kassim salum muhanga others vs tukae rajabu mzindu 2006 tzhc 148 14 march 2006

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 160 OF 2003 KASSIM SALUM MUHANGA & O TH ERS......... APPELLANT VERSUS TUKAE RAJABU M ZIN DU........................... RESPONDENT Date o f last order -11/11/2005 Date ofJudgment -14/3/2006 JUDGMENT TUKAE RAJABU MZINDU, who is the respondent in this appeal, was appointed to be the administratrix of the estate of the late TABU PAZI MZINDU by the District Court of Kinondoni (Makwandi RM) in Kinondoni District Court Probate and Administration Cause No. 62 of 2002. One of the five caveators, KASSIM SALUM MUHANGA being aggrieved by the decision of the District Court, has appealed to this court on the following grounds. 1‘ That the learned trial Magistrate made a serious misdirection o f the law in appointing the respondent, the administratrix o f the estate o f the late TABU PAZI. 1 2. That the trial Magistrate erred in fact and iaw in failing to analyse and to evaluate the evidence available before him. 3. That the learned trial Magistrate erred in iaw and fact in giving due weight on the contradicting prosecution witnesses evidences. 4. That the trial magistrate erred in holding that the respondent and listed beneficiaries are entitled to inherit the deceased estate. 5. That the leaned trial magistrate erred in fact holding that the appellants supported that the respondent is He right person to administer the deceased estate. At the hearing of this appeal the appellant prayed that the appeal be argued by way of written submission to which Mr. Ntonge advocate for the respondent had no objection and this court granted the prayer. The appellant was ordered to file written submissions by 1/12/2005 and the respondent by 20/12/2005 with any rejoinder to be filed by 4/1/2006. The record shows that a document signed by the appellant on 21/10/2005 was received in the registry on 21/11/2005 and it bears the title: 2 "SABABUZA RUFAA YA KUPINGA UTEUZI WA TUKAE RAJABU MZINDU KUWA MSIMAMIZI WA MIRATHI ULIOFANYWA NA MAHAKAMA YA WILAYA YA KINONDONI KATIKA SHAURI LA MIRATHI NA. 62/2002" The above document which is written in Kiswahili, appears to be the appellants written submission in support of the appeal but there is no receipt for payment of filing fees. The Respondents counsel Mr. Ntonge duly filed his written submissions on 20/12/2005 and the appellant filed a rejoinder also in Kiswahili titled "MAELEZO YA MWISHO" and a receipt for filing fees dated 2/10/2005, is appended. I have taken pains to explain the filing of written submissions because Mr. Ntonge in this written submissions prayed that the appellants written submissions should be disregarded because the appellant did not pay filing fees. The appellant has in his reply contended that the court clerk informed him that no fees were required but I have noted that the amount of fees Tshs. 1,500/= is indicated on the written submissions filed by the appellant. The clerk could not have indicated the fees payable and at the same time inform the appellant that no fees were payable. At any rate in the absence of the clerks affidavit, the appellants allegations are at beet hearsay evidence. It is probable that the appellant just overlooked to pay the fees for filing the written submissions. I therefore agree with Mr. Ntonge that as the filing fees were not paid the appellants written submissions are improperly before this court and they and 3 expunged from the record. The rejoinder for which fees has been paid is properly before this court and will be considered. Before considering the substantive grounds of appeal this being an appeal arising from Probate and Administration proceedings in the District Court of Kinondoni, there is an issue whether the District Court of Kinondoni has original jurisdiction to entertain the proceedings. The matter was not canvassed as a ground of appeal but it appears to have then considered by both parties in the written submissions filed by the respondents advocate and in the appellants rejoinder. The issue of jurisdiction can be raised or considered at any stage of proceedings and can be raised by any party or by the court in suo mottu. Jurisdiction in matters falling within the provisions of the Probate and Administration Ordinance Cap. 445, which is now the Probate and Administration Act, Cap. 445 RE 2002, is conferred on the High Court by section 3 of that Act; on District Delegates approved by the Chief Justice under section 5 of the same Act and on a District Court presided over by a first class on second class magistrate where the value of the estate does not exceed ten thousand shillings ("small estate"). The Probate and Administration Cause No. 62 of 2002 in the Kinondini District Court which is the subject of this appeal, relates to an application for letters of administration filed by the respondent in the District Court of Kinondoni, and was presided over by Makwandi, R.M. There is no record or any evidence that Makwandi, R.M. has 4 been appointed by the Hon. Chief Justice to be a District Delegate in District pursuant to section 5 of the Probate and Administration Act, Cap. 445 R.E. 2002. the Magistrate did not therefore entertain the probate proceedings exercising the powers of a District Delegate. The property comprised in the estate of the deceased which was the subject of the probate proceedings to the District Court includes two houses, one in Kagera No. 72 and the other in Manzese No. 452, all in Dar es Salaam and three farms. The value of this estate is therefore far bigger than the value of a small estate which is a paltry ten thousand shillings. The magistrate could not therefore have exercised jurisdiction over the probate proceedings pursuant to the powers conferred upon a District Court under section 6 (1) of the Probate and Administration Act, Cap. 445 R.E. 2002. From the written submissions by both parties it has been stated that the probate proceedings were transferred to the District Court. In the rejoinder the appellant has stated in Kiswahili: Mh. Nilichofanya mimi nilikuwa nimetuma maombi yangu ya usimamizi wa mirathi katika shauri Na. 47/2002 katika Mahakama ya Mwanzo Kinondoni. IHpofika hatua ya mwisho ya kupewa uamuzi nikastukia kuietewa barua ya kuitwa Mahakama ya Wiiaya Kinondoni na mrufaniwa. . . . 