daniel elisha okelo vs alice jihn edward others 2022 tzhc 13539 5 october 2022

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

AT TEMEKE PC CIVIL APPEAL NO. 35 OF 2022 (Arising from the decision o f District Court o f Kinondoni at Kinondoni in Probate Appeal No. 47 o f2021 delivered by Hon. Msongo, H.S/ SRM on 28tfl Marchf 2022 and originated from Probate Cause No. 112 o f 2014 o f Kinondoni Primary Court) DANIEL ELISHA OKELO.............................................APPELLANT

VERSUS 1. ALICE JOHN EDWARD 2. BEATRICE JOHN EDWARD 3. DOREEN JOHN EDWARD 4. JASMINE JOHN EDWARD RESPONDENTS 5. EDWIN THADAYO 6. WILLIAM JOHN EDWARD 7. ESTHER JOHN EDWARD 8. ERENE JOHN EDWARD

JUDGMENT 23rd September & 5th October, 2022 A.P. KILIMI, J.: i The appellant, was appointed to be is the administrator of the estate of the late John Edward Oyor on 27th day of July 2021. Is appointment by the Primary Court of Kinondoni marked third phase of appointing administrator in this probate matter, after revocation of two phases of administrators appointed earlier by the trial court. Nonetheless, the disputes continued to succumb this administration of estate, heirs herein respondents went and appealed to the District Court of Kinondoni which having regard the long standing of misunderstandings between the heirs on 28th day March, 2022. The District Court invoked the provision of section 75(1) of the Probate and Administration of the Estate, (Cap.

352) R.E. 2019 and appointed The Administrator General to administer the said estate. Dissatisfied by this decision, The appellant filed a memorandum which contain three grounds of appeal as follows; 1. That the said proceedings and Ruling of both trial court and appellate court were tainted with illegality and procedural irregularity as the purported administrators were appointed contrary to the law.

2. That trial primary court had no jurisdiction to determine the matter brought before it.

3. That the Appellate Magistrate erred in law and facts in revoking the appointment of the Appellant herein based on unfounded allegations of family misunderstanding. When this matter was called for hearing the appellant and respondents were represented. Mr. Raymond Uisso learned counsel for the appellant and Ms. Sarah Bushiri learned advocate appeared for all respondents. Mr. Uisso submitted that, the trial court misdirected in law because the probate was not advertised as per law, which is contrary to rule 5 of GN 49 of 1971 of Primary Court Administration of Estate rules, which require the primary court to advertise to the public for any interested party to appear. Therefore, the law was not abided to, so he is raising it here because it is a point of law and was not raised at the appellate level. To support his view, he cited the case of Butora Isaya v. Faustine Simeoni. Misc Land Appeal No. 39 of 2020. Mr. Uisso further submitted that, another illegality is the fact of the District Court to revoke the appointment of the existed administrator and appoint Administration General, using section 75(1) of the Probate and administration (supra). He then said the law governing probate starting from Primary court is the Magistrate Court Act Cap 11 R.E 2019, sectionl8(l)(i) which provide the primary court to hear all cases which are Customary or Islamic, therefore Probate and

Administration Act does not apply to matters originated from primary court. Mr. Uisso further submitted that Section 2(b) of'5th Schedule of the Magistrate Court Act states clearly eligible persons to be appointed by primary court, Administrator General is not one of them. To support his view he cited the case of Ibrahim Hassan Hanzuruni v. Ashura Seleman Faraha PC Civil Appeal no 164 of 2020 HC. Dsm Registry and Catherine Priscus Massawe V. Kamili Proti Massawe, Mis Civil Appeal No. 05 of 2020 (unreported). In respect to ground number two, Mr Uisso submitted that the primary court heard the probate without jurisdiction, because the record shows that 3 the deceased was the Christian and he did live in that faith and was buried according to Christian faith thus the court had no jurisdiction. He proceeded contending that, the trial court nowhere did satisfy that it has jurisdiction, since the law requires to satisfy itself on jurisdiction or otherwise, to fortify his argument he cited the case of Fanuel Mautiri v. Herman Nguda & Others (1995) TLR no.

155. Therefore, he says the primary court were having no jurisdiction, therefore the administrator appointed was nullity, and the probate were required to be filed at district court. In respect to third ground, Mr. Uisso submitted that the trial court erred to remove the administrator who was appointed, there were no reasons advanced or misunderstandings between the heirs pointed out by the appellate court which caused the appellant be revoked. He also submitted that the other administrators revoked was justified because they failed to collect and distribute the estate and to account before appointed them. Lastly, he submitted that, the appellant was recently appointed he is the first son of the deceased and brothers of all respondents, therefore he Is the proper person and no reasons stated for his revocation. Ms. Sarah learned counsel conceded to the argument by Mr. Uisso in the first ground, but rejected in respect that the appointment done by the District court. She submitted that the District court was proper to appoint Administrator General under section 75 (1) of Probate and Administration Act. She further submitted when the matter is at District court and above the said act is used. Therefore, the District court was right to revoke the existed administrator and appoint Administrator General. To support her argument, he cited the case of Ibrahim Hassan Hanzuruni v.

