chiku mbalika vs juma ally mbalika another 2003 tzhc 63 20 may 2003

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT PAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO 63 OF 2003 CHIKU MB A LIK A ..................................................... APPLICANT VERSUS JUM A ALLY MBA LIKA....................................Is 1 RESPONDENT RAMADHANI H A JI.............................................2 nd RESPONDENT RULING Kaganda, J: This is an application for leave o f the High Court to file a suit in a court other than a Primary Court. The application is based under section 63 o f the Magistrates Courts Act No. 2/1984. The application is attached with a chamber application together with an Affidavit o f one Chiku Mbalika. The applicant presented their application exparte due to its urgency. The affidavit among other things stated that:- (i) The applicants prayer is for this court to make a declaration on the lawfulness o f the properties comprised in the estates o f the late Mussa Ally Mbalika which is situated at Mbezi Luis, in Dar es Salaam. (ii) That the 1st respondent having finalised the duties o f an Administrator o f the estate o f Mussa Ally Mbalika should stop any other activity because he is neither a lawful owner nor does he have any other interest over the property. (iii) That the P 1and 2nd respondents should permanently be restrained from interfering, destroying, disposing, sale or alienating the said properties. (iv) The properties were inherited by three heirs of the deceased, two among them are already dead except for the applicant. (v) That the IMrespondent Administered the estate vide probate and Administration cause No 27 o f 1986 before Manzese Primary Court. (vi) That the 2 ncl respondent was allowed by the applicant to occupy the portion o f his mothers share in the estate. (vii) That for unknown reasons the 2nd respondent and 1st respondent Quarrelled over a piece o f land which is one o f the estates o f the late Mussa Ally Mbalika, alter which the Kinondoni District Court ordered that the disputed land should not be touched by any party or Agent until it has been determined by a competent court as to its ownership. (viii) That since the disputed land is unsurveyed the competent court for the suit is a Primary Court, but since the issues involve Questions ot law and are complicated, then the applicant has decided to seek for the assistance o f a lawyer. (ix) That since lawyers are not allowed by law to appear before Primary Courts then she should be granted leave to file a suit in another court other than a Primary Court. Mr. Kilule tor the applicant presentettthe application by elaborating all those grounds contained in the Affidavit. He appealed to this court that since the Administration o f the applicant father’s estate the matter has dragged on for a long time. Mr. Kilule believes that it has so happened because the maiter involves some complicated issues. For these reasons he prayed for a Quick decision alleging further that the respondents have been selling the disputed land in portions. The courts on several decisions have held that such leave to be granted the applicant should show a good and sufficient cause. In the case o f Abubakar M oham ed M lenda V. Juina Mfaume [1989] TLR. 145 it was held that the wish and ability to engage an advocate alone does not amount to good and sufficient cause to grant an application to transfer a case from Primary Court to any other court. I tend io distinguish that decision with the case in hand because in this application the applicants are intending to file a fresh suit. That is there is no other existing suit before any court at present. Further the honourable Judge dirccied at P. 146 (f) that if leave o f the High Court is sought that the m atter should com m ence in a court other than a Primary C ° u l t ’ then it is only the plaintiff, not the defendant w ho has the r i g h t to seek for such leave, (em phasis is mine) The directive is so relevant in this case because it is the applicant one Chiku Mbalika who has filed the application. With this view and considering that the matter has dragged for so long after the death o f the applicants father, also that m ost o f the heiis have also died and the estates is faced with a danger o f being m ishandled, 1 am convinced to allow the application and 1 hereby grant leave to the applicant to ! 11e a suit over the unsurveyed land in any other com petent court other than a Primary Court. S.Ifff^Tda JUDGE 20/5/2003 Court: The ruling read over and delivered to the applicant this day o f 2 0 th May. 2003. ' S. S. H, Kaganda J UDGE 20/5/2003