19970423 TZHC Dar es Salaam

.,, ..~ ...- 'i.·· ,t'/(f,l?#b'-~ · IN Tli.E HIGH COUR'.11 OF TAN~ANIA AT DA?. E.S SALAAM (PC) CIVIL APPEAL NO. 6 OF 1994 (From Original Magomeni Primary Court Probate and Administration Cause No.233 of 1992, and District Court of Kinondoni District, Miscellaneous Civil Appeal No.3O of 1993) SHJ\.Jl'iSA HASSAN oooooooooooooooooooo•ooooooooaoooooo APPELLf\.NT

VEHSUS SJLl'\.BUKA RAJABU ooooeoooooo..1000000000000.::ocooooooooo Ri:SPONDENT ,r -

JUDGMENT MSUMI 1 J.: This application originates from Administration cause Number 233 . · of 1992 filed in the primary court of Magomeni. In that cause the respondent Shabuka Rajabu applied for letters of administration for the estate of the deceased Tukia Abedio The applicant object,~d the application on the sole ground th:::t before her death, d·eceased had already distributed all the property of the est,1te. She mentioned three houses situated at different parts of Dar e,s Salaam, some ladies golden ornaments including hear rings, a suitcase cont:i.ining unidentified items and a wardrobe as the property of the estate. According to her the houses were bequeathed to her and the third house wa:s sold to her by the deceased herself aDd the remaining i terns were given to t}1e appellant 9 s children. In a unanimous decision the trial court upheld the objection. ,· The court considered the avail:i.ble documentary evidence and made a finding that the three houses are in fact the property of the appellant. Respondent appealed to the 1!istrict Court ,,:md succeeded. Being disatisfied with the judgment of the .s,::cid first appellate court, appellant unsuccessfully appealed to this court • /0,,•0•2 , .., 11.. 2 In the present a.p_Jlic.~'.tion, c:\_)peJ.lant is asking for lee.ve to appeal to the Court of Appeal out of tirne a.7.d a.lso contends that the intended appeal involves some

important triable legal issues hence she should be granted leave to file it. He faulted the learned Judge for not determining the issue involved in the aiipeal, thc:.t is the question of ownership of the aforementioned three houses. In his written submission Mr i'·ilanzi forwarded the following ::u-gument, r;6.2. Your Lordship~ the main suit herein concerns a dispute involving.the ownership of real property in that whether or not the houses in question form. part of the Deceased estate which has to be administered by the Hespondent as she claims and or whether the disputed houses belong to the 1:i.pplicant as she contends in that two houses in dispute hRd long been bequeathed to he_r by the Deceased, long before she met her death and the other one had been bought by the applicant herself. It is our cont(mtion.my Lord that the question of ownership of the disputed property as such is a point of law which ought to h:1.ve been adequately resolved by the Honourable Jueti:-:e Chua·. With respect, this argument is not tenable. ,\.s mentioned earlier, the original case is a probate and administration cause in which the respondent applied for letters of administration in respect of .... the deceased 9 s estate. 1Ie,1ce the issue involved. is the.. suitability of the respondent for the said appointment. In other words the court was required to decide whether the respondent was a sui

t0.ble person for the grant of the pra;yed letters of administration. The alleged ; issue of ownership of the three houses could be properly raised in those proceedings after the appointment of the administr,.tor has been made. There are a number of pronouncem,rnts by thi[~ Court on this point. For example in (PC) Civil Appeal 1 '•0. 17 of 1983 High Court 9 Tanga Registry, Kapoor 9 .l~g • J issued the following guid.mce: .;For the general guid mce of the primary courts i would like to make one observation 9 that in ,my probate and / ••• _•• 3 . 3 administration matters the first step should be to grant letters of administration i:1 respect of the deceased person to those persons who m,1.y b8 L~wfully entitled to the grant nnd once a grant hc1.s been issued then the holder of the letters of admistrntion can institute proceedings against anyone against whom claim of the deceased's property may lie. It is totally incorrect for a primary court to declare an applicant for leth,rs of admistration as owner of any property of the deceased in those proceedings". Indeed it is equally wrong to declo.re anybody, as it has been done in this case 1 owner of any property alleged to be part of the·estate. ltny issue involving ownership of such property should be determined after the clppointment of the admistrator. In conclusion, whereas I hold that sufficient reasons have been advanced by the appellant explnining her delay in filing the application for leave to appeal to Court of Appeal, I am of respectful view that the intended appeal for which leave is ;:;ought does not r.;1.ise on important point of law. Hence this application is dismissed with costs.

JUDGE 23/4/97 For the Applicant: Absent Fnr the Respondent: Mkondya