PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA PC CIVIL APPEAL NO. 4268 OF 2024 (C/F PROBATE CAUSE N0.34G/2022 ARUSHA URBAN PRIMARY COURT, CIVIL APPEAL NO. 3 OF 2023 DISTRICT COURT OF ARUSHA AT ARUSHA) AMINA MOHAMED MWIRU..........................................................APPELLANT VERSUS BUKHORI RAMADHAN MULIMBA (As an administrator of the Estate Of the late JUMA RAMADHANI MULIMBA................................ RESPONDENT JUDGMENT 28/05/2024 & 02/07/2024 NDUMBARO, J Dissatisfied by the decision of the District Court of Arusha at Arusha in Civil Appeal No. 3 of 2023, theappellant hasfiled this appeal with the following grounds; 1. That, the first appellate court erred both in law and fact by dismissing the entire appeal while it allowed grounds No. 1, 2 and 3. 2. That, the first appellate court erred both in law and in fact by failure to appoint the appellant herein as an administratrix of the estate of her late husband Juma Ramadhani Mulimba without any legal justification. 3. That, the first appellate court erred both in law and fact by wrongly approving the appointment of the respondent as the sole administrator of the estate of the late Juma Ramadhan Mulimba. In this appeal, the appellant is thus praying this court to grant the following orders; 1. That the judgment and order of the Arusha District Court in Civil Appeal No. 3 of 2023 be quashed and set aside. 2. That the appellant be appointed as an administratrix of the estate of her late husband, Juma Ramadhan Mulimba. 3. The appeal be allowed with costs. 4. Any other relief this court deems fit to grant. Before determining the appeal before me, I find it appropriate to give a brief background of facts giving rise to this appeal as follows; sometimes in the year 2021, the appellant petitioned for letters of administration of the estate of her late husband Juma Ramdhan Mulimba who died on 12/07/2021 on a plane crash. The letters for administration were petitioned before the Arusha Urban Primary Court, however on 25th October 2021 the trial court received a caveat from one Bhukori Ramadhani Mulimba and therefore the caveat had to be determined first before the appointment of an administrator. For the purpose of this appeal, the grounds raised in the caveat are reproduced hereunder in summary and in the language used by the objector (Swahili language); 1. Mleta maombi Amina Mohamed Mwiru hajateuliwa na kikao cha ukoo kuwa msimamizi wa mirathi ya Marehemu Juma Ramadhan Mulimba. 2. Mleta maombi Amina Mohamed Mwiru ni mtalaka was marehemu Juma Ramadhan Mulimba ambao walitalakiana mwaka 2008. 3. Maombi ya usimamizi yaliyoletwa mebele ya Mahakama yahana viambatanisho stahiki kwa ajili ya kufungua shauri la mirathi. 4. Mleta maombi Amina Mohamed Mwiru sio mwanafamilia wa familia ya Juma Ramadhan Mulimba 5. Mleta maombi ameacha kuorodhesha kwa maksudi baadhi ya mali za marehemu Juma Ramdhani Mulimba. 6. Mleta maombi ameorodhesha mali za mpingaji kama mali za marehemu Juma Ramadhan Mulimba. 7. Mleta maomba amepotosha mahakama kwa kusema kuwa kabla ya kifo chake marehemu alikuwa akiishi Arusha jambo ambalo sio sahihi kwani marehemu alikuwa mkazi wa jiji la Mwanza. 3 8. Mleta maombi ameweka watoto ambao sio wa marehemu Juma Ramadhani Mulimba na kuwa tambulisha kama watoto wa marehemu Juma Ramadhani Mulimba wanaostahili kunufaika na mirathi ya Marehemu Juma Ramadhani Mulimba. 9. Marehemu alikua na mali nchini Kenya, hivyo shauri hili linapaswa kufunguliwa mahakama Kuu. The trial court after hearing both the petitioner and the objector together with their witnesses, the trial had the following finding, on the issue of the children of the deceased with the petitioner, the trial court ordered that DNA should be conducted before the said children are listed in the list of the heirs of the late Juma Ramadhan Mulimba. As to the marital status, the trial court was of the view that the petitioner failed to her marriage status with the deceased as she did not produce the marriage certificate of marriage. On the ground that the documents that were used in filling the petition were not genuine, the trial court agreed with the objector on this ground as all documents that were submitted by the petitioner in filling the petition were all copies and they were not certified. On the issue of the deceased's properties, the trial court held that it is the duty of an administrator to make a follow-up of all the deceased's properties and anyone whose property was listed in the list of the deceased's properties will bring that claim to the court. On the ground that the deceased was living at Mwanza, the trial court held that since the deceased had a family here at Arusha and he was also a Muslim therefore the trial court was clothed with jurisdiction to determine the matter. For the above reasons, the trial court was satisfied that the petitioner was not a fit person to administer the estate of the late Juma Ramadhani Mulimba and therefore, the objector Bhukori Ramadhani Mulimba was appointed as an administrator of the estate of the late Juma Ramadhani Mulimba. Aggrieved, the appellant filed her appeal to the 1st