Mnzavas, Omari and Ramadhani, JJ.A.: When this appeal came up for hearing E the Court decided, with the consent of both learned counsel, that the question whether or not the High Court, (Mroso, J.), was right in his ruling in Misc. Application No. 95/91 dated 25/7/91 he argued first.
Mroso, J. Held in his ruling that the grant of letters of administration to the respondent F by the High Court, D'Souza, Ag. J., (as he then was) in what is referred to as Civil Revision No. 1/81 was not in exercise of the High Court's revisional powers but that the High Court had granted letters of administration acting in its original jurisdiction. Having so held the learned judge concluded that the appellant required no leave from the G High Court to appeal to this Court.
Arguing against the ruling Mr. Maruma, learned counsel for the appellant, submitted that the High Court, (D'Souza, Ag. J.), was exercising his powers of revision when he granted letters of administration to the respondent and that as such section 5(1)(c) of H the Appellate Jurisdiction Act required the appellant to seek leave from the High Court before lodging an appeal to this Court.
Mr. Sang'ka, learned counsel for the respondent, on the other hand supported the ruling of Mroso, J., that no leave was required from the High Court before the appellant I appealed to this Court. It
MNZAVAS JJA, OMARI JJA, RAMADHANI JJA
was submitted that the High Court (D'Souza, Ag. J.) acted in its original jurisdiction A and that under section 5(1)(a) for the Appellate Jurisdiction Act no leave was necessary.
In supporting of the argument that the High Court, (D'Souza, Ag. J.), acted in its original jurisdiction when it granted letters of administration we were referred to pages 21 and B 30 of the proceedings. The learned defence counsel also argued that proceedings under the Probate and Administration Ordinance are regulated by the Civil Procedure Code 1966 and referred the Court to section 52 of the Probate and Administration Ordinance.
Our reading of the proceedings show that letters of administration were initially C granted to the present respondent by the Moshi, R.M's Court on 21.7.80. On 3/12/80 the R.M.'s Court realised that it lacked jurisdiction as the value of the estate was in excess of the R.M.'s jurisdiction and consequently wrote a letter to the High Court D inviting it to revise the proceedings of the R.M's Court.
On 4/1/85 the matter came before D'Souza, Ag. J., (as he then was). The present appellant was represented by Mr. Kapoor and Mr. Shayo appeared for the respondent.
Two issues were framed namely: E
(1) who is entitled to the estate of the late Mariam Hamisi?
F (2) who should administer the estate?
Thereupon Mr. Shayo, learned counsel for the respondent addressed the Court:
G "I pray to start", Mr. Kapoor obliged and replied "O.K."
The court then heard witnesses from both parties and delivered its ruling in favour of the respondent. In its ruling the High Court said inter alia on page 39 of the proceedings:
H ... As the estate could by no means be termed a "small estate" under the provisions of Cap. 445 - section 6; the District Court Moshi obviously had no jurisdiction and the grant in that cause is accordingly set aside... I
MNZAVAS JJA, OMARI JJA, RAMADHANI JJA
Mr. Maruma argued that the High Court (D'Souza, Ag. J.), should have, (after setting A aside the grant by the district court), asked the appellant/applicant to file a fresh application in the High Court and that it should not have resorted to framing issues in the absence of an application for letters of administration before the court.
Mr. Sang'ka conceded that the procedure followed by the High Court was irregular B but argued that the irregularity did not prejudice the interests of the parties and that the counsel for the parties consented to the procedure adopted by the court.
With respect to the learned counsel for the appellant the procedure adopted by D'Souza, Ag. J. amply showed that the court decided to hear the case in its original C jurisdiction. The framing of issues and the hearing of witnesses from both parties did not, by any stretch of imagination, amount to revising the R.M.'s Court as Mr. Maruma would like us to believe. The fact that the R.M.'s court had no jurisdiction to grant letters of administration the proceedings before that court were a nullity and hence D their being set aside.
That it would have been neater for the High Court to ask the appellant to file a fresh application for letters of administration before proceeding to frame issues and determine as to who should be granted letters of administration there can be no doubt; but as E rightly argued by Mr. Sang'ka, learned counsel for the respondent, both counsel did not quarrel with the procedure adopted by the court and the parties were not prejudiced by the irregularity.
It is our considered view that the High Court (D'Souza, Ag. J., as he then was) heard the application for letters of administration in its original jurisdiction. That being the F position and in view of the provisions of section 52 of the Probate and Administration Ordinance, Cap. 445 and section 5 (1) (a) of the Appellate Jurisdiction Act the High Court, (Mroso, J.) was right in his ruling dated 25/7/91 that no leave was required for the appellant to appeal to this Court. Cost to follow the event. G
H Order accordingly.