CIVIL APPEAL NO 133 OF 2021 JULIUS PETER NKONYA as Legqal Representative of the Estate of the Late Canisius Ngwandu Mbusa VS WILLIAM MICHAEL KUDOJA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KOROSSO, J.A, KITUSI, J.A And KHAMIS. J J U CIVIL APPEAL NO. 133 OF 2021 JULIUS PETER NKONYA as Legal Representative of the Estate of the Late Canisius Ng'wandu M busa..................................................... APPELLANT VERSUS WILLIAM MICHAEL KUDOJA...................................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, at Dar es Salaam) (Mkasimonqwa, 3.} dated the 15th day of December, 2015 in Probate and Administration Cause No. 9 of 2012 JUDGMENT OF THE COURT 16th Feb. 5th June, 2024 KHAMIS, J.A.: This appeal arises from the proceedings of the High Court, Dar es Salaam District Registry in Probate and Administration Cause No. 9 of 2012 related to the estate of the late Salome Minza Mbussa [deceased], who died intestate on 8th December, 2011. A grant of the letters of administration of her estate was issued to William Michael Kudoja, the respondent herein, on 15th December, 2015. i The genesis of the matter is that, the respondent petitioned for letters of administration in the High Court on the ground that, he was so nominated by the deceased's clan meeting. The petition was consented to by Michael Theodor Makoba and Noela Wenceslaus Bategeki, the father and sister of the deceased, respectively. One Patrick Masanja certified on the respondent's financial position and served as a surety to the petitioner. In the petition, the respondent averred that, the deceased was survived by a father, Michael Theodor Makoba, two sisters: Mrs. Noela Wenceslaus Bategeki and Mrs. Augusta Sule Mfuko, and himself, a brother. It was further averred that, at the time of her death, the deceased was domiciled at her residence on Plot No. 88, Guinea Road, Block MS-OY 543, Oysterbay, Dar es Salaam. The list of assets annexed to the petition indicated that, the deceased left three (3) motor vehicles, benefits from the Bank of Tanzania where she was an employee, money in three bank accounts, household furniture and one landed property, the house on Plot No. 88, Guinea Road, Oysterbay, Dar es Salaam. Two sets of minutes were attached to the petition. The first set is dated 13th December, 2011 involving the chairman of Oysterbay Street, 2 relatives of Canisius Mbussa and relatives of Salome Mbussa. This meeting recognised Canisius Mbussa as the lawful husband of the deceased Salome Mbussa and that, all properties were jointly owned by the couple. According to the second set of minutes, relatives of the late Salome Mbussa organised a separate family meeting in exclusion of the deceased's husband on 5th February, 2012. That meeting resolved to appoint the respondent as an administrator of the estate. Upon publication of a general citation in terms of rule 73 of the Probate and Administration of Estates Rules, G.N No. 369 of 1963 [the Probate Rules], Canisius Ng'wandu Mbussa, lodged a caveat as per section 58 of the Probate and Administration of Estates Act, Cap 352 R.E 2002 [now R.E 2009] [the PAEA] and rule 82 of the Probate Rules. The caveator contended that, he was the lawful husband of the late Salome Minza Mbussa and attached a Christian marriage certificate in proof thereof. His major complaint was that, the respondent and other relatives of the deceased had petitioned for letters of administration without his involvement. Further, the caveator averred that, the respondent, his brother in law, had evicted him from the matrimonial house at Oysterbay and 3 subjected him to an arrest and a police remand on dubious criminal allegations. He produced documents showing that, the properties listed in the petition were jointly purchased with his wife during subsistence of their marriage. Following the caveat, the respondent filed an application for citation to a caveator in terms of section 59 (2) of the PAEA and rule 82 of the Probate Rules. In view of the contentious nature of the proceedings, the trial court treated the petition as a suit as per rule 82 (6) of the Probate Rules. However, in the course of proceedings, the caveator passed on hence the appointment of Julius Peter Nkonya who took over as an administrator of his estate. Upon trial, the High Court found that, the deceased and the caveator were lawful wife and husband respectively but their union was not blessed with any issue. The learned High Court Judge observed that, the deceased was survived by close relatives namely, the father, sisters and a brother and on that basis, was convinced that, the respondent as an interested person, was capable and willing to administer the estate. Consequently, the caveat was overruled and the respondent was appointed as an administrator of the deceased's estate. Julius Peter Nkonya as legal representative of the estate of the late Canisius Ng'wandu Mbussa, hereinafter the appellant, was disgruntled with the whole judgment and decree of the High Court [Mkasimongwa, J] and moved this Court to quash and set them aside on four grounds, namely: 1. That the tria l Judge erred in iaw and fact in dism issing the caveat (filed by the appellant) and granting the letters o f adm inistration to the respondent. 