20090528 TZHC Mwanza

/ IN THE HIGH COURT OF TANZANIA AT MWANZA PRIMARY COURT PROBATE APPEAL NO. 3 OF 2008 (Originating from the District Court of Sengerema Probate Appl. No. 31 of 2007 Original Sengerema Primary Court Estate Case No. 14 of 2007) BETWEEN HAMIS SALEHE ..................................... APPLICANT Versus HABIBA SALEHE .................................... RESPONDENT JUDGMENT. 21/10/2008 & 28/5/2009 NYANGARIKA, J.; The respondent was appointed to be the Administrator of the Estate of her deceased father, the late Salehe Mlekwa by Sengerema Primary Court. Dissatisfied with ·the appointment, the appellant who is the son of the d_eceased appealed unsuccessfully to the District Court of Sengerema (hereinafter referred to as the First Appellate Court). In this appeal, both parties were unrepresented and when the appeal was called for hearing, the appellant dropped grounds No. 1, 2, 3, 4, 9, and 10 of appeal and instead argued only grounds No. 5, 6, and 7 generally. The appellant submitted that his main ground· ih this. appeal is that the respondent has erroneously listed a house built on Plot No. 57 Block 'A', Sengerema and a farm ·measuring 4 acres as part of the Estate of the deceased. 1 He said. that the house listed is his own property .because it is registered in his name per the offer dated 17/2/94 in respect of Block "A" Plot 57. He also said that the Farm has a total of 3½ acres and not 4 acres as erroneously listed by the appellant. On the other hand, the respondent strongly objected the appeal saying that the two properties she has listed are correct. She said that there is ,no evidence that the house was given to the respondent. .· , She also insisted that the farm left behind measures 4 acres but the appellant sold ½ an acre of that farm without her knowledge ·and consent, and utilized himself all the proceeds therefrom. In the case of Samson Kishosha Gabba v. Charles Kingongo Gobba [1990] TLR 133 {HC) this Court sitting with ·"His Lordship, Mwalusanya J. held, interalia, that a· trial court had no power to distribute the estate of a deceased person to the respective heirs or · deciding the ·ownership of houses when the· ·administrator had· yet to distribute them. In my view, a Primary Court may only hear matters relati,:ig to grant of administration of estate? where it has jurisdictio~ i.e. where the law applicable is customary law or Islamic Law. 2 A Primary Court ought not to distribute the estate of the deceased. That is the job of an administrator appointed by a Court. {See also the "' Case ofibrahim Kusaga v. Emmanuel Mweta [19B6] 26 {HCJ. In our case at hand, the .Primary Court have jurisdiction under both Islamic and customary law to appoint the respondent to be the administrator of the Estate as it did iri, the circumstances of this case. I am therefore confirming the appointment of the respondent to be the administrator of the Estate. In this appeal, the problems of inheritance in respect of the house and farm, and which law to apply in solving the: same, might arise when the actual administration takes place. The appeal is dismissed with costs. K. M. Nyangarika· JUDGE 3 - -..,,- - -~ ' Date: 28/5/2009 Coram: Hon. F. W. Mgaya, DR Appellant: Present Respondent: Present B/C Kaijage/Rose . Court: The Judgment of.the Court is delivered before me in chambers the th --~-- ~ •. 2? day.-cl May, 2009. --· u -·" --- -- --.,- -· -~--~i c--- F. w. Mgaya DISTRICT Rl:GISTRAR 4