SOPHIA SADALLAH NDOSSY OCR

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB - REGISTRY) (ONE STOP JUDICIAL CENTRE)

AT TEMEKE PROBATE AND ADMINISTRATION CAUSE NO. 45 OF 2023 In the matter of the estate of the late SADALLAH PHILIPO NDOSSY............................................................ DECEASED AND In the matter of an application for letters of administration by SOPHIA SADALLAH NDOSSY................................................ 1st PETITIONER MACCA SADALLAH NDOSSY.................................................. 2nd PETITIONER AND In the matter of a Caveat by SAID SADALLAH NDOSSY............................................................ 1st CAVEATOR ISMAIL SADALLAH NDOSSY........................................................ 2nd CAVEATOR ABRAHAM SADALLAH NDOSSY................................................... 3rd CAVEATOR ERIC SADALLAH NDOSSY............................................................ 4thCAVEATOR

JUDGMENT Date of last order: 31/07/2024 Date of Judgment: 28/08/2024 OMARI, J. Sadallah Philipo Ndossy died intestate on 10 February,2021. Sophia Sadallah Ndossy and Macca Sadallah Ndossy, the Petitioners herein filed a Petition seeking to be appointed as administratrixes of his estate. Their endeavour hit a snag when Said Sadallah Ndossy, Ismail Sadallah Ndossy, Abraham Page 1 of 18 Sadallah Ndossy and Eric Sadallah Ndossy; the Caveators herein showed up to challenge the Petition via Caveat as per section 58 of the Probate and Administration of Estates Act, CAP 352, R.E 2002 (the PAEA) and Rule 82 of the Probate Rules, 1963 (the Rules). Since the matter turned contentious, it became as nearly as possible a civil suit as per section 52 of the PAEA, see also the case of Monica Nyamakere Jigamba v. Mugeta Bwire Bhakome and Another, (Civil Application No. 199 of 2019) [2020] TZCA 1820. When the special pleadings were complete the matter was scheduled for hearing. To facilitate the determination of the matter, the following four issues were framed: 1. Whether the deceased's mode of life was in conformity with the Islamic faith which he professed.

2. Who are the lawful heirs of the deceased.

3. Whether the Petitioners qualify to be the administrators of the deceased's estate.

4. To what other reliefs are the parties entitled to. At the hearing of this matter, the Petitioners who had the services of Obeid Mwandambo who was assisted by Iddi Kassi both of whom are learned Page 2 of 18 advocates called three witnesses; that is Sophia Sadallah Ndossy (PW1), iMacca Sadallah Ndossy (PW2) and Jubelate Ndossy (PW3) all of whom testified in support of the Petition and in total tendered four Exhibits to prove |it The said Exhibits are PE-1 which is a Marriage Certificate between the deceased and the first Petitioner and PE-2 the Certificate of Death for i [Sadallah Philipo Ndossy. They also tendered Exhibit PE-3 which are the minutes of a family meeting held on 22 December,2019 in Dar es Salaam and PE-4 the minutes if the clan meeting held on 21 February, 2021. i The Caveators had the services of George Masoud, Joyce Sojo and Alex jBalomi who appeared for the 1st, 2nd and 3rd Caveators and Joseph Paulo for T the 4th Caveator. They called four witnesses Abraham Sadallah Ndossy (CW1), Said Sadallah Ndossy (CW2), Eric Sadallah Ndossy(CW3) and Ismail [Sadallah Ndossy (CW4) all of whom testified to oppose the Petition and in I the process tendered four Exhibits which are Exhibit CE-1 to CE-4 all of which are the Certificates of Birth for CW1,CW2, CW3 and CW4 respectively. In a bid to achieve brevity I shall discuss the parties' testimonies and the Exhibits while