Ashura Seleman Faraha. (supra). In regard to second ground of appeal, Ms. Sarah conceded the argument of the appellant's counsel that the primary court was having no jurisdiction. In respect to the third ground, she submitted that the Primary Court revealed their misunderstanding between the heirs. Therefore, she objected the appellant to be appointed and prayed this court to confirm the Administrator General appointed or to appoint anybody who is impartial for administering this probate. In is rejoinder Mr. Raymond insisted what he submitted in chief. Having considered the rival submissions by the counsel for both sides, the petition of appeal and the evidence on record, the issues for determination are; first, whether the District Court while hearing the appeal was justified to appoint Administrator General. Second, whether the Primary Court was having no jurisdiction to entertain this Probate cause and third whether the District Court was proper to revoke the appointment of the appellant. The first ground partly was not disputed, but counsel for the respondent on other part argued that it was proper for the appellate court to appoint the Administrator General. In this regard I wish to highlight briefly on the first issue which concern this appointment. It is a trite law that, the Primary Court has been conferred with jurisdiction to entertain administration cases where the

law applicable is customary law or Islamic law as provided under Paragraph 1 (1) of the Fifth Schedule. Likewise, it has power to appoint one or more persons interested in the estate of the deceased, an officer of the court or some reputable and impartial person to be administrator of the estate of the deceased. ( see Paragraph 2 (a) and (b) of the Fifth Schedule of Magistrate Court Act A ap .ll R.E.2019 ). Similarly, it has the powers to revoke any appointment of the administrator for good and sufficient cause. (See paragraph 2 (c) of the Fifth Schedule of above law).. I am in agreement with Mr. Uisso that the Administrator General is not / among the persons who are mentioned under paragraphs (a) and (b) of the Fifth Schedule to be appointed as administrator. In the District level at hand, the District Court of Kinondoni was dealing with the probate appeal from the Primary Court, at the trial Court all procedure of appoint the administrator was abided to the Fifth Schedule of The Magistrate Court Act, therefore in my view, it is improper to change suddenly the law used because the case has stepped at another level of the court, wherein the original court has no jurisdiction to use the said law. This is because in accordance paragraph 1 (2) (a) of the Fifth Schedule, the jurisdiction of the Primary Court over administration of deceased estate is ousted when it comes to the

application of the Administrator General (Powers and Functions) Act Cap. 27 R.E 2002To my opinion Administrator General is equated as an impartial person appointed by Primary court, but are different in their appointment and practice. Nonetheless the Primary Court where it holds that an interested party appointed-as administrator fails, it has option given by the law, and this is nothing but to appoint an officer of the court or some reputable and impartial person to be administrator. Therefore, unless there are reasons to be established that these persons cannot be found by the primary court within its jurisdiction, something which was not establish in this matter, this court can refer the matter to the District court for the appointment of the Administrator General. Having this in mind, it is my opinion it was unreasonable for the first appellate court to jump to the last step without passing the first step. Thus, in the circumstances of this case where there is conflicting interest between the heirs, the court would resort to the law provided to appoint an officer of the court or reputable impartial person, who can serve the purpose other than heir or beneficiary. Thus, the first ground has merit and allowed. In regard to the second ground, which is whether the Primary Court was having no jurisdiction to entertain this Probate cause, the Mr. Uisso insisted that the record

shows that the deceased was the Christian and he did live in that faith and was buried according to Christian faith. I have entire pass through the trial court record, nowhere the same was an issue, the mere record showing that the deceased was a Christian by name and married one wife does not guarantee that he abandoned customary way of life, unless there is evidence to prove to the contrary, which none adduced. In this regard I wish to join hand with my brother F.K.Manyanda, J. in the case Gibson Kabumbire versus Rose Nestory Kabumbire Probate Appeal No. 12 of 2020 (unreported) at page 15 to 16 when had this to say; "It is the trite iaw that Primary Courts have Jurisdiction in Probate matters concerning Christians where it is proved that they lived customary mode or manner .of life in which situation the question of professing Christianity does not interfere with the administration o f his or her estate. The reason is i that by merely being a Christian does not mean one has been detached from his or her customary life, rather must be evidence to support the same. There is a distinction between Christian who iive and practice norma! customary life and those who have professed Christian religion and either by a declaration or by act or manner o f life is evident that they were professed as such as intended that their estate will be administered under applicable law to

Christian" ( Emphasize added) To my view this assertion by the appellant is matter of evidence and ought to be raised at the trial court so that it can be proved by evidence, in the absence of evidence that the deceased had abandoned the customary way of life in favor of Christian way of life, the primary court had jurisdiction to entertain the matter because the applicable law is customary. In view thereof, I also find this ground has no merit and is hereby dismissed in its entirety. In regard to the last ground, the issue is whether the District Court was proper to revoke the appointment of the appellant. Mr Uisso alleges that there were no reasons advanced or misunderstandings pointed out by the appellate court which caused the appellant be revoked. With respect I urge the counsel to re-read the first appellate court judgment at page eight, second and third paragraphs. Therein it is clearly stated that there were misunderstandings shown in proceeding and ruling of the Primary court which geared the appellate court to consider the probate has taken long time and nothing has been done to collect and distribute the properties of the deceased to the heirs. There was intuition in the mind of the Court which directed to order a neutral person. Having realizing this, I am also of the view the appellate court was correct to revoke the appellant due to this shadow of delay which also

affected the appellant. I thus find this ground has no merit and is therefore dismissed. In upshot, the appeal is partly allowed. The order of appointment of the Administrator General by the District Court is hereby set aside. I order and direct this case file be remitted to the Kinondoni Primary Court to appoint a reputable and impartial person pursuant to paragraph 2 (b) of the Fifth Schedule to the Magistrates Courts Act [Cap. 11 R. E. 2019] to be the administrator of the estate of the late John Edward Oyor in lieu of the Appellant. Owing to the nature of the matter, I make no orders as to costs. It is so ordered. 5/10/2022 10 Court: Judgment delivered in chambers in the presence of Mr. Phales Mshana holding brief of Raymond Uisso for the appellant, appellant and 5th respondent present, others absent. Right of Appeal dully explained to them. Sgd: A.P. KILIMI

JUDGE 5/10/2022 11