YUSTO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA LAND APPEAL NO. 1323 OF 2024 (Arising from Land Application No.47 of2022 of the District Land and Housing Tribunal for Muieba) YUSTO HUBERT MAKOMO (Administrator of the estate of the late HUBERT MAKOMO KALEGEYA).................................... APPELLANT VERSUS GODFREY RAPHAEL MATOVU......................................... RESPONDENT JUDGMENT 04 & 06/11/2024 KIWONDE, J. The appellant, named above, being aggrieved by the decision of the District Land and Housing Tribunal, delivered on 7th November 2023, has appealed to this court against the judgment and orders. In his amended petition of appeal, the appellant raised four (4) grounds of appeal as follows: i. That the District Land and Housing Tribunal erred in law and in fact to dismiss the application with cost on account that it did not have jurisdiction to try the matter without taking into i 1 consideration that the matter is a land case emanating from a trespass. ii. That the District Land and Housing Tribunal erred in law and in fact to hold that the disputed land is part of the estate of the late Nicodemu Makomo whereas, the disputed land is the property of the late Hubert Makomo Kalegeya and the appellant is his administrator. iii. That the District Land and Housing Tribunal erred in law and in fact to hold that the disputed land is part of the estate of the late Nicodemu Makomo and that the appointed one Geraldina Makomo never distributed the same. iv. That the District Land and Housing Tribunal erred in law and in fact to decide the case against the weight of evidence. The appellant prayed this court to allow the appeal with cost, quash and set aside the judgment of the trial tribunal as well as the orders emanating therefrom, order the respondent to pay the appellant TZS 11, 100, 000/= due to loss caused by the respondent, an order that the respondent pay TZS 500, 000/= as a vindicative damages for misleading the court and any other relief (s) this court may deem fit and just to grant. 2 During hearing of the appeal, the parties appeared in person. The appellant, in the first ground of appeal, submitted that the trial tribunal erred in dismissing his application with cost on reason that it had no jurisdiction to entertain the matter. He argued that the tribunal had jurisdiction to determine the matter before it for he sent his complaints with exhibits. Apart from that, in the second ground of appeal, the appellant said the trial tribunal erred in law to hold that the suit land is part of the deceased estate, Nikodemu Makomo. He submitted that the matter truly involves probate issues, but the suit land has been encroached by the respondent who said he inherited the same from his mother. The appellant said he is the administrator of the deceased estate of the late Hubert Makomo Kalegeya. Besides that, in supporting the third ground of appeal, the appellant said the tribunal erred to hold that the suit land is part of the deceased estate while Geraldina Makomo died without distributing the properties. He argued that the respondent trespassed onto the land and destroys the properties over there while he is not the clan member nor beneficiary of the suit land. 3 Finally, in the fourth ground of appeal, the appellant argued that the decision of the trial tribunal was against the weight of evidence because he had heavier evidence than that of the respondent. He asked justice be done and the appeal be allowed. In reply to the submissions in-chief, the respondent opposed the appeal. He submitted that in the first ground of appeal, the chairman of the trial tribunal was right. In the second, third and fourth grounds of appeal, the respondent said the administratrix of the deceased estate, one Geraldina Makomo distributed the estate before her death. She sent the inventory to the probate court. He went further to say the appellant is the administrator of the estate of the late Hubert Nicodem Makomo, and not of his deceased mother. Apart from that, the respondent said he inherited the property of Geraldina Makomo, his mother and so, he is not a trespasser. He argued that Hubert and Geraldina were born of the same father and that the appellant had no heavier evidence for the respondent is also a clan member. He asked the appeal be dismissed. In rejoinder submissions, the appellant argued that if there are documents to show that Geraldina distributed the deceased estate; otherwise, the 4 trial tribunal would not have held that she did not wind up the administration duty. From the records of the trial tribunal and the oral submissions, the main issue for determination is whether this appeal has been merited or otherwise. It is apparent from the records that the suit land was originally the property of the deceased Nikodemu Makomo, a grandfather of the appellant. The evidence on record shows that this died without distributing his estate to his four (4) children including Hubert Makomo (the appellant's father), Geraldina Makomo, Andrea Makomo and Alfred Makomo. However, the appellant himself testified that after the demise of Nikodemu Makomo, one Geraldina was appointed to administer his estate via Probate and Administration Cause No. 23 of 2017. But Geraldina also passed away before distributing the said deceased property. The respondent said Geraldina had distributed the estate to the heirs and those children of the deceased Nikodemu Makomo bequeathed their properties to their children too. When this appeal was heard, the respondent argued that Geraldina had completed administration of the estate of Nikodemu Makomo and he inherited from his mother. He said 5 there are some documents to that effect. However, in the records of trial tribunal, there is no evidence to indicate that the administratrix of the deceased estate completed her duty. Therefore, it is depicted from this evidence that Geraldina demised before distributing the estate of the late Nikodemu Makomo. In simple words, administration of the deceased estate was not yet completed and so, the estate of Nikodemu Makomo did not go to the heirs. The parties did not assist the trial tribunal to ascertain that the administration was completed by filing inventory and closing the probate matter. For that matter, the trial tribunal was justified to hold that the appellant has no locus standi to claim the property of his deceased grandfather which his father Hubert Makomo had not yet inherited. Apart from that, the dispute involves the land which each party claims to have inherited from the parents. So, the trial tribunal correctly held that this was to be determined by the probate court. The tribunal had no jurisdiction to entertain the matter before it which involved probate issues. This was a 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 6 Mohamed Yahaya Khalfani, Civil Appeal No. 1 of 2009, Court of Appeal of Tanzania sitting at Dar-es Salaam (unreported). For that matter, in this appeal, all four grounds of appeal lack merits. To that end, the appeal lacks merits and it is hereby dismissed with cost. Dated at Bukoba this 6th November 2024. F. H. KI WON DE JUDGE 06/11/2024. Court: Judgment is delivered in chamber in the presence of both parties in person and Grace Mutoka (RMA) this 6th November 2024 and the right of further appeal is explained. F. H. KIWONDE JUDGE 06/11/2024. 7