Court name
High Court of Tanzania

Ibrahim Kusaga vs Emanuel Mweta () [1984] TZHC 8 (06 April 1984);

Law report citations
1986 TLR 26 (TZHC)
Media neutral citation
[1984] TZHC 8

D.N. Kapoor, Ag. J.: Appellant had instituted Administration proceedings in respect of the estate of late Issa s/o Kusaga being 'Shauri la Mirathi Na. 37/1981' in the Primary Court of Dochi. I

A The estate of the deceased included Motor Vehicles, Bank Account, Houses and partnership property. The partnership was known as Kusaga Brothers. This partnership was registered with the Registrar of Business Names under No. 16551 dated 1st March 1962.  The total value of the estate exceeded shs.100,000/=
B Time and again I have come across appeals originating from Primary Courts in Administration matters where the Primary Court Magistrates have exceeded their jurisdiction.  This is one such matter where the Primary Court acted without jurisdiction.  Even the District Magistrate failed to rectify the error.
C In the instant case the Primary Court received evidence in respect of the deceased's estate, including partnership property and proceeded to distribute the entire estate in its judgment.
I consider this is a proper case where I would endeavor to state the law concerning Administration matters before the Primary Courts.  D
Powers of the Primary Court are derived through the provisions of Section 15 (1)(c) of the Magistrates Courts Act No.55 of 1963:
E    "Section 15(1)(c) The practice and procedure of Primary Courts shall be regulated and, subject to the provisions any law applicable for the time being in force, their powers limited -
   (c)   in the exercise of their jurisdiction in the administration of estates, by the provisions of the Fifth Schedule to This Act," F
The Fifth Schedule to the Magistrate's Court Act is reproduced hereinbelow, in part -
THE FIFTH SCHEDULE G
PART I
   "Powers of Primary Courts in Administration case.
H    1 (1)   The jurisdiction of a Primary Court in Administration of deceased '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 case where the deceased at the time of his death, had a fixed place of abode within the local limits of the Court's jurisdiction: I

A    Provided that nothing in this paragraph shall derogate from the jurisdiction of a Primary Court in any proceedings transferred to such court under Part V of this Act.
   2.   A primary court shall not appoint an administrator of a deceased's estate - B
   (a)   in respect of an Estate to which the provisions of the Probate and Administration 1961 are applied or of which a grant of administration has been made under that ordinance, or of which the administration is undertaken by the Administrator - CGeneral's Ordinance;
   (b)   Where the gross value of the estate does not exceed Shs.1,000/=, unless the court is of the opinion that such an appointment is necessaryto protect the creditors or beneficiaries. D
   3.   A primary Court upon which jurisdiction in the administration of deceased's estates has been conferred may -
E    (a)   Either of its own motion or on application by any person interested in the administration of estate, appoint one or more persons interested in the estate of the deceased to be the administrator or administrators thereof, and in selecting any such administrator, shall unless for any reason it considers it inexpedient so to do, have regard to any wishes which may F have been expressed by the deceased;
   (b)   Either of its own motion or on application by any person interested in the administration of the estate, where it considers G that it is desirable so to do for the protection of the estate and the proper administration thereof, appoint an officer of the court or some reputable and impartial person able and willing to administer the estate to be administrator either together with or in lieu of an administrator appointed under sub-paragraph (a), H
   (c)   revoke any appointment of an administrator for good and sufficient cause and require the surrender of any document evidencing his appointment; I

A    (d)   Make orders as to the administration of the estate, and, in particular but without prejudice to the generality of the foregoing, as to the law to be applied in the distribution of the estate and as to advertising or creditors;
    B (e)   require an administrator to sign an undertaking to administer the estate faithfully;
   (f)   require an administrator to give security for the due administration of the estate; C
   (g)   make orders as to the payment of share in the estate of any minor or other person under a disability to relative or other suitable person for the maintenance or otherwise for the use of such minor or person under a disability, or with the consent of the Public Trustee, to the Public Trustee; D
   (h)   make any order which it has power to make under this Act in cases of a civil nature.
E The Primary Courts (Administration of States) Rules were published under Government Notice No. 49 of 1971.  These Rules prescribe the entire procedure to be followed by the Primary Courts in Administration of Estates.  Rule 8 of the Rules G.N.49 of 1971 stipulates the matters that the primary court may hear and decide.
The effect of the above quoted provisions touching and affecting Administration of Estates in Primary Courts can be  F summed up as follows:
   1.   A primary court has jurisdiction to hear an Administration Estate's matter PROVIDED the law applicable to the G administration or distribution or the succession to the estate of the deceased is 'CUSTOMARY LAW or ISLAMIC LAW'
   2.   After hearing the application, the Primary Court may grant Administration to one or more persons or to an officer of the Court. H
   3.   The Primary Court may hear and decide matters relating to:
      (a)   Whether deceased died testate or intestate and all matters relating to the will of the deceased.
      (b)   ascertain all property belonging to the estate and all persons who are entitled under the will or upon intestacy. I

A       (c)   ascertain debts if any and consider questions relating to sale or otherwise dispose of the property of the deceased for paying debts, if any and distribution of the estate to heirs and beneficiaries.
B In my opinion a Primary Court may hear matters relating to grant of Administration of estates where it has jurisdiction (i.e. where the law applicable is customary law or Islamic Law).  After hearing the application for grant of Administration the Primary Court ought to decide all matters relating to and affecting the grant and after such decision the court ought to   C grant Administration to the applicant or make an order refusing grant.  It would follow therefore that a Primary Court ought not to distribute the estate of the deceased.  That is the job of an Administrator appointed by court.
I appreciate that there may be cases where the property of a deceased person may be in dispute.  In such cases all those D  interested in determination of the dispute or establishing ownership may institute proceedings against the Administrator or the Administrator may sue to establish claim of deceased's property.
The law regarding institution of civil claims has not been changed by the Administration of estate enactments.  It only  E provides a machinery whereby a legally recognized person is placed in the place of a deceased person in all matter relating to the deceased's estate.
To illustrate the point how some Primary Courts have entertained matters outside their jurisdiction, I would quote an  F example: "Wife of a deceased person applied for Administration of her husband's estate.  The primary court opened an Administration file.  During the course of the hearing the applicant (wife of deceased) told the court all the property owned by the deceased.  In this list there was a piece of land whose ownership was disputed.  Someone else had  G occupation of that piece of land.  The primary court magistrate called that person to give evidence in these proceedings.  That occupier came to court and gave evidence to the effect that the disputed piece of land was his property.  The   H primary court magistrate gave judgment for the wife of the deceased and ordered that third person to vacate the disputed land.
That third person appealed to the District Court and finally the parties reached the High Court.  I quashed the proceedings and ordered fresh proceedings before the appropriate Courts."
I The most important point to note from the above quoted example is that a person who was not party to the suit had to drag

A himself up to the High Court to establish his claim in a matter that did not concern him directly in the original proceedings before the primary court.
In the instant case the Primary Court had no jurisdiction to distribute the estate of the deceased for many reasons apart from the fact that the Primary Court ought not to do the work of the Administrator.  The estate of the deceased included  B property which was held under a Registered Partnership No. 16551 dated 1st March, 1962.  Partnership property is not covered under Customary Law or Islamic Law.  Even the District Court would have no jurisdiction to entertain the Administration Suit as the property value exceeded shs.100,000/=.  The present respondent was not a party in the  C original proceedings.
For these reasons I quash the proceeding of both Courts below and order that the interested parties may lodge their claims before appropriate court having jurisdiction to entertain the claim.  D
I order that each party bear its own costs of this appeal and costs of the courts below.
Order accordingly.

E