juliana charles vs mawazo charles sagalani 2017 tzhc 2144 11 august 2017

IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) AT MWANZA PC.PROBATE APPEAL NO.3 OF 2015 (Arising from the decision ofSengerema District Court in Civil Appeal No. 2 o f 2014, originating from Sengerema Urban Primary Court in Probate and Administration Case No. 52 o f 2014) JULIANA CHARLES...................................................... APPELLANT VERSUS MAWAZO CHARLES SAGALANI..................................RESPONDENT Last Order: 08/06/2017 Judgment: 11/08/2017 JUDGMENT MAKARAMBA, J.: This Judgment is on appeal from thedecision of the District Court of Sengerema in Civil Appeal No. 2 of 201^ dated08th of September, 2015 before Hon. Ndyekobora EsgRM. The background to this appeal briefly is that, sometimes in 2014 the Respondent, MAWAZO CHARLES SAGALANI, applied before the Urban Primary Court of Sengerema in Civil Case No. 52 of 2014 to be appointed administrator of the estate of the late Charles Sagalani who died intestate on the 15th of April, 2014. The Respondent also prayed for the properties of the deceased to be distributed among the heirs of the deceased as per the proposed distribution which the Respondent filed in that Court. The Appellant, JULIANA CHARLES, who is among the Page 1 of 12 daughters of the deceased born out of the wedlock and who appeared as a witness before the trial in the Primary Court, objected to the distribution of the properties of the deceased on the ground that the distribution was not fairly done among the beneficiaries in that the distribution was gender biased and discriminatory for it discriminated the daughters of the deceased and all the deceased's children born out of wedlock. At the conclusion of the trial, the Primary Court appointed the Respondent as Administrator of the estate of the late Charles Sagalani and proceeded to nullify the distribution of the properties of the deceased since it was found to have been made without considering the principles stipulated under the Customary Law as per G.N. No. 436 of 1963. However, in referring to the provisions in the G.N. No. 436 of 1963, the Primary Court stated that, the sons of the deceased were entitled to a larger share than the deceased's daughters and those children born out of wedlock were not entitled to inherit in the estate of their late father. The Appellant infuriated by the decision of the Primary Court applied for revision before the District Court of Sengerema in Miscellaneous Civil Application No, 2 of 2014 seeking the decision of the Primary Court appointing the Respondent as administrator of the deceased's estate to be revised. Before the District Court in revision the Appellant prayed that the Court be pleased to appoint an impartial administrator to administer the deceased's estate. The Respondent raised a preliminary objection on a point of aw against the application for revision.that, it was wrongly filed on among other grounds that, the Appellant was not a party to the suit in the Primary Court and therefore she could not lodge the application before the Page 2 of 12 District Court. The District Court sustained the preliminary objection raised by the Respondent and consequently the application was dismissed. The Appellant was aggrieved by the decision of the District Court of Sengerema, and has appealed it before this Court on a five (5) grounds the subject of this Judgment. In this appeal, the Appellant has brought the following grounds of appeal, namely; 1. That■the learned Appellate District Court Resident Magistrate erred in law and in fact to determine and dismiss the Appeal on misconceived and untenable points of preliminary objection. 2. That, the learned Appellate District Court Resident Magistrate erred in law and in fact, when he ruled out that the Appellant was not a party to the Probate and Administration Case before the trial Primary Court, whereas in fact\ the Appellate Juliana Charles appears everywhere in the said record as a born daughter of the deceased Charles Sagalani and gave her evidence as PW3 Juliana Charles before the trial Primary Court. 3. That, the learned Appellate District Court Resident Magistrate, erred in law and in fact, when he failed to take into consideration the fact that, the Deceased's dan members who were not legally appointed Probate Administrators of the Estate of the Deceased Charles Sagalani had illegally distributed the Estate of Deceased Charles Sagalani to Deceased's children and widows with discrimination. 4. That; the learned Appellate District Court Resident Magistrate, erred in law and in fact when he failed to take into consideration the fact that the Deceased's dan members who had not been legally appointed by the Court of law as probate Administrators of the Deceased's Estate, had discriminated the Deceased's children sons and daughters (Appellant inclusive) at the time of distributing to them the Estate property of their deceased father, as other children were called born in wed lock given a bigger share and other children called born out of wedlock, given a small share contrary to law of Probate and Administration. 