20200518 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (D~R ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM PC CIVIL APPEAL NO. ·60 OF 2017 {Appeal from the ruling of I/ala District Court Inspection .Cause No. 13 of 2015 original Probate and Administration Cause No. 102 of 2005 by Buguruni Primary Court at Dar Es Salaam}

VERSUS

NARGIS ALLY :-';' YUSUFU ■■■u••············•• •i~ . ~. . ■ a ■■ u ■ l ST. RESPONDENT • ' .~ IBRAHIM All Y YUSSUPHa :·:..:-: :. . .................... ., ··,.. ,·;·;,, 2No ..·

RESPONDENT . . Date of last Order: 20/06/2019 .'· ·. Date ofJudgment: 15/05/2020 . . :. '·. . . MGONYA, J. •. '.: '. : Aggrieved;; by the decision . of Ila la District. ';;Court:'.:C:,in Application No.13/2014: the;::: Appellant (ho'lding power of Attorney) in t:1is matter appeal~d before this ~onorable Court em~rged· with;;_ one ground ,of appeal against ttl_e d. ~~ision,:, as herein below: 1 1. "That, the District Court erred in law and fact in proceeding to hold that it hard jurisdiction over the matter while the 1 st Respondent never had faithful within the jurisdiction. " When the matter was for hearing, the Court ordered the same be disposed of by written submissions. The order was adhered to, her1ce this Judgment. The App 1~llant in his submission narrated the historical background of the matter as it appears in pages one and two of the submissio17-. And after such ~istory, the Appellant;submitted that, the. probl~m. at hand is thatJhe court rnisdirecte.d its self by the false evidence of the 1st Resp:0ndent at page 6 at pciragraph. 4 of the typed ruling, that he was deprived conspicuously inter alia on the sale of plot No. 133 and 135 at Boko to Msechu at 360 Million without including legal beneficiaries and without distributing the shares accordingly. Further, .the Appellant states the holding by the District Court tends to suggest that t!ie 1st Respondent Nargis

Ally decided to br:;; unfaithful to settle out of Court by the .said purported sell.t-on plot No. 133 and 135 Block G Boko Dovyo area in Kinond,Jni Municipality DC1r es Salaam while her complaint in Inspectiort cause No. 13 of 2015 of Ilala District Court 2. \, '·'. .,' . . . ,·: . . ,:, . ' ·_ .. . . ' . st! erred in law to· appoint of the 1 ·Respondent as Administratix of e . . . ·; . . . .f' . . . . the.Estate of t6 !'ate ·deceased Arly'.Yusuf Mpore.·· 1 The Appellant went further in citing Section 49 {1) {b) of The Probates Administration of Estates Act [Cap,, 352 R.E 200] and added that oral evidence -must cont~in fact and must be true, as thie 1 st Respondent statement ·contained lies i·n:the proceedings. The case of LA~§_Q COTTON GINNERIES ..&-- ·e- - - - - · -· -- - .. - -- -- - - -~-· - ~- - - ,_ - - ·-- - ~ - . - - . -· ·"'#'·.,. OTHERS VS. THE LOAN···ANOADVANCES·REAI..IZATION· TRUST {LARiT) Civil Application No. BO of 2002 , the Court 2"' of . Appeal. ·de,cisi_on .in UGANDA VS. COMMISIONER. FOR· PRISONS ;EJf., PARTE MATOVIJ,. Vias c:ited too. It is the Appellant assertionthat the 1s~ Respondent ignored the .Principle qf natural justice to~ the right-_by the saiq Ruling_ in' Inspection Cau.se No. 13 of 2015, at Ila la District Court. and acts contained therein are full: of .false information _by· the 1st Respondent statements. In the e~yent therefore., this .

