Summary of Probate cases in Tanzania


probate cases

RASHID HASSANI V. MRISHO JUMA [1988] TLR 134

FACTS

The respondent applied to the Kariakoo primary court for letters of administration. Later the petition was moved to Ilala District Court and the letters of administration were granted to the respondent.

Being aggrieved, the applicant applied to the High Court for revision proceedings requesting the Court to quash the proceeding of the lower court declaring them null and void due to non-compliance with mandatory legal requirements during filling of the same petition.

ISSUE

Application to the High Court for revision of proceedings of a lower court in respect of probate and administration requesting to quash the proceedings in the lower court and to declare them null and void

RULES

Section 22 of the Civil Procedure Code (CPC)

Rules 39, 73, and 75 of the Probate rules

SUMMARY OF ARGUMENTS BY PARTIES

The applicant referred the Court to the provisions of section 22 of the CPC and rule 39 of the Probate Rules which were argued to be mandatory.

Further, the records of the District Court in Probate and administration Cause No. 5 of 1988 did not show if there was a petition filed by the respondent neither citation as required under rule 75 of the probate rules.

The applicant argued that there were errors on the petition filed by the respondent in the lower court therefore the proceedings and the appointment of the response as an administrator of the deceased estate should be declared null and void.

Respondent argued that it was the applicant who moved the Kariakoo Primary Court to transfer the case to Ilala District Court.

Therefore, it was the duty of the respondent to find out whether or not the case has been transferred there or not. He slept on his right therefore he cannot be heard complaining.

REASONING OF THE COURT

The court conceded that in filling Probate and administration cause no. 5 of 1988 in Ilala District Court, the response did not abide by the provisions of section 22 of the CPC and rules 39, 73, and 75 of the Probate Rules.

Indeed there was no petition filled, citation, or publication as required by law. Further, there was no evidence of payment of court fees or exemption to do so.

The court declared the proceedings in the Ilala District Court in probate and administration cause no 5 of 1988 together with the resultant appointment of the defendant as an administrator of the deceased estate to be null and void. Therefore the proceedings were quashed and the appointment of an administrator was set aside.

RATIO DECIDENDI

Non-compliance with the mandatory provisions in filling a probate petition can lead to proceedings and appointment of the administrator to be declared null and void.

CONCLUSION

The case is emphasizing on the importance of compliance with important provisions when making an application before the court for the decision to be valid. Further revision powers of the high court were invoked which is another avenue which parties to a dispute can resolve if they are not satisfied by the decision of lower courts.

LUIHAM MARTIN V. JUMA SAID [1992]

FACTS

The letters of administration were granted to the respondent by the Moshi Resident magistrate’s Court (RM’s Court).

The court then realized that it lacked jurisdiction since the value of the estate was in excess of RM’s jurisdiction. It wrote a letter to the high court inviting it to revise the proceedings of the RM’s Court.

The High Court ruled that RM’s Court had no jurisdiction, set aside the grant then proceeded to hear the case though no fresh application was made.

The appellant was aggrieved, applied for leave in the High Court seeking to appeal to the Court of Appeal. The application was heard by Mroso J who ruled that leave was not required since the high court in determining the matter was exercising its original jurisdiction.

ISSUE

Whether or not the High Court (Mroso, J) was right in its ruling in Misc. Application no. 95/91 that leave to appeal in the Court of Appeal was not required when the High Court is exercising its original jurisdiction.

RULES

Section 52 of the Probate and administration ordinance cap. 445

Section 5(1)(a) of the appellate jurisdiction Act

SUMMARY OF ARGUMENTS BY PARTIES

Counsel for the appellant argued that the high court after setting aside the grant by the district court by the district court should have asked the appellant/applicant to file a fresh application in the High Court rather than resorting to framing issues in the absence of an application for letters of administration before the court.

However in deciding to proceed to hear the case showed that the court decided to hear the case in its original jurisdiction.

Counsel for the respondent conceded that the procedure followed by the High Court was irregular but the irregularity did not prejudice the interests of the parties and the counsel for the parties consented to the procedure adopted by the court.

REASONING OF THE COURT

The Court viewed that the High Court heard the application for letters of administration in its original jurisdiction.

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In view of the provisions of section 52 of the Probate and Administration Ordinance, Cap. 445 and section 5 (1) (a) of the Appellate Jurisdiction Act the High Court when the matter came for application of leave to appeal in the court of appeal,  it was right in his ruling that no leave was required for the appellant to appeal to this Court.

