Aisha Juma Lema vs Lucy Edward Lema (Civil Appeal No. 8 of 2021) [2023] TZCA 17951 (13 December 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: SEHEL. 3.A.. KEREFU, 3.A. And MLACHA, 3.A.) CIVIL APPEAL NO. 8 OF 2021 AISHA 3UMA LEM A (The Administratrix of the estate of the late MWAN AISHA SELEMANI) ......... APPELLANT VERSUS LUCY EDWARD LEMA ............ ...... ...... ....... 1* RESPONDENT LODRICK EMMANUEL URONU. ........ ......... ............ ........2n d RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Fikirini, 3.) dated 5th day of March, 2018 in Land Case No. 17 of 2015 RULING OF THE COURT 7tfl & 13th December, 2023 SEHEL 3.A.: This purported appeal traces its origin to Land Case No. 17 of 2015 instituted by the appellant against the respondents in the High Court of Tanzania at Moshi (the trial court). In that case, the appellant sued the respondents on the ownership of a house situated on Plot No. 23, Block K, second III Bondeni Street within Moshi Municipality with a Certificate of Title No. 25491, Land Office No. 266672 (the i

disputed house), initially registered in the name of Zubeda Selemani (Zubeda). The appellant's claim against the respondents was that; the 1st respondent who was the administratrix of the estate of the late Zubeda bequeathed to herself the disputed house whereas she is not legally entitled, as per Sharia Law, to bequeath a Muslim property. The appellant therefore alleged fraud on part of the 1st respondent and claimed that the 1st respondent illegally transferred the disputed house to the 2n d respondent According to the plaint, the appellant claimed that Zubeda and Mwanaisha Selemani (Mwanaisha) were blood sisters and they were both adopted by the late Sheikh Selemani Abdilah, and that, the late Sheikh Selemani Abdilah converted Zubeda and Mwanaisha to Islam. Thereafter, in 1950s, the late Sheikh Selemani bequeathed the disputed house to the two sisters but, later on, it was registered in the name of Zubeda. That, Mwanaisha and Zubeda were peacefully residing in the disputed house until when Zubeda passed on in 1969. The appellant further averred that, upon the death of Zubeda, Mwanaisha remained the sole owner of the disputed house, and that,

the appellant was residing with Mwanaisha, her aunt, until her aunt met her death in July, 2007. It was further alleged that the 1st respondent applied and was granted letters of administration of the estate of the late Zubeda in the Probate and Administration Cause No. 232 of 2005. Having obtained the letters, the appellant claimed, the 1st respondent transferred the title of the disputed house into her name and then sold it to the 2n d respondent. In that respect, the appellant sued the respondents seeking for declaratory orders that the late Mwanaisha be declared a lawful owner of the disputed house and that the subsequent sale and transfer to the 2n d respondent be declared null and void. The appellant also sought for an order that the Registrar of Titles or his Assistant be directed to rectify the Certificate of Title of the disputed house; an eviction order and perpetual injunction against the 2n d respondent and his agents; general damages and costs of the suit. On the other hand, in the joint Written Statement of Defence, the respondents disputed the appellants' claims averring that, the late Zubeda was the sole owner of the disputed house and at no time, Mwanaisha became the owner of the same. It was further averred

that the appellant was a mere tenant in the disputed house and had no blood relationship with the late Zubeda. Having heard the evidence of the appellant, Aisha Juma Lema (PW1) which was supported by the evidence of Mohamed Abdillah Sulemani (PW2) and the evidence Lucy Edward Lema (DW1) and Lodvick Emanuel Uronu (DW2), the 1st and 2n d respondents respectively, the trial court found that the 1st respondent who was the administratrix of the estate of the late Zubeda lawfully transferred the disputed property to the 2n d respondent. It further held that the 2n d respondent was a bonafide purchaser. Accordingly, the appellant's suit was dismissed with costs. Aggrieved with the decision of the trial court, the appellant filed an appeal to this Court. However, for the reason to be apparent soon, we shall not reproduce the grounds of appeal herein. When the appeal was called on for hearing, the appellant appeared in person, unrepresented, whereas, the respondents had the legal services of Ms. Jane James, learned advocate.

From the record of appeal, it appeared to us that the appellant sued the 1st respondent on her personal capacity instead of being sued as administratrix of the estate of the late Zubeda. We therefore invited parties to address us on the propriety or otherwise of the proceedings of the trial court. The appellant being a layperson, did not have anything useful to address the Court. Basically, she contended that she sued the 1st respondent because she sold the disputed house that belonged to the late Mwanaisha while she had no legal right to sell it. She argued that the disputed house was donated to Zubeda and Mwanaisha by the late Sheikh Selemani Abdillahi, and that, upon the demise of Zubeda the disputed property remained in the ownership of Mwanaisha whom she is administering her estate, She therefore urged the Court to allow her appeal. Ms. James was very focussed on her submission. She submitted that it was wrong for the appellant to sue the 1st respondent in her personal capacity while she was dealing with the deceased's estate as appointed administratrix of the estate of the late Zubeda. Relying on the case of Susan S. Waryoba v. Shija Dalawa, Civil Appeal No. 44

