PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA PC CIVIL APPEAL NO. 3295 OF 2024 (C/F Civil Revision No. 15 o f2023 before the District Court o f Karatu, originating from Probate and Administration Cause No. 58 o f2022 before Karatu Primary Court) FRANCIS TLUWAY BURA................................ 1st APPELLANT SERAFINA TLUWAY BURA.............................. 2nd APPELLANT VERSUS EMMANUEL TLUWAY BURA {Administrator o f the Estate o f the late T/uwayBurra Slegray) ................ RESPONDENT JUDGMENT 12th June & 26th July 2024 Masara, J Before the Primary Court of Karatu at Karatu ("the trial court"), the Respondent herein successfully petitioned for the grant of letters of administration of the estate of the late Tluway Burra Slegray ("the deceased"). As per the records, the 1st Appellant and the Respondent are sons of the deceased born by different wives of the deceased, while the 2nd Appellant is the last wife amongst the three wives of the deceased. During the petition for the grant of letters of administration, the 2nd Appellant was among the family members that joined hands in support of the Respondent's petition and grant of letters of administration, which ultimately led to the appointment of the Respondent as the administrator of the estate. The dispute between parties herein emerged during the phase of collection and distribution of the estate. The filing of the inventory and final account triggered some of the beneficiaries, including the 1st Appellant herein, to write various letters to the trial court with the aim of challenging the distribution of the estate and the closure of the probate by the Respondent. After the Respondent filed the inventory and Statement of Accounts, the 2nd Appellant's son was not satisfied with the allocation granted to the Appellant. He raised an objection, which was dismissed by the trial court on 10/11/2023. Thereafter, the trial court issued an order blessing the inventory and final accounts filed by the Respondent. Aggrieved by the trial court's decision, and since the Appellants were not parties to the suit before the trial court, the Appellants preferred a Revision before the District Court of Karatu at Karatu ("the district court") through Civil Revision No. 15 of 2023, in an attempt to challenge the trial court's decision. The Revision was likewise dismissed. The Appellants, dissatisfied, preferred this Appeal on the following grounds, reproduced verbatim: 1) That, first appellate court wrongly raised and determined the issue o f whether or not the late T/uway Burra S/egray died testate or intestate without giving parties right to be heard. 2) That, first appellate court erred in not holding that by distributing deceased estate to another deceased body (Loema Yahhi) Respondent exhibited false inventory with the aim o f conveying deceased estate to himself. 3) That, first appellate court erred in law in uploading trial court's decision arrived at without investigating Appellants complaints/objections against statements o faccounts and inventory (Form V & VI). 4) That, decision issued by the District Court o f Karatu is bad in law for being arrived at on basis o f extraneous matters. 5) That, first appellate court erred in law in its decision by uploading trial court's proceedings and decision arrived at without first ascertaining if it hadjurisdiction or not 6) That, alternatively to ground five above, first appellate court erred in law holding that trial court hasjurisdiction to hear and determine probate and Administration cause No. 58/2022 while deceased was a Christian. 7) That, first appellate court erred in its decision holding thatAppellant were not denied their right to be heard before approving statements o f accounts and inventory (Form V and VI). 8) That, first appellate court erred in law by not holding that Respondent administered estate in contravention with the court order issued on 9/3/2023. 3 |Page 9) That, first appellate court erred in law and fact upholding trial court's proceedings and orders approving form VI (inventory) distributing deceased property to another deceased body. 10) That, first appellate court erred in law and fact in holding that first appellate and other deceased heirs (children) were not discriminated from inheriting estate o f the deceased father. At the hearing of this Appeal, Mr Felichismi Baraka, learned advocate, appeared for the Appellants while, Mr Innocent Reuben Mmari, learned advocate, appeared for the Respondent. By consent, hearing proceeded through filing of written submissions. Submitting in support of the Appeal, Mr Baraka opted to combine grounds 3 and 7 and grounds 5 and 6. He did not specifically address ground 9, but submitted on the other grounds separately. On the first ground, it was Mr Baraka's submission that the 1st Appellate court erred in determining the issue as to whether or not the deceased died testate or intestate without giving parties the right to be heard contrary to Article 13 of the Constitution of the United Republic of Tanzania of 1977. He cemented his submission with the case of Kumwandumi Ndemfoo Ndossi Vs Mtei Bus Services Ltd, Civil Appeal No 257 of 2018. Pointing at page 5 of the district court ruling, Mr Baraka was of the view that the district court raised new issue not pleaded by the Appellant in their application or in their written submissions. That, the district court proceeded to determine the said issue without affording the parties the right to be heard. In his view, had the district court allowed parties to address on the said issue, it would have noticed that the said issue was determined by the trial court as per Rule 8(a) of the Primary Courts (Administration of Estates) Rules, GN No. 49 of 1971 and no appeal had been preferred against such findings. Mr Mmari resisted the Appellant's submissions regarding violation of the right to be heard. He contended that a person who alleges violation of the right to be heard must prove the following: that he was personally before the court at the hearing of the matter; the record of the court must show his attendance from the time of presenting the pleadings, hearing until the decision; and, he must not claim being denied the right to be heard on flimsy stories or imagination he heard of what is going on before or out of the court room. That, going with the pleadings filed by the Appellants at the district court, they were not parties thereof; thus, they cannot now claim that