RATIO DECIDENDI

Application for leave to appeal to the court of appeal is not required if the high court was exercising its original jurisdiction

CONCLUSION

The case is important in interpreting the law regarding two powers of the high court. The Court ca revise decisions of the lower courts and it has original jurisdiction in determining probate cases

SALMIN MOHAMED v ABDU MOHAMED 1986 TLR 251 (HC)

FACTS

The subject matter of the dispute between the parties was a house built on Plot No. 77 Block C Kilwa Street House No. 25 at Ilala in Dar es Salaam is registered land.

The appellant applied in the Ilala primary court for letters of administration of his deceased mother property and the respondent objected that the property belonged to his deceased father.

The primary by a majority vote of assessors gave judgment in favor of the appellant and ordered that letters of administration be granted to him.

The magistrate disagreed with the majority finding, he forwarded records to the District Court which concurred with the view of the Primary Court magistrate and reversed the majority finding of the Primary Court and gave letters of administration to the present respondent.

The appellant appealed to the high court against the decision of the District Court.

ISSUE

Whether the primary court had jurisdiction to hear a dispute over registered land

RULES

Section 18 (1) of the magistrate’s court Act 1984

Mohamed Yusufu v Tunda Kassim [1968] HCD 487

Bibi Makongoro v Issa [1970] HCD 192

SUMMARY OF ARGUMENTS BY PARTIES

The advocated for the appellant argued that the house belonged to the appellant’s deceased mother who is the right person to administer the estate. It was also argued that there was evidence that the house was registered in the name of the appellant’s deceased mother.

The learned counsel for the respondent argued that the respondent produced the original document to prove that his deceased father owned the house while the appellant only produced a photo-stat copy of a document purporting that her deceased mother owned the house.

REASONING OF THE COURT

There was undisputed evidence that the house which is the subject matter of the dispute between the parties, is built on registered land. Provisions of section 18(1)(i) of the Magistrates Courts Act 1984 do not allow Primary Court to have jurisdiction in any proceedings affecting the title to or any interest in land registered under the Land Registration Ordinance. Therefore the Ilala Primary Court had no jurisdiction to hear the case.

That position of the law is also evident from the decisions of Mohamed Yusufu v Tunda Kassim [1968]H.C.D. 487   and Bibi Makongoro v Issa [1970] H.C.D. 192.

Therefore the hearing of this case by the Primary Court was a nullity ab initio and consequently, the decision of the District Court is of no consequence as it has no leg to stand on.  The parties were advised to seek a remedy in the District Court or the High Court depending on the value of the estate.

RATIO DECIDENDI

No Primary Court shall have jurisdiction in any proceedings affecting the title to or any interest in land registered under the Land Registration Ordinance.

CONCLUSION

The editorial note in the law report (Tanzania Law Reports 1986) comments that the decision of this case is no longer the law. It refers the reader to the case of Scolastica Benedict v. Martin Benedict [1993] TLR 1 (CA). The judgment of this case refers to the GN No. 320 of 1964 which conferred jurisdiction to the primary courts in matters of administration of estates regardless of the subject matter is a property on a registered land provided the law applicable is customary or Islamic law.

The estate of the late salum omari meremi[1973] LRT No. 80

The deceased was Hehe Moslem. He was an Army Officer. He married a member of his own tribe and contracted a Civil marriage. He was a practicing Moslem.

ustice Mfalila held that applying mode of life test (that he was a practicing Moslem) the deceased has intended his estate to be administered according to Islamic Law and not Hehe Customary Law, as the deceased’s manner and way of life was far removed from his tribal customs.

Re Innocent Mbilinyi, deceased  [1969] HCD No. 283

The Administrator-General applied for directions concerning questions that have arisen in the course of the administration of the estate of Innocent Mbilinyi deceased.

The affidavit in support states out the deceased, a Roman Catholic by religion and Mngoni by tribe died in an accident on 29th February 1968. Surviving him were his widow Elizabeth whom he married by Christian rites, three infant children of the marriage, his father, his mother, four brothers, and five sisters.

The deceased died intestate and accordingly the succession to his property could be determined either by the customary law of Wangoni as set out in the Customary Law Declaration G.N. No.436 of 1963 or according to the law applicable to Christians who die domiciled in Tanzania, that is to say, the Indian Succession Act.

The widow, through her advocate, contends that the Indian Succession Act is applicable while the father and the brothers and sisters state that customary law is applicable. Leave was given to the widow and to the brother Hustiene to file affidavits setting out facts from which the mode of living of the deceased could be inferred.

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The widow has filed an affidavit. Despite several adjournments to enable him to do so no affidavit has been filled by Hustiene or any of the brothers and sisters. The widow is a Mchagga by tribe and also a Roman Catholic.

