HUSSEIN ALLI KASWESWE v MZEE HAMISI KASWESWE 1985 TLR 252 (CA)

HUSSEIN ALLI KASWESWE v MZEE HAMISI KASWESWE 1985 TLR 252 (CA)

Court Court of appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA, Kisanga JJA

October 8, 1985

CIVIL APPEAL 9 OF 1985 E

Flynote

Civil Practice and Procedure - Appeals - Appeal against orders - Appeal against an

order on an application for directions of the court u/r 105 of the Probate Rules -

Whether ruling of the court is appealable as of right -Civil Procedure Code, ss.3, 22

and Order 43, Rule 2. F

-Headnote

Following issue, by the High Court, of letters of administration to four administrators

in a Probate and Administration Cause, one of the four administrators sold a house

belonging to the estate, took his one fourth share of the money and deposited the rest

in court for G collection by the other three. There was no fraud or improper

practice in the whole transaction but the three other administrators wanted to remain

joint owners of the property and were ready, for that purpose, to refund the purchase

money. Pursuant to R.105 of the Probate Rules, they applied to the High Court for

directions. The court H dismissed the application, and they appealed to the Court of

Appeal.

Held: (i) The application was not something in the nature of a suit and the ruling of

the court on it was not a decree with a right of appeal but an order and, so as to appeal

I against the order, there was need to obtain leave to appeal from the High Court;

1985 TLR p251

Case Information

Order accordingly. A

No. cases referred to.

M. Marando, for the appellants.

S. El-Maamry and M. Raithatha, for the respondents. B

Judgment

Mustafa, J.A.: Letters of administration were issued in Probate and Administration

Cause No. 44 of 1977 on 2.9.77 by the High Court to four administrators Hussein Ali

Kasweswe, Mzee Bin Hamisi Kasweswe, Ashura Ali Kasweswe and Zuena Hamisi

Kasweswe. C

On 26.9.79, three of the administrators Hussein, Ashura and Zuena filed a Chamber

Application in the High Court asking for the annulment

of a sale of house No. 39, Kariakoo, belonging to the estate, by Hamisi to two buyers

and for other consequential orders. Hamisi, as administrator had sold the house, and

D had taken his one fourth share of the money and deposited the shares of the other

three beneficiaries, the remaining administrators, in court for collection by the

beneficiates.

There was no allegation of fraud or improper practices on the part of the vendor or

purchasers in the sale transaction. The three applicants wanted the house to remain

as E the property in their joint names, and were prepared to refund the money to the

purchasers and pay the sum due to Hamisi.

The judge (Mtenga, J.) heard the application and held that in terms of section 100 of

the Probate and Administration Ordinance Cap. 445, Hamisi as a single administrator

had F powers to sell the house and that the sale was proper in the circumstances and

dismissed the application. The application was made pursuant to Rule 105 of the

Probate Rules seeking for the court's directions. From that Ruling the three

administrators are appealing to this court. G

Mr. El-Maamry for the purchasers and Mr. Raithatha for Hamisi raised a preliminary

objection to the appeal and submitted that it was incompetent, as no leave to appeal

has been obtained from the High Court. They referred to section 4(1)(C) of the

Appellate Jurisdiction Act and submitted that the ruling of Mtenga, J. was an order

and required H leave.

Mr. Marando for the 3 administrators submitted that the ruling was in fact a decree

conclusively determining the issues in controversy between the parties and that there

was a right of appeal without leave.

We have heard arguments from both sides and looked at sections 3, 22, order 43 Rule

I 2 of the Civil Procedure Code and Rule 105 of the

1985 TLR p253

Probate and Administration Rules and we are satisfied that the application was not A

something in the nature of a suit as the applicants only asked the court for directions

by way of a chamber summons and no evidence as such was adduced. We are

satisfied that the ruling was an order and as no leave to appeal was obtained from the

High Court, the appeal is incompetent. It is struck out with costs. B

Order accordingly

1985 TLR p253

C