20120202 TZHC Arusha

\1 I IN THE HIGH COURT OF TANZANIA AT ARUSHA (PC) CIVIL APPEAL NO. 43 OF 2010 (C/F District Court of Babati at Babati in Civil Appeal· No. 4 of 2009 Originating from Babati Urban Primary Court in Probate and Administration Cause No. 26 of 2008) BETWIEEN- TABU OMARY (Administrator of the Estate of the deceased BAATA BOMBO) .......................... APPELLANT AND HADIJA GIDACHORI & HAMISI IDD (Administrators of the Estate of the late IDD OMARY) .......................................... RESPONDENT Date of last Order: 20/12/2011 · Date of Judgment: 02/02/2012 JUDGMENT A.C. NYERERE, J Being. aggrieved by the_ Judgment delivered on 26/11/2009 by V.T. Bigambo, RM in Probate and Administration Appeal Case No. 4 of 2009 the appellant herein filed a Petition of Appeal on six (6) grounds; 1. That, the Resident Magistrate erred in law and in fact in not considering that the respondents herein in the trial Court raised a Preliminary Objection on Probate and Administration Cause No. 26 of 1 . .,, . ( 2008 instead of instituting a fresh civil case and /or land case against .the appellant herein claiming the suit land/cows. 2. That, the Resident Magistrate erred in law and in fact in not considering that the trial Court had no Jurisdiction to entertain and determine land disputes. 3. That, the Resident Magistrate Court when ·ruled out the case, said that the trial Court failed to consider the testimony of the appellant with the witnesses. In the point of law, Courts should be attentive in all proceedings in Court room ( chamber) in default of that, trial Court administration in original Case No. 26 of 2008. 4. That, it is not the trial Court failure to grant letters of administration _ to the respondents because the trial Magistrate is capable then he cannot proceed with a probate and administration of the deceased's estate case without a letter of administration of the deceased's estate for the respondents to fulfill a letter of probate and Administration careful, trial Court dated 20/10/2008 (when he was ruling about Probate and Administration over the deceased's estate). 5; That, Judgment from trial Court was very strong because the appellant (SMl) and his witness Shabani Hassani (SM2) they testify the evidence without doubt that the deceased's properties were under the appellant's authority because she was a daughter to the deceased. Then the deceased before she died she left an oral 'WILL' to the family. After all the appellant has records and exhibits such the 2 consent of the family members agreed for Tabu Omary (the appellant) to be ·the acf ministratix of the deceased Baata Bomba which was done on 12/10/2008 as per Exhibit PL Exhibit P2 is a copy of Judgment in Probate and Administration Cause No. 26 of 2008 before Babati Primary Court. 6. That, original case No. 26 of 2008 was ruled on 20/10/2008 by trial Court and the appellant prove his plaint and Court order execution of the decree dated 30/01/2009 and confirmed by the Resident Magistrate Court at Babati District Court. On 27/05/2009 the trial Magistrate ruled out that the respondents proved the application for injunction order for the same case. In fact this case was hearing and ruled from 20/10/2008, the respondents raised an injunction order while the time of appeal was expired. Parties herein who appeared unrepresented agreed to argue the appeal by way of written submissions. It is important to note that the appellant abandoned the 3'rd and 4th grounds of appeal and instead; argued thus for the remaining 1st, 2nd , 5th and 6th grounols of appeal. Arguing for the appeal, the appellant submitted that the appellant herein one TABU 0MARI is an administratix of the estate of the deceased BAATA B0MB0 vide Probate and Administration Cause No. 26 of 2008 whereas the respondents herein i.e. HAD:tGA GI0ACH0RI and HAMIS 1D0 are the administrators of the estate of the deceased 100 0MARI vide Probate and Administration of Estate Cause No. 11 of 2007. 