determining each of the issues. In the course of the discussion, I shall also refer to the parties' final submission as filed by their advocates, for which I immensely thank them. Page 3 of 18 As regards the first issue; that is whether the deceased's mode of life was in conformity with the Islamic faith which he professed. The epicentre of the Caveators' testimony during trial was to show the deceased albeit being called by a Muslim name and identifying as a Muslim did not live in a manner that is in conformity with the Islamic faith, thus his estate should not be dealt with in a manner that is ascribable to Muslims or in accordance to Islamic law. Central is the fact that the deceased partook in in the traditional rituals of the Chagga when the Caveators were being introduced to his clan. These rituals include the slaughtering of goats, and painting/putting blood on the Caveators'frontum and forehead using the Isale tree leaf. It was the Caveators' testimony that the deceased was also known to slaughter animals (goats) and distribute the meat to neighbours and his distant relatives. They also argued that because the deceased Sadallah Phillipo Ndossy sired four children out of wedlock and is alleged to have cared and provided for them during his lifetime, this means he considered himself more of a traditionalist than a Muslim. To buttress their arguments the Caveators' counsel

cited inter alia a non existent section 11(4) of what they referred to as the "PAE Act" which allegedly excludes any matter provided by the "Law of Marriage" from the Page 4 of 18 jles of customary and Islamic law arguing that in this case neither Islamic w nor customary law can apply as per the case of Re Innocent Mbilinyi .969) HCD 283, Re Estate of the Late Suleman Kusundwa (1965) EA 247 and that of The Estate of the late Salum Omary Mkeremi [1973] I LRT No.80. Counsel further cited the case of Hamis Said Mkuki v. Fatuma I Ally, (Civil Appeal No. 147 of 2017) [2018] TZCA 341 which among other {things the court considered a deceased's style of life and concluded that I since the deceased did not live as a "Moslem" then Islamic law was not I I [applicable. i ^Likening the circumstances of the deceased in the Hamis Said Mkuki v. i Tatuma Ally (supra) to the present case as they argued that the deceased jdid not conform to an Islamic way of life; stating that he was cohabiting with Christian women and not marrying four wives under Islamic law, he lived lavishly with three women and the fact that he did not pray five times a day or go to Hajj thus, his life style was mixed as per the Hamis Said Mkuki v. Fatuma Ally (supra) case. The Petitioners on the other hand adduced evidence that the deceased, Sadallah Philipo Ndossy was Muslim and lived per the teachings and tenets !of

Islam. He, according to their testimonies and that of PW3 was a Muslim Page 5 of 18 who was known by those around him as such for in addition to his personal acts of worship like fasting during the holy month of Ramadhan, prayers and alms he participated in the building of mosques, financing the needy to go for Hajj, donating to charitable causes in his neighbourhood and his home village. The testimonies of CW1, CW2, CW3 and CW4 also supported that the deceased was Muslim albeit taking part in traditional rituals and having children out of wedlock he participated in personal and communal acts of worship. It is my considered observation that all the parties agree the deceased was Muslim and died as such, what is in dispute is whether he was Muslim enough for his estate to be administered in accordance with Islamic law. According to Petitioners the estate should be dealt with in accordance to the faith which the deceased professed during his lifetime, Islam, as there is no evidence that he ever renounced the said faith. In their submission, the Petitioners' counsel brought to my attention the case of In the estate of the late Zeni Slim Between In the Matter of an Application for Letters of Administration By Kassim Zeni Slim and In the Matter of the Caveat By Abdu Zeni Slim and Husna Aboud Abudakar (Probate and Administration Cause No.44 of 2022) [2022] TZHC 13675 where this Page

6 of 18 court dealt with a dispute akin to the present one and after consideration of the fact that the deceased never renounced his faith regardless of whether i or not he had observed the pillars of Islam. It was held that the deceased was a Muslim and his estate ought to be administered in accordance with Islamic principles. Counsel further augmented their contention with a ireference to the case of In the matter of the estate of the late Hussein L I t Ole Laizer and In the Matter of the Petition for application for joint ^administration by Yeremia Leshalalo Laizer and Benjuda Hussein Lemoyani, Probate and Administration Cause No. 08 of 2019 whereby this court regarded the deceased to be Muslim as his way of life observing that I even after his death he was buried in accordance with Islamic rites. Counsel also cited the case of Peter Pantaleo Mtui v. Juliana Pantaleo Mtui, PC Civil Appeal No. 43 of 2021 where this court observed that having a child out of wedlock constitutes breach of the seventh Commandment however the same does not justify declaring one not to have lived in accordance with Christian rites. This, according to counsel was analogous to the present deceased and his Islamic faith but went on to suggest that if at .all he was in contravention of the tenets of Islam then he be held to have Page 7 of 18 lived a hybrid way of life as it was also elucidated in the

