Case No. 1
RASHID HASSANI V. MRISHO JUMA [1988] TLR 134
HIGH
COURT OF TANZANIA-DAR ES SALAAM
Judge: MTENGA J
FACTS
The respondent applied to the Kariakoo primary court for letters of administration. Later the petition was moved to Ilala District Court and the letters of administration were granted to the respondent.
Being
aggrieved, the applicant applied to the High Court for revision proceedings
requesting the Court to quash the proceeding of the lower court declaring them
null and void due to non-compliance with mandatory legal requirements during
filling of the same petition.
ISSUE
Application to the High Court for revision of
proceedings of a lower court in respect of probate and administration requesting
to quash the proceedings in the lower court and to declare them null and void
RULES
Section 22 of the Civil Procedure Code (CPC)
Rules 39, 73, and 75 of the Probate rules
SUMMARY OF
ARGUMENTS BY PARTIES
The applicant referred the Court to the provisions of section 22 of the CPC and rule 39 of the Probate Rules which were argued to be mandatory.
Further the records of the District Court in Probate and administration Cause No. 5 of 1988 did not show if there was a petition filled by the respondent neither citation as required under rule 75 of the probate rules.
The applicant argued that there were errors on the petition filled by the
respondent in the lower court therefore the proceedings and the appointment of
the response as an administrator of the deceased estate should be declared
null and void.
Respondent argued that it was the applicant who moved the Kariakoo Primary Court to transfer the case to Ilala District Court.
Therefore,
it was the duty of the respondent to find out whether or not the case has been transferred
there or not. He slept on his right therefore he cannot be heard complaining.
REASONING OF THE
COURT
The court conceded that in filling Probate and administration cause no. 5 of 1988 in Ilala District Court, the response did not abide by the provisions of section 22 of the CPC and rules 39, 73 and 75 of the Probate Rules.
Indeed there was no petition filled, citation, or publication
as required by law. Further, there was no evidence of payment of court fees or
exemption to do so.
The court declared the proceedings in the Ilala
District Court in probate and administration cause no 5 of 1988 together with
the resultant appointment of the defendant as an administrator of the deceased
estate to be null and void. Therefore the proceedings were quashed and
appointment of an administrator was set aside.
RATIO DECIDENDI
Non-compliance with the mandatory provisions in
filling of a probate petition can lead to proceedings and appointment of the
administrator to be declared null and void.
CONCLUSION
The case is emphasizing on the importance of
compliance with important provisions when making an application before the
court for the decision to be valid. Further revision powers of the high court
were invoked which is another avenue which parties to a dispute can resolve if
they are not satisfied by the decision of lower courts.
Case
No. 2
LUIHAM MARTIN V. JUMA SAID [1992]
COURT
OF APPEAL OF TANZANIA – ARUSHA
Judges: OMAR JJA, Ramadhani JJA, MZAVAS
JJA
FACTS
The letters of administration were granted to the respondent by Moshi Resident magistrate’s Court (RM’s Court).
The court then realized that it lacked jurisdiction since the value of the estate was in excess of RM’s jurisdiction. It wrote a letter to the high court inviting it to revise the proceedings of the RM’s Court.
The High Court ruled that RM’s Court had no jurisdiction, set aside the grant then proceeded to hear the case though no fresh application was made.
The appellant was aggrieved, applied for leave
in the High Court seeking to appeal to the Court of Appeal. The application was
heard by Mroso J who ruled that leave was not required since the high court in
determining the matter was exercising its original jurisdiction.
ISSUE
Whether or not the High Court (Mroso, J) was right
in its ruling in Misc. Application no. 95/91 that leave to appeal in the Court
of Appeal was not required when the High Court is exercising its original
jurisdiction.
RULES
Section 52 of the Probate and administration
ordinance cap. 445
Section 5(1)(a) of the appellate jurisdiction Act
SUMMARY OF
ARGUMENTS BY PARTIES
Counsel for the appellant argued that the high court after setting aside the grant by the district court by the district court should have asked the appellant/applicant to file a fresh application in the High Court rather than resorting to framing issues in the absence of an application for letters of administration before the court.
