20121019 TZHC Moshi

IN THE HIGH COURT OF TANZANIA ATMOSHI DC. CIVIL APPEAL CASE NO.16 OF 2010 C/F CIVIL APPEAL NO.IO OF 2009 MOSHI DC . ' ORG. PROBATE AND ADMINISTRAITON CAUSE NO.71/2009 MOSHI PRIMARY COURT AB EID SAID ISLAM .................................................. APPELLANT VERSUS ALLY RAJABU MSHANA.................................. RESPONDENT (6/9/12 & 19/10/12) I ,JUDGMENT '· . MZUNA, J.: The appellant Abeid Said Islam is appealing against . the decision of the District Court which held that the Primary Court had no jurisdiction to grant letters of appointment of the administrator of the estate and at the same time determine the issue of ownership of the disputed. house. He says the respondent had no mandate to lodge it. ' The first issue is whether the respondent has a mandate to lodge an appeal to the District court. The argument by the appellant who 'is defended by Prof. Itemba learned advocate is I that the respondent was not a party to the proceedings in the Probate and Administration Cause, so he had no right of appeal. I The respondent who is advocated for by Mr. Njau learned advocate says that the proceedings involving the respondent as an objector revolved on the landed property whose ownership was contested. That he continued to make appearance as an objector until the date of the judgment/decision. That, the appeal before the district court was proper. This court finds that though the main case was on the appointment of the administrator and the appellant was unopposed but the issue of ownership of a house arose after the appellant had alleged he failed to collect the properties of the deceased Fatum,a Ally Mshana, his late wife. He alleged that the respondent (father of the deceased) was residing in that house alleging it was his property which the deceased (his daughter) l~ft for him. This prompted the Primary court make a decision on the issue of ownership. I find that the respondent was a partly to the proceedings and by virtue of section 20 (1) (b) of the Magistrate Courts Act. capl 1 R.E. 2002 after being "aggrieved by an order or decision" of the Primary court he has a right or mandate to appeal to the District court as he did. The second issue is whether the Primary Court had powers to deal with the issue of ownership in the Probate matter? The argument by Prof. Itemba learned advocate was that the matter before the primary court was not a land dispute. That, it was basically a probate and administration by virtue of paragraph 2 2 (h) of the 5th schedule to the Magistrate Court's Act. That, Primary courts have powers over these matters as if they were civil cases so long as the ,law applicable is Customary or Islamic law. However, according to him, section 57 of the Law that established the Land courts and tribunals did not affect matters of probate and administration and related disputes. Therefore, it was his argument that the primary court was vested with the ' requisite jurisdiction. The argument by Mr. Njau learned advocate was that the trial court had no powers to hear evidence and determine the question of legal ownership of the landed property. The court's , main task was to appoint an administrator to the estate of the deceased. Further that section 167 (1) of the Land Act, 1999 specifies courts which have exclusive jurisdiction to hear and determine all matters concerning land. That, the Primary courts does not appear in the list. From the above submissions I find that the main case was on the appointment of the administrator of the estate. It was wrong to proceed with the determination of ownership in that same case file. If the appellant found there was need to claim for any property left by the deceased he ought to have instituted a different suit. Currently he can do so in the District land and Housing Tribunal by virtue of the Land Disputes Courts Act Cap.216 R.E. 2002. 3 The argument that the Primary courts have powers over I these matters as if they were civil cases so long as the law applicable is customary or Islamic law is unassailable. Equally so, the cited case of Scholastica Benedict V. Martin Benedict (1993) 1 TLR 1 is inapplicable in the present case in that the issue has gone ·beyond mere administration of estates in a probate matter to one of claim for ownership and therefore it is a civil suit. Following the amendments, primary courts have no jurisdiction on hiatters of a civil nature. The schedule made under section 57 of the Land Disputes act, 2002 amends section · 18 (1) (a) (i) of the Magistrates' Court Act and added the following I provision: "Provided that no primary court shall have jurisdiction in any proceeding of a civil nature relating to land." That provision is sufficient to answer the second issue which is resolved in favour of the respondent. The third issue is whether there are sufficient grounds to I allow this appeal? From what I have demonstrated above, this appeal is without merits. The District court judgment is perfectly in order and can not be faulted. This appeal is accordingly dismissed with costs. M.G.MZUNA, JUDGE. 4 ' I! I_' . I i ' ' l l I I: r: I, 'i' : I I I 'i ! I ' .I I I ! '' I • I i sl I ': 1 i' ., Ii