case of Peter Pantaleo Mtui v. Juliana Pantaleo Mtui (supra). Furthermore, the Caveators' counsel also considered the fact that the deceased was Muslim and died as a Muslim when in their closing submission adopted "a just in case" approach and broached the subject of jurisdiction of this court by questioning the Petitioners' choice of forum as in their opinion if the deceased was a Muslim then this court lacks the jurisdiction to handle the estate of the deceased Muslim. To this end, they submitted that it is the Primary Court that is vested with the requisite jurisdiction. Regardless of the fact that the Caveators raised a pertinent issue in an irregular manner and the fact that since the issue was raised in submission the Petitioner's did not have the opportunity to say anything about it, I am inclined to say something about it albeit in brief. Not to steal Caveators counsels' thunder, but the same section 3 of the PAEA they cited as denying this court jurisdiction is the same section that gives it. Section 3 of the PAEA states: "The High Court shall have jurisdiction in all matters relating to probate and the administration of deceased's estates, with power to grant probates of wills and tetters of administration to the estates of deceased persons Page 8 of 18 and to alter or revoke such grants." (Emphasis supplied) ■The above provision is clear, the high court is seized

with the jurisdiction in all matters relating to the deceaseds' estates including the power to grant fetters of administration. The above said, I find the reference to the Hamis Said Mkuki v. Fatuma r 'Ally (supra) case is somewhat farfetched in this instance, there was no evidence adduced to prove that the deceased in the present case lavishly Jived with women out of wedlock. While all of the Caveators testified that jtheir respective mothers were never married it is also on record that they all I knew that the deceased was married to the 1st Petitioner and from Exhibit PE 3 it can be seen that he was involved in the Caveators' lives but was not "lavishly" living with their respective mothers as concubines. As for the i I argument that he did not marry four wives, this is faulty since doing so is an I allowance rather than a commandment. Likewise, him not going to Hajj irrespective of his means does not make him a non Muslim. After discussing the above, I find the first issue in the affirmative and hold that the deceased was a Muslim and died as such. I am fortified in this finding for even after all the Caveators' witnesses' testimony and evidence there is none that supports the fact that the deceased had renounced his faith before Page 9 of 18 his demise or at any time during his lifetime. Thus, the notion that he professes Islam but did not live as a Muslim or that he lived

a hybrid life is not one for this court to commend or condemn for it is not a courts role to determine whether a person was an adherent faithful or not, that as was stated in the case of Kassim Zeni Slim v. Abdu Zeni Slim and Husna Aboud Abubakar (supra) is the exclusive of jurisdiction of the believer's God and I do not intend to usurp that jurisdiction. On the second issue that is who are the lawful heirs of the deceased. The Caveators' testimony is that they are the sons of Sadallah Phillipo Ndossy thus they are entitled to a share of his estate. They all tendered their respective Certificate of Birth as evidence of their being sired by the deceased. It was also stated that the deceased recognized and acknowledged them as his sons, thus traditional rituals to receive them into his clan. The Petitioners, did not seem too inclined to dispute that the four were the deceased sons other than questioning the date of issuance of the Certificate of Birth for CW1 and CW3 which were both issued after the death of the Sadallah Philipo Ndossy, they did not press any further. What is in dispute is whether or not the Caveators are rightful heirs to the estate of the deceased Sadallah Phillipo Ndossy. The Petitioners are adamant Page 10 of 18 that they are not and attempted to postulate that the deceased had done {right by all the four Caveators since he gifted them part of his wealth

