OC cv rv 25239

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB - REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL REVISION NO. 25239 OF 2024 (Arising from a decision of the District Court of Temeke at One Stop Judicial Centre in Probate and Administration Cause No.26208/2023 before Hon. Swai - SRM) M.M................................................................................................ APPELLANT VERSUS L.J.M (Administratrix of the estate of the late J.K.M)........ ........................................................................ RESPONDENT RULING 18/02/2025 & 21/02/2025 M.MNYUKWA, J. The applicant in this revision is aggrieved by the decision of the District Court of Temeke at the One Stop Judicial Centre (the trial court) in exercising its power as a probate court. His grievance concerns the confirmation of the accounts of estate, as he alleges that he was not afforded the right to be heard on the matter. Facts gathered from the record reveal that the deceased died intestate, leaving children born in wedlock and one child (a minor) who was fathered by the deceased out of wedlock. In order to administer the deceased's estate, the respondent herein petitioned for letters of administration and was duly appointed. Upon appointment, she was ordered to file the Inventory and Accounts of estate. It is on record that the source of the dispute was the distribution made through the accounts of estate, as the applicant was aware that the deceased's movable and immovable properties were not fairly distributed. The applicant believed that the accounts of estate filed by the administrator bequeathed valuable properties to herself and did not take into account the interest of the minor child. It was at this point that the applicant filed a notice of preliminary objection on 08/08/2024 to challenge the accounts of estate (the distribution). The trial court record reveals that the hearing of the accounts of the estate was conducted and confirmed in the absence of the applicant, despite an objection filed by him to challenge the distribution. It is on record that the trial court also ordered the administrator to transfer properties to the legal heirs according to the confirmed accounts of the estate. Thus, it was the confirmation of the accounts of estate that moved the applicant to file the present revision. In his chamber application, the applicant prayed that, this court call for the record of the proceedings and revise the orders issued on 21/08/2024 and 24/09/2024 by the trial court. Upon the respondent being served, she filed a notice of preliminary objections to challenge the application. After hearing both parties on the points of the preliminary objection raised, two objections were upheld but did not result in finalizing the matter, and one which was overruled, leading to the hearing of the present application on its merits. As indicated earlier, the applicant's application for revision was mostly premised on the orders issued on 21/08/2024 and 24/09/2024, which call for this court to examine: /. Legality, correctness, and appropriateness regarding the failure to determine the preliminary objection against the estate account filed by the respondent, which resulted in denying the applicant the right to be heard. ii. Illegality and irregularity in the proceedings, in that the dates for appearing before the District Court were not disclosed to the applicant—either by providing wrong and misleading dates or by failing to inform him of any changes. Hi. /Illegality in the proceedings, whereby the petition was heard and determined without an affidavit of consent from the heir to proceed with the probate cause, thereby prejudicing the rights of the minor heir and tainting the inventory and accounts of the estate with serious irregularities. At the hearing, the parties were represented. For the applicant, Mr. Gwamaka Mwaikugile, learned advocate, appeared, while Ms. Ester Nyalandu, learned counsel, entered appearance for the respondent. By the order of this court, the application was heard by way of written submissions. I appreciate that the submissions were filed as scheduled. Arguing in support of the application, Mr. Mwaikugile faulted the trial court's proceedings, claiming they were irregular and confusing, which resulted the applicant being denied a right to be heard on the objection filed before the trial court. He submitted that on the date the matter was scheduled for hearing, he was not notified; instead, he was informed on a different date, thereby depriving him of his right to be heard. He added that since he was denied this right, the only remedy available is for this court to revise the trial court's proceedings. He argued that revision is the proper remedy since the applicant was not a party to the proceedings. To support his argument, he cited the case of Miraji Salimu Nyangasa v. Ramadhani Omary Sewando (Administrator of the Estate of the late Hussein Omary Sewando), Civil Appeal No 686 of 2023. Mr. Mwaikugile