct 2024 A.P.KILIMI, J.: The applicant, Renatha Ngowi filed this application under section 43(1) (a) and (b) of the Land Disputes Courts Act, praying for order of the court to call for and examine the records of the Application No. 102/2023 of Moshi District Land and Housing Tribunal for purposes of satisfying itself as to the correctness, regularity, legality and/or propriety thereof and to revise the order dated 29th November, 2023. This application is accompanied by an affidavit jointly swore by Jane Kirama Ngowi and Veronica Gerald Rwegasore, holders of Power of Attorney. The respondent has objected the application by filing a counter affidavit. 1 Briefly, the decision subject of this revision is a ruling which was based on a preliminary objection raised before the tribunal that the applicant had sued a wrong person by suing him in his personal capacity instead of suing him as an administrator. The tribunal sustained the objection after being convinced that the applicant had wrongly sued the respondent in his personal capacity instead of suing him in the capacity of an administrator of the estate of the late Edith John Kirama Ngowi. The Chairman decided so based on the applicant’s averment in the application which he said recognized the Respondent as an administrator of the estate. At the hearing of the application, the applicant was represented by Mr. Chiduo Zayumba, learned Advocate, whereas respondent was represented by Mr. Charles Mwanganyi learned Advocate. By leave of this court the application was argued by way of written submission. Arguing in support of this application, Mr. Zayumba prayed to adopt the affidavit to form part of their submission. It was his submission that at the trial tribunal the application was struck out on ground that the applicant had sued a wrong person that is the Respondent on his personal capacity instead of suing him as an administrator of the estate of the late 2 Edith Kirama Ngowi. He further submitted that by doing so the tribunal failed to exercise its jurisdiction vested by the law and that there was material irregularity apparent on record due to the reasons stated under paragraph 10 of the affidavit in support of the application. Explaining the reasons he submitted that the Respondent in this matter had neither been appointed by any court of law to be administrator of the deceased’s estate nor been granted any letters of administration by any court. It was his argument that the position of the law is that for a person to be recognized to be a legal representative of the deceased he must have been granted letters of administration in respect of the deceased's estate and must be in possession of letters of administration issued by a court of law, and he must plead and attach the said letters, otherwise she or he cannot be recognized as an administrator or executor of the deceased's estate. Supporting his argument he cited the case of Ramadhani Omary Mbuguni (as a legal representative of the late Rukia Ndaro) vs Ally Ramadhani and Another (Civil Application 173/12 of 2021) [2022] TZCA 267 (TANZLII) at page 4. 3 Explaining further he said in this case the Respondent did not attach the said letters of administration anywhere in his written statement of defence or the counter affidavit. It was his further submission that in absence of the said letters of administration the trial Tribunal was wrong to imply that the Respondent was an administrator of the deceased's estate and that he had wrongly been sued without his alleged representative capacity. Fortifying his position, he cited a number of cases including the case of Nuru Salum vs Pili Salum High Court of Tanzania at Dar-es- Salaam PC Civil Case No. 145 of 1994; Juliana Kalasa vs Kiyabo Kimisha [2022] TZHC 15184(TANZALII); Nhiga Doctor vs Mwandu Kahangihingi 2022 TZHC 15189 (TANZILL) and Omary Yusuph (Legal Representative of the late Yusuph Haji) vs Albert Munuo (Civil Appeal No. 12 of 2018) [2021] TZCA 605 (TANZLII) at page 6. Maintaining further, the counsel for applicant said upon his petition being rejected on 14th July, 2022 in Civil Case No.10 of 2021, the applicant appealed therefore the matter isstill contentious at the Court of Appeal of Tanzania. Therefore, considering that the Respondent had been interfering with possession of the disputed land, claiming that the same belonged to their deceased mother, and since he had not been granted any letters of 4 administration by any court of law, also that he had not attached any such letter. It was his conclusion therefore that the Tribunal had erred to decide that the Applicant wrongly sued the Respondent in his personal name. Thus, prayed this court to quash the said decision and the trial Tribunal to proceed hearing on merits. Responding to the above submission Mr. Charles Mwanganyi stated that this application is devoid of any merits, misconceived, frivolous and unfounded. He further submitted that the preliminary objection was determined based on the pleadings filed before the Tribunal. He further argued that basing on the reliefs claimed by the applicants it was clear that they were supposed to