through 1 \hibbah when he was alive so that they could not be heirs to his estate. I I (According to the Petitioners this was the agenda of the meeting held on 22 (December, 2019 as evidenced by Exhibit PE-3. The Caveators all admitted ‘to being part of the meeting, however, refuted that the same was so that jthey do not become heirs after their father's passing. Needless to say, after finding the first issue in the affirmative the question 'as to who are the legal heirs of the late Sadallah Phillipo Ndossy need not I Ibe laborious to answer. In addition to the heirs being known, their respective I I shares are also predetermined under Islamic law. Similarly, the issue as to who are the heirs is one of the functions of an appointed administrator in this case it is sufficient to state that that as per the applicable law to the । [deceased the Caveators do not qualify as legal heirs. Even with the Caveators counsels' ingenuity in citing section the Law of the Child Act, Cap 13 RE 2019 (the LCA) which prohibits discrimination based on being born out of wedlock, however, they have failed to substantiate how the LCA applies to any of the four Caveators bearing in mind that the Page 11 of 18 statute's long title and section 4 which defines who is a child in accordance to the LCA. Nonetheless, if they so wish, the lawful heirs are at liberty to invoke what verse 8 of the Suratul An

Nissa (Qur an 4:8) enjoins, as their counsel have referred to it in their submission quoting from the case of Kassim Zeni Slim v. Abdu Zeni Slim and Husna Aboud Abubakarfs</p/a*). Segueing on to the third issue, that is whether the Petitioners qualify to be the administrators of the deceased's estate? The Petitioners maintained that they had been the ones appointed by the clan meeting as evidenced by Exhibit PE-4 that is why they Petitioned for letters of administration. Moreover, having been involved with running some of the companies in which the deceased had a stake they were therefore, familiar with the estate thus, suitably qualified to administer the estate. In their submission, the Petitioner's counsel also pointed out that the 1st and 2nd Petitioners were on several occasions appointed by this court as Administratrixes pendente Ute which goes to show they are capable of the job. In addition to faulting the manner in which the 1st and 2nd Petitioners administered the grant pendente Ute, the Caveators stance is that the Petitioners had already discriminated them by leaving them out of the Page 12 of 18 Petition thus, could not be "trusted" to be impartial, more so the clan meeting had not instructed them to do what they did. The Caveators also complained that the clan meeting did not discriminate against them nor did it list the deceased's estate thus, the Petitioners

could ;not be left to their own avails for they have exhibited that they are unfaithful ,and withheld information a move that is viewed as calculated to disinherit I I .the Caveators. The law is clear on who an administrator is, section 2(1) of the PAEA defines an administrator to mean: 'a person appointed by the court to administer the estate of a deceased person when there is no executor or no executor is able and willing to act, and includes, when Part VIII applies and subject to the provisions thereof, a person appointed an administrator under that Part' From that definition, simply put an administrator is a person appointed by the court to collect and distribute a deceased person's estate when the deceased has died intestate or where there is a Will but it did not appoint an executor or the executor refuses to act. Furthermore, section 33(1) of the PAEA states: Page 13 of 18 'Where the deceased has died intestate, tetters of administration of his estate may be granted to any person who, according to the rules for the distribution of the estate of an intestate applicable in the case of such deceased, would be entitled to the whole or any part ofsuch deceased's estate.' The section allows any person who has an interest in the deceased's estate to petition for the letters of administration and the court may entitle the whole or part of it depending on the circumstances, hence

the Petitioners herein having asserted their interest in the deceased's estate are eligible and qualified to petition for letters of administration by virtue of section 33 (1) of the PAEA. However, the Caveators sought to object their Petition giving among other reasons that since they have been left out then the Petitioners cannot be said to be impartial thus they should also be appointed. On who should be an administrator, this court in Benson Benjamini Mengi and others v. Abdiel Reginald Mengi and Another, (Probate and Administration Cause No. 39 of 2019) TZHC 3202 when referring to the case of Saleli Doto v. Maganga Maige and Others, PC Probate Appeal No. 6 of 2018 had the following to say: 'In appointing the administrator of the deceased's estate, the main consideration is the reputation and capability of such person to act faithfully, diligently Page 14 of 18 and impartially in administering the estate to the rightful owners. Therefore, Court can appoint any reputable person who is not even a member of the family or officer of the Court for that matter to be an administrator of the estate of the deceased.' 'The main qualification for an administrator is therefore tested through a reputation and capability to act faithfully, diligently and impartially in administering the estate to the rightful owners. The question is whether the (current Petitioners have those

