SHAMIM

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY)

AT BUKOBA LAND APPEAL NO. 77 OF 2023 (Arising from Land Application No.ll of2022 of the District Land and Housing Tribunal for Karagwe) SHAMIM IDRISA.................................................................. APPELLANT

VERSUS DEVOTHA JOSEPHAT (Administratrix of the Estate of the late DEODATUS MWESIGE)..................................... st RESPONDENT1 FINIAS RWAZA.......................................................... 2nd RESPONDENT

JUDGMENT 17/10/2024 & 06/11/2024 KIWONDE, J. The appellant, Shamim Idrisa, being aggrieved by the decision of the trial tribunal, delivered on 10th October 2023, has appeal to this court basing on five (5) and one additional ground making a total of six (6) grounds of appeal as follows: i. That the trial tribunal lacked jurisdiction of determining the ownership of the disputed land arising from the estate of the deceased as the same is seized (sic) to the probate court. i ii. That the alleged forged sale agreement between the appellant and the deceased one Deodatus Mwesige was not proved accordingly for want of necessary report from the Forensic Bureau verifying the same, and it was not specifically pleaded by the first respondent. iii. That the trial chairman was moved by minor contradictions in the appellant's witnesses (sic) without considering the sale agreement (DI) and the literacy as well as the advanced age of the said witness. iv. That the learned chairman banked much on the respondent's evidence by relying on the documents tendered at the tribunal to hold that the suit land was the good title (sic) of the late husband of the first respondent without tracing the root of the title of the same. v. That the suit was decided against the weight of evidence. vi. That the first respondent lacked locus standi as she appointed administratrix of the deceased estate on 23rd

August 2019 and the suit was instituted on 7th March 2022. 2 The appellant prayed this court to allow the appeal with cost, reverse the decision of the trial tribunal by declaring the appellant to be the holder of the title over the suit land and any other reliefs as may be just to grant. During hearing of the appeal, the appellant was represented by Mr. Alli Chamani, learned counsel while the respondents were represented by Mr. Raymond Laurent, advocate. Upon going through the records and the oral submissions from the counsels, the issue for determination is whether the appeal has merit ot otherwise. I now turn to consider the rival arguments in relation to the grounds of appeal. I have opted to begin my deliberations with the first ground of appeal since it touches the issue of jurisdiction of the trial tribunal and if it is allowed, it will dispose of the entire appeal. The counsel for the appellant argued that the trial tribunal had no jurisdiction to try the matter whose subject matter involved deceased property. The ownership of the property is at issue whether it is among the estate of the deceased Deodatus Mwesige or not. In law, where dispute arises as to the ownership of the deceased property, it is the probate court only which can determine such ownership. This was a 3 position in Maria Gabriel Mzaura and another Versus Magdalena Gabriel Mzaura, Land Appeal No. 62 of

2022 [2023] TZHC 18388 (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). For that matter, it is apparent that the trial tribunal acted without jurisdiction. The first ground of appeal has merit and it is hereby allowed. This ground alone suffices to dispose of the entire appeal and thus, there is no need of going on determining the rest of the grounds of appeal. Eventually, the appeal is hereby allowed with cost. The judgment of the trial tribunal is quashed and any subsequent orders thereto are set aside. However, I refrain from declaring the appellant lawful owner of the land in dispute for it requires evidence from the parties. Dated at Bukoba this 6th November 2024. F. H. KI WON DE

JUDGE 06/11/2024 4 Court: Judgment is delivered in chamber in the presence of the appellant, the respondents and Grace Mutoka this 6th November 2024 and the right 5