appellate court. The 1st appellate court observed that since there was no decree of divorce from the competent court therefore it was sufficient that there was an existence of marriage between the appellant and the deceased. As to the issue of beneficiaries, the 1st appellate court was of the decision that the trial court went beyond its limit in appointing the administrator to order for DNA test. The 1st appellate went on to state that the said order was issued prematurely as it was the duty of the administrator to recognize the heirs and distribute the estate of the deceased to them. The 1st appellant also held that, in appointing an administrator, the administrator appoints any interested person with the estate of the deceased or any relative who meets the conditions for appointment. Having determined as demonstrated above, the 1st appellate court nevertheless went on to dismiss the appeal hence the present appeal. When the matter was called on for hearing, the appellant enjoyed legal services from advocate Bethy Sanare, on the other hand, the respondent was represented by advocate Ombeni Kimaro. With leave of the court, the appeal was disposed of by way of written submissions summarised hereunder; Submitting in support of the 1st ground of appeal, the appellant's counsel submitted that despite the fact that the 1st appellate court faulted the findings of the trial court on the issue of divorce and the DNA tests yet it went on to dismiss the appeal. According to her argument, the decision of the 1st appellate court to dismiss the appeal violated the law and procedure which has occasioned miscarriage of justice to the appellant. The learned counsel went on to state that as a matter of practice, where the appellate court has allowed some of the grounds of appeal and disallowed the remaining grounds for want of merit the proper outcome is for that court to hold that the appeal is 6 allowed to that extent. The appellant prayed this court to allow this ground of appeal. Grounds number two and three were argued jointly as follows; it is the argument that the 1st appellate having allowed some of the grounds raised by the appellant, which were actually used by the trial court to deny her appointment, ought to have appointed her as an administratrix or a Co-administrator with the respondent herein in order for her and her children to have a chance to benefit from the deceased's estate. The counsel added that the appellant herein will recognize all the beneficiaries of the deceased, unlike the respondent who does not want to recognize the appellant and the three children. The counsel thus prayed for this court to allow the appeal and proceed to appoint the appellant herein as an administratrix or Co administratrix of the estate of her late husband. Responding to the appellant's submission, Mr. Kimaro commenced his arguments by challenging the appeal before this court that the same was filed out of time. The learned counsel cited the provision of section 25 (1) (b) of the Magistrate Courts Act Cap 11 R.E 2019 which provides for a time limitation of thirty (30) days from the date of the decision or order. The counsel further expounded that the appeal at hand was received by this court on 16th October 2023 while the impugned decision was delivered on 14th September. According to Mr. Ombeni, counting from 15th September 2023 this appeal was supposed to be filed on 15th October 2023. He therefore submitted that this appeal is hopelessly time-barred and should be dismissed with costs. Submitting on the merit of the appeal, Mr Ombeni argued grounds number 2 and 3 jointly as follows; Mr. Ombeni submitted that the respondent herein is the first son of the deceased and that he was appointed following the rule of "interest" which was observed by both the trial court and the 1st appellate court. Therefore, it was his argument that there was no any misdirection or misapprehension of evidence or violation of some principle of law or procedure which occasioned a miscarriage of justice as alleged by the appellant, he supported his stand with the case of Naftary Petro vs Marry Protas [2019] T.L.R 561. On the issue that, the respondent herein if appointed as a sole administrator will not do justice was countered by the respondent in two limbs; first, this issue of whether the respondent will do justice or not is mere speculation and cannot be ascertained at this juncture. Secondly, after the distribution of the deceased estate, the administrator is required to file inventory and final accounts. The law allows the appellant and other beneficiaries to raise objections during the presentation of the inventory and final accounts if they will not be considered by the administrator or they may sue the administrator for misusing the deceased's estate. Therefore, the allegation that no justice will be done to the appellant is premature and should not be accorded weight. He supported his argument with the case of Ahmed Mohamed Al Laamar vs Fatuma Bakari & another, Civil Appeal No. 71 of 2012. Turning to the first ground of appeal, the counsel submitted that, even if the 1st appellate court