20071123 TZHC Mwanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY-:..

ATMWANZA

APPELLATE JURISDICTION PC. PROBATE APPEAL NO. 02 OF 2007 {Arisingfrom Nyamagana Civil Appeal No.1 of 2005 Urban Primary Court estates file No.61/1995) HUSSEIN SELEMANI MUSSA ............... APPELLANT Versus AMINA SAID ................... RESPONDENT

JUDGEMENT 20/09/2007 & 23/11/2007 SUMARI, J. This is a Second appeal arising_ from the decision of Nyamagana . . District Court in respect of an appeal from Mwanza Urban Primary . Court concerning· Probate and administration file No.61 of 1995. In this appeal the appellant has raised two grounds, namely:- 1. That the trial courts in Primary and District court erred in law and in facts on entertaining the matter which it has no jurisdiction.

2. That the learned trial magistrate erred in law when he heard the matter ex-parte and entering an ex-parte judgment against the appellant without a proper proof of service of summons to the appellant. . . Starting with ground one, Mr. Ngero, learned ! counsel for the appellant submitted that there is no dispute that the rate Mwamvua - Mtumwa had left the house in subject which situates at Uhuru Street Mwanza, in Block R, Plot No.98. Th~t the said house was !' I , . V ' ..'(~~ bequeathed to Mwamvua . Mtumwa by her late mother Binti Abdurahmani. Mr. Ngero learned counsel is insisting that the late Binti Abdurahmani left behind a Will purported to have restricted the said house not to be sold by whoever at any time. That the said Will was • adhered by the late Mwamvua Mtumwa, mother of both appellant and respondent. He ended up there as far as the will .is concerned. It is .. not clear what argument he further wanted to bring in. In response to . that, Mr. Butambala learned advocate for the respondent, conceded to the brief facts narrated by the appellant· in his written submission but hastened to state that the said Will wrote by Binti Abdurahman,· if assumed valid, which he disputes, as the same is against the legal requirement under Rules 19 of the. 3rd schedule to GN No. 436 of 1963, it clearly intended to bind her daughter, the late Mwamvua Mtumwa . . and not the grandsons

or granddaughters; as the law permits the grandsons/daughters to write up their own Will or adopt the same. He however, submitted the late Mwamvua Mtumwa/ whose property is . now a subject matter did not leave behind any Will at all. She died intestate .. According to Mr. 13utanibala, even assuming that the said Will was legally executed and therefore valid, the same being not adopted cannot be said to bind· the grandsons/daught~rs. He referred this court to a case of George A. Mmari and Ana11de A. Mmari Vs Afra Fuime (1995) TLR No.146 . ., . The issue of the Will allegedly left by th;e grandmother of the . . ' ' appellant and respondent, so to speak; i.e. of 1;3inti Abdurahmani was . : 1 . I . 2 l y;,,,, V,,;!,_,• . properly dealt with by the learned Resident Magistrate, in his appellate jurisdiction. That the said Will, if at all was executed by the said Binti Abdurahman the same was defective for want of proper attestation as it does not comply to the provisions of Rules 19 of G.N. No.436 of · 1963 in the 3 rd schedule. The provision requires the minimum of two witnesses for the literate persons and four witnesses for illiterate persons. The purported Will was signed by the deceased Binti Abdurahman using her thumb print, a fact which proves she was illiterate (could not write) and this was done before a magistrate' whose name is not reflected or known. No witness signed to

witness the signing of the Will. In addition to this and as well put by Mr. Butambala, the said Will was not adopted by the parties to this case as there _is no evidence to prove that. More so because the late Mwamvua Mtumwa, mother of the appellant and respondent, the owner of the house in subject; died intestate. In law, I believe it's the Will of the late Mwamvua Mtumwa which could bind the parties in this • case. The findings of the learned Resident Magistrate as for the validity of the Will in issue was therefore proper and I cannot default ·it. · As regards the question of jurisdiction .again here, I must say, . with due respect, to what submitted by Mr. Ngero, that he was not .· certain of what was complained of. One can hardly grasp what strictly Mr. Ngeo, is asking from this court. Be it as it may, what I understood from his point of view is that the appellant !s .challenging the jurisdiction of the primary court in that the parties being Muslims then the law governing the matter is that of Islamic (Mohamedan Law). I 3 ~,.,,.. Though he is not very clear but I take it to mean that he is sayi.ng. primary courts do not have jurisdiction to entertain matters governed by Islamic law. j :I :1 Agai.n on the same issue he is challenging the pecuniary jurisdiction of the primary courts and district courts as far as Probate is concerned. Finally on the same issue of

