George Kumwenda v. Fidelis Nyirenda [1981] TLR 211

GEORGE KUMWENDA v. FIDES NYIRENDA (KISANGA, J.) 

GEORGE KUMWENDA v. FIDES NYIRENDA

 [HIGH COURT OF TANZANIA AT DAR ES SALAA, (Kisanga, 1.)J 

CIVIL APPEAL 10 OF 1977 

Administration of deceased's estate - Primary court's jurisdiction in administration cases. Administration of deceased's estate - Where primary court made order q{ administration but had no jurisdiction - What High Court to do. The primary court in Temeke granted an application for letters of administration to the appellant in respect of the estate of his deceased brother a Malawian, who died intestate. The primary court further made an order for the sale of a house forming part of the estate of the deceased. The respondent, widow of the deceased,' appealed to the district' court challenging the appointment of the appellant as administrator and also challenged the order of sale of the house. The district court magistrate said nothing about the respondent's objection to the appointment of the appellant as administrator, but set aside the order of sale of the house with a direction that the said house be owned and controlled by the respondent and her mentally unsound daughter. 

On appeal to the High Court the judge considered the propriety in handling the matter and whether the primary court had jurisdiction to entertain the application.  

Held: 

(i) the order for the sale of the house was wrongly made because no one had applied for it; 

(ii) the direction by the district court magistrate that the house should be under the ownership and control of the respondent and her child was wrongly made; 

(iii) the district court magistrate ought to have considered, and decided on, the objection raised by the respondent relating to the appointment of the appellant as administrator of the estate of the deceased; (iv) a primary court has jurisdiction in administration cases if three conditions are satisfied:- 

(a) the matter is of a civil nature; 

(b) the law applicable to it is either customary law or Islamic law. (Section 14(1) (a)(i) and para 1(1) of 5th Schedule to the Magistrates' Courts Act, (963) ; 

(c) the deceased at the time of his death had a fixed place of abode within the local limits of the court's jurisdiction; 

(v) in this case it appears the law applicable to the distribution of the deceased's estate was either customary law of the deceased's tribe in Malawi or the Christian law. 

(vi) since s.  14(1) (a)(i)  excludes the primary court's jurisdiction over I proceedings affecting the title to or any interest in land registered under the Land Registration Ordinance, the Temeke Primary Court's older for administration was invalid in so far as it related to the house built on a plot registered with the land office. 

Appeal allowed in part. 

No cases referred to: 

June 3, 1977. KlSANGA, J.: The appellant George Kumwenda in this case applied for letters of administration in respect of the estate of his later brother one . Morton Kumwenda, a Malawian national, who was living at Temeke but died iIlL testate in Malawi. The Primary Court at Temeke granted the application and further made an order for the sale of a house forming part of the estate of the deceased. The respondent who is widow of the deceased appealed to the district court against both the appointment- of the appellant as administrator of the deceased's estate and also against the order of sale of the house. The district magistrate set aside the order of sale of the house with a further direction that the said house shall be under the ownership and control of the respondent and her daughter, Emma, who is mentally unsound. The court, however, said nothing about the respondent's objection to the appointment of the appellant as administrator. The appellant now appeals against the decision of the district court which set aside the order of· sale "of the house. 

It must be pointed out at once that the handling of this matter by both courts below was not entirely satisfactory. In the first place the appellant stated clearly before the primary court that he applied for letters of administration. There is nowhere either in his application form or in his oral statement before the court where he said that he applied for an order of sale of the house in question, and indeed this question was never put to the assessors for their consideration. Therefore the order for the sale of the house was wrongly made because no one had applied for it, nor do I think that in the circumstances of this case it was open to the court to make such an order of its own motion especially when it was apparent that there was a possible objection to it and that the interested parties had not been given opportunity to be heard. The proper thing to do in the circumstances was for the court to grant the order for administration and no more. Then after such grant if the administrator ran into problems or if any interested party felt that any particular asset or assets should be dealt with in a particular way, it-was open to such a party to apply to the court for direction accordingly and the court would give such direction after making appropriate investigation into the claim. Thus the order for the sale of the house was wrongly made and the ·district court rightly Set it aside although, I should add, it did so on different grounds.

But, as we said earlier, the district court went further to order ,hat that house should be under the ownership and control of the respondent and her child. I think that this was equally wrong. This logically follows from the view that there had been no application to the court by anyone for direction as to how the said house should be dealt with. Not only that. Such an order tends to defeat the whole purpose of appointing an administrator. For, if the appellant's appointment as administrator is upheld, then such an order would tend to limit his powers to deal with the deceased's estate. To my mind this would not be proper unless it were shown that it was necessary to thus limit his powers in order, say, to avert unjust distribution of the deceased's estate, which was not the case' here. Accordingly I would set aside the direction of the district court vesting ownership and control or the house in the respondent and her daughter. 

Lastly, the district magistrate did not consider the respondent's objection to the appointment of the appellant as administrator. This was clearly wrong. Because the respondent expressly raised that objection in her address before the district magistrate and she was certainly entitled to a ruling on the point. It cannot be said that when the magistrate awarded, though wrongly, ownership and control of the .house to the respondent and her daughter, this necessarily amounted to upholding the respondent's objection. For, it was shown that the deceased had some other property apart from the house. So that while the house was placed under the ownership and control of the respondent and her daughter, it was still necessary to consider whether or not to uphold the appointment of the appellant as the administrator of the rest of the deceased's estate. Therefore I have now to consider the legality or propriety of the appointment, by the primary court. of the appellant as the administrator. 

