sylivia luhasha vs fahamu valentine 2009 tzhc 35 22 september 2009

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 17 OF 2007 SYLIVIA LUHASHA...... ....... !.......................... APPELLANT VERSUS FAHAMU VALENTINE............................... ...RESPONDENT Date o f last order 21/09/08 Date o f Judgment 22/9/ 09 J UDGMENT MWARIJA, J. This is an appeal against the decision of the Resident Magistrates’ Court of Kivukoni at Kinondoni. The decision, purportedly arose from Misc. Civil Cause No. 41 of 2003. The facts leading to that decision can briefly be stated as follows; The appellant, Sylivia Luhasha instituted a petition, Probate No.220 of 2001 in the Primary Court of Manzese for grant of letters of administration of her deceased husband, Valentine Paulo Luhasha who died intestate on 24/9/2001. The respondent's father objected the application but after the hearing, the court overruled the objection and the appellant was appointed to be the administratrix of her late husband’s estate. The respondent who did neither enter a caveat nor testify in the proceedings before the Primary Court, filed an appeal in the District Court of Kinondoni. According to the copy of ruling in that appeal which was apparently registered as Misc.Civil Appeal No. 26 of 2002, the appeal was dismissed and the respondent was advised to file an application for revision of the proceedings and decision of the Primary Court. Upon that advise, the respondent lodged the application which was filed in the same record of Misc. Civil Appeal No. 26 of 2002. Upon objection by the appellant on the points inter alia that it was improper to commerce revisional proceedings in an already dismissed appeal, the District Court (Wambura, SDM) upheld that ground of the preliminary objection and dismissed the application. She however “ordered” that the application for revision be filed afresh. The freshly filed application resulted into he now impugned decision. In this appeal, the appellant was represented by Mr. Byabato, learned counsel while the respondent was represented by Mr. Mutakyahwa, learned counsel. The appeal which consisted of four grounds was argued by way of written submissions. The ground of appeal were as follows; 1. That the District Court erred in law and evidence by holding that the two children of the respondent bom out of wedlock are entitled to their father’s estates while the law, in particular Haya Customaiy law provides to the contrary and regards such children as bastards. 2. The District Court further erred in law by dealing with a non existent application and granting remedies to the respondent while the records were very clear that the application had previously been withdrawn by the respondent herein and there was no other application filed in that behalf, a fact which was ignored by the District Court but being an inter locutory order there was no right of appeal. 3. The District Court went further erring in law by holding that the respondent was a customary wife of the deceased while there was no proof to that effect notwithstanding uncontroverted fact that the respondent never lived with the late Luhasha under the same roof in any of his five houses in Dar e s Salaam or elsewhere he had landed properties ironically holding that the concubine and her off springs are entitled to the estate of her late lover. 4. The District Court also erred in law by holding that the Christian marriage between the appellant and the late Luhasha was void for reasons that there still was another subsisting marriage whereas there was no any proof thereof and prior to Christian marriage all marriage formalities were followed. After the learned counsel for the parties had filed their written submissions, I required them to file additional submissions on whether the Primary Court had jurisdiction in entertaining the petition for letter of administration filed by the appellant. This issue came about given the fact that the estate of the deceased comprised of landed properties in Dar es Salaam City and other properties which are outside the jurisdiction of Manzese Primary Court. Mr. Byabato, learned counsel submitted that the primary court of Manzense had jurisdiction. He cited the provisions of GN 320 of 1964 and the case of Scolastica Benedict v. Martin Benedict (1993)TLR 1 to substantiate that the court had jurisdiction to entertain the petition. He argued that because the deceased had a place of abode in Manzese and since the applicable law was customary law, the petition was properly filed in that court. On the other hand, Mr.Mutakyahwa submitted that he partly agrees with application of customary law and that is only to the extent of the existence of marriage between the deceased and the respondent. He argued however that since the estate comprised of assets which included those which are outside that court's jurisdiction, under S. 3 of the Magistrates’ Court Act and paragraph 2 of the 4th schedule to the magistrates’ court Act, Manzese Primary Court does not have jurisdiction over such properties. His reason is that because those other properties are outside that court’s jurisdiction the proper court should be the courts within whose jurisdiction those properties are situated. As to the application of customary law, he said that the customary law applicable should be that which is “prevailing within the area of its local jurisdiction or, if there is more than one such law, the law applicable in the area in which the act, transaction or matter occurred or arose, unless it is established that some other customary law is applicable but it shall, subject to rules of court, apply the customary iaw prevailing within the area of its local jurisdiction in matters of practice and procedure to the exclusion of any other customary law”. By that argument, I understand the learned counsel to say that customary law is not applicable in this case at hand because some of the deceased’s properties are situated within other jurisdiction where the customary law of the parties is not applicable. Having considered the submissions by the learned counsel for the parties, I am of the settled view that Manzese primary court had jurisdiction to entertain the petition. In the case of Scolastica Benedict (supra) cited by the learned counsel for the appellant, the Court of Appeal