5. That; the learned Appellate District Court Resident Magistrate erred in law and in fact by condoning dan members to distribute deceased's Estate Property when they were not legally appointed as Probate Administrators of the Estate of the Deceased by Court of law with Competent Jurisdiction. The Appellant has prayed for the following orders:- (i) The Appeal be allowed with costs. (ii) The Ruling of the Appellate District Court be quashed and set aside. (iii) The Judgment of the trial Urban Primary Court which discriminated against the Deceased's children/daughters & sons be quashed and set aside. (iv)A declaration that the Deceased's children sons & daughters are equal before the law and with equal rights to inherit their deceased father estate property without discrimination. (v) Any other reliefs the Honourable Court will deem fit to grant In prosecuting the appeal, Mr. Stamili Ndaro, learned Counsel advocated for the Respondent. The Appellant, Juliana Charles, appeared in person and fended for herself unrepresented. The appeal by consent of the parties was disposed of by way of written submissions. Arguing the first and second grounds of appeal jointly, the Appellant stated that, the learned Magistrate of the District Court erred in law and in fact by dismissing the appeal on the preliminary objection on a point of law that, the Appellant was not a party to the probate and administration case before the trial Primary Court. The Appellant stated further that, she was part of the probate cause from the beginning as she is identified as the beneficiary of the estate of the deceased, Charles Sagalani, and so she has the right to challenge the actions of the appointed administrator of the estate of her deceased father. The appellant, Juliana Charles, appears everywhere in the said record as a daughter born of the deceased, Charles Sagalani, and testified as PW3 before the trial Primary Court and so it is a misconception to say that the Appellant was not a party in the probate cause before the trial Primary Court. In reply, Mr. Ndaro learned Counsel for the Respondent stated that, the Appellant appears in the record of the proceedings before the Primary Court as a beneficiary of the estate of Charles Sagalani and also as prosecution witness No. 3 (PW3). However, according to Mr. Ndaro, appearing as a beneficiary or a witness alone does not vest one with a status of being a party to court proceedings. Mr. Ndaro submitted further that, if the Appellant at all wished to be a party in those proceedings she ought to have filed an objection under rule 9 of the Primary Courts (Administration o f Estates) Rules G.N. 49 o f 1971. According to Mr. Ndaro, the Applicant was neither the Applicant nor the Respondent at the Sengerema Urban Primary Court. Having gone through argument by the learned Counsels, this Court finds that, the Appellate District Court Resident Magistrate erred in law and fact to dismiss the application for revision on the ground that, the Appellant was not a party to the Primary Court Proceedings. The Primary Court proceedings show that, the Appellant was among the beneficiaries of the deceased's estate. The Appellant has been appearing before to the Primary Court Proceedings as a beneficiary. At page 5 of the typed proceedings of the Primary Court, the Appellant testified as SM3 (sic), although she was supposed to be SM4. The Appellant was among the children alleged to have been sired by the deceased out of wedlock. In giving her evidence, the Appellant objected to the distribution of the estate of the deceased as per the proposed distribution produced by the Respondent. I am of the Page 6 of 12 considered view that, by objecting to the proposed distribution presented by the Respondent, the Appellant became objector and thereby a party for she became the "plaintiff" and the petitioner who had applied to be appointed administrator and produced the proposed distribution of the estate of the deceased, became the "defendant" and hence the Appellant who was the objector was perfectly entitled to lodge application for revision against the decision of the Primary Court. It is worth noting that the Primary Courts (Administration o f Estates) Rules, G.N. No. 49 o f 1971 do not provide for the procedures on how objection proceedings for the appointment of administrator of estate should be proceeded with as is the case with section 52 of the Probate and Administration of Estates Act and the Probate Rules. Rule 9 of G.N. No. 49 of 1971 provides only for the procedures on how to apply for the revocation or annulment of grant of letters of administration, which is not the case at hand. This Court finds further that, before the Primary Court, the Appellant did not object to the appointment of the Respondent as administrator of the estate of the deceased rather she objected on how the estate of the deceased was proposed to be distributed by the clan members. Since the appointment of the Respondent as administrator of the estate of the deceased was not objected to, it was therefore wrong for the Appellant to object to the distribution of estate of the deceased as was proposed by the Respondent by way of revision. If the Appellant was/is interested in challenging or seeking to nullify the appointment of the Respondent as administrator of the estate of the deceased, the Appellant could only do so by applying before the Primary Court under Rule'9 of G.N. No. 49 of 1971 Page 7 of 12 and not by way of revision before the District Court. It is only under this ground the District Court ought to have dismissed the application for revision before it, instead of dismissing it on the ground that the Appellant was not a party to the proceedings before the Primary Court. In the first place, the matter before the District Court was an application for revision in Miscellaneous Civil Application No. 2 of 2014 brought by the Appellant by way of Chamber Summons supported by her sworn affidavit, but mysteriously both the proceedings and the Ruling of the District Court of Sengerema are cited as Civil Appeal No. 2 of 2014. However, be it as it may, the application for revision before the District Court was unmaintainable and thus unattainable in law and ought to have been dismissed. It is for the above reasons the 1st and 2nd grounds of appeal fail. They are hereby dismissed. Arguing the 3rd, 4th and 5th grounds of appeal jointly, the Appellant stated that, the learned Resident Magistrate of the first instance appellate District Court erred in law and in fact when she failed to consider