insisted that the fundamental right to be heard, enshrined in our constitution, was violated because the trial magistrate confirmed the inventory and the accounts of estate in the absence of two heirs, one being a minor child for whom he stands as a guardian. He said that the objection filed was aimed at challenging the distribution of the deceased's estate. He further stated that they were aware the matter was scheduled for orders on 12th November 2024; however, upon follow-up, they discovered that the matter had proceeded on 21st August 2024 and 24th September 2024 without being informed, even though the trial magistrate was aware of the objection filed by the applicant. Mf Mr. Mwaikugile concluded by praying that this court grant the prayer sought in the application, as he believes that the trial court's proceedings are tainted with illegality and irregularity because it confirmed the distribution while an objection had been filed by the applicant. Contesting, Ms. Nyalandu submitted that it is improper for the applicant to challenge the grant of letters of administration merely on the basis that the consent of one of the heirs was not secured. She contended that if the applicant is challenging the procurement of the consent of one of the heirs, the proper remedy for him is to file a caveat before the appointment of the respondent, as provided under section 58 of the Probate and Administration Cause, Cap 352 R.E 2019 (the PAEA). Ms. Nyalandu insisted that challenging the appointment of the respondent at this juncture is misconceived since it is overtaken by events. She was of the view that the remedy available for him is to invoke section 49 of the PAEA if he believes there is justifiable reason to do so. Ms. Nyalandu further submitted that the applicant is contradicting himself by claiming that he raised the preliminary objection and he was denied the right to be heard, while at the same time suggesting that he was not a party to the proceedings. She argued that if the applicant was not a party to the proceedings, then he was not entitled to raise a preliminary objection, as the only remedy available to him is to challenge the inventory and accounts of the estate by filing a chamber application supported by an affidavit. She added that doing so is contrary to the law, means that the applicant wishes this court to condone an unknown procedure. Ms. Nyalandu was of the view that if the applicant thinks it proper for him to challenge the inventory and accounts of the estate by filing a notice of preliminary objection, then it means he was a party to the proceedings, and the proper remedy is for him to appeal against the decision of the trial court rather than seek revision. Regarding the complaint about the differing hearing dates, Ms. Nyalandu submitted that the complaint is misplaced since the hearing was held between the parties, and if the applicant was not a party to the proceedings, he cannot claim to have been denied the right to be heard. She insisted that the applicant could have claimed a denial of his right to be heard if he had properly moved the court as a third party, and not otherwise. She concludes by praying that this court shall dismiss the applicant's application for revision as being devoid of merit. In his rejoinder submission, the applicant's learned counsel reiterated what had been submitted in the submissions in chief. Having considered the submissions of the parties and the lower court records, the only issue for determination is whether this application for revision has merit. In determining this, I shall assess the applicant's claim of being denied the right to be heard, since the other argument was dealt with when this court disposed of the preliminary objections. Coming now to the sole issue of the right to be heard, it is settled under section 107(5) of the PAEA that any beneficiary under an intestacy shall be entitled to inspect the inventory and accounts of the administrator. To my understanding, this provision aims to ensure a fair trial in probate matters by affording the beneficiary the opportunity to inspect the inventory and accounts of the estate filed, and when the situation compel, to raise any concern if he believes that the same is unjust or not in accordance with the law. I am aware that in applying the above provision, the trial court inquired to the beneficiaries whether they confirmed or otherwise objected to the inventory and accounts of the estate filed by the administrator. In other words, the confirmation was carried out after these documents were filed, thereby providing the beneficiaries with an opportunity to inspect them. This process not only ensures transparency but also guarantees the involvement of the beneficiaries in the entire process of administering the deceased's estate. Turning now to our case regarding the complaint of denial of the right to be heard, it is undisputed that the respondent was appointed as administrator of the deceased's estate on 21st February 2024. After the