MISC

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

AT TEMEKE MISC. CIVIL APPLICATION NO. 60 OF 2023 (Arising out of Probate and Administration Cause No. 19 of 2019)

IN THE MATTER OF THE ESTATE OF THE LATE ANICETUS JOSEPH JOHN MUTABOYERWA.................................................................................... DECEASED and

IN THE MATTER OF AN APPLICATION BY EMMANUEL JOHN MUTABOYERWA TO AMEND THE NAME OF THE DECEASED............................. ADMINISTRATOR

RULING 25th June & 05th July, 2024 BARTHY, J.: The letters of administration were granted to Emmanuel John Mutaboyerwa on 23rd August 2023 to administer the estate of the late Anicetus Joseph John Mutaboyerwa, via Probate and Administration Cause No. 19 of 2019, in respect of unadministered assets, as provided under section 46 of the Probate and Administration Act, Cap 352, R.E 2002 (PAEA), and rule 84 of the Probate Rules, GN No. 369 of 1963. i The applicant through the services of learned counsel Thomas Eustace Rwebangira, moved this court under section 48 of the PAEA and rule 28(1) of the Probate Rules, praying for the following reliefs; 1. The name of the deceased anicetus Joseph john mutaboyerwa be amended accordingly to read as ANICETUS JOSEPH JOHN MUTABOYERWA© JOSEPH JOHN MUTABOYERWA @ JOSEPH MUTABOYERWA.

2. Cost be in the cause The application was supported by the affidavit of Emmanuel John . Mutaboyerwa himself. The application was made and heard ex-parte, with the hearing conducted via oral submission. The applicant was represented by Mr. Thomas Rwebangira, whom on his submission in support of the application, he prayed to adopt the affidavit filed in support of the chamber summons. Mr. Rwebangira submitted that the applicant, in the course of discharging his duties, discovered that some properties falling under the deceased's estate bore different names than those identified in the petition for letters of administration. He further stated that the applicant had attached a certificate of title showing the names of Anicetus Joseph John Mutaboyerwa, Joseph John Mutaboyerwa, and Joseph Mutaboyerwa. 2 He explained that the affected properties included telephone towers and landed properties, such as the one bearing title No. 186/55/17, registered in the name of Joseph John Mutaboyerwa. He also stated that the properties bearing different names made it difficult to administer the estate. Hence, the letters of administration should be amended to include those mentioned names as provided under rule 28 of the Probate Rules. He further stated that the rectification would not prejudice any interested party, as the change of name would not alter the status or transfer

the property. Having heard the ex-parte submission regarding the present application, where the court has been moved under section 48 of the PAEA, which provides for the rectification of errors, the provision is quoted below for clarity; Errors in names and descriptions, or in setting forth the time and place of the deceased's death, or the purpose in a limited grant, maybe rectified by the court, and the grant ofprobate or letters of administration may be altered and amended accordingly. [Emphasis is supplied]. With regard to the said provision, the court has the power to rectify errors in the name by altering or amending the letters of administration ■^a- 3 or grant. Upon reviewing the affidavit in support of the application, the applicant stated in paragraph 3, and I quote; 'That, some properties are rightly registered in the name of anicetus Joseph mutaboyerwa and some are registered in the name of Joseph John mutaboyerwa and few registered in the name ofJoseph mutaboyerwa. Some of the certificate of titties bearing the names ofJoseph John mutaboyerwa are attached here as annexture "B" to the affidavit'. It was further deposed in paragraphs 4 and 5 of the affidavit that the . appointment for the administration of the estate was in respect of the deceased under the name anicetus Joseph john mutaboyerwa. It was discovered that the deceased used other names mentioned

above interchangeably. Therefore, the court should rectify the said names. The application pertains to the letters of administration granted to the applicant on 23rd August 2023, to administer the estate of anicetus Joseph john mutaboyerwa. The applicant seeks to amend the letters of administration to include the names Joseph john mutaboyerwa, Joseph MUTABOYERWA, and JOSEPH JOHN MUTABOYERWA. Considering the submission made and the facts deposed in the affidavit in support of the application, along with the annexures attached, there are no errors in the name or description, with regard to the time 4 and place of the deceased's death, or the purpose in a limited grant, that warrant rectification. The names seen in the letters of administration were the same as those written in the petition. Additionally, the deceased's use of different names interchangeably does not constitute errors that need rectification under section 48 of the PAEA. Therefore, the applicant seeks to add other names to the letters of administration, not alter or change them. Consequently, this court is of the opinion that it was not properly moved, as the provision cited under section 48 of the PAEA and Rule 28(1) of the Probate Rules is misplaced. I am persuaded by the decision of my brother Ismail, J (as he then was), with his findings in the case of John Marco vs. Seif Joshua Malimbe, Misc. Land Application

No. 66 of 2019, High Court of Tanzania at Mwanza, page 5, where the court held; It is to the effect that non-citation or wrong citation of the enabling provisions of the law renders the application incompetent. Also, the same findings were held in the case of Hussein Mgonja vs. The Trustees of the Tanzania Episcopal Conference, Civil Revision No. 2 of 2002, Court of Appeal (unreported). 5 Moreover, as passing words, it is noted that in Probate and Administration Cause No. 19 of 2019, where the administrator was appointed, there are unresolved objections regarding the inventory and accounts of the estate. The lack of confirmation of the inventory puts this court in a dilemma as to which properties form part of the deceased's estate. The names the applicant wishes to add are different and may or may not be related to the deceased's estate, creating more confusion. Given this context, I find that the application before this court is misconceived and is hereby dismissed. Due to the nature of this matter, I give no order as to costs. It is so ordered. Dated at Temeke this 5th day of July, 2024. Delivered in the presence of the applicant in person and Ms. Happiness Mkude the learned advocate for the applicant. 6