nurban amirali jaffer another vs ahmed jaffer ltd and another 1997 tzhc 193 1 june 1997

*3 IN THS HJGH COURT OF TANZANIA AT DAR SS SALAAM .•7 ' 1* * CIVIL APPEAL NO. 61 OF 199^ (Original Probate Cause No* J>1 of 1992 at the Magistrate Court Kisutu) SWALEH fiWANDAU ..... ........ APpLI^T VERSUS MOHAMED ..... ...... HESPpNEEN? JUDGEMENT Xjl^TOA.^ (SXT. J » ) ? Ja the District Court of Ilala at Kivukoni one SWAL3HE BWANIJ^U i*m&r to as the Appellant) applied for letters Qf adm^p\$^|^o& that he \je appointed administrator of deceased dat*t« q £ the t^fflTBNDS FUNDj^ whe died interstate. As usual eitatioo was issued §&d p py^^gtyjd jp the lo®al news paper of Uhuru dated Jt v/o^d appear MOHAMED HAMISI SWALEHB(hereinafter refs^ffd to i| $t§ R^sp^jd^t) happened to come across to thiscitation. He filed a tavgct* Jhg Cgurt fjxed a date a date of hearing of the eavgat* Qn fcny: |g«assions the Respondent didnot appear. The tjrial C«^|| in of (he •avga.tor, granted letters of administration to the a pp ^^ m £» Sjpgtime* after the granting of the letters of administjjjati^Ji ^ 8 Rgsp^adgpt though his advocate one Hiss Sheikh emerged and asked the Court to s^t aside the order of granting letters of administrftjon «n the gPftfad that h$ was not given an opportunity of being heard. Mr* Maft§h who adf^i^ed tgg thg Appellant objected to the setting aside the order saying the ^yPflPdy t had to shew he was not aware of the date qf hgar^ng. He wg£t •** t§ «ay that oven the basis upon which the application is ^asgdf tha£ jj^3t fpq^at* neither was in foroe nor renewed as provided under S* %£ ^he PT^jat§ and Admini^tratity Ordinance Cap. H 5 * In short §ujyfli|te<i fchat th^pg was no valid legal caveat before the _ trial Court to ^gqk 4W At the end of the day, however- the trial Court set aside the Orders and went further in granting leave to the Respondent so that he renew his caveat* It is not stated under which section of the Probate and Administration Ordinance, Cap* Mf5 was the Order - made. Be that as it may the Respondent was then heard plus his witnesses. The Appellant was also heard plus his witness. Finally judgment was written and delivered interested which ordered fresh application be lodged in Court so that all/parties, to use the word of the Court 1 should apply so that they be considEeed as administrator of the deceased estates* Soon after that judgment the Respondent applied to be appointed as administrator of the deceased estates, hence the issuance of citation and publication in Mzalendo News Paper of 21/8/9^, Thus the appearance of the name of the Respondent on the folder* In thj -5 appeal Mr, Maftah advocated for the Appellant whereas the ^.^^pondent 'as represented by Mr* Mlanzi Learned Counsel, Mr,. Ma^fcah raised three grounds of appeal in his memo of appeal} namelys- T*The Learned Magistrate erred in law in ordering that fresh application be lodged in Court for the appoint­ ment of the administrator* The Learned Magistrate erred in law and fact in failing to address his mind to the evidence availa­ ble in record, \ The Learned Magistrate has erred in law and fact in failing to appoint the applicant as administrator* As rc prds to the zxrsv ground. Mr, Maftah in his written submission* argued t h a : by Ordering a fr#sh application be lodged in Court, the Learned Magistrate m s exercising powers of Appellate Court which he had none. This was n<>fc proper* He submitted, Coming to the second ground of appeal Mr* Maftah submitted that the issue fov determination is appointment of administrator of the deceased estates and not inheritance. He went on to argue that the appellant was looking after the deceased houses while the deceased was still alive by collecting rent, effect minor repairs and make necessary maintenance* This pikace him in a good position vis-a-vis the others* Lastly Mr. Maftah submitted like in the second ground the appellant * . was a fit person to be appointed as administrator of the deceased estate* Mr. Mlanzi on the otherhand supported the finding of the triaj. , He submitted that the Court was right in ordering a fresh application SM the Court is entitled to revoke the grant when the proceedings leading grant the letters of administration were defective in substance as provided under section *t9 of the Probate and Administration Ordinance, Cap. ^*5* He went further to submit that the Court was right in ordering a fresh application be made because section 71(1) of the Probate and Administration Ordinance Cap bb5 was not complied with. The section states that all people who are interested are required to give their written consent t* the would be administrator. However, this point was not canvassed &t the trial. Be that as it may, in the alternative Mr. Mlanzi submitted that in the event the lelter l?E xhibit D3?’is declared to be a will then the same is a nullity as it contravenes with some