Hon.ou.rabl:e Court be, pleased to quash appoiqtment of :the l st ,,Resp0ndent as Adminstratix of the·Estate of the::.deceased .Ally Yysuf Mpore,. and prayed that th~ ·appeal be allowed:, : In. the· Reply·the 1st- Respondent never filed her reply but the 2nd Respondenl filed. his reply and· st~ted that· he concurs- that the .... .f ..... {·.·. District Court had no judsdiction to entertain the ·matter and 1 relied in the rase of SCOLASTICA BENEDICT VS MARTIN BENEDICT Tf~R N0.1 OF 1993 and ISMAIL MOHAMED VS. MWAHIJA GULAM MUHAMED in Civil Appeal No. 181 of 2002 to suppcrt his argument. .. He further argued and reiterated that the Court from the above decisiori erred in law and i!l fact by adjudicating the matter · which had firs·'.: already been de':ermined before it and that the Magistrate lacked jurisdiction as matter of Administration of Estates are dealt with by the Primary Court. The provisions of Section 2 {a} ~h Schedule of the Magistrates :Court A.ct [Cap. tt R.E(l002Jwas cited ta support his_ assertion. . - - .. · Morebver~·the 2nd Respondent submitted that the·parties had not presented their compliant fc:· misappropriation of the estate and /or applic1tion for additiona! administrator before the Court of original jur;sdiction -and faile( filing the same to the District Court is super''(isory power. .1 In conclusion, it was the 2nc Respondent's submission that the·

Magistrate· 'in his ruling at page 7 paragraph 2 illustrated that such appointrn~nt; and of ariothifr Administrator· of the deceased was ·for'the int~rest of justice butthere v,as rio application filed to 4 • '••· I\ do such an apbointment. Further. the court was never moved to do what it did ~ence what transplred was contrary to law. Further that, the appointment of the tv10 Administrators was improper and this Court should not bless such error. The 2nd Respondent also prayed that the appeal be allowed. Having carefully and thoroughly gone through the parties' submissions as filed before this Honorable Court, I find that the attack against the decision of the Ilala District Court is upon Jurisdiction where the Appellant and 2nd Respondent are of the opinion that frqm such illegality this appeal be allowed .. The Appeilant in his ground of appeal burdened this Court in capturing and·. knowing what is· ·required out of his ground of. appeal. It is upon his submission that the context is: somehovv grasped. The Appellant states of unfaithfulness of the 1st Respondent vvho happened to have settled a matter out of court of a sale of plot No: 133 and 135. This submission by the Appellant is strange in accordance to the gro :1nd of the appeal. He does not 1 show as to ho'1v these averments relate to lack of jurisdiction. The Appellant's cancer:, ·that the provisions of Section 49 (1)

of the Probate Act {Supra) provides that Administrator can 5 ·,. L be revoked· when there is. fraud' or false statement,· 'and ·these· were the avern1ents made by thej 1st Respondent and that the l st Respondent ignored the principle of natural justice; and for the reason of uttering false statements and fraudulent acts the 1st Respondent's appointment be revoked. This concern was also supported by the 2nd Respondent. Having gone through the records, I have noted that the existence of the Inspection Cause originated from Probate Cause No. 102 of 2005 before Buguruni Primary Court. The 1st Respondent b~ing aggrieved by how the administration went about. The 1st · Respondent w:·ote a complaint· letter dated 19/06/2015.. and filed it before the District Court where there was pending- the Inspection Cause complaining of how the property was administered. The complaint was later withdrawn but the District Court suo motto invoked its provisional powers and appointed the 1st Respondent and two others to be Administrators of the deceased estate. I am of the firm observation that the District Court's appointment of new ·.f ' . Administrators was a misdirection, and therefore making the -~ ' ' -: ' ' appointment illegal since there was no application seeking for sriJch appointmenta ..• 6 ' • i • ~. ; ,· ~t. It is trite law that when a Primary Court has appointed Administrator and

complaints arise, the proper Court with jurisdiction is the Court which appointed the Administrator. Therefore, I am of the firm view that the appointment of the 1st Respondent and two others \Mas a misconception and subject to revocation· where the same has already been revoked under - PC Civil Appeal No. 52 of 201,.7where the 1st Respondent and the t\,vo other Administrators were revoked and this Court found from the recc-:-ds of this matter that Ibrahim Ally Yusuph the Administrator vvas legally appoint~d. From the above, I allow this appeal with reasons set forth. .H • • ' ' Since this is a probate matter each party to bear their ovvn costs. It is so ordered Right of appeal allowed. . I/' ,1 L. E. M(~O '71!

WA

JUDGE 18/05.(2020 ,, 7 .. . I Court: Ruling delivered before I-Ion. R. B. Massam, Deputy Registrar in chambers in the presence of Mr. Uforo Mangesho, Advocate for the 2nd Respondent, the Appellant in person and Ms. Janet RMA, this 18th day of May, 2020. - - L.-E. MGONYA _

JUDGE 18/05i2020 e