20180129 TZHC Arusha

·, ~i ' I '\ \ · -lNTt1E:'.HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ?,~ ~·~~ ~:i'- :_: ..:.f : -;:-► (IN THE DISTRICT REGISTRY OF ARUSHA)

AT ARUSHA PC. CIVIL APPEAL NO. 10 OF 2017 (C/F Civil Appeal No. 22/2016 in the District Court of Arumeru, the same originating from Probate Cause No. 15/2016 at Emaoi Primary Court) MARIAM YESSE ... I I I I . 11 ■ •• ■• ■• ■•■■ •• ■■ I ■•■■ I ■ •• I. I I I. I I. ■ •• ■ ~ ••• APPELLANT

VERSUS RUBEN KISOLI .. ■■ I 1111 • • I I 111 I I I I I I I ■ I ■■■-■■■■ ' 1111 I I I ■ 1111 ■ ■ •• RESPONDENT 11 .

JUDGMENT ON APPEAL S.M. MAGHIMBI, l: The appellant named above being aggrieved with the decision of Arumeru District Court in Civil Appeal No. 22/2016 dated 23 rd day of January, 2017 appeals before this court basing on the following grounds; 1. That, the Resident Magistrate in the District Court erred in law and fact by failing to declare the revocation of the former Administratrix of -the estate of the late Musa Amani Musa, made by primary court was unlawful.

2. That, the Resident Magistrate in the Distrlct Court erred in law and fact to order the matter to start de-novo, without any sufficient reasons adduced therein. 1 ,! The appellant prayed for the following orders: , 1. This appeal is allowed and the proceedings qnd judgment of the district Court be set aside, 2. The appellant to be recognised as administratix of the Estate of the late Musa Amani Musa,,, 3. Costs of the appeal be aw9rded to the appellant and any other relief(s) this Court may deem fit and just to grant. Before proceeding to the substance of this appeal, I find pertinent to ' give brief background of the matter emanating to this appeal. Initially vide Emaoi Primary Court Probate .and Administration Cause No. 15/2016, the appellant applied for and she was granted the letters of Administration for the estate of the deceased on Musa Amani Musa (the deceased). After the appointment as the administratix, then one I ' Rahma Urassa who is her co-wife filed an objection before the trial court objecting the appointment of the appellant as the administratix of the deceased estate on the ' ground that there was no I advertisement made prior to the appellant's appointment. After hearing both parties, the trial court sustained the objecting by revoking the appointment of the appellant and subsequently, the respondent herein was appointed to be the admin1istrator of

the I deceased's property. Dissatisfied by that decision, the appellant I appealed before the District Court of Arumeru in Civil Appeal No. 22/2016 to challenge revocation of her appointment. In its decision, the District court nullified the proceedings of the trial court on the ground that the appellant was not afforded an opportunity to be 2 heard before the said revocation. The first appellant -court further ordered a. trial de-novo. Aggrieved by the decision of the first appellant Court, the appellant filed this appeal. In this appeal, the appellant was represented by Mr. Allan Godian, learned Advocate while the respondent appeared in person and unrepresented. Before hearing commenced, the respondent notified this court that he has no interest on this case and supported the appeal; hence this court ordered the grounds of appeal be expounded by way of written submission and the appellant was ordered to file his submission on 19/9/2017 where she accordingly filed. Arguing the first ground of appeal, the appellant's counsel submitted that the Appellant is aggrieved by the failure of the resident Magistrate to declare that her revocation from being administratix of the estate of the late Musa Amani Musa by the primary court of Emaoi was unlawful. He submitted that, on 04th day of July 2016, the Primary Court of Emaoi appointed Marium Yesse (Appellant) to be the administratix of

