LUIHAM MARTIN v JUMA SAIDI 1992 TLR 74 (CA)

 LUIHAM MARTIN v JUMA SAIDI 1992 TLR 74 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA, Mnzavas, JJA

13 May 1992 E

Flynote

Administration of Estates - Probate and Administration - Subordinate court discovers

after hearing application that it has no jurisdiction - Moves High Court to exercise

revisional powers - High Court sets aside decision of subordinate court- Proceeds to

hear the F application though no fresh application was filed - Whether irregular.

Civil Practice and Procedure - Court of Appeal Rules - High Court has exercised

original jurisdiction - Whether leave must be sought and obtained in order to appeal

to the Court of Appeal.

-Headnote

Letters of administration were initially granted to the respondent by the Moshi R.M.'s

G Court. Then the R.M.'s court realised that it lacked jurisdiction. So it invited the

High Court to revise the proceedings.

The High Court ruled that the R.M.'s court had no jurisdiction and set aside the grant

H in that cause. Then the High Court (D'Souza, Ag.J.) proceeded to hear and

determine the cause although no fresh application was before it. The appellant,

aggrieved by the decision of the High Court applied for leave to appeal to the Court of

Appeal. That I application was heard by Mroso, J. who decided that no leave was

required because D'Souza, Ag. J. was exercising original

1992 TLR p75

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA

jurisdiction. In the Court of Appeal arguments were heard on whether the decision of

A Mroso, J. was right.

Held: (i) The procedure adopted by D'Souza, Ag.J. amply showed that the court

decided to hear the case in its original jurisdiction. The framing of issues and the

hearing of witnesses from both parties did not, by any stretch of imagination, amount

to B revising the R.M.'s Court;

(ii) since the High Court (D'Souza Ag. J.) heard the application in its original

jurisdiction, 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 C

Court (Mroso, J.) was right in ruling that no leave was required for the appellant to

appeal to the Court of Appeal.

Case Information

Order accordingly. D

Maruma, for the appellant.

Sang'ka, for the respondent.

[zJDz]Judgment

Mnzavas, Omari and Ramadhani, JJ.A.: When this appeal came up for hearing E the

Court decided, with the consent of both learned counsel, that the question whether

or not the High Court, (Mroso, J.), was right in his ruling in Misc. Application No.

95/91 dated 25/7/91 he argued first.

Mroso, J. Held in his ruling that the grant of letters of administration to the

respondent F by the High Court, D'Souza, Ag. J., (as he then was) in what is referred

to as Civil Revision No. 1/81 was not in exercise of the High Court's revisional powers

but that the High Court had granted letters of administration acting in its original

jurisdiction. Having so held the learned judge concluded that the appellant required

no leave from the G High Court to appeal to this Court.

Arguing against the ruling Mr. Maruma, learned counsel for the appellant, submitted

that the High Court, (D'Souza, Ag. J.), was exercising his powers of revision when he

granted letters of administration to the respondent and that as such section 5(1)(c) of

H the Appellate Jurisdiction Act required the appellant to seek leave from the High

Court before lodging an appeal to this Court.

Mr. Sang'ka, learned counsel for the respondent, on the other hand supported the

ruling of Mroso, J., that no leave was required from the High Court before the

appellant I appealed to this Court. It

1992 TLR p76

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA

was submitted that the High Court (D'Souza, Ag. J.) acted in its original jurisdiction

A and that under section 5(1)(a) for the Appellate Jurisdiction Act no leave was

necessary.

In supporting of the argument that the High Court, (D'Souza, Ag. J.), acted in its

original jurisdiction when it granted letters of administration we were referred to

pages 21 and B 30 of the proceedings. The learned defence counsel also argued that

proceedings under the Probate and Administration Ordinance are regulated by the

Civil Procedure Code 1966 and referred the Court to section 52 of the Probate and

Administration Ordinance.

Our reading of the proceedings show that letters of administration were initially C

granted to the present respondent by the Moshi, R.M's Court on 21.7.80. On 3/12/80

the R.M.'s Court realised that it lacked jurisdiction as the value of the estate was in

excess of the R.M.'s jurisdiction and consequently wrote a letter to the High Court D

inviting it to revise the proceedings of the R.M's Court.

On 4/1/85 the matter came before D'Souza, Ag. J., (as he then was). The present

appellant was represented by Mr. Kapoor and Mr. Shayo appeared for the respondent.

Two issues were framed namely: E

(1) who is entitled to the estate of the late Mariam Hamisi?

F (2) who should administer the estate?

Thereupon Mr. Shayo, learned counsel for the respondent addressed the Court:

G "I pray to start", Mr. Kapoor obliged and replied "O.K."

The court then heard witnesses from both parties and delivered its ruling in favour of

the respondent. In its ruling the High Court said inter alia on page 39 of the

proceedings:

H ... As the estate could by no means be termed a "small estate" under the

provisions of Cap. 445 - section 6; the District Court Moshi obviously had no

jurisdiction and the grant in that cause is accordingly set aside... I

1992 TLR p77

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA

Mr. Maruma argued that the High Court (D'Souza, Ag. J.), should have, (after setting

A aside the grant by the district court), asked the appellant/applicant to file a fresh

application in the High Court and that it should not have resorted to framing issues in

the absence of an application for letters of administration before the court.

Mr. Sang'ka conceded that the procedure followed by the High Court was irregular B

but argued that the irregularity did not prejudice the interests of the parties and that

the counsel for the parties consented to the procedure adopted by the court.

With respect to the learned counsel for the appellant the procedure adopted by

D'Souza, Ag. J. amply showed that the court decided to hear the case in its original C

jurisdiction. The framing of issues and the hearing of witnesses from both parties did

not, by any stretch of imagination, amount to revising the R.M.'s Court as Mr.

Maruma would like us to believe. The fact that the R.M.'s court had no jurisdiction to

grant letters of administration the proceedings before that court were a nullity and

hence D their being set aside.

That it would have been neater for the High Court to ask the appellant to file a fresh

application for letters of administration before proceeding to frame issues and

determine as to who should be granted letters of administration there can be no

doubt; but as E rightly argued by Mr. Sang'ka, learned counsel for the respondent,

both counsel did not quarrel with the procedure adopted by the court and the parties

were not prejudiced by the irregularity.

It is our considered view that the High Court (D'Souza, Ag. J., as he then was) heard

the application for letters of administration in its original jurisdiction. That being the

F position and 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, (Mroso, J.) was right in his ruling dated 25/7/91 that no leave was

required for the appellant to appeal to this Court. Cost to follow the event. G

H Order accordingly.

1992 TLR p78

A