jurisdiction he is challenging the decision of the primary court in revoking the· appellant's administration and appointing the respondent as administrator, instead. In response to this ground Mr. Butambala, · for respondent ·submitted that primary courts have jurisdiction to entertain cases of . Administration of Estate. when the parties are either Muslims or not.. To the contrary the Local Customary Law prevails. In this case the parties were all Muslims and therefore primary court had jurisdiction. He referred this· court to a· case of Abdallah Selemani Ibrahim Vs · Aisha Kiseru Ibrahim (CAT Civil Appeal No.3/97 - unreported). I agr·ee with Mr. Butambala, learned Counsel that in either cases, ·. it been under Islamic law or Local customary Law, Primary court is vested with jurisdiction to try the same. Mr. Ngero's argument on this · issue is unfounded. As to the question· of pecuniary juri$dictiori ' ' Mr. Butambala, ' ·.·referred this court to a case of s. Benedict M. ;Benedict (1993) TLR.1. In a way he is referring to G.N. No. 320 of 1964. Under the cited G.N. 320/1964 the order specifically provided that all primary courts have 4 ... \f been ·given . jurisdiction · in matters of administration of estates regardless of whether the subject matter is land registered provided · the applicabl~ law is Customary law or Islamic law. Reading carefully 1 the case cited (Benedict's

case) by both counsels of the parties gives clear explanation on jurisdiction of the primary courts. Mr. Ngero's argument on pecuniary jurisdiction in administration of estate is therefore unfounded. It is unfounded too, to say that the district court in this case had no jurisdiction to entertain this mater as it was not· acting as a District Delegate. In this particular case the district court was enjoying its appellate jurisdiction which is unchallengeable and not original jurisdiction. Mr. Butambala has attacked Mr. Ngero's argument referring him to the provisions of Sections 20(1)(b) of the Magistrate's Court Act, Cap.11 of the Laws (R.E. 2002) which I also ask Mr. Ngero, learned counsel to go through it properly. As to the question of jurisdiction of the -primary court in its decision to revoke the appellant's administration and replace it by appointing the respondent, a decision which is claimed to become functus officio by the appellant, Mr. Butambala, submitted that under Section 2(c) of the 5th schedule to the Magistrate Court Act, Cap.11 of the laws (R.E. 2002) the primary court had jurisdiction to revoke the appointment of an administration for a good and sufficient reasons. This provision reads:- "2- A primary court upon which jurisdiction in the administration of deceased's estates has been conferred may - 5 (c) Revoke any appointment of an administrator for· good

and sufficient cause and require the surrender of any document evidencing his . appointment. " · According to Mr. Butambala; the present case is a good example where the court should invoke its power to revoke the appointment of an administrator who does not abide to the law. It was in · the evidence at the tdal court t_hat appellant as administrator misapplies . the estate of the deceased on his own benefit, refusing other heirs their entitlements. This is a good and sufficient reason. or cause that requires the court to invoke its powers to revoke the appointment of the appellant. This ground of appeal again fails for lack of merit The last ground 2 of the appeal as it sound is. not a point of law to be entertained in this second appeal. At the 1st appeal this was one of the issues raised in the appellant's grounds of appeal that:- . . . ~ . ''That the learned trial magistrate had erred i!J law in hearing the matter ex-parte and entering an ex- parte judgment against the appellant without · proper proof of· service of summons to the .appellant. " . This ground was abandoned by appellant during the ·hearing of the 1st appeal. He has no room to bring it at this stage .. • ·. . As well argued by Mr. Butambala, that tlnis been a second appeal I • issues of proof of service are not issues of law to be argued now. I · therefore decline to entertain this ground. 6

I I I i I I .. Likewise, for the same reasons issue of citation, which the appellant is complaining of the court dealing with the matter of probate without citation; the same cannot be entertained at this stage. For the foregoing reasons, this appeal fails and I accordingly dismiss it with costs. ~~ A.N.M. Sumari

JUDGE 7