juma said vs dotto omari hassani 2023 tzhc 22534 3 november 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. CIVIL APPLICATION NO. 79 OF 2023 (Originating from Probate and Administration Case No. 5 of2023) JUMA SAID............................................................................................. APPLICANT VERSUS.O

DOTTO OMARI HASSAN RESPONDENT

RULING 2Cfh September & 3d November, 2023. ITEMBA, J. The applicant has moved this court under section 49 (1) a, b, and c of the Probate & Administration Act Cap.

352. R.E. 2002 praying for the following orders: 1. The grant of the respondent of the letters of application of the estate of the Late Omary Hassan Juma be revoked.

2. The costs of this application be provided for. When the application was called for hearing Messrs Anton Nasimire and Arsein Molland appeared for the applicant and respondent respectively. Both parties were present. Submitting in support of the application, Mr. Nasimire told the court that the basis of this application is that, on 8.5.2023 this court appointed the Respondent as administratrix of the estate of Omar Hassan the deceased, while the applicant was already appointed by Ilemela primary Court as an administrator of same estate in Probate Cause No. 54/2016. He added that the respondent was not happy with such appointment and opposed it at Ilemela Primary Court where she was unsuccessful. That, the respondent appealed to the District Court in Probate Appeal No. 3/2016 before Ilemela District Court where, again, she was unsuccessful. She then appealed to the High Court in Misc. App. No. 180/2018 where she was unsuccessful. He argued that, based on this background, when the respondent filed Probate Cause No. 5/2023 in this court, she knew that the applicant was the administrate of the estate. The learned counsel argued further that, the issue that appointment by Primary Court was fraudulently made, was never raised anywhere in probate and administration Cause No. 5/2023 or Misc. Civil App. No. 45/2022 at the High Court. He also challenged the counter affidavit, claiming

that it has a face of written statement of defence under O.XXXIX Rule 1, 2, 3, of CPC while the counter affidavit would have mentioned facts rather than denial as in the written statement of defence. He stressed that, the respondent would give her own side of the story. He added that the respondent is not telling the truth because she has been opposing the applicant's appointment and her name features in all relevant proceedings and decisions. The applicant's counsel argued that, the respondent stating to have never been engaged in any proceedings is a lie and an affidavit which contains lies can not be relied on by court. In this, he cited the case of Rhoda Herny (as administrate of Estate of the late Henry Thobias) v. Samwel S. Lyande and Others and prayed for the respondent's affidavit to be expunged from court records. The applicant's counsel went on that, currently, there is a subsisting Administrator of Estate and there cannot be two administrators appointed by two different courts and because the respondent knew of the existence of another administrator, the court should vacate the appointment of Dotto Omar Hassan. He proposed that, if there is any issue with the applicant, the respondent should go to the court which appointed the administrator or appeal against those other decisions. In reply, Mr. Molland learned counsel submitted that he opposes the application. His

main ground is that the applicant's appointment in Probate Cause No. 54/2016 was obtained by fraud. That, the applicant submitted before the court forged documents including minutes of the family meeting. That, the issue of forgery was brought before the court through criminal case No. 7/2016. He produced the copies of judgment which the court took judicial notice. He insisted that the applicant was convicted for forgery and he appealed to the High Court vide Criminal Appeal No. 222/2017 whereas, his appeal was allowed but the exhibit was found to be forged. He argued that in terms of section 26 The Evidence Act, if a judgment is obtained by fraud or collusion, it can be avoided by any court either superior or inferior without the need to appeal. He sought support in Yusuph S. Kimaro vs. Administrator General and 2 Other Civil Appeal No. 266/2020 and moved the court to avoid the judgment in Probate Cause No. 54/2016. The respondent's counsel went on submitting that, the respondent is the deceased's daughter. That, before his appointment as an administrator, the applicant acted as if he had the consent of the family while he did not involve the deceased's relatives and they did not consent to the appointment. Regarding the fact that the respondent features in all previous court's decisions and therefore she had knowledge of the applicant being an administrator, he stated that

