IBRAHIM KUSAGA v EMANUEL MWETA 1986 TLR 26 (HC)

 

IBRAHIM KUSAGA v EMANUEL MWETA 1986 TLR 26 (HC)

Court High Court of Tanzania - Tanga

Judge Kapoor Ag J

C

6 April, 1984:

(PC) CIVIL APPEAL 10 OF 1983

Flynote

D Administration of Estates - Jurisdiction - Powers of Primary Courts in administration of

estates matters - S.15(1)(c) of the Magistrates Courts Act, 1963.

-Headnote

A primary court heard matters relating to grant of administration of estates and proceeded to

distribute the property of E the deceased. Among the properties concerned was a partnership

property. On appeal the High Court stated the law concerning administration matters before

Primary Courts.

F 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 court;

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

Case Information

Order accordingly.

H No case referred to.

[zJDz]Judgment

D.N. Kapoor, Ag. J.: Appellant had instituted Administration proceedings in respect of the estate

of late Issa s/o Kusaga being 'Shauri la Mirathi Na. 37/1981' in the Primary Court of Dochi. I

1986 TLR p27

KAPOOR Ag J

A The estate of the deceased included Motor Vehicles, Bank Account, Houses and partnership

property. The partnership was known as Kusaga Brothers. This partnership was registered with

the Registrar of Business Names under No. 16551 dated 1st March 1962. The total value of the

estate exceeded shs.100,000/=

B Time and again I have come across appeals originating from Primary Courts in

Administration matters where the Primary Court Magistrates have exceeded their jurisdiction.

This is one such matter where the Primary Court acted without jurisdiction. Even the District

Magistrate failed to rectify the error.

C In the instant case the Primary Court received evidence in respect of the deceased's estate,

including partnership property and proceeded to distribute the entire estate in its judgment.

I consider this is a proper case where I would endeavor to state the law concerning

Administration matters before the Primary Courts. D

Powers of the Primary Court are derived through the provisions of Section 15 (1)(c) of the

Magistrates Courts Act No.55 of 1963:

E "Section 15(1)(c) The practice and procedure of Primary Courts shall be regulated and,

subject to the provisions any law applicable for the time being in force, their powers limited -

(c) in the exercise of their jurisdiction in the administration of estates, by the

provisions of the Fifth Schedule to This Act," F

The Fifth Schedule to the Magistrate's Court Act is reproduced hereinbelow, in part -

THE FIFTH SCHEDULE G

PART I

"Powers of Primary Courts in Administration case.

H 1 (1) The jurisdiction of a Primary Court in Administration of deceased 'estates, where

the law applicable to the administration or distribution of, or the succession to, the Estate is

customary law or Islamic law, may be Exercised in case where the deceased at the time of his

death, had a fixed place of abode within the local limits of the Court's jurisdiction: I

1986 TLR p28

A Provided that nothing in this paragraph shall derogate from the jurisdiction of a Primary

Court in any proceedings transferred to such court under Part V of this Act.

2. A primary court shall not appoint an administrator of a deceased's estate - B

(a) in respect of an Estate to which the provisions of the Probate and Administration

1961 are applied or of which a grant of administration has been made under that ordinance, or of

which the administration is undertaken by the Administrator - C General's Ordinance;

(b) Where the gross value of the estate does not exceed Shs.1,000/=, unless the court

is of the opinion that such an appointment is necessaryto protect the creditors or beneficiaries.

D

3. A primary Court upon which jurisdiction in the administration of deceased's

estates has been conferred may -

E (a) Either of its own motion or on application by any person interested in the

administration of estate, appoint one or more persons interested in the estate of the deceased to

be the administrator or administrators thereof, and in selecting any such administrator, shall

unless for any reason it considers it inexpedient so to do, have regard to any wishes which may

F have been expressed by the deceased;

(b) Either of its own motion or on application by any person interested in the

administration of the estate, where it considers G that it is desirable so to do for the protection

of the estate and the proper administration thereof, appoint an officer of the court or some

reputable and impartial person able and willing to administer the estate to be administrator

either together with or in lieu of an administrator appointed under sub-paragraph (a), H

(c) revoke any appointment of an administrator for good and sufficient cause and

require the surrender of any document evidencing his appointment; I

1986 TLR p29

KAPOOR Ag J

A (d) Make orders as to the administration of the estate, and, in particular but without

prejudice to the generality of the foregoing, as to the law to be applied in the distribution of the

estate and as to advertising or creditors;

B (e) require an administrator to sign an undertaking to administer the estate faithfully;

(f) require an administrator to give security for the due administration of the estate;

C

(g) make orders as to the payment of share in the estate of any minor or other person

under a disability to relative or other suitable person for the maintenance or otherwise for the

use of such minor or person under a disability, or with the consent of the Public Trustee, to the

Public Trustee; D

(h) make any order which it has power to make under this Act in cases of a civil

nature.