3 . The appellant further submitted that the appellant while performing her duties as an administrator to the estate of the deceased BAATA BOMBO in Probate and Administration Cause No. 26 of 2008, the respondents herein raised a Preliminary Point of Objection in Probate and Administration Cause No. 26 of 2008 instead of instituting a fresh suit against the appellant herein claiming for the suit land and or cows which was/is the proper· action against the appellant as an administrator of the estate of the deceased BAATA BOMBO. The appellant argued that there is no dispute that the parties herein are administrators of the estates of different deceased persons but what is common amongst the administrators is that they all claim ownership over certain plots, a farm and a number of heads of cattle. The appellant further argued that the law does not vest powers to Courts to distribute the deceased's estate rather,· to an administrator/adm\nistratix duly appointed by a Court of law. The appellant referred this Court to the case of IBRAHIM KUSAGA vs. EMANUEL MWETA [1986] T.L.R 26 where the High Court held that; " ...... A Primary Court ought not to distribute the estate of the deceased. I That is the Job of an Administrator appointed by court. I appreciate that there may be cases where the property of a deceased person may be in dispute. In such cases all those interested in determination of the dispute or establishing ownership may institute proceedings against the 4 Administrator or the Administrator may sue to establish claim of deceased's property. ...... '~ The appellant supposed that what the appellant ought to have done was to institute proceedings against the administrator of the estate of the deceased BAATA BOMBO instead of raising Preliminary Points of Objection against the appellant. Arguing for the 2nd ground of appeal, the appellant submitted that the dispute at hand involves a shamba' and being a land matter; that fact limits Jurisdiction of the Resident Magistrate Court from entertaining land matters whereas instead; such land matters ought to have been instituted vide Act No. 2 of 2002 for the same to be filed either in the Ward Tribunal, District Land and Housing Tribunal or the High Court as the case may be. Arguing for the 5th and 6th grounds of appeal altogether, the appellant submitted that according to the records of the trial Court, the appellant herein had already executed the decree (sic) on 30/01/2009 whereas at the time the appellant herein was performing her duties; the same Primary Court wrongful issued an injunctive order (sic). In rebuttal; the respondents submitted that the Resident Magistrate entertained the Preliminary Points of Objection as properties which the 5 appellant wanted to administer were properties not belonging to the estate of the late BAATA BOMBO, rather; the estate of the late IDD OMARY. Further, the respondents argued that they did not institute a fresh land case in the District Land and Housing tribunal as the respondents were already appointed as administrators of the estate of the deceased IDD OMARY vide Probate and .Administration Cause No. 11 of 2007. In addition, the respondents contended that the appellant herein instituted land case No. 120 of 2008 an application that was dismissed by the District Land and Housing Tribunal for non appearance via a Ruling dated 03/09/2009. Also; the respondents argued that the appellant herein one ~ TABU OMARY is not a legal administrator of the deceased's estate one 100 OMARY as she does not have right of inheritance of her brother i.e. the late 100 OMARY whereas the properties inherited by the applicants (i:e. farm, cows and plots) were properties which did not belong to the deceased BAATA BOMBO, rather to the deceased IDD OMARY who inherited them from his father. The respondents argued that the Primary Court is vested with powers to distribute the estate of any deceased person when it hears the Probate and administration cases. The respondents argued that the · appellant TABU OMARY is an illegal administrator simply because the deceased BAATA BOMBO had no properties to be administered by her. 6 1' In respect of the 2nd ground of appeal,· the respondents argued that Primary Courts have Jurisdiction to entertain and determine cases of 'Administration of Estates' as vested in section 19(1)(c) of the Magistrates Courts Act, [CAP. 11 R.E, 2002]. To this Court, though the appellant has alleged to have referred six (6) grounds of appeal; the said grounds are/were so confusing for one to grasp. But with all these, the appellant was clear in respect of the first two grounds of appeal i.e. in respect of Jurisdiction of the trial Court a ground that is worth to dispose of the appeal. From all the above as above stated, it is certain that the dispute in this appeal revolves around administration of the estate i.e. the properties alleged to have been left by the deceased IDD OMARY on one hand and the deceased DAATA BOMBO on the other hand. It is also important to note that the deceased BAATA BOMBO was mother to both TABU OMARY and IDD OMARY whereas HADIJA GIDACHORI was wife to IDD OMARY. Again, HAMIS IDD is son to IDD OMARY whereas it is true that the issue in dispute