19980821 TZHC Dar es Salaam 1
- Citation
- 19980821 TZHC Dar es Salaam 1
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZHC
- Decision
- 21 August 1998
- Posture
- Civil Appeal / Judgment on Appeal
- Language
- English
More details
- Court
- TZHC
- Decision
- 21 August 1998
- Posture
- Civil Appeal / Judgment on Appeal
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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. MwengeleNot stated
Respondent03
Procedural history
Posture
Civil Appeal / Judgment on Appeal
04
Questions and positions
Legal issues
- 01
Whether interlocutory orders can be applied for before filing a suit
- 02
Whether probate proceedings must commence by petition
- 03
Whether the trial court's proceedings and orders were irregular and contrary to law
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
Legal principles
- 01
Order 37 of the Civil Procedure Code
Interlocutory orders cannot be applied for in the absence of a suit.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TZHC
Judgment· 21 August 1998
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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