IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
PC. CIVIL APPEAL 213 OF 2004.
ASHURA M. MASOUD..................APPELLANT
VERSUS
SALMA AHMAD ...........RESPONDENT.
Date of last Order: 14/12/2006
Date of Judgment: 14/09/2007
JUDGEMENT.
Mlay, J.
This is an appeal from the decision of the District Court of Kinondoni in
Probate and Administration Cause No. 52 of 2004. SALIMA MOHAMED
applied for letters of administration of the estate of the JUMA KAUNDA in the
District Court of Kinondoni. One OMAR SEIF purporting to act for himself
and another, filed a counter affidavit to oppose the grant of letters of
administration to SALIMA AHMED, substantially on grounds that "the
applicant has no relationship whatever with the said Chausiku Seifu"
(the lawful heir of the deceased who was apparently suffering from a mental
illness) and that the applicant has never taken care of the said Chausiku
Seifu. He further alleged in the said counter affidavit that "the applicant has
alternative motives of confiscating property that does not belong to
her. She has no any good intention of maintaining Chausiku Seifu".
The matter came up for hearing before MAKWANDI RM who, in a
judgment dated 23/09/2004, found "that the objections have no merits at
a i r . The court also found that "the rightful heir of that late Bimkubwa
Seifu (in law of of Kauda Juma) si Chausiku Seifu who is alleged to be
morally sick. I therefore agree that the applicant is entitled to be
appointed an administrative of the estate of Bimkubwa Seifu on behalf
of Chausiku Seifu who is mentally sick as her cousin".
One of the two Respondents ASHURA MASUDI (the first respondent
Omar Seif having died before the matter was heard by the District Court), has
appealed to this court on two grounds, namely:-
1. That the Resident Magistrate misled herself in admitting the fact that
the step mother of the appellant one Chausiku is suffering from mental
illness without the same being proved by medical practitioner.
2. That the trial Magistrate misled itself in admitting the respondent is the
sister of the late Chausiku Seif.
At the hearing of this appeal the Respondent was represented by Mr.
Mtanga, learned advocate while the appellant appeared to argue the appeal in
person. She submitted on the first ground of appeal, that it is not true that
Chausiku Seif was mentally sick. She argued that the respondent did not
prove that Chausiku Seif was not mentally ill. Lastly, on the second ground of
appeal, she submitted that the respondent was not the sister of Chausiku
Seifu. She argued that there was no evidence that she was her sister.
Mr. Mtanga advocate for the Respondent, on the first ground submitted
that, the matter before the court did not involve the mental state of Chausiku
Seifu.
He argued that what was before the court, was an application for letters of
administration of the estate of BIMKUBWA SEIF who was the widow of the
late Juma Kaunda. He further argued that BIMKUBWA SEIF was survived by
her younger sister CHAUSIKU SEIF whose health was not good and did not
know what to do because of mental instability. He argued that there was
evidence of the Respondent and PW1 SAIDI MWINCHANDE that the
respondent is the cousin of BIMKUBWA SEIF.
On the second ground of appeal Mr. Mtanga submitted that there were no
reasons in evidence given to show that the respondent was not a relative of
BIMKUBWA SEIF. He contended that the objector/ appellant merely alleged
that they did not see the respondent at the house.
At the close of the submissions the court asked Mr. Mtanga to assist the
Court on whether the District Court of Kinondoni had jurisdiction in the
administration matter. Mr. Mtanga replied, and I quote, "If the presiding
magistrate was a District delegate the court had jurisdiction. I do not
know if the Magistrate was appointed District Delegate. If he was not
so appointed the court has no jurisdiction and the proceedings would
be a nullity'9.
The issue of jurisdiction being a purely legal matter, the appellant was not
called upon to submit on the matter.
Before considering the appeal on its merit, there is clearly an issue of
whether the District Court of Kinondoni or Makwadi RM who presided over
the probate and administration proceedings had jurisdiction to entertain the
matter.
Section 3 Cap 445 RE 2002 confers jurisdiction in all matters relating to
probate and administration of deceased's estates and power to grant probates
of wills and letters a administration to the High Court. However, under
section 5 (1) of the Act, the Chief Justice has the power from time to time, to
"appoint such Magistrates as he there fit to be District Delegates".