allowed grounds number 1, 2 and 5 yet, it could not affect the appointment of the respondent as an administrator. The learned counsel also submitted the powers of this court as a second appellate court, the counsel was of the view that, since this is a second appellate court it is duty-bound to deal with only pure points of law and since the appellant has not demonstrated then this court is to dismiss the first ground of appeal. In rejoinder, the appellant's counsel replied on the issue of this appeal being out of time. Mis. Betty submitted that the appellant herein filed his appeal electronically on 13/10/2023 through the then Judicial Statistical Dashboard System (JSDS) and therefore she was within time pursuant to rule 21 (1) of the Judicature and Application of Laws (Electronic Filing) Rules 2018. The counsel went further to state that the then JSDS is no longer in use and has been replaced with the Case Management System and therefore she has failed to attach as proof to that effect. The learned counsel urged this court being the custodian of all electronically filed documents to take trouble to check the system in order to confirm the filing date. Nevertheless, the counsel went on to submit that 15th October 2023 which was the last date for filing the appeal was a Sunday and the law under section 60 (2) of the Interpretation of Laws Act Cap 1 R.E. 2019 is very clear that when the last day of limitation falls within a public holiday or weekend, the next working day is counted therefore the appellant did no wrong to file her appeal on 16th October 2023. Submitting on the merit of the appeal, the learned counsel basically echoed her submission in chief with an addition that the appellant does not make any speculations on the issue of the appellant and her children as it is vivid that the respondent in his testimony clearly stated that he does not recognize the appellant and her three children. The appellant maintained her prayer this court appoint her as an administrator or Co-administrator of the estate of her late husband. 10 Having summarized the parties' rival submissions, it is now time for this court to determine whether the appeal before this court is meritorious. Nevertheless, as the respondent herein objected that this appeal was filed out of time, I shall start to determine it first before going to the merit of this appeal. It is the argument of the respondent's counsel that this appeal was filed out of time for the reason that the impugned decision was delivered on 14th September 2023 while this appeal was filed on 16th October 2023, therefore the delay is of a single day. The appellant's counsel on the other hand submitted that she filed this appeal electronically on 13th October 2023 therefore pursuant to rule 21 (1) of the Electronic Filing Rules the appeal was filed on time. The appellant's counsel also went on to state that despite the appeal being filed electronically on time, yet, the last date of filing this appeal which was 15th October 2023, was a weekend as it was on Sunday, therefore as per section 60 (2) of the Interpretation of Laws Act in computation, weekends and public holidays are excluded. I shall start with the issue of whether the last day to file this appeal falls under the exclusion provided by section 60 (2) of the Interpretation of Laws Act. I have had time to look at the calendar in ii particular on the month of October, I am inclined to join hands with the appellant's counsel that indeed the 15th of October 2023 was a Sunday and therefore falls under the exclusion in the computation of the time limit provided by section 60 (2) of the Interpretation of Laws Act which reads as follows; "60(2) For the purposes o f this section, "excluded day" means Saturday, Sunday or public holiday throughout or in that part o f which is relevant to the event, act, thing or proceeding concerned." In the above premises, this court is satisfied that since the last day to file this appeal was on Sunday, therefore the appellant was justified under the above provision of the law to file her appeal on the next day which was 16th October 2023. Therefore, despite the fact that the appellant alleged that this appeal was electronically filed on time, however from the above analysis this court is satisfied that even the physical filling of this appeal was filed on time. The above said I now turn to determine the merit of this appeal. In doing so I shall be guided with an issue of whether the 1st appellate court was justified in confirming the appointment of the respondent as a sole administrator of the estate of the late Juma Ramadhani Mulimba. It should be noted that this is a second appellate court and as the principal 12 of law demands, the second appellate court should not interfere with the concurrent findings of the courts below unless it is satisfied that there is a misapprehension of evidence by misdirection or no directions or when it is clearly shown that there has been a miscarriage of justice or violation of some principles of law or procedure. See see Salum Mhando (supra), Edwin Isdori Elias v. Serikali ya Mapinduzi Zanzibar [2004] T.L.R. 