Court name
High Court of Tanzania

Salmin Mohamed vs Abdu Mohamed () [1988] TZHC 38 (01 November 1988);

Law report citations
1986 TLR 251 (TZHC)
Media neutral citation
[1988] TZHC 38

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

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

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.
 
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