Kijakazi Mbegu and Others vs Ramadhani Mbegu (PC Civil Appeal No. 140 of 1997) [1998] TZHC 2131 (2 July 1998)

IN THE HIGH COUl1T OF TANZANIA AI' DAR ES SALJ.\AI-ii PC. CIVIL APP. NO., l40/1997 (From Distri6t Court Kinoridoni No •• 55/1977 Original 1"1agomeni" Primary Court No:. 312/1996) KI J MU\ Z I MBEGU & 5 0 Trt?.RS • . • • • • • • • • • • . • • APP ELL Mn Versus JUDGMENT This matter has a long history. It started as Admini- stration Cause No. 55 of 1977 br=f ore the Magomeni P ri 1 :nary Court where Ubwa t'lbegu was· appointed administrator of his late father Mwinyimbegu Mshinclo. /~~ter some time Ubwa iv'lbegu also passed away. Before his deathy however, and according to the findings of this court, Ka.ji, J;, in (PC) Civil Appeal No. 150 of 1995 Ubwa f.tfbegu had sold one of the two houses constituting the estate and had duly distriputed tie proceeds to the benef:iici-c.r_i-rJ:S the administr3.tor and his broth2r; the latter is the present respondent. The findings ffl.8.de by Kaji J .• , further show that the two houses had been distributed to the L>enefici&rJ;d..e.s--. as f ollm,rn ~ one to the two broth-2rs and 0110 to their ight sisters. The latter ane the 3pp2llcmts hGre. So that when the respondent ap·plieci for letters of o.drninistration in respect of th,.? :10use that was distrj_ buted to his sisters they resisted thG move. Tney stated that whereas the house on Togo Street 9 Dar es Salaam, had been distributed to the two brothers, the 0110 at Kongwa Street in Dar es Salaam also, was beqec:tthed to the appellants. At p.-1ge 2 of the typed judg;nent of Kaji, J., it is shown that on 30th December, 1991, the trL-::.1 P ri!:1ary Couit in Admi- nistration Cause No. 55 of 1977 ordered that th2 disputed house be evalun.ted before it 1-,!2s to b-2 sold v1ith di.rections that thic: procec~ds b2 distributed to th-= m2ll:?. as well as to the f ernale benef ic1.aries. . 7hat order v:as quashed by tr1e District Court on 10th December, 1992 and it was ordered that the case be tried afresh.before another magistrate. On 1st September, 1995 a Senior Resid,?.nt ·:,:agis tr ate, presur:12 bly in line with the decision of the District Court 1 held that the prf-.csent respondent v,as not ths clwice of all the beneficiaries,

= 2 :::: clirecting him to refer the matter to their close rel.s1ti ves who would propose the person to apply for a grant, The appe- 11ants were aggrieved 9 hence (PC) Civil Appeal No. 150 of 1995 which was heard by Ka.ji, J. It was observed by this court that while the decision th,::it qua.shed + .. he p:ro<:ce{U_ngs before the trial primary court and an order for a re-trial were still in force 9 the present respondE;nt made a compl2int to ,:mother m;:-igistr2,te who took that comp12int to constitute an appeal- acSainst the decision of the primary court. This court f ouncl that th,:: decision of the latter magi:3tr2te was wrong because the decision .in respect of which he entertained an 2ppeal ·das quashed :J.nd no one had appealed against it. So the invalid order of the District Court dated 1st September 1995, was quashed. The order for a re-tri2l was upheld. The judgment of this court is dated 2nd October 1996. On 6th December 1 1996 1 Ramaclhani 1'ilbegu lodged his appli- cation for a grant, inferentially in obedience with the order of this court. For a copy of the judgment of this court is the only document that was filed in that application, Probate Cause No. 313 of 1996. Then on 9th Janu:iry~ 1997, respondent wrote t.o the. District Court Expre::ssing fear that he~ would not get justice from the trial magistrate. He 1 in consec..i'. '?nee, prayed that another magistr2te try the casG. Instead of acting as requested, the~ District Court decided to tr,1nsfer the case to itst"lf. A case 1 Pro bate Cause No. l of 1997 1 was c:pened. After a number of adjournmE:nts tlle District Court appointed the respondent as administrator of the estate in a juclgm2nt that v-ras delivered on 10th September 1 1997. Mt-antime, and before the District Court dG:livoroJ its juegment, the present appellc:mts through their advocates, lodged a-caveat against the appointment of the respondent on the-following grounds-

