20110915 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL REVISION NO. 3 OF 2011 {CORAM: RUTAKANGWA, J.A., MJASIRI, J.A. And MANDIA J.A.) 1. MARK ALEXANDER GAETJE 2. WIEBKE GAETJE 3. HEDDA HEERDEGEN ..........:.............................l...... APPLICANTS

VERSUS BRIGITTE GAETJE DEFLOOR ............................................ :..... RESPONDENT (Revision from Ruling of the High Court of Tanzania a.t Mwanza) {Rwakibarila, J.) Dated the 26th day of May, 2011 in Misc. Civil Application No. 58 of 2010 ..............

RULING OF THE COURT 7 and 23 September, 2011 MANDIA l.A: KLAUS GAETJE made out his last will and testament on 11th I November, 2002 at Mwanza. He died on 21 st July, 2004 at the worksite of I Kamanga Ferry in Port Bell, of Kampala, Uganda. After the death, the respondent BRIGITTE GAETJE DEFLOOR opened I a Probate and I i Administration Cause No. 3 of 2005 in the High Court of Tanzania, Mwanza 1 • i I ;, Registry. The respondent petitioned for the grant of proba~e, and attached I the last will and testament of the deceased to her petitionl A citation was ! i issued by the High Court and was published in the Gover~ment Gazette of I th 10 February, 2006 as Government Notice No. 72 of 2006; No caveat was filed against the petition, and on 15th June, 2006 thJ High Court of Tanzania issued the following order:- "ORDER I I Let letters of administration be I issued to the applicant as prayed as there is np caveat filed. I I Signed L.B. MCHOME I i JUDG;E 15/0~/2006" I On 15th August, 2008, one of the applicants, MARK ALEXANDER I I GAETJE, who is a son of the deceased, applied for the1 revocation of the I I grant made on 15th June, 2006 but later changed his mind and withdrew I I the application on 10th October, 2008. Seven days later on lih October, I i 2008, MARK ALEXANDER GAETJE filed Civil Case No. 14 of 2008 in which i I he prayed that the grant made to the respondent on i5th June, 2006 be

I I I 2 I ,. . revoked. The civil suit proceeded to full hrring and was 9ismissed by the High Court. This made MARK ALEXANDEj GAETJE file a ;notice of appeal against the High Court decision on 23 rd lebruary, 2009. ; Later he had a change of mind and on 1st July, 2009 filea a notice in which he withdrew the notice of appeal he had filed earlier on! 23/2/2009. ' ' ' After the withdrawal of the Notice of Appeal to the Court of Appeal of Tanzania, MARK ALEXANDER GAETJE Jent back to th~ High Court of Tanzania and filed, together with two oJhers, another abplication for the I . I grant made to the respondent on 15th June, 2006 to be r~voked. Since by I this time he was already out of time, he combined hjs application for revocation with that of seeking for extension of time. This application drew a preliminary objection on points of law lhich the respo~dent filed. After 1 due hearing, the High Court sustained the preliminary ;objection on two grounds. The first ground is that the application for i revocation is res I Judicata because a similar application had been finally determined on ! 10.10.2008, and the second ground is that the applicatipn was sub-Judice in that it was made while an appeal to the Court of Appeal I on the same issue was still pending. 3 i I After the ruling which upheld the preliminary objectioi:, was delivered, I . I the applicants preferred an appeal to the

Court of Appeal of Tanzania in I Civil Appeal No. 15 of 2010. The Court of Appeal founp that the High I Court erred in entertaining proceedings while there was a notice of Appeal I . I pending determination in the Court of Appeal. It declaredI all proceedings i following the lodging of Notice of Appeal null and void and struck out the I I same. The matter went back to the High Court for determination I of the I application for extension of time and revocation. After ~ue hearing, the I High Court rendered a ruling on 26/5/2011 in which it rightly pointed out i the difference between probate and letters of Admini~tration I but then I I made the following remark:- I

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I I I "An order by Hon. L. B. Mchome, J (rtd) in which he I I granted letters of administration instead of the I probate is not fit for alteration, nullification or I I modification by this court because h~ was i exercising jurisdiction at the similar hierarchy like I i this court. A proper interference to that order I can I • I legally be made by the superior court. So that at I this juncture this matter is hereby referred/ to the I 4