2. That the learned tria l Judge erred in iaw and fact in granting the letters o f adm inistration to the respondent while knowing the deceased Salome Minza Mbussa was m arried via a Christian marriage vows. 3. That the tria l Judge erred in law and fact in granting the letters o f adm inistration to the respondent in respect o f properties that were matrimonial. 4. That the tria l Judge erred in law and fact in granting letters o f adm inistration to the respondent in absence o f the beneficiaries o f the late husband o f the late Salome Minza Mbussa. When the appeal was set for hearing before us, Messrs. Aloyce Rugazia and Daibu Kambo, learned advocates, appeared for the appellant and the respondent, respectively. None of the counsel had filed written submissions in accordance with the Tanzania Court of 5 Appeal Rules, 2009 [the Rules]. As such, the rival counsel were allowed to canvass the appeal orally. On the first ground of appeal, Mr. Rugazia faulted the trial Judge for failure to consider that, the deceased Salome Minza Mbussa, was survived by a husband, Canisius Ng'wandu Mbussa. He contended that, by African traditions, upon marriage a wife becomes part of the husband's family and therefore, applying the proximity principle, the surviving husband or near member of his family was entitled to administer her estate. He contended that, the trial Judge failed to consider that, the husband was erroneously omitted from the list of heirs to the estate of the late Salome Minza Mbussa which omission occasioned a miscarriage of justice. On the second ground of appeal, Mr. Rugazia faulted the trial Judge for failure to consider that, the deceased was lawfully married to Canisius Ng'wandu Mbussa and argued that, had that fact been taken into account, the Judge would not have issued letters of administration to the respondent. He argued that, the Judge's attempt to justify the decision on the ground that at the time of Salome's death the couple 6 were separated, was erroneous as no decree of separation was exhibited in court. Further, the learned counsel submitted that, divorce and separation are statutory creatures which could only be proved upon production of a valid decree issued by a court of competent jurisdiction. He added that, in the absence of such decree, the husband who survived his wife was entitled to administer her estate. On the third ground of appeal, Mr. Rugazia drew our attention to page 17 of the minutes of the family meeting which recognised the matrimonial assets owned by the late Salome and Canisius Mbussa. He observed that, much as the husband was also deceased at the time of the impugned decision, justice required the trial Judge to appoint a member of the husband's family to step into his shoes. He argued that, being a legal personal representative of the late husband, he was suited to administer the estate of the late Salome as well. On the fourth ground of appeal, the learned counsel averred that, the Judge assigned weak reasons in dismissing the caveat filed by the late Canisius Ng'wandu Mbussa as reflected at page 100 of the record. He explained that, the untimely death of Canisius Mbussa did not extinguish the caveat which remained intact on record. On the other hand, Mr. Kambo strongly opposed the appeal. Beforehand, he hammered on the appellant's counsel for submitting as if Canisius Mbussa was alive when the High Court issued letters of administration to the respondent. He averred that, the appellant's censure of the High Court decision was an illusion to misrepresent facts on record and clarified that, Mr. Mbussa died before the High Court finalised the petition. On the integrated first and second grounds of appeal, Mr. Kambo contended that, separation and divorce were not listed as issues for determination in the High Court and criticized the appellant's counsel for bringing it on board. Further, he submitted that, there is no law providing that upon marriage the wife becomes part of the husband's family. He stressed that, the social practise of treating wives as part of the husband's family cannot be a base for this Court's decision to determine who is better suited to admnister the deceased's estate. On the third ground of appeal, the respondent's counsel briefly submitted that, before us is a probate and administration appeal which is not analogous with a matrimonial dispute that could address properties of the couple. 