sue the Respondent as administrator thus it was wrong to sue him in his personal capacity. It was Mr. Mwanganyi’s further submission that the consequence of suing a wrong person, the suit becomes nullity and incompetent. The Applicant does not dispute as cause of action from the application is disputed Plot have been made to be part of the deceased estates, because he prayed among other things that the disputed Plot be declared as not forming part of the estates of late Edith Kirama Ngowi. Therefore, it was 5 his final submission that the Trial chairman of District Land and Housing Tribunal was right to struck out the application for being incompetent for suing wrong person. He then prayed for the application to be dismissed with costs. In his rejoinder submission Mr. Zayumba recapitulated his submission in chief and stated that the reply submission by the learned counsel for respondent had no merit because the case of Malietha Gabo v. Adam Mtengu (supra) which the learned counsel cited is not applicable to the facts of this case and that the same is distinguishable as in that case there was no dispute that the appellant Malietha Gabo was appointed admnistratrix of the estate of the late Gabo Mtengu appointed by a court in Kigoma, but in this case the Respondent had not been appointed to be administrator of the deceased's estate and he had not been granted letters of administration of the deceased's estate. He insisted this court to consider cases which was not considered or replied back by the respondent’s counsel on that position such as Ramadhani Omary Mbuguni (as a legal representative of the late Rukia Ndaro) vs Ally Ramadhani and Another (supra) and Omary Yusuph (Legal Representative of the late Yusuph Haji) vs Albert Munuo (supra). 6 He thus argued that it was doubtful and legally impossible to sue him as an administrator of the deceased's estate. Furthermore, taking not of the circumstances if otherwise, Mr. Zayumba stated that it was again wrong for the learned chairman to rush to struck out the case, he was of the view that, the chairman could have ordered an amendment if he was of the view that the Respondent possessed letters of administration and should be sued as an administrator of the deceased's estate. Else, it was the learned counsel submission that failure to state the Respondent as an administrator of the deceased's estate was not fatal. Having gone through the submissions for and against the application, the issue for determination is whether the applicant’s application for revision has merits. This court has been vested with powers under section 43(1) (b) of the Land Disputes Courts Act, [Cap 216 R.E 2019] to revise the proceedings of the district land and housing tribunal if it appears that there has been an error material to the merits of the case involving injustice and make such decision or order therein as it may think fit. 7 Based on the affidavit in support of the application, the applicant’s ground for revision is stated under paragraph 10 where she stated that the ground for this revision is that the honourable chairman had exercised his jurisdiction with material irregularity by failing to consider about seven grounds listed therein. Going through these grounds I have noted that they are all centered on two issues, whether the tribunal failed to consider that there was no proof administrator or the respondent lacked letters of administration, and second whether the respondent appointment as an administrator of the deceased estate was still contentious yet to be finally and conclusively determined. Hence the said decision was tainted with material irregularity. I am aware according to the law it is only the lawful appointed legal representative of the deceased who can sue or be sued for or on behalf of the deceased which is stipulated under the provisions of section 71 of the Probate and Administration Act [CAP 352] gives the following direction as it stipulates as follows: “After any grant of probate or letters of administration, no person other than the person to whom the same shall have been 8 granted shall have pow er to sue or prosecute any suit, or otherw ise act as representative of the deceased, until such probate or letters of administration shall have been revoked or annulled”. [Emphasis added] To start with the proof of the appointment of respondent, as rightly pointed by Mr. Mwanganyi, the above was acknowledged by the applicant herself in the application filed at Moshi DLHT, under paragraph 6 which explains statement of facts constituting the claim, under item (V) said vividly that respondent successfully appealed to the High Court in DC Civil Appeal no. 08 of 2022 in which appointed the respondent to be administrator of the deceased’s estate. In the said case which is reported on TANZLII as Giliad Shija Mihambo vs Flora Mtui and Three Others (DC Civil Appeal No. 8 of 2022) [2023] TZHC 18403. At page 24 this court ordered as follows; “On the basis of the above findings, I hereby quash and set aside the judgment of the trial court serve for the 2nd ground of appeal which I dismissed. My scrutiny of evidence