requirements of a valid will under Islamic law and traditions* Let me start with the alternative argument raised by Mr. Mlanzi, There ir nothing on record to suggest that Exhibit D3 was declared by the trial Court to be a will. Mr. Maftah neither did he raise it nor did he ask the Court that his client be a sole inheritor of the deceased estateg* Sr> it is not an issue before the trial Court, Having said so let me proceed with the merits of the appeal. It is not in dispute that the Appellant applied to be appointed a.S administrator of deceased estate. It is further not in dispute that the respondent filed a caveat with a view, it would appear to preventing the appellant from being appointed. It is also not disputed that the Respondent didnot appear when the matter was fixed for hearing. Thus the appellant was appointed. It is further not in dispute that after the appointment the Respondent ask the Court to set it aside so he be allowed to explain why he filed the caveat. The order was set aside and hence the ordering of fresh application. The question for deter­ mination and decision is whether that was proper. This inturo bring me to the issue of what is a caveat and what purpose does it serves* ..... A And that alone will dispose off this appeal. According to BLACK'S LAW DICTIONARY SIXTH EDITION the word caveat ViyiR been legally defined »nd it also states what purpose it serves* It \ says:- Let him beware* Warning to one to be careful* A formal notice or warning given or warning given by a party interested to a Court,judge or ministerial Officer against the perfomance 0f certain acts within his powers and jurisdic­ tion. This process may be used in the proper Courts to prevent (temporary or provisionally) the proving of a will or t h e .grant of adminis­ tration etc* B;* lodging a caveat the Respondent wanted to prevent temporarily £h$ iasuanc3 of letters of administration for reasons he would adduc§ or w^hc^aw it in c i'e he find it he has no objection or consent to the appo^jtmgij^ Quit it r-oould be borne in mind that ' a caveat has a life span o£ months. This is provided under section 58(5) of the Probate and tion Ordinance, Cap, ¥f5, It provides: (5) A Caveat shall remain in force for four months after the date upon which it was lodged *; r.. c-c- (Unless sooner withdrawn) but, subject to the provisions of section 59» may be renewed. The Learned trial Resident Magistrate was very much aware of it* But he ws.-nt ahead in setting aside the order of granting^ letters of adjq^p istraticu for reasons he has stated therein without stating the gaaJjJiag provision to do so. This is not proper. In any case after the of four itonths the caveat so lodged is deemed to have been withdrawn au»d that no :urther caveat may be entered. This is provided under subseefc^ft b «f sec ion 59 which reads (k) Where a Caveator gives notice that he supports the petition, or where he fails to give notice to that effect and fails to enter an appearance to the petition within the time limit'ed &hcrefor t the caveet shall be deemed to have been withdrawn and no further caveat may be enifcsrrcS by or on behalf of the caveator. In the instant case, at the time of hearing the Caveat, the same was marking its 320th month of its non existence. And that it was not renewed# In terras of the quoted section, the caveat was deemed to have begn witiidjav©. after the expiry of four months i.e. on 6/11/92. To put it diffQPgntJy at the time of hearing the caveat i.e. on 28/3/199^ there was no eaveat existed* So the Learned trial Resident Magistrate aljdjUC^tgd • non existent matter, Mr, Mlanzi submitted that the trial Court revoked the ordgr of gyajlt^Xg the letters of administration. With due respect to Mr. MlanzdL his 16 not borne out by the record. The record clearly stated that it set aue^de the order. As that is the crux of the appeal, and for reasons adduced, I alljw the appeal in that I set aside the order of the trial Court in ordering fresh application be made. Instead I restore the decision of the same Court dafcgd 2 *+/6/93 which appoints the appellant administrator of tha deceased The appeal is all owed with costs. Order accordingly. I (B. M* LUANDA) FRM. EXT. JURISDICTION 6/1/97 Judgment delivered in the presence of Mr, Mlanzi, Advocate for the RespyidQJit and the Hesporlent present in person. Mr, Maftah, ac/ocate-absent duly served* (B. M. KJAND&) " ' PRM. EXE,- JURISDICTION ... 6/1/97 Mr. Mlanzi: ’>e pray for leave to appeal to the Court of Appeal of Tanzania, Court; Under vhat Rule of the Court of Appeal? Mr, Mlanzi: I pray for leave for half an hour to check. Court: Granted Court: Mr* Mlanzi indicated the Rule in writting. •« « « « / £ Order: Upon reading Rule 43'ja) of the Co.UEt, ofo&ppeal Htxlea^ le6v^o%51ag^calPtalt&el0ourIpjreal:: isahpcaiycgrieit eCaiyt — .~~7 \ M jg *- (B. M. LUANDA?**-. FRM. EXT. JUgJSDICTION . - ' 6/1/97