8 On the fourth ground of appeal, Mr. Kambo urged us to reject the appellant's assertion on the ground that, the High Court did not refuse to recognise beneficiaries of the deceased Salome Minza Mbussa. He cited page 100 para 20 of the record in showing that, the High Court did not exclude the husband from the list of heirs. Responding to the Court's question, he submitted that, the Judge listed down heirs to the estate as: "parents, brothers, sisters and "etc." According to him, the husband fell in the lessened class of "etc". In rejoinder, Mr. Rugazia contended that, the High Court proceedings were generally misdirected on account of the omission to reframe issues following complete change of the facts on record. He submitted that, following death of Canisius Mbussa, the drafted issues became overtaken by events and ought to have been reframed by the trial Judge. Further, the learned counsel contended that, the record of appeal missed some proceedings of the High Court for the period between the year 2012 and the year 2015. He ushered us to look at page 51 of the record which displayed proceedings of the High Court commencing from 12th March, 2015. 9 On further reference to the proceedings and the pleadings, Mr. Rugazia faulted the trial Judge for failure to redraft the issues. He stressed that, whereas parties disputed on whether or not the listed properties were owned by Salome Minza Mbussa or jointly owned with Canisius Mbussa, an omission to include that vexed question in the list of issues for determination caused a miscarriage of justice. Having carefully considered the four grounds enumerated in the memorandum of appeal as well as the respective submissions of the counsel, essentially we are called upon to determine on whether the trial court erred in appointing the respondent as administrator of the estate of the late Salome Minza Mbussa. This is to say that, the four grounds of appeal will be integrated in the course of addressing the proposed issue. This is a first appeal against the decision of the High Court in Probate and Administration Cause No. 9 of 2021. The principles to guide this Court in such an appeal are well settled. In terms of rule 36 of the Tanzania Court of Appeal Rules, 2009 [the Rules], the Court is mandated to re-evaluate the evidence from the trial court, examine the impugned proceedings, judgment and decree and arrive at its own independent judgment on whether or not to allow the appeal. 10 In subjecting the whole of the evidence to a fresh and exhaustive scrutiny for purposes of drawing its own conclusions, the Court is required to bear in mind that, it did not have the opportunity of seeing and hearing the witnesses first hand [See Selle & Another v. Associated Motor Boat Co. Ltd. & Others (1968) EA 123]. Applying the above legal stance, we are now set to determine the issue raised which as earlier on hinted, addresses the four grounds of appeal and parties' relevant contentions made in the course of hearing the appeal. It is not disputed that, the deceased, Salome Minza Mbussa, died intestate. Intestacy occurs where a person dies without leaving a will. In that case, letters of administration may be granted to a person who is competent to administer the estate. During trial, the respondent testified as PW 1. He stated that, at the time of her death, Salome Mbussa was separated from the husband for about two years and that, the listed properties solely belonged to her. On examination in chief, he testified that, the deceased was not blessed with any issue, and on further examination, he disclosed that, Canisius Mbussa was also deceased. ii On cross examination by Mr. Msirikale, counsel for the appellant, PW 1 stated that, Canisius Mbussa died in December, 2014. He further testified that, the couple was not divorced and so the caveator was a lawful beneficiary of her estate. On further cross examination, the respondent admitted that, following the death of Salome Mbussa, Canisius Mbussa was prevented from accessing the Oysterbay house. On re-examination, PW 1 stated that, Canisius Mbussa was also kept in a Police lockup for an alleged refusal to vacate from the house. The appellant testified as DW 1. According to him, Salome and Canisius Mbussa lived under one roof in their matrimonial house at Oysterbay until death did them apart. He said that, Canisius failed to attend Salome's burial in Nzega because he was sick. According to him, the couple neither separated nor divorced and that, their properties were jointly owned. Our understanding of the trial court's proceedings is that; the petition for letters of administration