19990301 TZCA Arusha 1

IN THE COURT OF APPEAL OF TANZANIA , ..,AT ARUSHA --==· ... _ AR-CIVIL APPLICATION N0.12 OF 1996 BETWEEN,/" FEBRONIA GASPER MARO ) I EVARIST GASPER MARO ) '· •••••••••• APPLICANTS AND AGNES G. MARO •••• ~ ••• ,., •••••• o • • • • RESPONDENT (Application for Stay of Execution from the Judgment and Order of the High Court of Tanzania at Arusha) (Mroso, J.) dated the 22nd day of October 1996 .....0 in ,, RULING ..,_,.. !vIF,hLI LA , J • A• : This is an application for stay of execution·•! the Ruling and Order of the High Court dated 22/10/1996 in which an order in favour of the respondent was ~ade to the effect that Shs. 50,000/= should be paid on a monthly basis to the respondent and her children for their maintenance pending the determination of the intended and pending appeal ·in this Court·. The background to this.application is as follows: The 1st applicant Febronia Gasper Maro is the wid~w of the late Evarist Gasper Maro, while the second applicant, . Evarist Gasper Maro is their son.- The respondent Agnes · G. Maro was the concubine of the same late Gasper Maro. Upon the death of her ~usband, the first applicant•with her son, filed an application to be granted letters of ·, ... /2 - 2 - .administraticn to administer the estate of the late Gasper, Maro who died intestate. This application was resisted by the respondent who entered a caveat rendering the · proceedings contentious. _In the end, the suit was ::substantially dismissed",· the learned trial judge <Srdered the removal of the first applicant as one of the administrators because it would not be in the best intal'ests, of the respondent and her children and that therefore a. second impartial administrator should be appointed in her stead. 1 Before the High Court could complete the appoint- ment of an tmpartial administrator, the applicants lodged an appeal against the High Court decision •. The applicants· have all along refused to recognize the rfght of the respondent and her two children as beneficiaries of the estate of the late Gasper Mar.a. While this was going on, the respondent made an oral application to the High Court for an order that as she and her children had noth~ng to live- on, the Court should order a monthly payment If Shs. 50,000/= to her and her.children from the estate of the late Maro. The applicants resisted that application on a number of-grounds but in the end, the learned judge allowed the application and ordered the monthly pa~ent of Shs, 50,000/= to the respondent from the estate of the late Gasper Maro until the intended appeal is determined. This is the order the ~xecution of which the applicants.are ' seeking to stay. In the affidavit in support of this applicat!Mt, the first applicant deponed that if the order is executed in - its present form,.· the applicants being the lawful ~eneficiar.i 3. - of the estate of the late Gasper Maro and the estate itself, are going to suffer because the amount -0r'<i~ is colossal taking into account the long period that may take for the preparation of the record of appeal and its final disposal. On the other hand the respondent, stood firmly by her right and the rights of her children to benefit frorri the estate of the late Maro, and that her application was not premature. At the hearing of this application, ~issj3igeyt learned counsel for the applicants, emphasized the great loss that the applicants would suffer if the execution of the order is not stayed and the intended appeal is suecessful. There would b~ no way of recovering the ~urns already paid to' the respond~nt. I think with respect that the learned judge failed to consider two very important questions.· The first question·is whether the process of appointing administ- rators to administer the estate of the late Maro had at the stage the respondent made her application been completed. The second question is the effect of his tr her on the estate and the applicants. The first quest.it:11 ·✓- is important because if the process of appointing administrators to administer the estate of the late Marf had not been complet~d, there is no lawfully constituted authority to administer the estate. In this case the · order was that there will be two administrators, the second applicant and one other impartial person. The second administrator is yet to be appointed, the Court· deferred the appointment until the intended appeal is - 4 - ~ determined. It is clear then that the process of appointing administrators has not been completed. However, I think that if as found by the trial judge the problem was lack of impartiality of th~ 'first applicant, the Court could have appointe~ _the Administrator-General as the sole administrator beqause the second applicant is likely t~ be as·partial as his mother. But as matters stand now, the process. oL appointing administrators i.s not yet oomplete. With regard to the second question, the total payment to the respondent per year under the order will amount t~ Shs. 600 ,000/=. If the intended appeal takes two years ,? to determine the amount will jump to Shs. 1.2 million. In the event the intended appea~ is successful to the effect that the respondent and.her children are not beneficiaries of the late Mara's estate, the estate will have lost that amount with no prospect of recovering it. In the c1rcumstances, taking into account these two factors that the process of appointing administrators to administer the estate has not been completed and the consequences on the estate in the event the appeal succeeds, the safe course of action t• take is to stay execution pending the determination of the intended appeal. This of course will lead to some hardship on the respondent and her two children, but as ·against this there is the overriding need to safeguard the integrity of the deceased's estate and the interests of the rightful beneficiaries. . . In the result, I grant the application and order that the execution of the order of the ·High Court dated 22/10/96 be stayed pending the determination of the intended appeal. •. . her children, the processing of the applicant's appeal should be given utmost priority so that it is heard and determined within.the current Court year. I make no order as to costs. - DATED AT A~USHA THIS 1ST DAY OF MARCH 1999. L. M. MFALILA JUSTICE .....' -- OF-.....APPEAL~-~ . . I eertify that this is a true CC)py of the 1'r.ig:i.nal, ~gfJ ( A.G. U4ARIJA ) f DEPUTY REGISTRAR - - - - - - ~•.,,.. ,.. ...,.,.,.·.-.=---