held as follows regarding the jurisdiction of primary courts in matters of administration of estates; “While section 15 (1) (c) of the Magistrates Courts Act 1963 (now s. 19 of the Magistrate’s Courts Act, 1984) did not specify the particulars relating to the administration of estates, the order of the Chief Justice Published as Government Notice No. 320 of 1964 conferred jurisdiction on primary courts in matters of administration of estates regardless of whether the subject-matter is land registered under the Land Registration Ordinance, provided the applicable law is customary or Islamic Law, other than matters falling under the Marriage, Divorce and Succession (Non- Christian Asian tics) Ordinance.” From the above authority, although the descriptions of the landed properties in Manzese and Mbagala, within the City of Dar es Salaam were not given to show whether they are on registered lands or not even if the properties are in registered lands, still the primary court would have jurisdiction because the administration of the deceased’s estate is, as stated above, governed by customary law. Again, once a matter is governed by customary law or Islamic law, Primary Court's do not have pecuniary limit over the subject matter. The pecuniary jurisdiction of primary courts in the application of customary law is provided for under paragraph 2 of the 4th schedule to the Magistrate’s Court Act, Cap. 11 RE. 2002. Under paragraph 3, a primary court when exercising powers conferred upon it by s. 18 of the magistrates court Act may award any amount claimed in the proceedings of a civil nature. That is obviously the reason far inexistence of a provision providing for a pecuniary limit in administration of estates cases. The law provides only the minimum value of the estate for which a primary court cannot entertain by appointing an administrator. Paragraph 1 (2) (b) of the 5th schedule to the said Act provides that a primary court shall not appoint an administrator of the esta'te where the gross value of the estate does not exceed Shs. 1,000/=. As to the question of territorial jurisdiction based on the fact that the properties of the estate are situated outside the jurisdiction of Manzese Primary Court, I hold a view that according to the law the Primaiy Courts are vested with jurisdiction to exercise powers in the administration of deceaseds’ estate where the deceased, at the time of his death, had a fixed place of abode within the local limits of their jurisdiction. The condition therefore is a place of abode not the location of properties. Since the deceaseds in this case had his fixed place of abode in Manzese, the Manzese primary court had jurisdiction regarding matters of administration of his estate. Having found that the primary court of Manzese had jurisdiction in the matter, I now turn to consider the grounds of appeal. I propose to start with the 2nd ground of appeal. From the facts leading to the impugned decision as briefly stated at the beginning of this judgment, the answer to this issue is not difficult to arrive at. Mr Byabato has submitted that since the application which gave rise to the impugned decision was withdrawn, there was no basis upon which such a decision could be made. In reply Mr. Mutakyahwa submitted that the decision was based on revisional proceedings filed vide Application for Revision No. 26/2003. He said that the hearing proceeded in respect of that application after the respondent had abandoned Civil Application No. 41 of 2003 which she mistakenly filed while her counsel was away out of the country. With due respect to Mr. Mutakyahwa, according to the record of Civil revision No. 41 of 2003, it is not true that the application was abandoned, it was withdrawn. The court (Mtaki, RM) made the order of withdrawal on 24/10/2003 following an application by Mr Bubelwa on 17/10/2003. The learned Resident Magistrate had reserved the ruling to 24/10/2003 in order to consider the prayer for costs made by Mr. Ruta who on that date appeared for the respondent (in the application). After the withdrawal however, the matter proceeded as if no such order had been made. According to the record,' the parties proceeded with attempts to settle the* matter out of court. When the attempt failed, on 17/11/2006 the court (Mshasha, RM) set a date for judgment. Now, since the impugned decision which was termed “judgment” instead of “ruling” arose from the application which had been withdrawn, can that decision be valid in another application? To be more specific, can the decision in the withdrawn Civil Revision No. 41 of 2003 be a valid decision of the said Misc. Civil Application No. 26 of 2002 [Misc.Civil Rev. No. 26 of 2003] ? The answer is obviously in the negative. It is clear that the impugned decision arose from Misc. Civil Cause No. 41 of 2003. That is what the title of the “Judgment” shows. However, the opening paragraph shows that the decision is in respect of Misc.Civil Application No. 26 of 2002. Further more, apart from the fact that there is no document which initiated Civil Revision No. 41 of 2003, the record does not certain anything concerning Civil Revision No.26 of 2002 so as to be inferred that the decision was made in respect of that application. In conclusion therefore, I find that there was a considerable mismanagement of proceedings leading to the filing of multiple applications and the making of decision in a withdrawn application with inference of deciding another application. That decision would become, and is hereby accordingly found to be null and void. As a result of a finding to that effect on the 2nd ground of appeal, I need not proceed to consider the other grounds of appeal. The proceedings in Misc. Civil Revision No. 41 of 2003 starting immediately after the date of withdrawal of the application, that is from 27/8/2003 to the date of the purported judgment* are hereby quashed. The effect of this is that the application remains withdrawn. The purported judgment is therefore accordingly set aside for having been erroneously made. The orders arising from that decision are also set aside. Appeal allowed. No order as to costs. A.G.Mwarija JUDGE 22/9/09. 2 / 9/2009 Coram: A.G.Mwarija, J. For the Appellant: Mr Byabato, For the Respondent: Mr Mutakyahwa CC: Butahe. Judgment delivered JUDGE 22/9/09