20170811 TZHC Mwanza3

IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) AT MWANZA PC.PROBATE APPEAL N0.3 OF 2015 (Arising from the decision of Sengerema District Court in Civil Appeal No. 2 of 2014/ · originating from Sengerema Urban Primary Court in Probate and Administration Case No. 52 of 2014) · JULIANA CHARLES. ■■ • ■ ■ a ■••■■■■■■■ 11 ■ ■ ■ ■■ 11 ■■■• ■ a ■■ ■■■■■■■ a ■ I! ■ ■ a ■ a ■ ■■ APPELLANT 11 11 a a . VERSUS MAWA·ZO CHARLES SAGALANI ..................... ·............ RESPONDENT LastOrder:08/06/2017 Judgmencll/08/2017 JUDGMENT MAKARAMBA, J.; This Judgment is on appeal from the decision of the District Court of Sengerema in Civil Appeal No. 2 of 2014 dated 08th of September, 2015 before Hon. Ndyekobora Esq RM: . 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 ~014 to be ap.pointed administrator of the estate of the· late Charles Sagalani who died intestate on the 15th of April, 2014. The Re.spondent also prayed for .the properties of the_ deceased to be distributed among the h~irs of the . ·.deceased as . per the proposed distribution . . . which the Respondent filed in . . . . . that Court. The Appellant, JULIANA CHARLES, who 1s among the Page 1 o.f 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 th~t 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 Char!es Sagalani and proc·eeded to nullify the distribution of the properties of the deceased since it was found to have been made without considering the principles stipulated under th_e 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 20.14 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 AppeUant 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 law a~ainst the application for revision that, it w9 s 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 appe?3led it before this Court on a five (5) grour)ds 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 disrniss the Appeal on misconceived and untenable points ofpreliminary 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 th_e 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 clan 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. ~age 3-of 12 f0 _) 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 clan 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 clan 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. ~ - Page 4 of 12 {iii} The Judgment of the trial Urban Primary Court which discriminated against the Deceaseds children/daughters & sons be quashed and set aside. (iv)A declaration that the Deceaseds 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 c_ourt 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 w~s 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 a_s PW3 before the trial Primary Court and so it is a Page 5 of 12 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 subr:nitted 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 of Estates} Rules G.N. 49 of 197.1.. Accordir:,g 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 a·s SM3 (sic), although she was · supposed to be SM4. The Appellant was among the children alleged to· have been sired by the decea~ed out of wedlock. In giving her evidence, . . . . th~ Appellant_ objected to the distribution of the estate .of the deceas·ed. 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 R~spondent, 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 ·tor revision against the decision of the Primary Court. It is worth noting that the Primary Courts {Administration of Esta~es} Rules, G.N. No~ 49 of 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 esta_te of the deceased .rather she objected. on ho"w the estate -of the deceased was proposed to be d.istributed 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 ~dministrator of the estate of the deceased, the Appellant could only do so. by applying before_ the Primary Court under Rule ~ of a:·N. N~. 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 Primar.y Court. In th~ 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 ·1earned Resident Magistrate of the first in.stance appellate District Court erred in law and in fact when she failed to consider the fact that,. the clan memb~rs 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 Vyas 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 admi_nistrator was nullified. In lieu of that the Respondent was appointed as administrator to perform the function of distributing the properties of the estate of the 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 m·er,:ibers at their ·meeting, the clan_ members .cannot purport to_ distribute . . the properties of the estate of the deceased. I am ~herefore at ·one wit~ Page 9 of 12 w-- ) 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 t~e 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 th~ proposed beneficiaries of the deceased a_nd 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 obs~rved, the purported distribution carried qut 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 Judgm~nt by the Sengerema Urban Primary Court in Probate and Pt,dministrat:ion 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 d€ceased. 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 th~ deceased without any kind of discrimination. Page 11 of 12 ' , tt 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 cost$. It is so ordered. Page 12 of 12