appointment, the court ordered the administrator (respondent) to file the inventory and accounts of estate, which were to be filed on 31st May 2024, and the matter was adjourned. However, for an unknown reason, on 29th April 2024, the trial magistrate issued an order for the money (part of the deceased's assets) deposited in the judiciary account to be paid as per Form No. 81 (accounts of estate), and the matter was scheduled on 31st May 2024 for confirming the inventory and accounts of estate filed. It is important to appreciate that the distribution of money was carried out while the beneficiaries did not state whether they confirmed it or not. The record further reveals that no proceedings were written on 31st May 2024. On 26th July 2024, the trial magistrate adjourned the hearing until 30th July 2024 on the grounds that the case file had lost direction and needed to be updated. Unfortunately, when the matter was called on 30th July 2024, the administrator was absent, and the matter was adjourned until 8th October 2024 for order. Surprisingly, no order was issued on that date; instead, the matter was adjourned to 21st August 2024, when the inventory and accounts of estate were read over to the beneficiaries who were present, and the trial court proceeded to confirm the same, as the beneficiaries in attendance did not object. Consequently, the administrator was ordered to change the ownership of the deceased's properties to the heirs. f . ■ w The record bears testimony that the matter was then adjourned to 12th November 2024. As in previous proceedings, the matter was called on 24th September 2024, and the respondent asked the trial court to issue an order for payment of bonds owned by the deceased in the Bank of Tanzania. The said prayer was granted. From the above, it is clear that the proceedings did not follow sequential dates, as they were inconsistent and moved back and forth. Unfortunately, the record is silent on what caused this anomaly, except for the proceedings dated 26th July 2024, in which the trial magistrate stated that the case file had lost direction. Considering the foregoing proceedings, it is evident that the applicant's complaint against the trial court is valid, as the dates for appearance were not disclosed to him, even though he had filed an objection challenging the distribution before it was confirmed on 21st August 2024 and 24th September 2024. Now, returning to our raised issue of whether the trial court denied the applicant the right to be heard, my humble answer is affirmative for the following reason: The objection before the trial court was filed before the inventory and accounts of the estate were confirmed. In the proceedings dated 21st August 2024, the applicant who is the guardian of a minor child was not Wr! given an opportunity to confirm or reject the distribution filed by the administrator/respondent, despite having filed an objection. As he was representing a minor child, his objection ought to have been heard. In my humble view, the trial court's decision to proceed with the confirmation of the inventory and accounts of the estate in the respondent's favor, as if there were no objection from one of the heirs, constitutes a denial of the fundamental right to be heard, unless other legal matters prevented such a step. I am aware that the respondent is concerned that the applicant did not properly move the trial court, as he was not a party to the proceedings, and therefore was supposed to file a chamber application rather than a notice of preliminary objection as he did. All the same, as long as a document was filed by one of the beneficiaries in the case management system challenging the distribution, the trial court was supposed to grant him the right to be heard. In other words, as long as one of the heirs raised a concern after inspection by objecting to the distribution whether the objection was merited or not the trial court was obliged to provide the beneficiary who raised the objection with the opportunity to be heard. It is settled that parties should be given the right to be heard on matters affecting their rights, as it is one of the principles of natural justice hfl (audi alteram partem) enshrined in our Constitution, Cap 2 R.E 2002, under Article 13(6). This right is also emphasized in a plethora of authorities, including the case of Seth Japhet v. Nicholas Mero, Civil Appeal No. 262 of 2022. That being said, I allow the application. Consequently, I hereby quash and set aside the decision of the trial court which confirmed the inventory and accounts of the estate, and remit the case file to the same court to proceed with the matter in accordance with the law from the time the inventory was filed. Since the parties are related, I make no order as to costs. It is so ordered. Right of appeal explained to the parjiqs. Zo \M.MN A JUDGE 21/02/2025 Court: Judgmen ivered on the 21st day of February 2025 in the presence of both parties and their counsel via virtual court. M.MNYjUKWA JUDGE 21/02/2025