ALLY ABDALLAH MAHULUKE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC. CIVIL APPEAL NO. 12659 OF 2024 (Arising from Misc. Probate Application No. 665 of 2023 of the District Court of Misungwi; Originating from Probate Cause No. 02 of 2023 of Bukumbi Primary Court) ALLY ABDALLAH MAHULUKE………………………..………..……………..APPELLANT VERSUS SOPHIA KASWAHILI BAKARI (As the former Administrator of the late KASWAHILI BAKARI)…………………………………………………………………..……..RESPONDENT JUDGMENT 31st July & 09th September 2024. Kilekamajenga, J. The respondent is one of the children of Kaswahili Bakari who died intestate in 1997. After the death of the deceased, according to the Sukuma customs, the appellant was appointed the caretaker of the deceased’s family. The appellant is the uncle of the respondent (baba mdogo). As some of the deceased’s children were young and some married, the appellant continued to use the deceased’s land for cultivation and other agricultural activities. However, the deceased left behind a widow who also passed on in 2018. Thereafter, the clan convened and proposed the respondent to administer the estate of her father who died in 1997. In 2023, the respondent petitioned for the administration in the Primary Court of Misungwi at Bukumbi vide Probate and Administration Cause No. 02 of 2023. Nonetheless, 1 her application was objected to by the appellant. The objection was determined and consequently dismissed for lack of merit. The appellant was unhappy with the respondent’s appointment and hence appealed to the District Court of Misungwi vide Probate and Administration Appeal No. 02 of 2023 where his appeal was also dismissed for lack of merit. The respondent went back to the Primary Court and administered the deceased’s estate according to the law and the matter was closed. On 19th January 2024, the appellant filed in the District Court of Misungwi Miscellaneous Probate Application No. 665 of 2024. The applicant sought for the following orders: (a) This court be pleased and inspect the Probate Forms No. 5 and 6 in the Probate Cause No. 02 of 2023 by Bukumbi Primary Court and satisfy as to its correctness, legality and propriety and find that the forms were tainted with illegality and impropriety for lacking detailed information over the properties in the forms hence no property stated to be administered. (b) The cour to find that lack of detailed information deprived the rigts of the interested persons such the applicant to object over the listed properties. (c) The court to strike out the forms and consider that no property to be administered mentioned in the probate. (d) Any relief(s) deems just to be granted. 2 (e) Costs of this application. A closer look at the above application reveals that the appellant sought the reopening of Probate and Administration Cause No. 02 of 2023. However, his application was dismissed as there was no illegality or impropriety on the forms No. 5 and 6. The appellant appealed to this Honourable Court for justice. He advanced six grounds as follows: 1. That, the Honourable Magistrate erred both in law and facts by failure to find that the Probate form No. V and VI were tainted with illegality for lack of detailed information of the listed properties hence false inventory and account. 2. That, the Honourable Magistrate erred by failure to find that the description of the properties was too general to the extent of depriving right to be heard to interested persons. 3. That, the Honourable Magistrate erred in law and facts by imposing extraneous matters to arrive at her findings. 4. That, as you evaluate the records no property was administered in the estate as far as the administration was a general administration. 5. That, the Honourable Magistrate erred by not taking into consideration that Probate for No. V and VI do differ in terms of the listed properties. 6. That, the decision is against the submission made by the parties. The hearing of the appeal prompted the attendance of the learned advocate, Mr. Arisen Morand who appeared for the appellant; and Ms. Nzaniye Karubutse for the 3 respondent. Also, all the parties appeared to witness the battle on arguments in this matter. In expounding the grounds of appeal, Mr. Morand argued the grounds separately. On the first ground, he argued that the District Court failed to discern that Probate Form Number V and VI had no detailed information on the deceased’s properties, which amounted to false inventory and estate accounts. According to the form submitted in the Primary Court of Bukumbi, Form Number V which was submitted on 25th July 2023; the form shows the properties namely a three-acre of land located at Ngereka valued at Tshs. 30,000,000/=. On the second item, the form lists a property of Five Acres located at Fera valued at Tshs. 45,000,000/=. In his view, there is no detailed information on the first item because Ngereka is a village with six hamlets namely Magogoto, Buwela, Mwakatega, Ngereka, Busenga, and Bugofuma. On the second item, the place of the land is named Fera, a Ward with the following villages: Ngereka, Bujingwa, and Fera. Also, within the Ward of Fera, there are hamlets namely Mwabasabi, Lusubi, and Mwagimagi. He further argued that according to Rule 7 of the Primary Court (Administration of Estate Rules, GN number 49 of 