musiba reni jigabha vs mugeta bwire bhakome 2022 tzhc 119 7 february 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT PAR ES SALAAM PROBATE AND ADMINISTRATION CAUSE NO. 41 OF 2016 In the Matter of the Estate of the late MUSIBA RENI JIGABHA.................................................................. DECEASED AND In the Matter of administration of the deceased estate by MUGETA BWIRE BHAKOME..................................................ADMINISTRATOR AND In the Matter of Application for Revocation for the Grant of letters of Administration granted to MUGETA BWIRE BHAKOME by MONICA NYAMAKARE JIGABHA..... APPLICANT

RULING 01/12/2021 & 07/2/2022 I.e. MUGETA, J. Two related issues called for my attention simultaneously. In probate and administration cause No 41/2016 one of beneficiaries namely, Monica Nyamakare Jigabha challenged the accounts filed by the administrator. In Misc. Civil Application No 168/2021 the same heir had applied for revocation of the letters of administration granted to Mugeta Bwire Bhakome vide this 1 probate cause. I wish to state here that it was an error on part of the registry to open the said Miscellaneous Cause with a distinct registration number while being a subsequent proceeding to Probate and Administration Cause No 41/2016. This is due to the fact that rule 5 (2) of the Probate Rules requires the subsequent proceedings to bear the same number as the main cause. It states: - 'The first proceedings in every matter shall have a distinctive number assigned to it by the Registrar, and ail subsequent proceedings in the same matter shall bear the same number' Be as it may, since issues involved in the two cases are intertwined, for convenience and clarity purpose, I decided to consolidate them and prepare a single ruling. The fact of the case are as follows: - On 19/7/2017, Mr. Mugeta Bwire Bhakome was appointed administrator of the estate of the late Musiba Reni Jigabha who died intestate on 23/8/2015. In paragraph 2 of the petition, he stated that the deceased

left surviving him Monica Nyamakare Jigabha, Nguruti Musiba Jigabha and Nyambuli Musiba Jigabha. On 30/8/2018, he filed an Inventory listing the deceased's properties as a single storey house on plot No 462, Mikocheni B, No 22 Bima Road. On 6/12/2018, he filed a statement of account showing that he had bequeathed the said house to Hawa Salum Mengele and Nguruti Musiba Jigabha and the furniture and personal effects in the house to Monica Nyamakare Jigabha and Nyambuli Musiba Jigabha. Both the inventory and final accounts were not confirmed/approved by the court. Hawa Salum Mengele, at a certain point in time, was wife of the deceased. They separated in 1986 having been blessed with one issue, namely, Nguruti Musiba. Then the deceased married Monica Nyamakare. Their marriage was blessed with one issue too, namely, Nyambuli Musiba. Monica and the deceased lived in the house subject of these proceedings up to his death. The administrator bequeathed the house to Hawa Mengele despite not being listed as heir in the petition because vide Misc. Civil Application No 46/2018 of this court she had applied to this court to be so listed and the application was granted. After that bequeath, the administrator sought to evict Monica from the house in order to give it to Hawa. Monica was aggrieved and filed before the Court of Appeal Civil Application No 199/01 of 2019 against the administrator

and Hawa Salum Mengele. The Court of Appeal held: - T h e Probate and Administration court has no powers to determine the beneficiaries and heirs of the deceased Consequently, the order of this court listing Hawa as a heir was quashed. This means the court of appeal disqualified Hawa Salum Mengele inheriting from the deceased estate by order of the court which listed her as a heir. The decision of the Court of Appeal, therefore, rendered the account filed a nullity. The decision of the Court of Appeal was delivered on 16/10/2020. On 13/4/2021, Monica Nyamakare applied for orders that the letters of administration granted to the administrator be revoked. The reasons include, that he had not filed an inventory and that the administrator had renounced his administration. I find it pertinent to decide these issues right away. The court record shows that the administrator filed the inventory and accounts on 30/8/2018 and 6/12/2018 respectively. What he had not done was filing accounts after the decision of the Court of Appeal which removed Hawa from the list of heir. It is my view that despite the failure, twelve months from the date of the decision of the Court of Appeal within which accounts could be filed in terms of section 107 of the Probate and Administration of Estates Act had not expired. This, in my view, renders nugatory any process to revoke the letters of administration

