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probate cases in tanzania


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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