they are not supplied with such decisions therefore he cannot comment on it. That, the court should go through records and see what is there. On the existence of two administrators, he stated that he reiterates the position of Yusuph S. Kimaro (supra) that if there is fraud, the court can avoid one judgment and remain with the other. The learned counsel cited the case of Whet Company Limited v Village Amani Limited Land Case No. 103/2023 where it was stated that under the circumstance where there is fraud, the proper route is to avoid the impugned letter of administration and that the impugned decision should be avoided. He finalized his submission by stating that in terms of section 46 of the Evidence Act, fraud can be raised at any stage of the case. In his brief rejoinder Mr. Nasimire stated that the issue that appointment of the applicant was attained by fraud is not correct because in Criminal Appeal No. 222/2017 before the High Court, the applicant was acquitted of forgery. That, there is no finding in that case to the effect that his appointment was made by fraud. Either, on the submission by the respondent's counsel that fraud can be raised at any stage, he argued that as long as this is a factual matter, one who alleges has to prove. He finalized his submission that, the respondent did not act in good faith by 5 Ur\ hiding the fact that there is a subsisting administrator of the estate and all his complaints would have gone to Ilemela primary Court instead of filing a fresh case which does not disclose other facts the respondent did not do it on good faith. Having appraised the submission by both parties, the issue is whether the application has merit. Section 49 (1) a, b, and c of the Probate & Administration Act Cap.

352. R.E. 2002 states thus: 49(1) The grant of probate and letters of administration may be revoked or annulled for any of the following reasons- (a) that the proceedings to obtain the grant were defective in substance; (b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; (c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; (emphasis supplied) According to records and parties' submissions, the following are not in dispute: One; That, on 24/5/2016, before Ilemela Primary Court, the applicant was appointed an administrator of the estate of the late Omary Hassan. Two; That, the applicant's appointment has never been revoked by any court of law. Three, That, the respondent was aware of the applicant's appointment because she has been battling with the applicant in respect of his appointment. This evidence can be found in Misc. Civil Applications No. 180 of 2018, and 167 of 2019 both before the High Court Mwanza where the respondent was an applicant, (annexure JSA) DC Civil Probate Appeal No.3 of 2016 in the District Court of Ilemela, where the respondent was an appellant (Annexure JSB) and Criminal Case No.7/2016 where the applicant was an accused and the respondent

was a witness (PW1). Even if the decision of Criminal Case No. 7/2016 was not attached, this court takes judicial notice of its presence. Four; The, respondent moved this court to appoint her as an administratrix claiming that since the demise of her father in 1981, there has never been an administrator of estate appointed, knowingly that, these claims were false. I have noted the respondents' argument that the applicant's appointment was gained through fraud. However, there is no court findings to that effect. Furthermore, even if there was fraud involved, the claims are brought in a wrong platform. The respondent could not have come to the High Court through the back door and attempted to be appointed an administratrix without disclosing the true background of the matter. If a party is aggrieved with appointment of administrator, the best way is to apply for the said appointment to be revoked but not to file a new petition. In respect of section 46 of the Evidence Act, I find it inapplicable in this case because the respondent by himself concluded that the applicants appointment was made fraudulent and acted on that assumption in filing a fresh petition of letters of administration. As it can be noted, the issue of fraud is brought to this court as a reply. I think the respondent should have, in the first place moved the court to challenge the judgment which is allegedly

obtained by fraud instead of ignoring it's existence on assumption that it was obtained by fraud. The cited case of Yusuph S. Kimaro vs. Administrator General and 2 Others (supra) actually supports the applicant's case in that, if there is fraud in any appointment of administrator then the appointment is unlawful. Finally, the respondent has contravened section 49(b) of the Probate and Administration Act Cap.

352. R.E. 2002 because she was appointed an administratrix following giving false information that there is no administrator of the deceased's estate appointed. The respondent also concealed the fact that, the applicant herein was already appointed an administrator of the same deceased estate since 2016 by Ilemela Primary Court in Probate Cause No. 54/2016. For that reason, the appointment of the respondent Dotto Omar Hassan as an administratrix of the estate of the late Omary Hassan Juma, is hereby revoked. No order as to costs these being probate and administration proceedings. It is so ordered. DATED at M -3 rd of Nov^rpber, 2023. L. J. ITEM BA r il o JUDGE. •..A// Ruling deli hand and seal of the court via audio conference, in the presence of Mr. Arsein Molland for the respondent also holding brief for Mr. Anton Nasimire for the applicant and Ms. G. Mnjari, RMA. (TV L.J. ITEMBA

JUDGE