1971, the administrator must state the property to be administered. Also, according to Rule 10(1) of the same Rules, the administrator must give a complete statement on the estate. In addition, according to the information appearing in the form, the deceased’s property (land) is not 4 clearly stated and neighbours to the land are not mentioned. A person who has the land in that place including the appellant, could not have objected to the list of properties filed in the Primary Court because the statement was too general. It is equally as no property was administered. Stating the description of the property allows any person, who has any interest in the estate, to object. Generally, the form did not specify what was administered. Furthermore, form number VI describes something different from what is stated in form number V. The form seems to distribute land located at Fera within the Ward of Fera. The form also seems to distribute land located at Mwabasabi within Fera Village. The hamlet of Mwabasabi is not named in form number V. The form also shows the distribution of land located at Ngereka, the same area is not named in form number V. The form further shows a distribution of land located at Ngereka Fera something which does not appear in form number V. The generalization of information used in the two forms prejudiced the person who could object in the court. The counsel referred the court to the case of Basil Pesambili Mramba v. Godfrey Basil Mramba, Misc. Civil Application No. 7451 of 2024 at page 5. In his view, where there is an error that may result to injustice, such an error must be reviewed. 5 On the second ground of appeal, Mr. Morand argued that the appellant was deprived of the right to be heard. As stated on the first ground, it was difficult for the appellant to know whether his property was included in the administration of the estate. The appellant was therefore denied the right to be heard. On the third ground, Mr. Morand asserted that, on page 6 of the impugned decision of the District Court, the magistrate included information which was extraneous issues. Furthermore, he prayed to adopt the fourth ground as it appears in the petition of appeal. When submitting on the fifth ground, Mr. Morand was of the view that there are discrepancies between the contents stated in form numbers V and VI and therefore prayed to adopt the submissions made on the first ground of appeal. On the sixth ground, Mr. Morand believed that, according to the proceedings of the District Court, the decision did not align with the submission made by the parties. He finally prayed for the grant of relief and stated in the petition of appeal. In response, Ms. Karubutse the respondent prayed to adopt the reply to the petition of appeal. When addressing the grounds of appeal, on the first ground, Ms. Karubutshe argued that the decision of the District Court was correct. Form numbers V and VI had no illegality; the information contained was correct and described the deceased’s estate. Also, according to GN number 49 of 1971, Rule 7, form number III ought to describe the properties to be administered. The 6 respondent filled in form number three and the appellant appeared and objected. She insisted that the deceased’s estate was at Fera Ward. The forms were published according to the law and the order to close the administration is very clear. On the second ground, she argued that the description of the deceased’s estate was not general as alleged by the appellant’s counsel. The appellant was therefore not denied the right to be heard. On the third ground, she was of the view that the District Court was right in dismissing the appellant’s application. On the fourth ground, she simply submitted that there was no discrepancy. On the last ground, she insisted that the decision of the District Court was right and unquestionable. She urged the court to dismiss the appeal with costs and uphold the decision of the District Court. When rejoining, Mr. Morand argued that form number III is on the bond and therefore irrelevant in this matter. Also, the District Court failed to examine the records of the Primary Court. He prayed for the appeal to be allowed. In this case, the appellant seeks to challenge the decision of the District Court in which he challenged the propriety of the forms number V and VI. Of course, he raised other issues which I am inclined to address. On the first ground, he alleged that forms number V and VI were tainted with illegality for lack of detailed 7 information. This ground prompted the perusal of the impugned forms. Form number V is a standard form which is made under Rule 10(1) of the Primary Courts (Administration of Estates) GN. 49 of 1971. Form number VI shows the division of the estate to the heirs. Again, this is also a standard form made under Rule 10(1)(2) of the Primary Courts (Administration of Estates) GN. 49 of 1971. For clarity, I take the discretion to recite the above Rule thus: 10 (1) Within four months of the grant of administration or within such further time as the liabilities court may allow, the administrator shall submit to the court a true and complete statement, in Form V, all the assets and liabilities of the deceased persons' estate and, at such intervals thereafter as the court may