However in deciding
to proceed to hear the case showed that the court decided to hear the case in
its original jurisdiction.
Counsel for the respondent conceded that the procedure followed by the High Court was irregular but the irregularity did not
prejudice the interests of the parties and the counsel for the parties
consented to the procedure adopted by the court.
REASONING OF THE
COURT
The Court viewed that the High Court heard the application for letters of administration in its original jurisdiction.
In view
of the provisions of section 52 of the Probate and Administration Ordinance,
Cap. 445 and section 5 (1) (a) of the Appellate Jurisdiction Act the High Court
when the matter came for application of leave to appeal in the court of
appeal, it was right in his ruling that
no leave was required for the appellant to appeal to this Court.
RATIO DECIDENDI
Application for leave to appeal to the court of
appeal is not required if the high court was exercising its original
jurisdiction
CONCLUSION
The case is important in interpreting the law
regarding two powers of the high court. The Court ca revise decisions of the
lower courts and it has original jurisdiction in determining probate cases
Case No. 3:
SALMIN MOHAMED v ABDU MOHAMED 1986 TLR 251 (HC)
High
Court of Tanzania - Dar Es Salaam
Judge: Mnzavas
JK
FACTS
The subject matter of the dispute between the parties was a house built on Plot No. 77 Block C Kilwa Street House No. 25 at Ilala in Dar es Salaam is registered land.
The appellant applied in the Ilala primary court for letters of administration of his deceased mother property and the respondent objected that the property belonged to his deceased father.
The primary by a majority vote of assessors gave judgment in favor of the appellant and ordered that letters of administration be granted to him.
The magistrate disagreed with the majority finding, he forwarded records to the District Court which concurred with the view of the Primary Court magistrate and reversed the majority finding of the Primary Court and gave letters of administration to the present respondent.
The appellant
appealed to the high court against the decision of the District Court.
ISSUE
Whether the primary court had jurisdiction to hear a dispute over registered land
RULES
Section 18 (1) of the magistrate’s court Act 1984
Mohamed Yusufu v Tunda Kassim [1968] HCD 487
Bibi Makongoro v Issa [1970] HCD 192
SUMMARY OF
ARGUMENTS BY PARTIES
The advocated for the appellant argued that the
house belonged to the appellant's deceased mother who is the right person to
administer the estate. It was also argued that there was evidence that the
house was registered in the name of the appellant's deceased mother.
The learned counsel for the respondent argued that the respondent produced the original document to prove that his deceased father
owned the house while the appellant only produced a photo-stat copy of a
document purporting that her deceased mother owned the house.
REASONING OF THE
COURT
There was undisputed evidence that the house which is the subject matter of the dispute between the parties, is built on registered land. Provisions of section 18(1)(i) of the Magistrates Courts Act 1984 does not allow Primary Court to have jurisdiction in any proceedings affecting the title to or any interest in land registered under the Land Registration Ordinance. Therefore the Ilala Primary Court had no jurisdiction to hear the case.
That position of the law is also evident from
the decisions of Mohamed Yusufu v Tunda Kassim [1968]H.C.D. 487 and Bibi Makongoro v Issa [1970] H.C.D. 192.
Therefore the hearing of this case by the Primary
Court was a nullity ab initio and consequently the decision of the District
Court is of no consequence as it has no leg to stand on. The parties were advised to seek a remedy in
the District Court or the High Court depending on the value of the estate.
RATIO DECIDENDI
No Primary Court shall have jurisdiction in any
proceedings affecting the title to or any interest in land registered under the
Land Registration Ordinance.
CONCLUSION
The editorial note in the law report (Tanzania Law
Reports 1986) comments that the decision of this case is no longer the law. It
refers the reader to the case of Scolastica Benedict v. Martin Benedict [1993] TLR
1 (CA). The judgment of this case refers to the GN No. 320 of 1964 which
conferred jurisdiction to the primary courts in matters of administration of
estates regardless the subject matter is a property on a registered land
provided the law applicable is customary or Islamic law.
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