Mbegu and Others v Mbegu ((PC) Civil Appeal No. 140 of 1997) [1998] TZHC 2539 (2 July 1998)

174 TANZANIA LAW REPORTS [1999]T.L.R. a KIJAKAZIMBEGU AND FIVE OTHERS u RAMADHANI MBEGU HIGH COURT OF TANZANIA B AT DARES SALAAM (Mackanja, J.) c (PC) CIVIL APPEAL No. 140 OF 1997 (From the decision of the District Court of Kinondoni, in Administration Cause No. 10 of 1997) Probate and Administration - Application for grant of letters of administration U - Caveat lodged against the application - Letters of administration granted while caveat still in force - Whether proper. Probate and Administration - Rules of natural justice - The right to be heard — Trial court decides without according a hearing to the appellants ’ advocate

• Travesty of justice. Probate and Administration - Application for grant of letters of administration
• Subject matter governed by Islamic law and case lodged in Primary court - High Court orders the case to be heard by another magistrate - District Court transfers the case to itself - Whether District Court has F . f, jurisdiction. Probate and administration - Application for grant of letters of administration
• Weight to be given to clan members ’ views in granting letters. G After the High Court had ordered a re-trial of a Probate and Administration Cause, the respondent lodged his application for grant of letters of administration in a Primary Court. Afraid that he might not get justice from the trial magistrate the respondent prayed that another magistrate try the case. Instead of acting as requested, the District H Court decided to transfer the case to itself. While the case was before the District Court the appellants lodged a caveat against appointment of the respondent as administrator. Without giving a hearing to the appellants, the District Court decided the case in favour of the respondent. On appeal the decision of the District Court was I challenged on a number of grounds, including failure of the court to act according to the wishes of clan members.

KIJAKAZI MBEGU AND FIVE OTHERS v. RAMADHANI MBEGU 175 Held : (i) The District Court erred in granting letters of administration to the respondent A while a caveat was in force; (ii) The District Court erred in law by not giving to the appellants the right to be heard; B (iii) It was an error on the part of the District Court to ignore the order of the High Court to have the case tried before another magistrate, i.e. another Primary Court Magistrate; (iv) It was wrong for the District Court to transfer to itself a matter that involved C Islamic law, since jurisdiction in civil proceedings where customary law or Islamic law applies is vested in Primary Courts as provided for under section 1 8( l)(a)(ii) of the Magistrates ’ Courts Act 1984 read together with rule 1 of the Fifth Schedule to that Act; D (v) There is nowhere in the Magistrates ’ Courts Act 1984 a requirement for the court to collect clan views before a grant of letters of administration is made. Appeal allowed E Statutory provisions referred to: (1) Magistrates ’ Courts Act 1984, section 1 8( 1 )(a)(ii) (2) Probate and Administration Ordinance, section 58(5) F Mr Mkondya, for the Appellants JUDGMENT (Delivered 02 July 1998) MACKANJA, J,: This matter has a long history. It started as Administration Cause Number 55 of 1977 before the Magomeni Primary Court where Ubwa Mbegu was appointed administrator the estate of his late father, H Mwinyimbugu Mshindo. After some time Ubwa Mbegu also passed away. Before his death, however, and according to the findings of this court, Kaji, J.; in (PC) Civil Appeal Number 150 of 1995, Ubwa Mbegu had sold one of the two houses constituting the estate and I

176 TANZANIA LAW REPORTS [1999]T.L.R. A had duly distributed the proceeds to the beneficiaries, the administrator and his brother; the latter is the present respondent. The findings made by Kaji J., further show that the two houses had been distributed to the beneficiaries as follows. One to the two brothers, and one to B their eight sisters. The latter are the appellants here. So that when the respondent applied for letters of administration in respect of the house that was distributed to his sisters they resisted the move. They stated that whereas the house on Togo Street, Dar es Salaam, C had been distributed to the two brothers, the one at Kongwa Street in Dar es Salaam also, was beqeathed to the appellants. At page 2 of the typed judgment of Kaji, J., it is shown that on 30 December 1991, the trial Primary Court in Administration Cause d Number 55 of 1977 ordered that the disputed house be evaluated before it was to be sold with directions that the proceeds be distributed to the male as well as to the female beneficiaries. That order was quashed by the District Court on 10 December, 1992 and it was E ordered that the case be tried afresh before another magistrate. On 1 September 1995 a Senior Resident Magistrate, presumably in line with the decision of the District Court, held that the present respondent was not the choice of all the beneficiaries, directing him to refer F the matter to their close relatives who would propose the person to apply for a grant. The appellants were aggrieved, hence (PC) Civil Appeal Number 150 of 1995 which was heard by Kaji, J. It was observed by this court that while the decision that quashed G the proceedings before the trial Primary Court and an order for a re-trial were still in force, the present respondent made a complaint to another magistrate who took that complaint to constitute an appeal

• against the decision of the latter magistrate was wrong because H the decision in respect of which he entertained an appeal was quashed and no one had appealed against it. So the invalid order of the District Court dated 1 September 1995, was quashed. The order for a re trial was upheld. The judgment of this court is dated 2 October 1996. I On 6 December 1996, Ramadhani Mbegu lodged his application for a grant, inferentially in obedience with the order of this court.