She says that she had learned from her husband that he had left Songea when he was about 7 years old and had been educated entirely outside the Region.

In or about the year 1956 he went to Makerere college where he graduates with a Bachelor of Arts in 1960. In 1961 he took up employment with Shell  E.A Ltd. as a salesman and after training was stationed in Moshi.

That very year he was transferred to Dar es Salaam where he met her. In March 1962 they were married and thereafter lived in Mbeya and Moshi.

In 1964 the deceased joined Government service and was 1967 promoted to Deputy Director of The State Lottery.

She avers that the fact that the deceased and herself were of different tribes helped to separate both of them from their tribal backgrounds.

The elders of both tribes appeared to disapprove of the attachment and the subsequent marriage. She states that the deceased had very often expressed his happiness at the fact that they were both Christians and had made it clear that he did not wish to have any of his affairs regulated by customary law.

She had visited her husband’s family once in 1962 and she describes her reception as cool if not actually unfriendly.

They visited again in 1964. Apart from these visits, she was not aware that there had been any contact between the deceased and his relatives. As far as she was concerned the deceased relatives were strangers.

Neither during the lifetime of the deceased nor after his death had they ever visited her nor had ever brought gifts for the children or attempted in any way to win their affections. She states also that the deceased had told her that he had made her the beneficiary under two policies of insurance on his life.

Those policies are the principal assets in the estate. Neither policy was in fact ever assigned to the widow, but in one of the policies, the deceased named her in the application form as his proposed beneficiary.

Held:

On these facts which are in no way controvert I am satisfied that it can be said that the deceased had abandoned the customary way of life in favor of what may be called a Christian and non-traditional way.

It is satisfactory evidence that he was to a large extent alienated from his family and that his children had no connection whatever with them. Accordingly, I would direct that the law to be applied in the administration of the estate of the deceased should be the Indian Succession Act.

HASSAN MATOLLA v KADHI WA MSIKITI, MWINYI MKUU STREET 1985 TLR 53 (HC)

Dar Es Salaam- Judge Ruhumbika J

The deceased, a father of only one child who was living outside the country, dedicated by “Wakf” his house to a mosque for religious reasons.

The “wakf” was given conditionally upon failure of the deceased’s daughter coming forward to claim an inheritance.

After his death, the daughter did not show up.  However, a son of the deceased’s brother applied in a Primary Court and was granted letters of administration of the estate of the deceased.

He also claimed the right to inherit the house of the deceased.

The Primary Court decided that he was entitled to inherit the estate of the deceased as an heir under Islamic Law.

The Court, however, required him to cash down 23,330/= to the mosque in terms of the “Wakf”, being 1/3 of the value of the house.  The appellant appealed against the court’s order that the appellant should pay Shs.23,330/= to the mosque before he could inherit the house.

HELD:

  1. The appellant has the right to inherit the house and the dedication of the house to the mosque in the “Wakf” is rendered non-effective thenceforth by the reason of the act of the appellant inheriting the house;
  2. the requirement to pay 1/3 of the value of the house to the mosque would arise only if the deceased had set up an unconditional “Wakf” dedicating the house to the mosque permanently after his death without the clause that the house should pass to the heir when that heir was available.

VIOLET ISHENGOMA KAHANGWA AND JOVIN MUTABUZI V. THE ADMINISTRATOR GENERAL AND MRS. EUDOKIA KAHANGWA,  [1990] TLR 72

CA)- Dar es Salaam     -Judge          Kisanga JJA, Makame JJA, Mfalila JJA

In an application for directions the High Court directed that the lifestyle of the deceased at the time of his death was governed by the traditions, customs, and practices of the Bahaya tribe to which he (the deceased) belonged, therefore, the law applicable in administering the distribution of the estate was the customary law of the Bahaya.

The High Court further directed that since the first appellant was not lawfully married to the deceased because the previous monogamous marriage to the second respondent was still subsisting, the 2 issues of the deceased’s cohabitation with the first appellant was illegitimate children who under the applicable Bahaya customary law did not legally qualify for distribution, because an illegitimate child cannot inherit from the father’s side upon his dying intestate.

On appeal to the Court of Appeal against the directions.

LEGAL ISSUES

  1. Whether the customary law of the Bahaya should govern the distribution of the estate,
  2. Whether the two children of the deceased viz. Reynold and Diana by the first appellant would qualify for a Share or shares in the distribution of the estate.
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HELD

(i) In administering the estate the Administrator-General does not have to appear in the Primary Court for any purpose because he is not acting as an advocate representing a particular party. All that is required of him is to distribute the estate to all those who qualify for distribution. In case he runs into a difficulty he may turn to the High Court for direction.