granted to him on account of irresponsibility. Regarding the second complaint, indeed, the administrator wrote to the court a letter dated 01/12/2020 stating that he was no longer capable to administer the estate for health reasons. This letter was not acted upon by the court and since in his counter affidavit he states that he later withdrew the resignation before the court confirmed it, the attempted renunciation by itself cannot be a sufficient reason to revoke his letters of administration. In view of the foregoing, the application for revocation of the administrator's letters of administration is dismissed for want of merits without costs. I turn to the challenged accounts in the probate and administration cause. Pursuant to the decision of the Court of Appeal, on 22/11/2021, I ordered the administrator to file a fresh statement of accounts by 1/12/2021. He complied. However, once again, he bequeathed to Hawa Mengele and his son Nguruti Musiba Jigabha the only house in the estate. Monica Nyamakare Jigabha through James Theodory, learned advocate, resisted the account on one reason which is that Hawa Mengele Is not in the list of heirs in the petition. Monica is represented by Emmy Msomba and James Theodory, learned advocates. 5 The administrator replied that he has bequeathed the house to Hawa and his son because she has proved that she was the wife of the deceased

after they married in 1980. Emmy Msomba, learned counsel, rejoined that if the administrator discovered new facts like, that there are other persons entitled to inherit the deceased's estate, he ought not to have acted unilaterally without seeking court's direction first. The learned counsel cited no law or case law to support her argument. The issue for my determination is whether an administrator has powers to bequeath properties in the deceased's estate to persons other than those listed in the petition. Section 33 (1) of the Probate and Administration of Estates Act [Cap.352 R.E 2002] reads: - 'where the deceased had died intestate letter of administration of his estate may be granted to any person who, according to the rules of the distribution of the estate of an intestate applicable in the case o f such deceased, would be entitled to the whole or any part of such deceased's estate'. The administrator is a nephew of the deceased. Therefore, he had no automatic right of appointment as administrator since he is not entitled to the whale or any part of the deceased's estate. However, he got the qualification after the family meeting proposed him and the heirs consented to the proposal that he petition for letters of administration. His appointment, therefore, was based on family trust in him not legal right in terms of the above stated section of the law. The practice of

family meeting to deliberate on the deceased's estate obtains at paragraph 6 of the second schedule of the Local Customary Law (Declaration) Order (1963), GN 279/1963 which provides: - 'Baada ya matanga watu wa ukoo hukusanyika na wanahesabu urithi na kushauriana juu ya madeni yote aliyokuwa nayo marehemu' Even if this order is not of general application, this has been the practice country wide and I think it is a good practice. It follows, therefore, that in intestacy the decision of the family meeting is binding on the administrator to be appointed by the court more so when the proposed administrator is not one of the beneficiaries. Any person, aggrieved by the decision of the family meeting ought to express his grievances by a caveat or other lawful means possible. In this case, Hawa Salum Mengele never challenged the decision of the family meeting and the administrator's petition excluding her from the list of heirs. As I shall demonstrate, hereunder, she appeared in court to support the petition. Before his appointment the petitioner, Monica and Hawa made unsworn statements before this court. In his statement the administrator had this to say: - 'In the family meeting it occurred the issue o f Hawa Saium Mengeie who said was wife o f the deceased and is the mother o f Nguruti who is the first born child of the deceased. This woman also said she built the house o f

