Kihago v Kihago (Civil Appeal No. 58 of 1997) [1998] TZHC 2544 (4 September 1998)

MOHAMED KIHAGO v. ABBAS KIHAGO 319 MOHAMED KIHAGO v. ABBAS KIHAGO a HIGH COURT OF TANZANIA AT ARUSHA (Mkwawa, J.) CIVIL APPEAL No. 58 OF 1997 c Primary court - Jurisdiction - Jurisdiction of Primary courts over registered land in matters of Probate and Administration - Government Notice Number 320 of 1996. Probate and Administration - Jurisdiction of Primary courts - Whether Primary D courts have jurisdiction where the estate consists of registered land - Government Notice Number 320 of 1996. The District Court dismissed an appeal, holding that the trial Primary Court had no jurisdiction to entertain the probate and administration matter because the estate E involved consisted of registered land. The trial court had dismissed the application by the appellant who had sought to be appointed administrator of the estate of his late parents but the court did not appoint any other person as administrator. The High Court addressed the question whether the trial court had jurisdiction to entertain the F matter. Held: (i) Primary Courts have jurisdiction in matters of administration of estates if the law applicable is Islamic law regardless of whether or not the subject matter is land registered under the Land Registration Ordinance; the Appellate District Court, G therefore, erred in holding that the Primary Court had no jurisdiction to entertain the matter; (ii) The trial Primary Court acted contrary to law by failing to appoint some one to take care of the estate of the deceased; H (iii) The only way out now is to declare the doors open for any one wishing to petition for the Probate and Administration to do so at the earliest, the law of limitation notwithstanding, as none of the prospective petitioners is to blame for what happened.

320 TANZANIA LAW REPORTS [1999JT.L.R. (iv) Obiter; The concerned parties, being blood relations, should not waste time in fruitless litigation that will only inflame ill-feelings and act to their detriment; they should try to settle the matter amicably or seek the assistance of the Administrator General. B Appeal allowed; parties to bear their own costs Case referred to: (1) Scolastica Benedict v. Martin Benedict [1993] T.L.R. 1 C Mr Makange, for the Appellant JUDGMENT (ex-parte) (Delivered 04 September 1998) D MKWAWA, J.: This matter is in respect of the original Arusha Urban Primary Court Probate and Administration Causes Number 7 5 and E 76 of 1993 whereby the appellant, Mohamed Kihago, had lodged an application for his appointment as the administrator of the estate of his late father and mother. It is amply clear from the records that the estate in question is F quite substantial and is by and large involving registered landed property. It is also common ground that the appellant having filed his application the respondent, Abbas Kihago, filed a caveat and the matter went to a full trial. After the hearing the trial Primary Court dismissed the G appellant ’ s application, leaving the matter in a state that no one was appointed to administer the estate. The appellant being aggrieved by the decision of the trial Primary Court unsuccessfully appealed to the District Court and hence the instant appeal which, for reasons beyond my comprehension, was not opposed, and hence proceeded ex-parte. It is not irrelevant to mention that in dismissing the appeal the learned magistrate held, inter alia, that the trial Primary Court had I no jurisdiction to entertain the matter. Consequently, he declared the whole trial a nullity.

MOHAMED K1HAGO v. ABBAS KIHAGO 321 Both in the petition of appeal and in the written submission by a Mr Makange, learned counsel for the appellant, several attractive grounds and arguments, respectively, have been raised. But this appeal can easily be disposed of by dealing with only one point, namely that the first appellate court erred in law in nullifying the proceedings b in the trial Primary Court. It is on this basis that I will not dwell upon them, their weight notwithstanding. It is true that the deceased ’ s estate comprised of registered land. The parties being persons professing Islamic faith it is not surprising c that they had desired that Islamic law should govern their matter. The question for consideration is whether the trial court had jurisdiction to entertain the matter. I hasten to answer the issue in the affirmative; the provisions of Government Notice Number 320 of 1996 are buttressed d and/or fortified by the much celebrated decision of the Court of Appeal in Scolastica Benedict v. Martin Benedict (1). Primary Courts have been given jurisdiction in matters of administration of estates regardless of whether the subject matter is land registered under e the Land Registration Ordinance. It is in this respect that I am respectfully in agreement with Mr Makange, learned advocate for the appellant, that the appellate District Court erred in law by holding that the Primary Court had no jurisdiction F to entertain this matter. As the decision of the appellate District Court was erroneous it can not be allowed to stand. I accordingly quash it. But, it might not fully serve the interests of justice to leave the matter there. The trial Primary Court, in not appointing an administrator to g administer the deceased ’ s estate, left the said estate unadministered. This state of affairs cannot be allowed to stand. There must be some one to take care of the estate for the benefit of the inheritors. It is the administrator who will also pay creditors and collect debts if H there are any from the debtors. Thus the court acted contrary to the law by failing to appoint someone to take care of the deceased ’ s estate. For the reasons I have given, I am of the settled view that the only way out of this impasse is to declare the doors open for any i one who wishes to petition for the probate and administration to do

322 TANZANIA LAW REPORTS [1999]T.L.R. A so at the earliest, the law of limitation notwithstanding, as none of the prospective petitioner is to blame for what has happened. I think I will be failing in my duty if I do not advise the concerned parties in this matter to amicably settle the matter between them as B they are blood relations. They should see to it that they do not waste time in fruitless litigation that will only inflame ill-feelings and act to their own detriment. In the event that is not possible they are enjoined to seek the assistance of the Administrator General. It is, c however, any pious hope that my advise will not fall on deaf ears or on barren soils, if I may use that expression. Having regard to the circumstances of this case, namely the chequered history, parties to bear their own costs. Order accordingly. D IN THE MATTER OF MOFAJU ’ S INVESTMENT E COMPANY LTD HIGH COURT OF TANZANIA ATMWANZA F (Nsekela, J.) MISCELLANEOUS CIVIL CAUSE No. 30 OF 1997 G Company law - Memorandum of Association - Alteration of the provisions of the Memorandum of Association - Section 7 of the Companies Ordinance, Chapter 212. H Mofaju ’ s Investment Company Ltd petitioned the High Court for confirmation of altered Memorandum of Association whereby 10 sub-clauses were added. Neither a copy of the petition nor a notice of its hearing was served on the Registrar of Companies. Held: (i) In order for the court to make an informed opinion one way or the other and I arrive at a sound decision, the Registrar ’ s presence is of utmost importance in order to assist the court to arrive at the decision;