by the respondent was challenged by the appellant; the deceased Salome Mbussa was survived by her late husband, Canisius Mbussa; that Salome and Canisius Mbussa jointly owned the properties listed in the petition; that, no evidence was led to prove that, Salome and Canisius Mbussa were separated or divorced; 12 that, the respondent and other relatives of the late Salome Mbussa excluded the late Canisius Mbussa in the whole process of petitioning for letters of administration; that, immediately after the death of Salome Mbussa, the respondent blocked the deceased husband from accessing the couple's matrimonial house at Oysterbay; and that, apart from the husband, Salome Mbussa was also survived by a father, two sisters, and a brother. The PAEA guides on the proper persons to be appointed as administrator or administratrix of the estate of a deceased person if the deceased has not left a will identifying executors. The law provides that, the letters of administration may be granted to any person who, according to the rules applicable for the distribution of the estate of a deceased person, would be entitled to the whole or any part of the deceased's estate [See section 33 (1) of the PAEA], In some cases, more than one person may apply for letters of administration of a deceased person which may require the court with jurisdiction to exercise discretionary powers and make a grant to any or more of the applicants taking into account greater and immediate interests in the deceased's estate in priority to lesser or more remote interests [Section 33(2) of the PAEA]. 13 In Sekunda Mbwambo v. Rose Ramadhani [2004] TLR 439, qualities of a person who may be appointed to administer an estate of a deceased person were discussed by the High Court, thus: "...The adm inistrator m ight come from amongst the beneficiaries o f the estate, but he has to be very careful and im partial in the way he distributes the estate. Furthermore, it m ust by now be very obvious to all, that such an adm inistrator must be a person who is very close to the deceased and can therefore, easily identify the properties o f the deceased. He must also have the confidence o f a ll the beneficiaries or dependants o f the deceased. Such a person may be the widow, or the widows, the parent or child o f the deceased or any other dose relatives o f the deceased. I f such people are not available or if they are found to be unfit in one way or another, then the court has the powers to appoint any other fit person or authority to discharge this duty." We associate ourselves with the above legal stance for it reflects the correct position of our law. We hasten to add that, the court has powers to appoint anyone it considers fit to administer the estate for the interests and benefits of the deceased's beneficiaries. It goes without saying that, once a person petitions for letters of administration, the 14 court must satisfy itself that the petitioner or any other person to be so appointed is a fit person to administer that estate of a deceased person. However, the appointee(s) may for various reasons prove not to be competent administrator(s) after his or her appointment by the court. According to section 49 of the PAEA, the grant of probate and letters of administration may be revoked or annulled on five grounds, namely: the proceedings to obtain the grant were defective in substance; the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; the grant has become useless or inoperative; and; the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Part XI or has exhibited under that part an inventory or account which is untrue in a material respect. In the present case, the respondent concealed from the trial court a fact that, the deceased Salome Mbussa was married to Canisius Ng'wandu Mbussa and survived by the said husband. We have examined 15 the petition for letters of administration featuring at pages 6 - 7 of the record and found that, it did not mention the deceased's husband at all. Instead, the same showed that, the deceased was survived by a father, Michael Theodor Makoba, two sisters: Mrs. Noela Wenceslaus Bategeki and Mrs. Augusta Sule Mfuko, and a brother, the respondent herein. Worse enough, the learned trial Judge did put an emphasis on the said father, sisters and brother of the deceased as persons highly interested with the estate of the deceased and categorised the husband in the lower class of "etc". We have also found out that, the respondent as a petitioner in the High Court, made an untrue allegation that, the property on Plot No. 88, Guinea Road, Block MS-OY 543, Oysterbay, Dar es Salaam was solely owned by the deceased, Salome Mbussa. That allegation was sharply negated by the evidence on record which strongly proved that, the