involves a number of properties alleged falling to the estates of both the deceased BAATA BOMBO and IDD OMARY. Such properties are a number of heads of cattle, plots and farms. As rightly submitted by the appellant, it is not the duty of the Court to distribute the deceased's estate, but that by an administrator/administratix of the deceased's estate no matter or not the fact that the. Court has heard 7 that matter. It should also be noted that despite the fact that the respondents had right to file objections, yet; the issue as to whether or not the Court had Jurisdiction was of utmost importance. - To this Court, since the disputed properties include plots and farms, it is beyond doubts that the Court with competent Jurisdiction to entertain .that matter was those than the Magistrates Courts. In this matter, the provisions of section 4 of the Land Disputes Courts Act, [CAP. 216 R.E, 2002] provide; "(1) Unless otherwise provided by the Land Act no Magistrate's. Court established by the Magistrates' Courts Act shall have civil jurisdicrion in any matter under the Land Act and the Village Land Act. (2) Magistrates' Courts established under the Magistrates' Courts . A.ct shall have and exercise jurisdiction in all proceedings of a criminal nature under the Land Act and the Village Land Act/~ . That position concurs with the findings. of the High Court in the case of SALMIN MOHAMED vs. ABDU MOHAMED [1986] T.L.R 251 whereas in that . case, a Primary Court heard a case involving a registered land and grant letters of administration to the deceased's estate where the subject matter was a dispute between parties regarding a house built on registered land. When the case reached the High Court, the learned High Court Judge - ' considered whether the Primary Court had jurisdiction over the case. 8 In that immediate quoted case of SALMIN MOHAMED vs. ABDU MOHAMED (supra), the High Court held; "(i) In view of the provisions of s. 18 (1) of the Magistrate's Courts Act 1984 no Primary Court shall have Jurisdiction in any proceedings affecting the title to or any interest in land registered under the Land Registration Ordinance; (ii) The Ila/a Primary Court had no Jurisdiction to hear the case'~ It is from such bases I hold that the Primary Court lacked Jurisdictional powers to entertain land matters. In respect of the claims over cows, likewise; the properly constituted Court ought to be a normal Court after taking into consideration the involved value of the very properties i.e. the cows. Instituting matters in Court in respect of some rights falling/touching the deceased's estate falls under the duties and essence of appointing an administrator/administratix of a deceased's estate that requires such an administrator/administratix to step into the shoes of a deceased and person and advance for the deceased's rights. Issues as to who has better title over the disputed pieces of land and the alleged cows will then be determined by such proper authorities before resorting into the issue of distribution of the properties alleged to belong to each of the two deceased persons. It is untrue as submitted by the respondents that appointment of an administrator is rendered illegal simply . . because there is nothing to administer. After all, the supposition that there . ' 9 is nothing to administer can be rebutted upon proof when the issues in aisputed regarding the properties in controversy are finally determined by the Courts/Tribunal with competent Jurisdiction. Further; it has to be noted that, in such a current modernized world, one should not disregard the need to recognize, respect and advocate for equal rights to all despite of one's gender status though one should also not forget to take into account the efforts/expenses· which one has used/incurred respectively in adding value into a certain property especially when one is made to believe that the property in dispute. belongs to none than him/herself. For that matter, the appeal has merits and consequently, the appeal is . hereby allowed. Being the case, the matter is now open to the respective administrators of the respective deceased_ persons to .institute proceedings before competent authorities in final determination of the deceased's estate. From the circumstances of the case, I make no order as to costs . . Order accordingly. Sgd:- A.C. NYERERE JUDGE 02/02/2012 10 . Judgment delivered in chambers this 2nd day of February, 2012 in absence of the appellant who is aware of today's date of _Judgment and in the presence of both the Respondents in person. Sgd:-A.C. NYERERE JUDGE 02/02/2012 . . 11