20020502 TZHC Dar es Salaam

IN THE HIGH COURrr OF TAN7.iANIA AT DAR ES SALAAM CIVIL APPEAL NO. 137/2000 SHEKIL4. MOHAMED MAJID • • • 0 0 APPELLANT VEi.1SUS VlAHID MOHAMED HIJ AZ. • • • o • .RESPONDENT _!;@~..,_'7'...!,. The appellant Shekha Mohamed Majid, dissatisfied with the ruling and order by Hon. Shonga DM in R.M. 'S Court of Dar es Salaam Probate. and Administration Cause No• 138 of 1996 has now ap_petled tv this ~0 ;1""'; on 1 four grounds. I need not reproduce those grounds for reasons that will soon become aparent• The berief facts surrounding this matter is that the respondent brr"'::...,~ one Wahid Mohamed Hijaz 1 was an objector in the original causec She oa.11 requested the trial court to revoke letters of administration of the 0.;tate ,,f the late Khadija Mohamed Hijaz which were granted to the appellant .S:!ekh:i Mohamed Majid. Sho partly 1ost in that cause hence this appeal.: Before embarking into the merits of this a,ppco.l an issue .:,:: i::re:i.irrrn 1 r significant has been raised by the advoi::atc uprescnting the appcliutrt v1i:tlch, •. on tho opinion of this court go to the noot o: the en'i;U'e procecdi11ga in the- lower court from which this appeal has originated. It is trite law that for any court to excrcis0 its juris~ction properly it must be presided oner by a person with competent jurisdiction. If the person who sits in court lacks the requisite jurisdiction wherever he or she docs or decides is a nullity. In this appeal, the decision appealed from was made by Hon.Shonga D.M allthough filed in the Resident Magistrate's Court of DSM at Kisutu as Probate and Adminstration Cause No. 138/96. This is in violation of s.6 (1) (c) of the Magistrates Court Act 1984 which provides as follows:R n 6 - (1) Subject to the provisions of Section? a Magistrate's Court shall be duly constituted when held by a single magistrate, being~ .. 2 .. (a) ... (b) ( c) - l:1 the case of a cotrbd! Resident Magistrate., a Resident Magistrate ,H In this case t the Hon.District Magistrate sat in the RM·, S Court and purported to exof-oioo a jurisdiction he did not possess. There are several authorities in su_pport of this proposition. For instance, in Allarakhia Vs Agakhc1.11 (1969) E.A.613, tho Court of Appeal Case of William Jv1illlya and 2 others v.Republic (1991) T.Ln 83 just to name R few. Based on these authorities, it is c'.Lear that the magistrate who presided one~ the matter at Kisutu RM1S Court, D.M.Shongn, though he might have had jurisdiction to determine the subject matter at issue, c:id not haYe juris-- diction to sit in the RM' S Co'.J..r·t J".ir :-::-..0t x·~ason ,-J.onP, this cou'l'.'t finds it unnecessary to conside~ the merits of J.:;he present appeal because whehever the DM has done in this matter is a nuJ:i..::aty a:.,:i as such nulli+,y :::.- :1-.1..:c -;,c tri-.:' root of this appeal.· Therefore, this court finds no 0ther option but to declare tt~ e~tji1 proceedings that took place be fore Hon~D.M.Sho:nga in Kisutu RM' S , 'ci;.rt P:: (fr.10.te and Administration Cause No. 138 of 1996 null and void.: In ore.,~:· ·i·: •:0ct :..('C justics of the day it is ordered th~.t tho :natter ,should be: heard b0fcre- '.:\11.other magistrate with competent jurisdiction. Sgd: M.I.Muro JUDGE .?.±~.Qg Coram- Mutungi - DR/He For tho Appellant For the Respondent /Abst CC Livanga. Ct: The judgement marked read by F .s.Ko Mutungi DJ?~.Dsr-t in the absence of parties each pastytt-; obta:£.n, a C<?PY of this ju cmcnt from the Registry. gi REGISTRAR 02