SALMIN MOHAMED v ABDU MOHAMED 1986 TLR 251 (HC)

SALMIN MOHAMED v ABDU MOHAMED 1986 TLR 251 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mnzavas JK

8th November, 1988. A

(PC) CIVIL APPEAL 41 OF 1986

Flynote

Administration of Estates - Jurisdiction - House built on registered land - Whether

Primary Court has jurisdiction - B Magistrate's Courts Act, 1984, s. 18(1)

Headnote

A Primary Court heard a case involving, and granted letters of, administration of

estate. The subject matter of C the dispute between the parties was a house built on

registered land. When the case reached the High Court the learned Judge considered

whether the Primary Court had jurisdiction over the case. D

Held: (i) In view of the provisions of s. 18 (1) of the Magistrate's Courts Act, 1984 no

Primary Court shall have jurisdiction in any proceedings affecting the title to or any

interest in land registered under the Land Registration Ordinance;

(ii) the Ilala Primary Court had no jurisdiction to hear the case. E

Case Information

Order accordingly.

Cases referred to: F

1. Mohamed Yusufu v Tunda Kassim [1968] HCD 487

2. Bibi Makongoro v Issa [1970] HCD 192

Rahim, for the appellant

Kesaria, for the respondent G

Editorial Note: According to recent judicial developments this decision is no longer

the law. See Sholastika Benedict v Martin Benedict, Civil Appeal 26 of 1988, Court of

Appeal of Tanzania. H

[zJDz]Judgment

Mnzavas, J.K.: The appellant, Salmini Mohamed applied for letters of administration

of his deceased mother's property namely a house built on a plot along Kilwa Street,

Ilala in Dar es Salaam. The respondent Abdul Mohamed filed objection proceedings

arguing that the house belonged to his I

1986 TLR p251

MNZAVAS JK

deceased father and that he was the proper person to administer the estate. A

After hearing evidence from both sides the Primary Court - (Ilala Pr. Court

Administration case No. 9/86) by a B majority of votes gave judgment in favour of

the appellant and ordered that he be granted letters of administration of the estate.

The Primary Court magistrate disagreed with the majority finding of his two assessors

and forwarded the record to the District Court giving his reasons why he differed

with the finding of the assessors.

After perusal of the evidence in the Primary Court the District Court concurred with

the view of the Primary C Court magistrate that the two assessors erred in holding

that the appellant was the proper person to administer the estate and accordingly

reversed the majority finding of the Primary Court and gave letters of administration

to the present respondent. D

The appellant has now appealed to this court against the decision of the District

Court. Before this court Mr. Rahim who advocated for the appellant argued that the

evidence before the Primary Court amply showed that E the house belonged to

appellant's deceased mother and that he was the right person to administer the estate.

It was Mr. Rahim's submission that the District Court erred in reversing the majority

decision of the Primary Court. It was also argued that there was evidence that the

house was registered in the name of appellant's deceased mother.

In rebuttal Mr. Kesaria, learned counsel for the respondent, told the Court that the

appellant only produced a F photo-stat copy of a document purporting that her

deceased mother owned the house; that the respondent produced the original

document to prove that his deceased father owned the house. Mr. Kesaria asked the

court to dismiss the appeal as incompetent with costs. G

There was undisputed evidence that the house, the subject matter of the dispute

between the parties, is built on a registered land. It is built on Plot No. 77 Block C

Kilwa Street House No. 25 at Ilala in Dar es Salaam.

That being the position, and in view of the provisions of section 18(1)(i) of the

Magistrates Courts Act 1984 H which say inter alia "that no Primary Court shall

have jurisdiction in any proceedings affecting the title to or any interest in land

registered under the Land Registration Ordinance...", the Ilala Primary Court had no

jurisdiction to I hear the case. That this is the law is also evident from the decision

of this court in (Mohamed Yusufu v Tunda Kassim [1968]H.C.D. 487 where it was

held, inter alia, that "once the land

1986 TLR p252

MNZAVAS JK

is registered, the Primary Court has no jurisdiction". See also the decision in Bibi

Makongoro v Issa [1970] H.C.D. 192.

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 are advised to seek remedy in the District Court or the High

Court depending on the value of the estate. I make no order as to costs.

Order accordingly.

1985

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI,

Chief Justice, Court of Appeal Tanzania

Chief Editor

Prof. L.P. SHAIDI, Faculty of Law

University of Dar es Salaam

Editors

The Hon. Mr. Justice A. RAMADHANI,

Chief Justice, Zanzibar

The Hon. Mr. Justice K.S.K. LUGAKINGIRA

High Court of Tanzania

Mr. M.A. LAKHA Advocate, High Court of Tanzania

Mr. E.L.K. Mwipopo, Director of Public Prosecutions

Attorney General's Chambers

Mr. R.J. REYEMAMU, Corporation Counsel

Tanzania Legal Corporation

Mr. A.M. MISKIRY, State Attorney Zanzibar

Assistant Chief Editor

Mr. N.N. NDITI, Lecturer, Faculty of Law

University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal and the High Courts of

Tanzania and Zanzibar.

CITATION

These Reports are cited thus [1985] TLR.

Judges of the Court of Appeal of Tanzania 1985

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice A. Mustafa Justice of Appeal

3. The Hon. Mr. Justice L.M. Makame Justice of Appeal

4. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

5. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

Judges of the High Court of Tanzania in 1985

1. The Hon. Mr. Justice N.Z. Mnzavas Principal Judge (JK)

2. The Hon. Mr. Justice B.A. Samatta Puisne Judge

3. The Hon. Mr. Justice L.M. Mfalila Puisne Judge

4. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

5. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

6. The Hon. Mr. Justice E.W. Katiti Puisne Judge

7. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

8. The Hon. Mr. Justice N.M. Mushi Puisne Judge

9. The Hon. Mr. Justice W. Maina Puisne Judge

10. The Hon. Mr. Justice J.A. Mroso Puisne Judge

11. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

12. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

13. The Hon. Mr. Justice F. Munyera Puisne Judge

14. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

15. The Hon. Mr. Justice M. Mwakibete Puisne Judge

16. The Hon. Mr. Justice R.B. Maganga Puisne Judge

17. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

18. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

19. The Hon. Mr. Justice C. Mtenga Puisne Judge

20. The Hon. Mr. Justice H.J. Mkatte Puisne Judge

21. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

22. The Hon. Mr. Justice A. Bahati Puisne Judge

23. The Hon. Mr. Justice H.A. Msumi Puisne Judge

24. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

Judges of the High Court of Zanzibar in 1985

1. The Hon. Mr. Justice A.S.L. Ramadhani Chief Justice

Cases Reported

1985 TLR p1

A