Shomary Abdallah vs Abdallah Hussein & Hassan Ramadhani [1991] TZHC 19 (20 September 1991)


Kyando, J.: This matter, a probate cause, was heard by a Resident Magistrate (Mrs Msuya - RM) in the District F Court of Ilala, at Kisutu, Dar es Salaam. It was initially filed in the Primary Court at Kariakoo, Dar es Salaam and a grant made at as the Resident Magistrate indicates in her judgment, it was later discovered that the grant was a nullity for lack of jurisdiction. The record of the case was then transferred to the District Court where the learned G Resident Magistrate heard it.
The appellant was dissatisfied with the decision of the District Court. He filed this appeal in this court. Before hearing the appeal I wanted to know if Mrs Msuya, R.M., was a District Delegate in terms of s. 5 of the Probate H and Administration Ordinance 1961. For this purpose I directed the Registrar to send a note to Mrs Msuya to assertion. The Registrar did so and Mrs Msuya replied that she has no instrument of appointment as a District Delegate. By this, of course, I understand her to mean that she has not been appointed a District Delegate under s.5 I of the Ordinance.

A Section 5 provides that the Chief Justice May, from time to time appoint such resident magistrates as he thinks fit to be District Delegates. In the definition part of the Ordinance, a District Delegate is defined as "a resident magistrate appointed a District Delegate under section 5". Under s.5 (2) it is provided as follows:
B 5 - (2) A District Delegate shall have jurisdiction in all matters relating to probate and administration, with power to grant probate and letters of administration, if the deceased, at the time of his death had his fixed place of abode within the area for Cwhich the Delegate is appointed -
(a) in non-contentious cases;
(b) in contentious cases, if the Delegate is satisfied that the gross value of the estate does not exceed fifteen thousand D shillings, or the High Court authorizes the Delegate to exercise jurisdiction in such circumstances as are specified in subsection 3.
Then, under subsection 4 of s.5, "A District Delegate shall not have jurisdiction to exercise any of the powers herein E expressly conferred on the High Court".
The provisions of s. 5 are under Part II of the Ordinance which is headed "Jurisdiction in Probate and Administration." Under s. 3, it is provided that the High Court shall have jurisdiction in all matters relating to probate F and administration of deceaseds' estates, with power to grant probates of wills and letters of administration to the estates of deceased persons and to alter or revoke such grants. Then below the High Court some, limited, jurisdiction is conferred on District Delegates (per s.5 supra) and District Courts (in relation to small estates). G According to the scheme of the Ordinance, therefore, general jurisdiction under it is conferred on the High Court. Districts Delegates and District Courts have only limited jurisdiction - as provided for the Ordinance itself. Did the resident Magistrate then have power to hear this matter? As I have indicated above, she did not have an H appointment as a District Delegate. Under the Ordinance exercise by resident magistrates of powers relating to probate and the administration of deceaseds' estates is not automatic. These magistrates have to be appointed District Delegates under s.5 in order to be vested with such powers. It is like extended powers under the Criminal I Procedure Act, 1985, it is not that every resident

magistrate can exercise such powers. It is only those who have been specifically invested with the powers who can A exercise them.
The learned resident magistrate in this case, having not been appointed a District Delegate, had no jurisdiction to hear it, I am aware, of course, that the Second Schedule to the Magistrates' Courts Act, 1984, lists the Probate B and Administration Ordinance as one of the laws in respect of which under s. 41 of the Magistrates' Courts Act, Courts of resident magistrates or civil magistrates have power to exercise jurisdiction. Under s. 41' and the Second Schedule it is indicated that these courts or magistrates have jurisdiction to administer the whole Ordinance, i.e. the C Probate and Administration Ordinance. In view, however, of the clear provisions of s.5 of the Ordinance itself, it is obvious to me that apart from the High Court, resident magistrates' courts or resident magistrates as such do not have such general powers to administer the Ordinance. Their powers are only to the extent as limited by s.5 and no more. The appearance of the Ordinance under the second schedule must have been oversight on the part of the D drafters of the schedule. The learned magistrate, as already held, lacked jurisdiction in this matter. The proceedings which she held were, it follows, null and void and I so declare them here I quash and set them aside. Whoever, amongst the parties wishes to pursue this matter, he should do so by instituting it in the court with powers or E jurisdiction to entertain it. No order as to costs.
Order accordingly. F


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