the estate of the deceased Musa Amani Musa. Thereafter, one Rahma Urasa made an application for revocation of the same and the trial court held that both parties are the wives of the deceased therefore the parties cannot trust each other. Therefore the best option is to appoint other person different from the appointed administrator (Appellant) and the one who objects that appointment (Rahma Urassa), hence one Ruben Kisoli was appointed as an administrator of the deceased estates. He 3 ,, further submitted that, for the revocation of the appointed administrator, the primary court is governed by the !Primary Courts (Administration Of Estates) Rules, G.N. No. 49 of 197 1,whereby rule 1 9 (1) provides as follows; 11 Revocation or annulment of grant of administration (1) Any creditor of the deceased person's estate or any heir or beneficiary thereof, may apply to court which granted the administration to revoke or annul the grant on any of the following grounds- I (a) that the administration had been obtained fraudulently; I (b) that the grant had been made in ignorance of facts the existence of which rendered the grant invalid in law; I I (c) that the proceedings to obtain the grant were defective in substance so as to have influenced the ! decision of the court; ( d) that the grant has become useless or inoperative; (e) that the administrator has been acting in contravention of

the terms of the grant or v-.(ilfully or negligently against the interests of creditors, herein or beneficiaries of the estate. " He contended that, it is under the above mentioned ,circumstances the administrator of the estate of the deceased p,erson can be revoked, in which there is no any circumstance which was stipulated by the Primary Court Magistrate as a reason fpr appellants' 4 i. " revocation. He further stated that, the Primary Court Magistrate continued to state in page 3 paragraph 2 of his judgment that, ''mahakamai naweza kutengua usimamizi wa mwombaji kwa ombi la mdai katika mirathi husika au mnufaika wa mirathi hiyoi kiwa uteuzi huo ulipatikana kwa hi/a pamoja na mambo mengine, hi/a ambazo mpingaji na kwa ushahidi wake ameshindwa kuzidhibitisha mbele ya mahakama hii. He went further contending that, though there were no any grounds for revocation, the Primary Court Magistrate revoked the appointed administration and appointed another person only because there was no trust between the parties, the reason which does not fall on the grounds for revocation as stipulated under rule 9(1) of the Primary Courts (Administration of Estates) Rules, G.N. No. 49 of 1971. He stated that, the Magistrate erred by giving that as a reason for revocation of the administratix. He further stated that, the appellate Magistrate was expected to go in details to see if it was proper

for the revocation which was done and if there was sufficient reason for that; but the magistrate did not discuss the said point, rather than opting to order for retrial. Mr. Godian hence prayed for this court to declare that the primary court erred in law and fact by revoking the administrator without any sufficient grounds. Further that the Court orders the administrator to continue with her duties as administratix of the deceased estates. Submitting on the second ground, Mr. Godian stated that the District Resident Magistrate was supposed to give reasons on why he 5 ordered the case to start de nova and if the proceedings were nullity or what was missing or done inappropriate in the Primary Court to make the whole proceedings void. But the Magistrate failed to show reasons for his decision and therefore it was not proper for the matter to be ordered retrial while there were no any sufficient reasons to do so. He further stated that, the principle of natural justice provides that the judgment must contain reasons for decision, therefore the judgment of the District Court had to have reasons on how the decision is reached and the reasons must be sufficiently clear, precise and intelligible to enable the individual to understand the basis of the District Court's decision. He therefore stated that, order of retrial by District Court had no sufficient reasons and also her

revocation in the Primary Court was void. I have considered Mr. Godian's submissions in support of this appeal and have gone through the records of the lower courts. In the first ground of appeal, the appellant contends that the District Court erred in law and fact by failing to declare that the revocation of the administratix of the appellant made by the Primary Court was unlawful. However, having gone through the trial court's records, it is clear that the appellant herein was appointed as the administratix of the deceased's estate on 04/07/2016. The records further show that, after that appointment, on 27/7/2016 one Rahma Urassa (appellant's co-wife) filed an objection to the appointment and subsequently, the court ordered the summons be issued to the appellant and the objection was scheduled to be heard on 3/8/2016.The appellant 6 appeared in Court and upon the trial court hearing both parties, the ' trial court observed that both the applic~nt (appellant h~rein) and the caveator expressed to have no trust with the each other; thus he 1 found it was unsafe to appoint either of them as the administratix of I the deceased's estate due to misunderstandings ! between I themselves; the reason which could delay the collection and division j of the deceased's estates. That reasoning is clearly indicated under J . page 3 of the ruling of the trial court in Probate Cause No. 15