the fact * that, the clan members of the deceased who had not been legally appointed by the Court of law as probate administrators of the estate of the deceased had discriminated against the sons and daughters of the deceased, the Appellant inclusive, at the time of distributing to them the property of the estate of their deceased father, as other children called "children born out of wedlock", were given a small share of the estate contrary to the law of probate and administration. According -to the Appellant, the appointment of the administrator was illegal and did not follow the requirement of the law. The administrator did not follow proper Page 8 of 12 procedures and was not fair in distributing the estate of the deceased. The Appellant then her dissatisfaction claims with the trial Primary Court as annexture "B" in the appeal to the District Court. In reply Mr. Ndaro stated that, the allegations of the Appellant are unfounded for want of evidential proof and the same should be ignored. Mr. Ndaro stated further that, as per the decision of the Sengerema Urban Primary Court at page 5, all the distribution of the estate properties which was carried out before the appointment of the administrator was nullified. In lieu of that the Respondent was appointed as administrator to perform the function of distributing the properties of the estate of te deceased under the supervision of the Court. Mr. Ndaro submitted further that, the Appellant has failed to point out how the appointment of the Respondent as administrator was done illegally and what relevant provisions of the law were violated. Mr. Ndaro prayed that the appeal be dismissed for being baseless. Annexture "B" portrays to be contrary to the prayers sought in the Chamber Summons which are supported by the accompanying affidavit are totally different from her testimony adduced at the trial Court. In the eyes of probate law as it is known in this Country, the distribution of the properties of the estate of the deceased which is normally done by the administrator of the deceased comes after the administrator has been appointed by the court seized of the probate cause. Prior to the appointment of the administrator who is normally proposed by clan members at their meeting, the clan members cannot purport to distribute the properties of the estate of the deceased. I am therefore at one with Page 9 of 12 the submission by the Appellant that, it was procedurally wrong for the clan members to sit and agree on the distribution of the estate of the deceased prior to the appointment of the proposed administrator. The administrator after being appointed by court, is enjoined among other duties, to collect all of the deceased's assets and liabilities, and books of account and file an inventory with the court which appointed him together with the list of the intended beneficiaries of the estate. The administrator may only distribute the estate among the legal heirs of the deceased after having paid the burial expenses and the debts owed by the deceased to his creditors. In the instant matter, the clan members of the deceased seem to have usurped the powers of the intended administrator before being appointed by the court. It is only after his appointment, the court appointed administrator will then sit down with only the legal beneficiaries of the deceased and agree on the manner in which the properties of the estate of the deceased is to be distributed among them as per their entitled shares as per the law governing the administration of the estate of the deceased. It was only proper as Mr. Ndaro rightly submitted that, the purported distribution of the properties of the estate of the deceased by the clan members was nullified by the trial Primary Court. It was the duty of the Respondent as Administrator of the estate of the deceased to prepare an inventory of the properties of the estate of the deceased together with a list of the proposed beneficiaries of the deceased and their shares and file it with the court which appointed the Respondent. The Respondent ought to have sat down with only the entitled beneficiaries and the distribution Page 10 of 12 would only be to only the beneficiaries recognized under the law governing the administration of the estate of the deceased. Most importantly, the probate law in this Country does not discriminate against beneficiaries on the basis of gender or social status or religion or whether born in or out of wedlock. In this regard all of the legal wives of the deceased and all his children have to be treated equally in the distribution of the properties of the estate of the deceased. As the Primary Court rightly observed, the purported distribution carried out by the clan members was unfair and illegal as it was based on bias, discriminatory on the basis of gender and against children born out of wedlock. It is for the above reasons that, the 3rd, 4th and 5th grounds of appeal have merits. They are hereby allowed. In the whole and for the above reasons, the appeal is hereby allowed to the extent as shown herein above. The decision by the District Court in Miscellaneous Civil Application No. 2 of 2014 is hereby quashed and set aside. The Judgment by the Sengerema Urban Primary Court in Probate and Administration Case No. 52 of 2014 is hereby upheld but only to the extent that, the Respondent was properly appointed as Administrator of the estate of the deceased. This Court declares that all the legal wives of the deceased, sons and daughters are equal before the law and with equal rights to inherit in properties of the estate of the deceased without any kind of discrimination. The circumstances of this suit and the situation of the parties militate against any award for costs. Each party in this appeal shall bear its own costs. It is so ordered. R.V. MAKARAMBA JUDGE 11/ 08/2017