1. That the petitioner did obtain the written consent of all the b~neficiaries;
2. That the petitioner did not file an affi- davit giving the full names and eddresses of the persons \vhose consi:?nt w2s produced; and I -- • • ~ 0. Q / j

::;; 3 ::;; (3) That the petitioner was not the right person to a grant in respect of the house at Kongwa street because it was devised inter viros to the appellants by their l8te father. The caveat was lodged on 3rd April 9 1997. The appellants were aggrieved by the decision of the District Court, hence this appeal. Mr. Mkondya 9

learned advo- cate9 who represents the appellants 9 has raised four intere- lated grounds. The first one relates to the caveat. It is \ . ./ averred that the trial court erred in granting letters of administration to the respondent whille the caveat was still in force~ This ground appears to be persuasive as it appears to be forceful. It is nontheless tenable because the caveat having a life of four months from the-? date on· which it is lodged in terms of section 58 (5) of the Probate and Adminstration Ordinance, Cap. 445 9 it was to expire on 2nd October, 1997. There was~ therefore, a caveat in force on 10th September 9 197 when the District Court delivered the impugned judgment. In th&t circumstance the first grand succeeds The second ground fuas a lot of force. It is averred that the trial magistrate erred in law and in fact in granting letters of administration to the respondent without affording the appellants a hearing. Mr. Mkondya 9 argues, quite correctly, th2.t no where was evidence given upon which the trial court based i.ts find;i..ngs. My perusl of the r2cord of the trial court sat;.sfies me that decision was made without even giving a hearing to the appellants, advocate 9 Mr. Masawe, who was appe8ring before that court. The trial court's decision is 9 therefore, a traversty of justice. It offends cardinal rles of fairness. Indeed, as Mr. Mkondya submits, it was an error on the part of the Dstrict Court to ignore the order that was made by th_is court, direting that th:-, case be? tried before anothGr magistrate, What was intended was trial before another primary court magistrate. True, there was a complaint against the second primary court magistrate, Nevertheless the s?licant/respondent morely wanted a change of m8.gistrate 9 he did not apply for a change of venue. • :· ••. /4

= 4 = It is my considFred opinion that it was wrong for the·Distri6t Court.to transfer to itself a matter that involved Islamic Law. Jurisdiction in-civil proceedings where customary law or.Islamic law applies i's rested in the Primary Court in terms of Section 18 (1) (a) (11) of the Magistrates Courts Act as read with Rule I of the Fifth Schedule to the Magistrates Courts Act. Once all the parties are moslems 7 a Primary Couft has juris- diction to administer an estste even wh2re it comprises of. r0gistered land. It was therefore erroneous for ·the District Court to ignore the order of this court as aforesaid. The , content.ion in the third ground of appeal that th2 trial magis- .. '-0 tr3te err2d in granting letters of administr2tion to the respo- ndent contrary to the letter and spirit of the High Court judgment is well-faunded. Tho fourth ground lacks merit. It is there contended that in granting letters of administration tl1e subordinate court had to act according to the wishes of clan members. There is nowhere in th2 magistrates courts Act, 1985 where there is requirement to collect clan views before a grant is made. All that a subordinate court is required to consider is an application in the approprio.te m:mner o.nd to hear and to determine any objections to such application. From the foregoing reasons the: appeal succeeds. It is dismissed with costs. Judgment delivered. 1 -, J-z---<y Ae:l?..§..~~_ar1:9 MACKANJA JUDGE 2/7/1998. Mr. Mkondya, Advocate- for Appellail.t- Absent.- For Respondent. 8 CERTIFIED TRUE COPY OF THE ORIGINAL. F.S. MSHOTE