E The Primary Courts (Administration of States) Rules were published under Government

Notice No. 49 of 1971. These Rules prescribe the entire procedure to be followed by the

Primary Courts in Administration of Estates. Rule 8 of the Rules G.N.49 of 1971 stipulates the

matters that the primary court may hear and decide.

The effect of the above quoted provisions touching and affecting Administration of Estates in

Primary Courts can be F summed up as follows:

1. A primary court has jurisdiction to hear an Administration Estate's matter

PROVIDED the law applicable to the G administration or distribution or the succession to the

estate of the deceased is 'CUSTOMARY LAW or ISLAMIC LAW'

2. After hearing the application, the Primary Court may grant Administration to one

or more persons or to an officer of the Court. H

3. The Primary Court may hear and decide matters relating to:

(a) Whether deceased died testate or intestate and all matters relating to the

will of the deceased.

(b) ascertain all property belonging to the estate and all persons who are

entitled under the will or upon intestacy. I

1986 TLR p30

KAPOOR Ag J

A (c) ascertain debts if any and consider questions relating to sale or otherwise

dispose of the property of the deceased for paying debts, if any and distribution of the estate to

heirs and beneficiaries.

B In my opinion 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).

After hearing the application for grant of Administration the Primary Court ought to decide all

matters relating to and affecting the grant and after such decision the court ought to C grant

Administration to the applicant or make an order refusing grant. It would follow therefore that

a Primary Court ought not to distribute the estate of the deceased. That is the job of an

Administrator appointed by court.

I appreciate that there may be cases where the property of a deceased person may be in dispute.

In such cases all those D interested in determination of the dispute or establishing ownership

may institute proceedings against the Administrator or the Administrator may sue to establish

claim of deceased's property.

The law regarding institution of civil claims has not been changed by the Administration of

estate enactments. It only E provides a machinery whereby a legally recognized person is

placed in the place of a deceased person in all matter relating to the deceased's estate.

To illustrate the point how some Primary Courts have entertained matters outside their

jurisdiction, I would quote an F example: "Wife of a deceased person applied for Administration

of her husband's estate. The primary court opened an Administration file. During the course of

the hearing the applicant (wife of deceased) told the court all the property owned by the

deceased. In this list there was a piece of land whose ownership was disputed. Someone else

had G occupation of that piece of land. The primary court magistrate called that person to give

evidence in these proceedings. That occupier came to court and gave evidence to the effect that

the disputed piece of land was his property. The H primary court magistrate gave judgment for

the wife of the deceased and ordered that third person to vacate the disputed land.

That third person appealed to the District Court and finally the parties reached the High Court.

I quashed the proceedings and ordered fresh proceedings before the appropriate Courts."

I The most important point to note from the above quoted example is that a person who was

not party to the suit had to drag

1986 TLR p31

A himself up to the High Court to establish his claim in a matter that did not concern him

directly in the original proceedings before the primary court.

In the instant case the Primary Court had no jurisdiction to distribute the estate of the deceased

for many reasons apart from the fact that the Primary Court ought not to do the work of the

Administrator. The estate of the deceased included B property which was held under a

Registered Partnership No. 16551 dated 1st March, 1962. Partnership property is not covered

under Customary Law or Islamic Law. Even the District Court would have no jurisdiction to

entertain the Administration Suit as the property value exceeded shs.100,000/=. The present

respondent was not a party in the C original proceedings.

For these reasons I quash the proceeding of both Courts below and order that the interested

parties may lodge their claims before appropriate court having jurisdiction to entertain the

claim. D

I order that each party bear its own costs of this appeal and costs of the courts below.

Order accordingly.

1986 TLR p31

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