KIJAKAZIMBEGU AND FIVE OTHERS v. RAMADHANI MBEGU 177 For a copy of the judgment of this court is the only document that a was filed in that application, Probate Cause Number 313 of 1996. Then on 9 January 1997, respondent wrote to the District Court expressing fear that he would not get justice from the trial magistrate. He, in consequence, prayed that another magistrate try the case. Instead b of acting as requested, the District Court decided to transfer the case to itself. A case, Probate Cause Number 1 of 1997, was opened. After a number of adjournments the District Court appointed the respondent as administrator of the estate in a judgment that was delivered c on 10 September 1997. Meantime, and before the District Court delivered its judgement, the present appellants through their advocates, lodged a caveat against the appointment of the respondent on the following grounds: D

1. That the petitioner did obtain the written consent of all the beneficiaries;
2. That the petitioner did not file an affidavit giving the full names and addresses of the persons whose consent was produced; and E
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 vivos to the appellants by their late father. The caveat was lodged on 3 April 1997. F The appellants were aggrieved by the decision of the District Court, hence this appeal. Mr Mkondya, learned advocate, who represents the appellants, has raised four interrelated grounds. The first one relates to the caveat. It is averred that the trial court erred in granting letters of administration to the respondent while the caveat was still in force. This ground appears to be persuasive as it appears to be forceful. It is 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 H Probate and Administration Ordinance Chapter 443, it was to expire on 2 October 1997. There was, therefore, a caveat in force on 10 September 1997 when the District Court delivered the impugned judgment. In that circumstance the first ground succeeds. 1

178 TANZANIA LAW REPORTS [1999]T.L.R. A The second ground has 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, argues, quite correctly, that nowhere was evidence given upon which B the trial court based its findings. My perusal of the record of the trial court satisfies me that decision was made without even giving a hearing to the appellants ’ advocate, Mr Masawe, who was appearing before that court. The trial court ’ s decision is, therefore, a traversty c of justice. It offends cardinal rules of fairness. Indeed, as Mr Mkondya submitted, it was an error on the part of the District Court to ignore the order that was made by this court, directing that the case be tried before another magistrate. What was D intended was trial before another Primary Court Magistrate. True, there was a complaint against the second Primary Court magistrate. Nevertheless the applicant/respondent merely wanted a change of Magistrate, he did not apply for a change of venue. E It is my considered opinion that it was wrong for the District Court to transfer to itself a matter that involved Islamic law. Jurisdiction in civil proceedings where customary law or Islamic law applies is rested in the Primary Court in terms of section 18(l)(a)(l 1) of the F Magistrates Courts Act as read with rule I of the Fifth Schedule to the Magistrates Courts Act. Once all the parties are Moslems, a Primary Court has jurisdiction to administer an estate even where it comprises of registered land. It was therefore erroneous for the District Court G to ignore the order of this court as aforesaid. The contention in the third ground of appeal that the trial magistrate erred in granting letters of administration to the respondent contrary to the letter and spirit of the High Court judgment is well-founded. H The fourth ground lacks merit. It is there contended that in granting letters of administration the subordinate court had to act according to the wishes of clan members. There is nowhere in the Magistrates Courts Act 1985 where there is requirement to collect clan views I before a grant is made. All that a subordinate court is required to

MEHBOOBAKBER HA.II AND TWO OTHERS v. REPUBLIC 179 consider is an application in the appropriate manner and to hear and a to determine any objections to such application. From the foregoing reasons the appeal succeeds. It is allowed with costs. B MEHBOOB AKBER HAJI AND TWO OTHERS v. c REPUBLIC COURT OF APPEAL OF TANZANIA AT DARES SALAAM D (Kisanga, Lubuva and Samatta, JJ. A.) CRIMINAL APPEAL No. 36 OF 1997 E (From the decision of the High Court of Tanzania at Morogoro, Msumi, J.K., dated 15 July 1997, in Economic Criminal Case No. 3 of 1995) Criminal Practice and Procedure - Identification Parade - Accused identified by two witnesses and identification by one witness is challenged - Whether accused persons properly identified. Criminal Practice and Procedure - Charges ~ Offence capable of being committed in alternative ways - Proper way of charging . Criminal Practice and Procedure - Sentencing - Trial judge sentencing on the basis of repealed law whose maximum sentence was less than that of the new law — Legality of sentence. Criminal Law - Economic and Organized Crime - Illegal importation of dangerous drugs - Circumstatial evidence - Whether the offence is g established. Economic and Organized Crime - Leading organized crime - No proof of intent to benefit from such act - Whether offence of leading organized crime is established - Economic and Organized Crime Control Act 1984, section I 59(2) and paragraph 4(l)(a) of the First Schedule.