297 and Musa Mwaikunda v. Republic [2006] T.L.R. 387. In this appeal, the appellant in the first ground complained that despite the fact that the 1st appellate court allowed grounds number 1, 2 and 5 it went on to dismiss the appeal. Moreover, the appellant also complained about the failure of the 1st appellate court to appoint her as an administratrix of the estate of her late husband and confirm the appointment of the respondent as a sole administrator. I have revisited the proceedings of both the trial court and the 1st appellate court. Among others, two issues were the centre of the controversy in this appeal, one was whether the appellant was still a legal wife to the deceased and therefore had interest in the deceased's estate and the second was an issue on the children that the deceased had with the appellant. 13 As I have already said above, I had enough time to go through the records of this appeal together with the submissions of the parties, which actually I find no need to reproduce again at this stage. Basically, about the above two issues I have mentioned, it is my firm finding that the 1st appellate court properly dealt with them. From the records of the trial court, the respondent while testifying, informed the court that the deceased before his death had already issued a divorce to the appellant in accordance with the Islamic religion. The respondent tendered the said copy of "talak" in court as an exhibit. I have gone through the said document, it was actually issued by the deceased and not the court. Section 12 of the Law of Marriage Act Cap 29 R.E 2019 provides clearly for modes of dissolution of marriage, which are the death of either party, by a presumption of death, by decree of annulment, by a decree of divorce or by extra-judicial decree. It follows that it is the court which is vested with powers to make a finding that the marriage between the parties has broken irreparably. Therefore, the issuance of a 'talak' only serves as evidence of the irreparable breaking down of the marriage. This is in terms of section 107 (3) (c) of the Law of Marriage Act. The position in this provision of the law was reiterated in the case of Mrs Jamila Surendra vs Mr 14 Surendra Dharamshi Jutha @ Mohamed Dharamshi Jutha (Matrimonial Appeal No. 2 of 2022) [2023] T7HC 21749 (13 October 2023) where it was stated that; "According to section 107 (3) (a), (b) (c) o f the Law o f Marriage Act, the iaw is very dear that when it is proved to the satisfaction o f the court that the parties married in Islamic form and the Board has certified that it has failed to reconcile them and either o f them has done any act or thing which in accordance to Islamic law dissolves the marriage, the court would merely make a finding that the marriage between the parties has broken down irreparably and proceed to grant the divorce decree. I entertain no doubts that the cited provisions o f the Law o f Marriage Act were enacted not to offend Islamic law on divorce but to honour any act or thing that dissolves Islamic marriage under Islamic Law as a conclusive dissolution o f Islamic marriage and mandatorily requires the court to merely make the finding that such marriage has broken down irreparably. " In line with the above provision of the law, it suffices to say that Islamic 'Talak' is not enough to dissolve the marriage, the same requires the court for the decree of divorce. In the premise, as correctly decided by the 1st appellate court, since no decree of divorce was issued, 15 ordering the dissolution of the marriage between the appellant and the deceased therefore the argument that the appellant was divorced was unjustified. More so, even if this court is to assume that the appellant was not legally divorced by the deceased, yet the law under section 33 of the Probate and Administration of Estates Act, Cap. 352 R.E. 2019, provides as follows: "Where the deceased has died intestate, letters o f administration o f his estate may be granted to any person who, according to the rules for the distribution o f the estate o f an intestate applicable in the case o f such deceased, would be entitled to the whole or any part o f such deceased's estate." In this appeal, the appellant is also an interested party who is eligible to be appointed as an administratrix of the estate of the late Juma Ramadhani Mulimba for reasons that she had children with the deceased. I am aware that there is a contention on the legitimacy of the three children, however as correctly held by the 1st appellate court, that argument is premature to be discussed at this stage. Thus, it is my finding that since there are children of the deceased irrespective of their 16 legality, the appellant who is their mother holds an interest on behalf of them in respect of the deceased's estate. The above said, this appeal is allowed to the extent that the appellant AMINA MOHAMED MWIRU is hereby appointed as a Co administrator to administer the estate of the late Juma Ramadhani Mulimba. Due to the relationship of the parties, I refrain from giving orders for costs. It is so ordered. D. D. NDUMBARO JUDGE 2/ 07/2024