as the first appellate court find that the appellant is a fit 9 person to be appointed as administrator and I proceed to appoint him to be administrator of the estates of the deceased Edith John Ngowi. No order as to costs.” This is the court order prevailing to date, therefore the same should be respected, obeyed and complied with, until that order is discharged, thus, A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. (see Wildlife Lodges Ltd Vs County Council of Nirok & Another (2005) 2 EA 344. If the above order is trending, I have asked myself the fact that the respondent has not presented letter of administration make him to be not appointed as administrator by this court as above. In my thinking the answer is negative. And the reasons are simple the above court order appointing respondent suffice to make him legal representative, the issue of having letter should be complied as a matter of procedure for the District Court to issue him the said letter in compliance with the order of this court as depicted above. Therefore, the said matter of procedure of having the said letters in my considered view cannot be said to have occasioned any miscarriage of justice. 10 In his rejoinder the counsel for the applicant insisted on two cases not to be touched by the respondent’s Counsel, for such persistence I will deal with their reliability with the said argument. In respect to the case of Ramadhani Omary Mbuguni vs Ally Ramadhani & Another (supra). In my view the circumstance of this case, is distinguishable with that of this matter at hand, this is because in the said case, the applicant as the administrator of the estate of the late Rukia, did not in his affidavit attach any letters of administration to that effect. Furthermore, the said affidavit was absolutely silent on when the late Rukia expired and when the applicant was constituted an administrator of her estate. When the court asked him, he said he was appointed by a court located at Posta and could not produce the relevant letters of administration, also failed to state the citation number of the proceedings under which he was appointed. In another case which was under persistence is the case of Omary Yusuph vs Albert Munuo (supra), also the circumstances of this case are different with the instant case, in that case the record showed that two persons at different time each was appointed as administrator of the late Yusuph Haji, the first was appointed on 10/10/08 and the latter was appointed on 13/10/2009, to know who was legal administrator the court 11 observed that in the absence of any evidence that first appointment dated 10/10/08 was revoked or annulled. Then the subsequent appointment of one Halima Omari who is the latter had no locus standi to institute a case against the respondent. Thus, the court proceeded to hold that since the appellant sued as legal representative of the deceased took over from the late Halima Omari who had no locus standi to institute a case on behalf of her deceased husband consequently lacked legal capacity. In this matter at hand as alluded above the record shows that respondent was appointed by the order of this court vide the case of Giliad Shija Mihambo vs Flora Mtui and Three Others (supra), the said order has never been revoked or nullified by any court, but also the same was pleaded by the applicant herself in her application at the tribunal as depicted above. Therefore, in my considered opinion under the circumstance of this case, failure to attach the letters of appointed cannot deny him the said right of being legal representative, since there is an order of this court which was evidenced, thus should be obeyed as alluded above. In regard to the second ground raised by the applicant that the appointment of the Respondent as an administrator of the deceased’s 12 estate is still contentious and is yet to be finally and conclusively determined having been dismissed by the trial District Court. In my view this ground is misplaced because at the said level of the court is finally and conclusively determined, thus the issue that is still contentious cannot arise at the moment, it is until when reversed or otherwise by the court with competent jurisdiction which will cause to cease its power, therefore at this time the same suffice to move the respondent bold as administrator to anywhere, thus the alleged suggestion by Mr. Zayumba that the respondent could have applied for Pendelite cannot arise. On the premises and from what I have endeavored to discuss above, I am settled there is nothing to correct, thus, I find no reason to fault the findings of the trial tribunal. Consequently, I find this application is devoid of merit and I proceed to dismiss in its entirety. Given that the matter emanates from a probate dispute, I make no order as to costs. It is so ordered. DATED at MOSHI this 3rd day of October, 2024. 13 X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 3rd day of October, 2024 in the presence of both appellant and respondent. Sgd; A. P. KILIMI JUDGE 3/10/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI JUDGE 3/10/2024 14 15