2016. l , Hence he appointed a neutral party, the respondent, who is a Court Officer to administer the estates of t~e deceased. It is undisputed I that, Rule 9 (l)of the Primary Courts (Administration of Estates) I Rules, G.N No. 49 of 1971 provides th e grounds for revocation and I 1 annulment of grant of letter of admi~istration but there is no any I ground adduced by the caveator whidh fall among those grounds. I 1 Irrespective of that, the law under pa ragraph 2 Part I of the Fifth j • Schedule to the Magistrates' Courts ~ct, Cap. 11 R.E 2002 gives power to the Primary Court upori which jurisdiction in the ' ' i administration of deceased's estate has; been conferred; among other things, to revoke any appointment of 1n administrator for good and sufficient cause and may appoint an [officer of the court or some reputable and impartial personable 9nd willing to a.dminister the estate to be administrator either together with or _in lieu of an ' administrator who had already been appointed. Based on Paragraph I ' 2 (b) and ( c) Part I of the Fifth Schedule to the Magistrates' Courts I Act and considering the reasons statedI by the trial Magistrate under 7 '• page 3 of his ruling as already stated above; I therefore find that the trial Magistrate lawfully revoked the appointment of the _appellant and appointed one Reuben Kisoli who is a Court Officer and a neutral party to

administer the estate of the deceased. Based on that, I therefore find that the decision of the trial court was proper hence the District Court erred in law and fact to nullify the proceedings of the trial court and order retrial. As for the second ground of appeal that the first appellant Court erred in law and fact to order the matter to start de-nova, without any sufficient reasons adduced therein. The finding of this court is that the first appellant court based its decision on the wrong footing. The first appellant court's reason for ordering a retrial was that the appellant herein was not accorded an opportunity to be heard, the reason which; with all due respect to the learned first appellant magistrate; does not tally with the court records. To begin with, even in the submissions in support of the appeal at the first appellant court, Mr. Godian did not mention anything about not being accorded an opportunity to be heard hence it was never an issue there. Secondly, the trial court record is very clear that on the 04/07/2016, the court ordered that the appellant herein be summoned for hearing of objection raised. On 03/08/2016 the hearing was conducted in the presence of both the appellant and the objector. Hence it is quite surprising as to where the first appel'lant court came_ up with the issue that the appellant was not accorded an opportunity to be heard. I therefore

find the second ground of appeal as meritious as 8 the reasons adduced by the learned first appellant court to order a retrial are not in existence on the records of the trial court. Again, the District Court erred in law and fact to nullify the proceedings of the trial court and order retrial basing on the erroneous grounds, hence the order is quashed and set aside. Having made those findings, the determination of this appeal still remains complex. We have the first ground of appeal dismissed and I am in agreement with the decision of the trial court that the revocation was proper. We further have the second ground of appeal allowed and an order of retrial quashed and set aside. However, the respondent is on record that he supports the appeal and is no longer interested in pursuing the same. It has also been brought to the knowledge of this court the existence of Probate and Administration Cause No. 03/2017 filed at Mbuguni Primary Court on the 20/02/2017 following the decision of the Arumeru District Court in .Civil Appeal No. 19/2016 between one Rahma Urassa and the respondent herein originating from the same Probate and Administration Cause No. 15/2016. The records of this appeal show that on the same 20/02/2017, the appellant herein also lodged this appeal before this court. This is an obvious abuse of the court processes, more saddening is the fact that the appellant has

along been represented by an advocate. Sometimes we may be fair enough to relieve the blame from a layperson like the appellant but no justification of such abuse can be made to the learned advocate who represents her. As such, the appellant (through her advocate) is openly abusing the 9 court processes thinking that she can have eat her cake at Mbuguni Primary Court and still have it at this Court, hence interference of this court is not only necessary, but inevitable. It is for this reasons that I hereby invoke my revisional powers to rectify the situation. The proceedings, judgments and all orders made by the Mbuguni Primary Court Vide Probate and Administration Cause No. 03/2017 aie hereby nullified. I further uphold the decision of the trial court in revoking the appointment of the appellant as the sole administratix. of the estate of the deceased. Since the respondent is no longer interested in administering the said estate, the matter is remitted back to the trial court for appointment of another administrator to the estate of the deceased as per the procedure. Owing to the circumstan~es of this appeal, I make no order as to costs. Dated at Arusha this 29th day of January, 2018 ,'

GHIMBI

JUDGE 10