Subsection (2) of section 5 confers jurisdiction upon District Delegates in
all matters relating to probate and administration, if the deceased had at the
time of death, a fixed abode within the area for which a District Delegate is
appointed, in non contentious cases. In contentious cases like the present
case in which there were two objectors, the District Delegate can only exercise
jurisdiction if he is satisfied that the gross value of the estate does not exceed
fifteen thousand shillings, or if the High Court authorizes the delegate to
exercise jurisdiction.
In the present case there is no evidence, and infact there is there is no
existing record to show tat MAKWANDI RM has been appointed a District
Delegate by the Chief Justice pursuant to the provisions of section 5 of Cap
445.
Even if Makwandi RM had been appointed a District Delegate, which is not
the case, this being a contentious case, there is no evidence that the value of
the estate is only shs. 15,000/- or that this court granted permission to the
magistrate to entertain the matter. At any rate contentious proceedings in
Probate and Administration matters are governed by the provisions of Rule 82
of the Probate and Administration Rules, and for proceedings before the
District Delegate, also by the provisions of Rule 83 thereof which require the
District Delegate to forward the record of proceedings in contentious cases to
the District Registrar.
The jurisdiction of the District Court as such, in Probate and
administration matters, is governed by the provisions of section 6 of Cap 445
RE 2002. Under that section, District courts only have jurisdiction in respect
of "small estates" and "small estates" defined by section 2 (1) of Cap 445, are
those whose value does not exceed sh. 10,000/= (ten thousand). The estate in
this case is a house situated on Plot No. 1 Block "A" Kigogo whose value
exceeds shs. 10,000/-. In the circumstances, the Kinondoni District Court did
not have jurisdiction to entertain the matter.
Since Makwandi RM who presided over the probate and administration
proceedings is not a district delegate appointed by the Chief Justice under
section 5 of Cap 445 and also that, the estate involved is not a "small estate"
for which the District Court could exercise jurisdiction, the proceedings in
Kinondoni Probate and Administration Cause No. 52 of 2001 and there
consequential grant of letters of administration to the respondent, are a
nullity, and they are so declared.
It appears from the record that the application for letters of
administration was initially filed in Magomeni Primary Court as Probate
Cause 193 of 2001 and that the matters was "transferred" to the District
Court by reason of a request by H. H. Matanga that "the Applicant intends
to employ the service of an advocate and as a matter of law, the
Advocate cannot enter appearance in the Primary Court. This as
contained in the advocates letter to the District Magistrate I/C dated
20/9/2001. This was a gross error. The District Court does not acquire
jurisdiction in probate and administration matters by reason that a party
wishes to be represented by an advocate. Jurisdiction is conferred by the law
and not by the wishes of a party.
The law relating to probate and administration demonstrated earlier on,
only grants limited jurisdiction to District Courts in this matter, and this
matter does not come within small estates in which District Courts can
exercise jurisdiction.
The powers of transfer of cases under section 47 (1) (a) of the
Magistrates Courts Act Cap 11 RE 2002, can only be used to transfer a case
from a Primary Court to a District court or a
Court of the Resident Magistrate "having jurisdiction" . Since the District
Court of Kinondoni did not have jurisdiction in the probate and
administration proceeding for the reasons given above, the District court was
wrong to transfer the proceedings to itself. The reason that the applicant
wished to engage an advocate, as I have stated, does not in itself, confer
jurisdiction upon the court.
The proceedings being a nullity it is ordered that the proceedings in
Magomeni Primary court Probate Cause 193 of 2001 be restored and heard by
the Primary Court in accordance with the law relating to administration of
estates applicable to primary courts.
Since the proceedings are a nullity there is no appeal worth of
consideration on merits. This being and administration matter, I make no
order as to costs. It is ordered accordingly.
J.I Mlay
JUDGE
14/09/2007
Delivered in there presence of one MATAMA ABDALLAH the
niece of the Respondent and in the absence of the appellant this
14th day of September, 2007. Right of appeal explained.
J.I Mlay
JUDGE.
14/09/2007
Words: 1,558
