Bibi Mokongoro v. Issa (PC) Civ. App. 22-M-69; 18/5/70; Seaton.

Bibi Mokongoro v. Issa (PC) Civ. App. 22-M-69; 18/5/70; Seaton.

            Appellant made an application a primary court for the appointment of an administrator for the estate for his deceased father an a claim for a share of the inheritance which included a house on a plot of land in Musoma Township and a tractor, the primary court appointed as administrator the person proposed by the appellant and ordered that both the house and tractor be handed over to the administrator. The district Court quashed the proceeding on the ground that a primary court has no jurisdiction to try a case in any proceedings affecting the title to or any interest in land registered under the Land Registration Ordinance. On appeal to the High Court, evidence was adduced proving that the plot, on which the house stood, was held under customary law and was not registered at the time of the trial. It was argued that: (a) on the basis of Georges C. J.’s decision in Mohamed Yusuf v. Tunda Kassim [1968] H.C.D. 447, even if a right of occupancy had been granted after the trial the matter was not justiciable in a primary court; (b) though there was no evidence of registration, the court should take judicial notice of the fact that at present all land in townships throughout Tanzania is registered land.

            Held: (1) “The relevant facts of Mohamed Yusuf v. Tunda Kassim [1968] H.C.D. case were that a right of occupancy had been offered to the deceased but she did not take it up. The offer was accepted by the respondent as donee of the land which was then registered under the Land Registration Ordinance. This was done after filing of the suit in the primary court but before that court gave judgment. Georges, C. J. held that once the land was registered, the primary court had no jurisdiction and the proper course was to non-suit the plaintiff and advise her to seek her remedy in the District or the High Court, depending on the value of the property involved. It will be observed that the last-cited case may be distinguished from the instant case in two respects. In the first place, the respondent Issa has been issued with a right of occupancy but the land is till unregistered, as far as this Court is aware. In the second place, the issue of the right of occupancy occurred after judgment in the primary court.” (2) “Section 57 of the Magistrates Courts Act, when read with section 14(1) (a) seems to equate rights, of occupancy that are registered under the Land Registration Ordinance, Cap. 334. but the term “right of occupancy” in the Land Ordinance, as defined in section 2, includes the title of a native or a native community lawfully using or occupying land in accordance with native law and custom”. On the other hand, the proviso to s. 27 (a) of the Land Registration Ordinance exempts from registration certain rights of occupancy. Without production of Issa’s certificate of occupancy, if he had one, this Court could not be satisfied that his right of occupancy fell within the ambit of the Land Registration Ordinance. At most, therefore, the possession by the respondent Issa of a right of occupancy over Plot No. 27 would have the result of ousting the exclusive jurisdiction of the primary court which otherwise might be  conferred by s. 57 of the Magistrates courts Act.” (3) “The District Court, holding as it did that the primary court had no jurisdiction in proceedings affecting he tile to or interest in the house on Plot No. 27, failed to try the other issues raised in Issa’s petition of appeal to that Court.” (4) Case remitted to the District Court for determination of the remaining issues raised in the appeal.