Court of Appeal strikes out probate case
By Keregero Keregero
The Court of Appeal of Tanzania has sustained a preliminary objection raised in respect of a civil appeal for an order of revocation of letters of administration of the estate of the late Mohamed Shaffi Sheikh.
The court reached the decision after it found the objection raised to have merit, upon which it dismissed the appeal with costs.
The ruling was recently entered by a panel comprising Justices Eusabia Munuo, Engera Kileo and Bernard Luanda.
The background to the appeal in question is that the respondents, Arthur Alfred Mambeta and Mohamed Jaffer Sheikh, had petitioned in the High Court for the revocation of letters of administration granted to the appellant as administrator of the estate of the late Mohamed Shaffi Sheikh.
However, the High Court appointed the respondents to administer the said estate.
The appellant, Nasser Mwakamboja, was aggrieved by that decision and hence appealed to the Tanzania Court of Appeal.
However, a day before the appeal was to have been called for hearing, the respondents, through their counsel, raised a preliminary objection to the effect that the appeal had been lodged without prior leave of the High Court, hence it was incurably incompetent.
The issue that the Appeal Court was to determine and decide in the objection proceedings that followed was whether the order which the appellant intended to challenge was appellable as a matter of right or required leave of the High Court or the Court of Appeal.
The court said the order, which was the basis of the appeal and which was also the subject matter of the preliminary objection, was the revocation of letters of administration.
However the court found that the order which the appellant intended to challenge was not among the orders enlisted in the Appelate Jurisdiction Act which enables a party to appeal as a matter of right.
Hence the court was of the view that, since the order was not expressly mentioned it had been excluded, and therefore leave was required and the same ought to have been included in the record of appeal as part of the record as provided for by the law.
Since the record of appeal did not contain the aforesaid leave, the court said, the appeal was incompetent and deserved to be dismissed with costs.