of 2017 [2019] TZCA 66 (11 April, 2019; TANZLII), she contended that the appellant ought to have sued and cited the 1st respondent in her legal representative capacity, that is, Lucy Edward Lema (administratrix of the estate of the late Zubeda Selemani). She further contended that the failure of the appellant to cite the 1st respondent in her capacity as the administratrix of the estate of the late Zudeda Selemani in a dispute involving the deceased's estate was wrong. She, accordingly, urged the Court to nullify the proceedings, quash and set aside the judgment and struck out the appeal. She did not press for costs. Having heard the contending submissions, we find that the issue for our determination is the propriety or otherwise of the proceedings in the Land Case No, 17 of 2015 that was commenced and tried against the 1st respondent in her personal capacity. We wish to start our deliberation with the legal position regarding a person who had been granted letters of administration. Section 71 of the Probate and Administration of Estate Act, provides a direction on a person to whom letters of administration had been granted that: 6

"After any grant o f probate or letters o f adm inistration > no person other than the person to whom the same shaii have been granted shaii have power to sue or prosecute any suit, or otherwise act as representative o f the deceased, until such probate or letters o f adm inistration shall have been revoked or annulled.” The above provision of the law was considered in the case of Malietha Gabo v. Adam Mtengu, Civil Appeal No. 485 of 2022 [2023] TZCA 17318 (8 June 2023; TANZLII). In that appeal, the Court was faced with akin situation and said: "...in the event the appellant was the adm inistratrix, it was irregular fo r the respondent to initiate a case against the appellant in her own capacity instead o f pursuing action against her as the adm inistratrix o f the late Gabo Mtengu. We are fortified in that regard because the only person who can act as a representative o f the deceased, is the grantee o f the letters o f adm inistration as provided under the provisions o f section 71 o f the Probate and Adm inistration o f Estate Act.

See also the case of Omary Yusuph (legal representative of the late Yusuph Haji) vs. Albert Munuo, Civil Appeal No. 12 of 2018 [2021] TZCA 605 (25 October 2021; TANZLII). In the present appeal, we have earlier on stated that the appellant sued the 1st respondent alleging that the 1st respondent, as administratrix of the estate of the late Zubeda, fraudulently distributed the deceased's estate to herself. This is reflected at paragraphs 12, 13, 14, 15 and 16 of the appellant's plaint. For clarity, we do hereby reproduce the said paragraphs: " 12. That vide [Probate and Adm inistration Cause] No. 232/2005, the 1st [respondent] applied for and was granted fetters o f adm inistration o f the fate Zubeda Selemani despite protest from members. Copy o f the letters o f Adm inistration is annexed herein and marked P3 forming part o f this p lain t 13. That, on diverse dates January, 2008, a letter o f offer o f a right o f occupancy was issued in the name o f the said Lucy Edward Lema. Copy o f the said letter o f offer is annexed herein and marked P4 which the [appellant] sh all crave leave to refer to.. 8

14. That, the 1st [respondent] as adm inistrator fraudulently distributed the deceased's estate to herself as if she was the law ful and or sole beneficiary thereto. Copy o f Form No. VI evidencing the same is annexed herein and marked P5 which the [appellant] sh a ll crave leave to refer to. The said Mwanaisha Setemani the blood sister and Occupier o f the su it prem ises during the lifetim e o f Zubeda Selem ani and fo r over 30 years after the death o f Zubeda Selemani was deprived her right.
15. That, the 1st [respondent] is not entitled legally as per Moslem Law to inherit the property o f a Moslem.
16. That, the [appellant] vide Misc. C ivil Application No. 1/2008 applied to Moshi D istrict Court fo r orders that the 1st [respondent] be com pelled to distribute the deceased's estate to beneficiaries." It is therefore glaring from the above paragraphs of the appellant's plaint in Land Case No. 17 of 215 that the appellant was well aware of the legal status of the 1st respondent. She knew that the 1st respondent was an administratrix of the estate of the late Zubeda including the disputed house which the appellant claimed ownership.

In other words, the disputed house came into the hands of the 1st respondent as an administratrix of the estate of the late Zubeda whom before her demise was the owner of the same; the disputed house is not personal property of the 1st respondent. Nevertheless, the appellant decided to institute a suit against the 1st respondent as if she is the owner of the disputed house instead of suing her as an administratrix of the estate of the late Zubeda. In that respect, we entirely agree with the submission of Ms. James that the act of the appellant suing the i s fc respondent in her personal capacity while the disputed house was subject to the administration of the estate of the late Zubeda vitiated the entire proceedings of the trial court. Accordingly, we find that the proceedings of the trial court were a nullity. In the end, we invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act arid proceed to nullify the entire proceedings of the High Court, quash its judgment, set aside the decree and strike out the present appeal which emanated from nullity proceedings of the High Court and if the appellant still desires to pursue this matter, may commence action against the 1st respondent 10

in accordance with the requirement of the law, subject to the Law of Limitation Act. In the circumstances, we order that each party to bear own costs. DATED at MOSHI this 13th day of December, 2023. B. M. A. SEHEL JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 13th day of December, 2023 in the presence of appellant in person and Mr. Emmanuel Karia, learned advocate for the respondents, is hereby certified as a true copy of the original. ov ^ G. H. HERBERT DEPUTY REGISTRAR COURT OF APPEAL li