5 Mheshimiwa kuhusu madaraka ya mahakama ya kuteua msimamizi wa mirathi ninavyoelewa mimi ni mahakama ya mwanzo na Mahakama Kuu ndiyo yenye madaraka ya kumteua msimamizi wa mirathi." In the above submissions, the appellant was responding to the written submissions filed on behalf of the respondent in which Mr. Ntonge advocate submitted as follows: "My lord, without prejudice to the foregoing submissions will beg to submit that on 3 d April, 2002, the respondent filed this matter at Magomeni Primary Court as Mirathi Na. 69 o f 2002. When the matter was scheduled for hearing by the Primary Court, Kinondoni District Court at the instance o f the appellant transferred the matter from Magomeni Primary Court to the District Court. Therefore the appellant submission that the District Court acted without jurisdiction has no merit because he was the one who transferred the matter to the District Court. " Considering both submissions it is not without interest to note that each party instituted probate proceedings in a different Primary Court and each is blaming the other for transferring or causing the transfer of the proceedings from the Primary Court to the District Court. Whatever the true position may be, the transfer of proceedings from the Primary Court to the District Court is governed by the provisions of section 47 of the magistrates courts Act, Cap. 11 R.E. 2002 which provides in part, as follows: 47 (1) Where any proceeding has been instituted in a Primary Court, it shall be lawful, at any time before judgment, for - (a) the Primary Court with the consent o f the District Court, or a Court o f the Resident Magistrate having jurisdiction, to transfer the proceeding to such District Court or Court o f a Resident Magistrate or to some other Primary Court; or (b) the District Court or a court o f the Resident Magistrate within any part o f the localjurisdiction o f which the Primary Court in established, the order the transfer o f the proceedings to itself or to another magistrates'court; or . . . . (c) The High Court to order................................. Provided that nothing in this subsection shall authorize - 7 (a) the transfer o f a magistrates' court o f any proceeding which is required by iaw to be commenced in a Primary Court except to another Primary Court, or (b) the transfer o f any proceedings to a court which, however constituted, has no jurisdiction o f the subject matter thereof (emphasis mine) In terms of section 47(1) (b) and the proviso there to quoted above, the District Court had not have the powers to transfer the probate proceedings to itself because the District Court does not have jurisdiction over the matter, as I have demonstrated above W,th due respect to Mr. Ntonge his submission that the appellants complaint "that this court acted without jurisdiction is without merit because he was the one who transferred the m atter. . . - is itself without merit. The court is clothed with jurisdiction by the law and not by the parties who file proceedings in the court. The transfer of the proceedings to the District Court of Kinondoni, whether from MagomeniPrimary Court or Kinondoni Primary Court, was improper because the District Court does not have jurisdiction over the probate proceedings. As the District Court of Kinondoni acted without jurisdiction all te proceedings to the Kinondoni District Court Probate and Administration Cause No. 62 of 2002 were a nullity and they are so 8 declared. At the result, it is not necessary to consider the grounds of appeal on their merits. Mr. Ntonge has prayed that if the proceedings in the District Court are found to be irregular, this court should order the restoration of Mirathi No. 6 of 2002 which was filed at Magomeni rimaiy Court. The record of Magomeni Primary Court Mirathi Na. 2002 in the proceedings which took place on 26/8/2002, show that the proceedings, were transferred to the District Court of Kinondoni after the appellants advocate, Maleta Advocates had applied to the District Court to have the matter transferred, so that he respondent could be represented by an advocate. This court has not been availed with the record of the probate proceedings filed in nondoni Primary Court by the appellant i.e. Mirathi Na. 47 of 2002 AS this court has found that the transfer of the probate proceedings o the District Court was irregular for want of jurisdiction over the matter, we think it is a right and fair decision that the proceedings in 'rath, Na. 69 of 2002 be restored to the Magomeni Primary Court, or continuation and determination. The appellant and any other interested party, has the right to institute objection proceedings in e same court, ,f he so wishes. It is not proper in law to institute probate proceedings over the same estate in two different courts. In the final analysis the appeal is allowed and the proceedings to the District Court of Kinondoni are declared a nullity and of no effect and it ,s ordered that Magomeni Primaiy Court Mirathi No 69 of 2002, are restored for continuation and determination by the 9 Primary Court. These being probate proceedings I make no order as to costs. J .u l a y * !) JUDGF Delivered in the presence of both the appellant and respondent this 14 day of March, 2006. The right of appeal is explained. 14/3/2006 1/962 words 10