(ii) under paragraph 43 of the Local Customary Law (Declaration) (No.4) Order, 1963, G.N. No.436 as applied to the Bahaya tribe vide G.N.No.605 of 1963, an illegitimate child cannot inherit from the father’s side  upon his dying intestate;

(iii) a child as defined under the Law of Marriage Act, 1967 does not include an illegitimate child, thus the word “children” in section 129 (1) of the Law of Marriage Act does not include illegitimate children;

(iv) a putative father’s obligation to his illegitimate children is personal and ends with his death. It does not survive him and cannot attach to his estate upon his dying intestate.

IBRAHIM KUSAGA V. EMANUEL MWETA [1986] TLR 26 (HC)

A primary court heard matters relating to the grant of administration of estates and proceeded to distribute the property of the deceased. Among the properties concerned was partnership property. On appeal, the High Court stated the law concerning administrative matters before Primary Courts.

HELD:

(i) A Primary Court may hear matters relating to grant of administration of estates where it has jurisdiction, i.e., where the law applicable is customary law or Islamic law;

(ii) a Primary Court ought not to distribute the estate of the deceased; that is the job of an administrator appointed by the court;

(iii) Partnership property is not covered under customary law or Islamic law.

SCOLASTICA BENEDICT v MARTIN BENEDICT 1993 TLR 1 (CA)

The appellant’s husband died intestate in 1971. He was survived by two wives and a number of sons and daughters.

The deceased left to his heir’s substantial property including motor vehicles, farmland, cattle, and houses.

The administrators of the deceased’s property distributed the property and the interests therein to the heirs in accordance with the guidance of the clan council acting under Haya customary law.

None of the widows of the deceased inherited any property of the deceased; instead, they were required to reside with and be maintained by their respective children according to Haya customary law.

The respondent, one of the sons of the deceased by his first wife, was given, among other things, a house on plot Nos. 17 and 19 Block `D’ in Bukoba township, in which the appellant, the second wife of the deceased had been living with her deceased husband.

The only daughter whom the appellant had sided with the deceased was given, among other things, farmland including a house in need of some repair at Kanoni Shamba.

The appellant filed a civil suit in the Urban Primary Court of Bukoba challenging the administration of the estate of her deceased husband, particularly in respect of the house on plot Nos. 17 and 19 Block `D’ in Bukoba township. The defendants resisted the suit on the ground, inter alia, that the primary court had no jurisdiction on the subject matter. The primary court overruled the defendants who successfully appealed to the District Court whose decision was confirmed by the High Court.

The High Court, however, granted the appellant `liberty to pursue her claim’ either in the District Court or the High Court. This liberty was not exercised.

The respondent, who was given the house on plot Nos. 17 and 19 instituted a suit in the Court of Resident Magistrate at Bukoba seeking, inter alia, to evict the appellant and her daughter from the suit premises.

The trial court granted vacant possession to the respondent. The appellant’s appeal to the High Court failed. On a further appeal to the Court of Appeal of Tanzania, the Court upheld the decision of the High Court.

In addition, the Court considered when a court becomes functus officio and the question of jurisdiction of primary courts in the administration of registered land.

Held:

As a general rule, a primary court, like all other courts, has no jurisdiction to overturn or set aside its own decisions as it becomes functus officio after making its decisions; The only exception to this general rule includes the setting aside of ex parte decisions and reviews of decisions induced by fraud or misinformation;

While section 15(1)(c) of the Magistrates Courts Act 1963 (now s. 19 of the Magistrates’ Courts Act 1984) did not specify the particulars relating to the administration of estates, the order of the Chief Justice published as Government Notice No. 320 of 1964 conferred jurisdiction on primary courts in matters of administration of estates regardless of whether the subject-matter is land registered under the Land Registration Ordinance, provided the applicable law is customary or Islamic law, other than matters falling under the Marriage, Divorce, and Succession (Non-Christian Asiatics) Ordinance.

Appeal dismissed in its entirety.

GEORGE A MMARI AND ANANDE A MMARI 1995 TLR 146 (HC)

The appellants challenged the validity of a will drawn by their deceased father while hospitalized bequeathing a house to their stepmother. The will was attested by the said stepmother, i.e. wife of the testator, and the doctor who was attending the deceased.

Held:

(i) For a will drawn up by a literate person to be valid it must be attested, besides the wife (wives), by at least two persons of whom one must be a relative of the deceased;

(ii) The deceased’s will was not attested by a relative of the deceased, and it was defective for want of proper attestation.

Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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