Tanzania Judgment

TZHC

19980821 TZHC Dar es Salaam 1

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The proceedings were irregular and not maintainable at law because interlocutory orders were sought without a suit being filed, and the proper procedure for probate matters was not followed.

Court disposition

Appeal allowed; proceedings and orders of the trial court quashed and set aside.

Orders

  • Proceedings and orders of the trial court quashed and set aside
  • No order as to costs

02

Material facts

Parties

Winnie Chikoya

Appellant Counsel: Mr. Mwengele

Not stated

Respondent

03

Procedural history

  1. Posture

    Civil Appeal / Judgment on Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The proceedings at the trial court were highly irregular as there was no suit filed before interlocutory orders were applied for, contrary to Order 37 of the Civil Procedure Code. Probate proceedings should start by way of petition as per Section 56 of the Probate and Administration Ordinance, and in contentious matters, the petition should be turned into a suit under Section 52(b). The trial magistrate's ruling was improper and the orders given were contrary to law.
Respondent
No appearance or argument from the respondent.

05

Court’s reasoning

  1. 01

    Order 37 of the Civil Procedure Code

    Interlocutory orders cannot be applied for in the absence of a suit.

  2. 02

    Sections 52(b) and 56 of the Probate and Administration Ordinance

    Probate proceedings must commence by petition, and contentious matters must be converted into a suit.

06

Ratio, limits and disposition

Ratio decidendi

The proceedings were irregular and not maintainable at law because interlocutory orders were sought without a suit being filed, and the proper procedure for probate matters was not followed.

Court disposition

Appeal allowed; proceedings and orders of the trial court quashed and set aside.

  • Proceedings and orders of the trial court quashed and set aside
  • No order as to costs

Source and reliance status

TZHC · 21 August 1998

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Judgment reading view

Judgment text

The complete available source text.

Source document

TZHC

Judgment· 21 August 1998

19980821 TZHC Dar es Salaam 1

I. DAR ES s.ru. ·AA~i DISTRICT ffEDISTRY AT DAR ES SALA.Ab, CIVIL APFEAL NO~ 11 OF 1998 WINNIE CHIKOYA 0000•0'1oan~oc,n~c:1<0ct BU BE,SH! , J: In course of hea.r·ing this appeal, I allowed the . appeal and reservE,?1.:r'my reasons for so doing. I now proceed to give my reasons. Ivlr l\'Jwengele for the apfell:::..nt had filed x six· grounds of appealo The grounds when sur;,m2_rised come ,to this~ That the proceedings at the trial court were I highly irregular in that first there was r~ suit filed before interlocutory ord_ers could be applied for. ·- ·". .' - ' That this offends 037 of the CIC. Again the proceedings at the trial v,ere supposed to ·start by way of petition - Section 56 of the Frobate arid Administration Ordimnce 9 C. - - • ' - and inevent of a contentions rnatter the petitions be turned into a suit in terms of section 52 (b) of same _. ,. . • r .- ,c. ~ " : ) • * " . Act~ That the ruling delivered by the trial magistrate was as if the court was tryir,& to correct an fi.:1.rlier I decision while that-·v1as"-no't ...the . And again that case~ . the 9.:r~_~n order is contrary to the orders given. After a careful study of tl-12 Ruling ,gi veri I find myr,elf tot agreernent with the subrnis.sions ri1ade by f✓ir. f1Mngele. One does not file for an application for ·cerr:porary orders in absence of 3. suit~ That this is a prooate matter is not dis,puted and an

ir:,junction f.LlGd in terms of - .·Section 68 (c) of the Code camiot issue. The proceedings filed therefore were not only irregular but ·not rnaint3.irr:.b~-- at law; I have no atternat-1- ve. bu·t" to qu3.·.sh and set them aside. .I make no order as to costs. ;_~' / ). /.. ,. ( -,., _/ t,- '· ~ J : : ·... 1;.. \..' :'.; /\...-'\ Delivered ,before A·. G. BUBESHI . . JUDGE Magafu for Mwengele and in absence of Res:pondent 21/8/98" l'.J , r·'. '! ·r .. . • ~ · ~ ~ . : '..; ,.t 1/!.r:-;:. ·- r< fl l 1-H-{: J .. J •. : f . ___, -_ .. ... __ .. •' . ., ,

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Order 37 of the Civil Procedure Code

Legislation

Legislation referenced in the available case record.

Section 56 of the Probate and Administration Ordinance

Legislation

Legislation referenced in the available case record.

Section 52(b) of the Probate and Administration Ordinance

Legislation

Legislation referenced in the available case record.

Section 68(c) of the Civil Procedure Code

Legislation

Legislation referenced in the available case record.

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