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I I I • Court of Appeal for purposes of enabling that court to give necessary orders or instructions in order to ' facilitate hearing and determination on merit of Mwanza High Court zone Probate ; and I Administration Cause No. 3 of 2005 in which I respondent BRIGITTE GAETJE applied for grant of probate." I Pursuant to the above-quoted order of the High Court the learned advocate representing the applicants wrote letter Ref.; RUT/785/MG/11 I dated lih June, 2011 in which letter he raised issue with the order of the I High Court referring the record to the Court of Appeal for directions. This I led to the opening of these revisional proceedings suo mo:tu. At the hearing of the revision appearances by the parties was the I ! same as in the High Court. Mr. Rutabingwa, learned adv9cate representing the applicants in the High Court argued that the grant of letters of I Administration instead of probate by the High Court was a clerical error I which was curable under Section 96 of the Civil Procedure Code, a line of 5 " i · reasoning which was agreed upon by Mr. Senen Mponda, l~arned advocate representing the respondent. I I Both parties to the petition as presented in the Himh Court agreed I that the respondent petitioned for the grant of probate ahd had attached I I the will of the deceased in her petition. Both parties are also in agreement I I that the High Court granted the

application "as prayed for" but granted I Letters of Administration instead of probate. The advoca~es for both sides I jointly moved this court to hold that the difference between the petition I I which was filed in court and the prayer granted was a slip; of the pen which is correctable under Section 96 of the Civil Procedure Code as a clerical or arithmetical error. We will endeavour to put the matter in prop~r perspective by I I defining what probate is. According to Blacks Law Dictionary, ninth edition, probate is defined thus:- "probate 1. The judicial procedure by which a i I testamentary document is establishedI to be a valid will, the proving of a will to the satisfaction of the court. 6 . Unless set aside, the probate of a will is conclusive I I upon the parties to thr proceedings (and others who had notice of them) dn all questions bf testamentary I I capacity, the absence bf fraud or undue influence, and I ' I due execution of the will. j But probate does not I . preclude inquiry into the validity of the will's provisions I , I or their proper construction or leg~I effect. Also termed proof of will." ' In a petition for probate, the court iis concerned with the validity of the will as annexed to the petition. The ~uestions which;will come up are I . whether or not the will has been properly executed; whether or not the I . I , testator had the capacity to make the will; in the case where the testator I . has disabilities like blindness, deafness /or illiteracy, whether or not the I ' contents of the will were made knowledgeable to him by, reading over, etc ' '

I I I and he had granted his approval; whether there was undue influence or I : not; whether there was forgery and fraud or not; and whether the will has I : been revoked or not. If the will passes ~II the tests enumerated above it is . J I taken to be proved, and the court grants the executor the power to j I ' administer the will. These requirements iof the law are reflected in Sections 7 • 24 to 28 of the Probate and Administration of Estates Act, chapter 352 R.E. 2002 of the Laws, and also in the definition of "probate" in Cap 352 which ' goes thus:- "probate" means the copy of a will, or, in the case 1 of an oral will, a statement of the contents thereof, ' certified under the seal of the court with a gra,nt of administration of the estate of the testator;" ' In probate, therefore, it is the wish of the deceased testator that is given effect as shown in the will. In the case of administration of I estates, on the other hand, the outstanding difference with probate is that the deceased dies without leaving a will and a third party applies: to the court to administer the estate of the deceased. The probate and: Administration of Estates Act details the procedure for applying for Letters, of Administration in intestate succession in Sections 33 to 34 of the Act. There may occur, I circumstances where Letters of Administration may be ·granted with will I annexed as provided in Section 29 to 32 of the Act. This can only happen I I where the deceased dies leaving a valid will but there,· is no executor to 8 . I

I I I • execute the will because either the executor has died before the testator, I or the executor has renounced the probate. Section 28 of the Act shows the effect of the grant of probate in that i it establishes the will and grants title to the executor to execute the will. I I On the other hand the effect of a grant of Letters of ~dministration I as shown under Section 44 of the Act is to grant all the rights; of the deceased to the administrator from the moment of the death of the: deceased. This I means the rights of an executor are derived from the will, 1and the rights of I I an administrator are derived from the grant made by the Fourt. Viewed in this way the procedures, powers and effects of the executorship and I I administration of estate are different. To confuse the1 two procedures I I cannot be called a slip of the pen or a clerical error but 1is a fundamental ' error which cannot be cured by Section 96 of the Civil Prpcedure Act. We therefore invoke our revisional jurisdiction under Secti:On 4 (3) of the I I Appellate Jurisdiction Act, Chapter 141 R.E. 2002 of the: laws, and quash I I th the order of the High Court dated 15 June, 2006. I We find that the purported reference of the High G:ourt to this Court I I for directions is a side issue which we will not comment upon at this point. I 9 • The record is remitted to the High Court of Tanzania Mwanza Registry, for the court to process Probate and Administration Cause No. 3 of 2005 in accordance with Part VII of the Probate and Administration of Estates Act, Chapter 352 R.E. 2002 of the laws. DATED at DAR ES SALAAM this 15th day of September, 2011 E.M.K. RUTAKANGWA

JUSTICE OF APPEAL S. MJASIRI

JUSTICE OF APPEAL W. S. MANDIA

JUSTICE OF APPEAL 10