The primary court assumed jurisdiction over this matter apparently in pursuance of the powers conferred' by s. 14(1) (a)(i) of the Magistrates' Courts Act and paragraph 1( 1) of the fifth schedule to that act (Powers of Primary Courts in Administration Cases). The relevant portion of s.14(1) (a)(i) of the Magistrates' Courts Act provides, 

14.-(1) A orimary court shall have and exercise jurisdiction - 

(a) in all proceedings of a civil nature'- 

(i) where the law applicable is Customary law or Islamic law.. Anq the relevant portion of paragraph 1(1) of the fifth schedule (Powers of Primary Courts in Administration Cases)' reads, 

1. - (1) The jurisdiction of a primary court in the administration of deceased's' 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 cases where the deceased at the time of his death, had a fixed place of abode within the local limits of the court's jurisdiction. 

As was stated earlier, the deceased was a Malawian national and it is quite apparent that although he died in Malawi, he had his fixed place of abode in this country. Furthermore it is undisputed that both deceased and his widow (the respondent) were Malawians and that both of them professed the Christian religion. 

Now, applying the law to the facts of the case the results are as follows:- According to s 14(1) (a)(i) of the act and paragraph 1(1) of the Fifth Schedule as reproduced above, a primary court had jurisdiction if two conditions are satisfied namely, (a) the matter is of a civil nature and (b) the law applicable to it is either Customary law or Islamic law. These are two conditions precedent which must be satisfied before a primary court can validly exercise jurisdiction. In the instant case condition (a) is satisfied because the matter .of application for letters, of administration is clearly one of a civil nature. For the sake of completeness I might add that under paragraph 1(1) of the Fifth Schedule there is a further requirement to be met before a primary court can exercise jurisdiction, and that is that the deceased at the time of his death had a fixed place of abode within the local limits of the court's jurisdiction. This requirement also was satisfied because the deceased had his permanent home in Temeke district. But the question is whether condition (b) has been satisfied i.e., whether the law applicable is either Customary law or Islamic law. One thing which is certain is that the law applicable in the distribution of the deceased's estate here is not Islamic law for, at least the deceased' did not subscribe to the Islamic faith. But it is less certain whether the law applicable is Customary law or Christian law. It is true the primary court, in assuming jurisdiction, proceeded on the basis that the law applicable was Customary law of the tribe of the deceased. But on the other hand the district magistrate appears to have taken the view that Christian law could be applicable. For, he said this in his judgment, 

Apart from the law governing Christian marriages which considers that the spouses are one and are only separated by death, I find it is wrong to include any other third party to the property owned by the two. In short the property of Morton (the deceased) is hers (respondent's) and vice versa. 

In these circumstances and indeed viewing the case as a whole it appears to me that there is room for saying that the law applicable to the distribution of the deceased's estate was either the Customary law of the deceased's tribe in Malawi or the Christian law. But the information which is available so far is not sufficient from which to discover the deceased's way of life and hence to decide which of the two laws would be applicable. This point is of further importance in that if, having regard to all the relevant facts and circumstances of the case it is shown that Christian law was applicable, then quite clearly the primary court could have no jurisdiction in the matter because its jurisdiction is limited to cases in which the law applicable is either Customary law or Islamic law. 

There is one further matter which appears to cause some anxiety. The house of the deceased which was the subject matter of the discussion above was described as No. 46 Changani Street, and at the hearing of this appeal both parties confined to me that the plot on which the house is standing is registered with the Land Office. But the proviso to s. 14(1) (a)(i) which confers civil jurisdiction on primary courts reads, 

Provided that no primary court shall have jurisdiction in any proceedings - 

(A) affecting the title to or any interest in land registered under the Land Registration Ordinance;

It is clear that the house in question forms part of the deceased's registered land. It is apparent too that an order for administration affects the house in that it enables the administrator to deal with the house in various ways, for instance, by alienating it to some beneficiary. Now the question is whether the primary court was competent to make an order for administration affecting this house or, indeed to make al) order for the sale of that house as it did. It would seem to me that the answer to this question is in the negative. Because once s.14(1) (a)(i), which is the source of the court's civil jurisdiction, excludes the court's jurisdiction over this category of cases, it is difficult to think that the court can have jurisdiction over such cases in matters of administration of estates which constitute part only of its civil jurisdiction. 

I therefore think that the primary court's order for administration was invalid in so far as it related to the house in question. If the appellant's appointment as administrator were to be upheld he could not validly deal with this house; it seems that he would have to apply further to the appropriate court having jurisdiction for letters of administration in relation to the said house.  

In the light of all these matters therefore I think that this is a fit case in which to direct that in terms of s.88(1) (b) of the Probate and Administration Ordinance (Cap. 445) that ordinance should apply. The case involves complicated issues such as I have indicated above. It also involves conflicting interests among the beneficiaries. For instance the appellant claims that the estate belongs to all members of deceased's clan while the respondent alleges that it belongs to the deceased's child or children alone. In such circumstances I think that it is necessary to give this direction in order to enable the court to investigate fully the issues and the conflicting claims and hence arrive at a just decision and fair distribution of the estate. Accordingly in terms of s. 89(2) of the Probate and Administration Ordinance (Cap. 445) the record is sent back to the Primary Court of Temeke for revocation of its order for administration. After such revocation, the application should be lodged afresh In the district court, and it is further directed ~hat the district court shall exercise original jurisdiction in accordance with the provisions of the administration (Small Estates) Ordinance (Cap. 30).

Appeal allowed in part.