they were denied the right to be heard. The advocate for the Respondent further stated that the Appellants had an option of filing a caveat before the trial court, but they waived their right and preferred to file a revision in the district court before the probate cause was closed by the trial court. That the Appellants are keen to delay the distribution of the deceased's estate as some of the properties are being used by them unlawfully. Regarding the issue as to whether the deceased died intestate or not, it is the reply by the Respondent's Advocate that the said issue was dealt by the district court in Civil Revision No. 05 of 2023, hence not a new issue as raised by the Appellant. That, the district court just took judicial note of the same. In his rejoinder, Mr Baraka maintained that the Respondent failed to grasp his submission and reiterated that the issue of whether or not the deceased died intestate or not was raised for the first time suo moto at the time of composing judgment without according parties the right to be heard. Having considered the submissions made by the learned advocate for the parties with respect to the first ground of appeal, I deem it necessary to dispose the same before dealing with the other grounds of appeal, the same being a legal issue. I have carefully considered the lower courts records with respect to this ground. Based on the brief facts as depicted on the record, it is without doubt that this Appeal emanates from the Revision order of the district court. It is not disputed that the Revision was preferred by the Appellants because they were not parties to the trial court's proceedings, hence had no automatic right to appeal to the district court. In the Appellants affidavit filed in support of the Application before the district court, the Appellants pleaded illegalities and irregularities of the trial court's decision and went further to point out the said illegalities to include the fact that the trial court determined the matter while it had no jurisdiction based on the Form No. 1 which was used to initiate the matter before the trial court, which among others, indicated that the deceased professed Christian faith at the time of his death. It is a requirement of law that a party to a dispute be accorded the opportunity to be heard before any decision is reached. Looking at the handwritten proceedings of the district court dated 3/1/2024 as well as the typed proceedings at page 7, parties were dully represented by their learned advocates; that is, Mr Baraka and Mr Mmari for the Appellants and Respondent respectively. On that date, the learned advocates submitted before the district court on the grounds of revision, one of them being the jurisdiction of the trial court. However, the issue whether the deceased died intestate was not one of them. It is the argument of the Respondent that the trial court had made a decision in a different matter where the 'will' of the deceased was held to be invalid and the Respondent was to proceed with the administration as if no will exist. Unfortunately, such discussion did not arise in the cause of the revision before the district court. I thus agree with the Appellants that the issue of the deceased dying intestate was made by the district court without affording the parties the right to be heard. Ground one is thus meritorious. In the second ground of appeal, the Appellants state that the distribution of the deceased estate, as per Form No. VI, was issued to one Loema Yahhi, the wife of the deceased, who had long died at the time of such allocation. According to the Appellants, the said allocation was done maliciously so that the Respondent may convert the said allocated portion to himself considering that the said Loema Yahhi died before their late father. Responding on this, Counsel for the Respondent submitted that the distribution of the estate was done to the lawful beneficiaries through the three wives of the deceased, two of whom survived the deceased, save for Loema Yahhi. That the said distribution was blessed by the family members and that the administrator of the estate of Loema Yahhi was to administer the said properties on behalf of the beneficiaries of the said Loema Yahhi. In his retort, the Appellants' advocate vehemently opposed the Respondent's response contending that there is no any law that allows distribution of the deceased estate to another deceased person. Further, that there were other beneficiaries other than the three wives who were allocated properties, making the claim by the Respondent mere falsehood. I have carefully considered the records and the rival submissions in this regard. Rule 5 of the 5th Schedule to the Magistrates Courts Act, Cap. 11 states the general duties of an administrator. It states: "An administrator appointed by a primary court shall, with reasonable diligence, collect the property o f the deceased and the debts that were due to him, pay the debts o f the deceased and the debts and coasts o f the administration and shall thereafter distribute the estate o f the deceased to the persons or for the purposes entitled thereto and, in carrying out his duties, shall give effect to the directions o f the primary court" made) There appear to be no dispute that Loema Yahhi was one of the three wives of the deceased whose estate the Respondent was administering. There is equally no dispute that, at the time of the distribution of the deceased estate, the said Loema Yahhi had died. I do agree with Counsel for the Appellants that the appointed administrator ought to have distributed the estate to the persons who survived the deceased, not to those who died before him. Even if Loema Yahhi outlived the deceased and died during the distribution of the deceased estate, it was important for the Respondent to reflect in the final account, the names of the heirs who would benefit from her shares. There is no gainsaying, therefore, that distributing the estate to a deceased person was fatally wrong and the trial court as well as the district court erred when it blessed such distribution of the deceased estate to Loema Yahhi, a deceased person. Having said so, I find merit on the second ground of appeal. With regard to the third and seven grounds of appeal, the Appellants claim that they were denied their right to be heard on their objection raised via a letter dated 30/10/2023 with respect to Forms V and VI lodged at the trial court. On this, the