fix, he shall submit to the court a periodical account of the estate in Form VI showing therein all the moneys received, payments made, and property or other assets sold or otherwise transferred by him. (2) The statement and accounts referred to in subrule (1) may, on application to the court, be inspected by any creditor, executor, heir or beneficiary of the estate. Precisely, form number V is an inventory of the estate. The form is very specific; the administrator must indicate the nature of the property; whether movable or immovable; the location of the property and its value. In this case, form number listed two immovable properties namely a farm of three and a half acres located 8 in Ngereka with a value of Tshs. 30,000,000/= and a farm of five acres located at Fella with an estimated value of Tshs. 45,000,000/=. Form number VI shows how the respondent endeavoured into the administration process by ensuring that every heir got his rights. It has the names of heirs and the properties allocated. In his submission, the counsel for the appellant argued that Ngereka is a village with the following hamlets: Magogoto, Buwela, Mwakatega, Busenga, and Bugofuma. He further argued that Fera is a ward with the following villages: Mwabasabi, Lusubi and Mwagimagi. He further argued that the neighbours to the listed properties are not stated. With respect, the counsel wanted to bring on board a novel invention not envisaged nor stated by the law. I have carefully scrutinized the form and found no illegality that prejudiced the lawful heirs. I should however hint, that the appellant is not among the lawful heirs of the deceased and neither does he challenge the administration process but nags the court to nullify numbers V and VI. Behind the scenes, he is seeking the reopening of the administration process which was closed by the Primary Court. In doing so, he filed an application in the District Court seeking the nullification of the above forms. In other words, if the forms are nullified, he will be justified to move the Primary Court to reopen the administration process. I find 9 the approach taken by the appellant to be wrong. Rule 8 of the Primary Courts (Administration of Estates) GN. 49 of 1971 provides that: “Other matters to be decided by the court Subject to the provisions of any other law for the time being applicable the court may, in the exercise of the jurisdiction conferred on it by the provisions of the Fifth Schedule to the Act, but not in derogation thereof, hear and decide any of the following matters, namely: (a) whether a person died testate or intestate; (b) whether any document alleged to be a will was or was not a valid or subsisting will; (c) any question as to the identity of persons named as heirs, executors or beneficiaries in the will; (d) any question as to the property, assets or liabilities which vested in or lay on the deceased person at the time of his death; (e) any question relating to the payment of debts of the deceased person out of his estate; (f) any question relating to the sale, partition, division or other disposal of the property and other assets comprised in the estate of the deceased person for the purpose of paying off the creditors or distributing the property and assets among the heirs or beneficiaries; (g) any question relating to investment of money forming part of the estate; (h) or any question relating to expenses to be incurred on the administration of the estate.” 10 Gleaned from the above provisions of the law, it is evident that the jurisdiction on the division of the deceased’s estate is vested in the Primary Court. In the case at hand, as long as the Primary Court appointed the administrator who went further complying with the orders of the court by filing the appropriate forms, if the appellant had any issue with the distribution of the estate, he ought to move the same court rather than jumping to the District Court. However, in this case, the appellant was not caught unaware because he was involved from the beginning. He even filed an objection on the respondent’s appointment which was dismissed. I generally find no merit in this ground and dismiss it. The second ground is entirely related to the first one, where he argued that the description of properties was too general to the extent of depriving the right to be heard to interested persons. I have already pointed out above that the description of the properties, their size, location and value was sufficient as far as the law requires. On this ground, the appellant does not disclose whether is one of the interested persons. He does not demonstrate how he was prejudiced by such a general description of the properties. The first, second, fourth and fifth grounds 11 revolve around form numbers V and VI which I have already analysed above. I find the appeal completely devoid of merit or rather vexatious. It is so ordered. DATED at Mwanza this 09th Day of September 2024. Ntemi N. Kilekamajenga JUDGE 09/09/2024 12 Court: Judgment delivered this 09th Day of September 2024 in the presence of the counsel for the appellant, Mr. Arisen Morand and the appellant present in person; also in the presence of the counsel for the respondent, Ms. Nzaniye Karubutse. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 09/09/2024 13