Mikocheni with the deceased. What we agreed is to recognise the second wife o f the deceased who is Monica Nyamakare Jigabha. Monica said when they married each (sic) the house was semi finished and they completed the same when she was living with the deceased' On her part, Hawa Mengeie made this statement: - 7 was the first wife of the deceased and we married each other in 1980. My marriage with deceased broke down and the deceased deserted me in 1986. Our marriage was not terminated officially. I celebrated Islamic marriage and I have Islamic certificate of marriage' On her part, Monica has this to say: The house was built through the THB loan and we paid the said loan together and not that the house was built by the deceased and the first wife. I pray the court to know the lawful heirs who were recognised by the members of the family of the deceased to be the 8 second wife of the deceased who was living with him at the time of his death and his two children as mentioned by the petitioner. We married each other in 1991' On the other part of the statement, she said: - 1when we came from Germany, we found Hawa Sa/um Mengele who is saying was the wife o f the deceased had been married by another man who was a teacher at IFM institute' The administrator said that he bequeathed the house to her for being the wife of the deceased. However, this same administrator attended the

family meeting which entrusted him to execute its decision after deliberating on those issues. Therefore, by his coming up with a new finding without involving the family, in my view, is abuse of trust. The family meeting identified both the heirs and the property to be administered and Hawa conceded. If Hawa was not satisfied with the decision she ought to have files a caveat to assert her rights. Her acquiescence means she supported the petition. Her claim seems to be based on allegation that she contributed in the construction of the house as first wife of the deceased. However, such a claim is untenable because here we are not dealing with division of matrimonial assets but deceased's estate. Musiba Reni Jigabha (the deceased) is no longer with us to counter Hawa's arguments that she contributed towards acquisition of the said property. Such a claim has been overtaken by events. In Monica Nyamakare Jigabha's V. Mugeta Musiba Bhakome and Hawa Salum Mengele, Civil Application No 199/01 of 2019, Court of Appeal - Dar es Salaam unreported the Court of Appeal made the following remarks: 7/7 our respective opinion, both common sense and iogicf dictate that, the 2nd respondent ought to have traced the title from the administrator for a gentleman's agreement with the administrator. In case, the administrator refused to recognise her then she ought to have filed a suit against him

where the applicant could also have a chance to be impleaded as a party their in' This is the case in which Monica challenged the decision of this court to list Hawa as a heir. It seems that the administrator and Hawa have entered into a gentleman's agreement and he has decided to once again bequeath the house to her and her son in line with the above opinion of the Court of Appeal. With respect to the administrator the statement by the Court of Appeal was an orbiter dictum which does not relate to any issue for determination by 10 the court in that case. Therefore, it was not intended to establish any rule of practice that an administrator can bequeath the deceased's estate anyhow and to anybody he deems fit. That would amount to turning administrators into untouchables. The circumstances and context in which above statement was made are distinguishable to the issue in this case which is whether the administrator can bequeath the deceased's estate or a part thereof to a person not listed in the petition while the issue that was before the Court of Appeal was whether a court, upon application by a person claiming to be a heir, has powers to list that person as heir. Further, it is my view that any gentleman's agreement entered by the administrator in relation to the estate must be in accordance with the law. The law is that the rightful heirs are those listed in the petition

per section 56 of the Probate and Administration of Estates Act. In terms of section 56 (1) (b) of the Probate and Administration of the Estate Act, the petitioner must state in the petition the family or other relatives of the deceased. It is expectecj that heirs of the estate should be from this list. When upon, appointment, the administrator discovers another heir, he must, after agreeing with the family members, go back to the court to ask for direction to include him as heir in terms of rule 105 of the Probate Rules and section ii 65 of the Probate and Administration of Estate Act. This is what the administrator in this case ought to have done. In the event, I hold that in intestacy, the administrator has no powers to bequeath any property to any person other than those listed in the petition without approval of the court. It follows, therefore, that the accounts filed by the administrator bequeathing the house to a heir who is a stranger to the estate, namely, Hawa Salum Mengele cannot be confirmed. It is rejected. Consequently, under section 65 of the Probate and Administrator of Estate Act, I direct the administrator to distribute the properties to those who were listed in the petition only. As this case has been pending since 2016, I order him to do so within two weeks from the date of this decision. I.C. MUGETA

JUDGE 12 Court: Ruling delivered in chambers in the presence of Mugeta Bwire Bhakome, the administrator and Emmy Msomba advocate for the Applicant who is also present. Sgd: I.C. MUGETA

JUDGE 07/ 02/2022 13