advocate for the Appellants stated that the Respondent was ordered to summon the beneficiaries of the deceased estate so that they would inspect the inventory and final accounts. That, the Appellants were not served and no proof of service was given at the time of closing the said probate to the trial court to confirm that the Appellants herein were served. That, the Appellant had written a letter to the trial court seeking the opportunity to appear and challenge the final accounts. Counsel for the Respondent, on the other hand, opposed this ground on the ground that mere filling of a letter without taking further steps to attend is akin to having no objection in court. That, if the Appellants were determined to exercise their right to be heard, then they ought to have lodged their grievances to the trial court as directed by the district court. Having carefully considered the rival arguments regarding this issue, I am of the founded view that the district court casually dealt with the complaint by the Appellants. The trial court had a duty to ensure that all the beneficiaries of the estate are fairly treated by the Administrator, in this case the Respondent. The Respondent, as the administrator of the estates of the late Tluway Burra Slegray, was acting as a legal representative of the estates of the late Tluway. Therefore, he owed a fiduciary duty to all the beneficiaries and heirs of the estate, some of whom are the Appellants herein. By virtue of his position, the Respondent was supposed to act in good faith at all times for the s benefit and interest of the estates of the deceased and to the beneficiaries of the estate. This duty includes but not limited to providing information to the beneficiaries and heirs of the estate. It is on record that the Respondent filed the final accounts exhibiting his administration of the estates of the deceased as required by the law; that is Clause 11 of the 5th Schedule to the Magistrate Courts Act, Cap. 11. As per the trial court' record, the Appellants, having inspected the inventory and accounts filed by the Respondent, indicated their dissatisfaction with the manner in which the Respondent administered and distributed the deceased estate. They, accordingly informed the trial court of their desire to challenge Forms V and VI via a letter dated 30/10/2023, which was received by the trial court on 31/10/2023. Again, on 6/11/2023, the 1st Appellant reminded the trial court of his desire to appear before the court while the final account and statement were being filed. There is, however, no any correspondence seen in the trial courts file evidencing whether the trial court responded to the Appellants' letters. Further, the trial court record reveals that, even after the trial court received the letters from the 1st Appellant on 07/11/2023, the Respondent appeared before the trial court one day thereafter and made a prayer to close the probate matter. However, looking at the initial order, the trial courts had scheduled the matter to come for hearing on 10/11/2023 and had directed a summons to be issued to the Appellants as well as one Herman Tluway Bura. 12 | P a g e It is also on record that, on 10/11/2023, only Herman Tiuway Bura appeared before the trial court and the record are silent on the appearance of other beneficiaries. There is also no proof of summons having been served to them. In this Court's view, the Appellants were not accorded the right of a fair trial by the trial court. Their grievances addressed to the trial court via letters were not determined, nor were the Appellants given the opportunity of being heard. That was a contravention of the law and the Constitution which in Article 13(6)(a) provides that: "When the rights and duties o f any person are being determined by the court or any other agency that person shall be entitled to a fair hearing and to the right o f appeal or other legal remedy against the decision o f the court or o f the other agency concerned'.' There are plethora of authorities insisting on clear practice of hearing the parties before a decision affecting their interest is made. The Court of Appeal in the case of M/s Darsh Industries Limited vs M/s Mount Meru Millers Limited, Civil Appeal No. 144 of 2015 cited with approval its own decision in the case of Abbas Sherally and Another vs Abdul Fazalbov, Civil Application No. 33 of 2002, where the court emphasised the right to be heard and stated as follows: "The right o f a party to be heard before adverse action or decision is taken against such party has been stated and emphasised by the courts in numerous decisions. That right is so basic that a decision that is arrived at in violation o f it wiii be nullified, even if the same decision would have been reached had the party been heard, because violation is considered to be a breach o f naturaljustice." Having regard to the circumstances of this case and, particularly, the shortcomings discussed above, this Court is of the view that there was a denial of the right to be heard on the part of the Appellants during stage of filling of final accounts and inventories (Forms No. V and VI). Hence, the resultant proceedings thereafter and the orders made thereto by the trial court are nothing but a nullity. The same applies to the proceedings and judgment issued by the district court as it emanates from an illegal proceeding. I therefore find that the district court was wrong to bless the erroneous conclusion reached by the trial court. The determination of this issue suffices to dispose of the remaining grounds as well. I say so as those grounds largely aim at challenging the mode of distribution of the deceased estate by the Respondent. From the forgoing, I hereby nullify the trial court decision of approving the inventory and final account filed by the Respondent. The decision of 14 | P a g e the district court in Civil Revision No. 15 of 2023 which vindicated the trial court's decision is found wanting and is equally set aside. I direct the matter to be remitted to the trial court for it to be properly heard and determined. That entails the filing of inventory and final account by the Respondent in adherence to the principles of natural justice and the right to be heard to all lawful heirs and beneficiaries of the deceased estate. Considering the nature of this matter, I make no orders as to costs. DATED and DELIVERED at ARUSHA this 26th day of July 2024 Right of Appeal explained to the parties