qualifications. As already stated the two have .asserted their interest in the estate as well as why they qualify and can administer the same. This, in my view coupled with the fact that an administrator is not left to their own avails as was held in the Sekunda Mbwambo v. Rose Ramadhan (2004) TLR 439 wherein this court observed: "Her objection was predicated more on her fears and feelings than proved facts. If after appointment the respondent proceeds to administer the state unfaithfully or in a discriminatory manner or in any way unsatisfactory to the appellant or any other beneficiary the law gives the aggrieved party to go to the opportunity court to apply for the revocation of the appointment..." I am in agreement with the court's position in the above decision for as administration is a process that is guided by the law so it's not that the 'administrator is given a carte blanche, rather it is a controlled process which needs one to abide to the set law see this court's decisions in Sekunda Page 15 of 18 Mbwambo v. Rose Ramadhan (supra), Beatrice Brighton Kamanga and Another v. Ziada William Kamanga (Civil Revision 13 of 2020) [2020] TZHC 1428 (10 July 2020) Coming to the last issue, that is to what other reliefs are the parties entitled to? The Petitioners among other things sought to have this court acknowledge the alleged hibbah from the deceased to the Caveators.

I refrain from doing this for two reasons. One, this is not among the issues for determination. The second reason is that hibbah is a gift that a person gives to whom he or she wishes or is enjoined to do so and if this is the case it should not be part of the administration procedures since it is something that was done inter vivos. The Caveators prayed for co-administration of the deceased's estate. Simply put they want to be involved as co-administrators so as to ensure their interests (if any). As already stated above, administration is a guided process, therefore, even if for arguments sake the Caveators were to be viewed as legal heirs of the estate they still would not be prejudiced by not being co-administrators as per the case of Sekunda Mbwambo v. Rose Ramadhan (supra). Page 16 of 18 It is also my considered view that since administrators are controlled by the law and by necessary implication the court, then, courts should refrain from turning the administration of estates into appeasement grounds for disgruntled relatives as this has the potential of turning the process into a battleground '.■■J'' .■ between and amongst the multiple administrators who should ideally be working in unity. For a discussion on co-administration and resulting complexities see this court's decision in the case of In the matter of the Probate and Administration of Estate Act, Cap. 352 [R.

E. 2002] AND In the matter of the estate of the late Simon Ngatola Woisso AND In the matter of the Application for revocation of the letters of Administration granted to Priva Simon Woisso And Joseph Simon Woisso by Joseph Simon Woisso, Misc. Civil Application No. 308 of 2019. In the final analysis, I find that the Caveat fails for reasons explained above and it is therefore dismissed. Consequently, I make the following orders: I. The Petitioners, Sophia Sadallah Ndossy and Nacca Sadallah Ndossy appointed to administer the estate of the late Sadallah Philipo Ndossy; ii. Letters of administration to issue; iii. Rule 111 of the Probate Rules to be complied with; iv. Inventory of the estate to be filed on or before 21/10/2024; Page-17 of 18 v. Hearing on 28/10/2024 at 090HRs beneficiaries to be present, those outside of Dar es Salaam to join via Virtual Court; and vi. This being a probate matter I make no orders as to costs. It is so ordered. Ab Kkk A.A. OMARI

JUDGE 28/08/2024 Judgment delivered and dated 28th day of August, 2024 via Virtual Court in the presence of Messrs Iddy Kassi and George Masoud advocates for the Petitioners and Caveators respectively with the 4th Caveator in attendance and Ms. Theresia Shehe -RMA. 'XVki A.A. OMARI

JUDGE 28/08/2024 Page 18 of 18