property was jointly bought by the couple during subsistence of their marriage. It was equally demonstrated that, immediately after the Oysterbay property was bought in an auction conducted by a court broker, the couple treated it as a matrimonial home. In the circumstances, we are certain that, for the reasons stated above, and taking into account the wrangles and disagreements that 16 existed between the respondent and the late Canisius Mbussa, it is improbable for the respondent to proceed diligently with the administration of the deceased's estate without affecting the interests of the deceased husband. We have deliberated on the meaning of the phrase "...any other fit person or authority to discharge this du ty..."referred to in the case of Sekunda Mbwambo [supra] in the context of a case where the Court revokes or annul the grant of probate or letters of administration. In our view, in such a situation, the court can exercise its discretion by appointing any other person whom it considers fit to perform the duties of managing the deceased's estate. In the circumstances of this case, it is imperative to appoint a neutral person in order to avoid the possible bias that any of the present parties may be accused of. In that vein, we are of the impression that, the Administrator General who performs his duties under sections 5 (1) and 52 of the Administrator General (Powers and Functions) Act, Cap 27 R.E 2019 [the AGPFA], is better placed to administer the estate. The relevant provision of the law reads: "5(1) Where a person dies in Mainland Tanzania or where a person dies believed to be possessed of property in Mainland Tanzania, the 17 adm inistrative officer in charge o f the district in which such death occurs, or in which such property is believed to exist, shall, upon receiving notice o f such death or upon such death coming to the knowledge o f the adm inistrative officer, im m ediately institute inquiries to ascertain whether the deceased le ft any, and if so, what property in Mainland Tanzania, and if it appears that the deceased le ft property and: a) That any such person died intestate; or b) That the deceased having made a w ill devising or bequeathing the deceased's estate or part o f it, has om itted to appoint an executor; or c) That the person or persons named as executor or executors in the will, have died in the testator's life-tim e or have renounced the probate; or d) That probate or letters o f adm inistration with the w ill annexed has not been obtained within six months from the death o f the testator; or e) That the deceased has appointed the Adm inistrator- General as sole executor o f the deceased's will, the adm inistrative officer shall im m ediately report to the Adm inistrator - General and upon receiving such inform ation the Adm inistrator - General may apply to the court 18 for letters o f adm inistration o f the estate o f such deceased person; Provided that where it appears to the court that circum stances o f the case require, for reasons recorded in its proceedings, the court may, o f its own motion or otherwise, grant letters o f adm inistration to the Adm inistrator - General or to any other person notwithstanding that there are persons who in the ordinary course, would be legally entitled to adm inistration." Further to the above, we are mindful that, under section 3 of the PAEA, the High Court is vested with jurisdiction to entertain all matters related to probate and administration of deceased's estates including the powers to grant probate of wills and letters of administration and to revoke or alter the grants. Similar powers are enjoyed by the district courts in terms of section 74 of the PAEA. On account of the fact that, the PAEA provisions empowers the High Court to appoint and revoke the appointment of an administrator or administratrix of a deceased's estate and the proviso to section 5 (1) (e) of the AGPFA empowers that court to appoint the Administrator - General as administrator of the estate of a deceased person if circumstances so require, the High Court is the right forum to act accordingly. 19 For those reasons, we find merits in this appeal which is resultantly granted. We therefore quash and set aside the impugned judgment and decree of the High Court and remit the records to the High Court to proceed in appointing the Administrator of the estate of the late Salome Mbussa in accordance to law. We make no order for costs. DATED at DAR ES SALAAM this 20th day of May, 2024. W. B. KOROSSO JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 5th day of June, 2024 in the presence of Mr. Daibu Kudoja, learned counsel for the Appellant and Mr. Aloyce Rugazia, learned counsel for the Respondent is hereby certified as a true copy of the original.