NUSURA MUSTAPHA KOORUGENDO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC PROBATE APPEAL NO. 26514 OF 2023 (Arising from Probate Civil Appeal No. 21 of 2023 of the District Court of Ilemela and Originating from Probate Cause No. 22 of 2022 of Ilemela Primary Court) NUSURA MUSTAPHA KOORUGENDO………………………..………..……APPELLANT VERSUS EDDA MUSTAPHA KOORUGENGO……..…………………………………RESPONDENT JUDGMENT 11th June & 21th June, 2024. Kilekamajenga, J. A closer reading of the court record reveals the following information; the late Mustafa Rutta Korugendo died on 21st August 2021 leaving behind two children, a widow (the respondent) and some estates. In the first marriage, the deceased had two children, Nusura Mustapha Koorugendo (appellant) and Nuriat Mustafa Koorugendo. Later in 1991, the deceased married the respondent but they were not blessed with any child. However, at the time of their marriage, the deceased found the respondent with a child from another man. Her name is Asha. The love and affection from the respondent allowed the deceased to take care of Asha as his child. After the deceased's death, the clan convened and proposed the appellant and respondent to administer the deceased’s estate. Immediately after that, the respondent rushed to the Primary Court of Buswelu seeking to be appointed the administratrix of the estate. The respondent was appointed 1 administratrix on 27th September 2022. On 03rd October 2022, the respondent filed form number V indicating the list of the deceased’s estate. On 17th October 2022, she filed form number VI showing the distribution of the estate to the heirs. After realizing that the respondent distributed the estate without consulting the beneficiaries, the appellant filed an objection before the Primary Court on 28 th November 2022. In the objection, the appellant sought the respondent’s revocation on four grounds; that the respondent’s appointment contravened the proposal from the clan; that the respondent did not consult the beneficiaries on the distribution; that the respondent gave to herself most of the properties by 100 per cent leaving the other beneficiaries with nothing or a little share; and that, the respondent distributed some of the properties to Asha who was not the child of the deceased. The Primary Court found merit in the four grounds of objection and revoked the respondent’s appointment. The Primary Court went further appointing a neutral person to administer the estate. Irked with the decision of the Primary Court, the respondent appealed to the District Court of Ilemela. The District Court set aside the decision of the Primary Court and advised the parties to resolve their differences over the contested inventory. The appellant appeared before this court challenging the decision to set aside the decision of the Primary Court. The appellant is armed with three grounds that: 2 1. That, the first appellate court erred both in law and in fact for denying to consider the trial court record that the caveat was heard and the administrator (respondent herein) proved failure to cooperate in the rectification of the inventory as claimed. 2. That, the first appellate court erred in law and fact by raising the issue of jurisdiction without considering the reasons for revocation of the respondent herein as an administrator. 3. That, the first appellate court erred in law and fact for failure to give parties as way forward after quashed and set aside the decision of the trial court after holding that the trial court go astray. When the appeal came for hearing, the appellant appeared unrepresented whereas the respondent appeared and enjoyed the legal services of the learned advocate, Mr. Alex Luoga. In expounding the grounds of appeal, the appellant who was a lay person briefly faulted the District Court's decision because it failed to realise that the respondent acted on the estate against the wills of the beneficiaries. The respondent is reluctant to consult the beneficiaries in the amendment of the inventory. She further assailed the District Court for deciding that the Primary Court had no jurisdiction to determine the application for revocation after the respondent filed the inventory. Also, after setting aside the decision of the Primary Court, the District Court did not give further directives on the administration of the estate. The appellant urged this court to set aside the decision of the District Court. 3 In response, Mr. Luoga for the respondent argued that the appellant had no right to challenge the respondent’s appointment after the filing of the inventory. When addressing the third point, Mr. Luoga was of the view that the District Court ordered the respondent to administer the deceased’s estate. He prayed for the dismissal of the appeal for the respondent to proceed with the administration. After the counsel’s submission, there was no rejoinder from the appellant. Having considered the brief submission from the parties and careful perusal of the court file, it is pertinent to address the grounds of appeal. On the first ground, the appellant was unhappy with the decision of the first appellate court which reversed the decision of the Primary Court. She insisted that the respondent being an administratrix had failed to consult the beneficiaries in the rectification of the contested inventory. I have carefully perused the court file and as hinted above, the respondent, through form number V, filed a list of the deceased’s estates on 17th October 2022. The form shows a long list of estates, from real estate to bank accounts. On the same date, the respondent also filed form number VI indicating how she distributed the estate. A glance on form number VI confirms that the respondent gave to herself most of the properties by 100 percent. While the respondent is also one of the heirs, she ought to be guided by form number one which she indicated that the deceased professed Islamic faith. Over all, the respondent distributed some properties to Asha who was not the child of the 4 deceased. The Primary Court record further shows that the respondent has been urged, on several occasions, to resolve the difference originating from the discrepancies in the distribution, but she does not cooperate. See, page 2 of the Primary Court decision on the objection. The Primary Court revoked the respondent’s appointment because she was reluctant to cooperate in filing a corrected distribution of the estate. I am aware that the administrator is not legally bound to consult the other beneficiaries before filing the distribution of the estate. Prudence is required, for the smooth administration of the estate, the administrator should consult the other heirs. In the case of Joseph Shumbusho v. Mary Grace Tigerwa, James Rugaimukamu, David Rugaimukamu, Civil Appeal No. 183 of 2016, CAT at Dar es salaam, the Court of Appeal stated that: “Nonetheless, we entirely agree with the trial judge that the obligation to consult is derived from the fiduciary duty whereby prudence requires an administrator to make consultation for smooth administration leading to a peaceful conclusion of administration but is not a statutory requirement. It is a matter of prudence rather than legal obligation. There is no law which demands the administrator to seek for the consultation from other beneficiaries on dividing the deceased’s estate. However, as rightly submitted by Mr. Vedasto, common sense dictates that consultation in dividing the deceased’s estates is of great importance, particularly, where the deceased dies intestate. Prudence in the process of distributing the deceased’s estates to the beneficiaries would entail consultation before distribution and filing the accounts but there is not law that imposes such an obligation for it to be shown in the accounts.” 5 In this case, the respondent is entirely reluctant to consult the beneficiaries. Moreover, she is not willing to amend the distribution even after being challenged for including a person who is not a legal heir. In my view, the respondent is acting against the interest of the beneficiaries and therefore contravened Rule 9(1) of the Primary Courts (Administration of Estate) Rules, G.N No. 49 of 1971 which provides grounds for the administrator’s revocation that: (a) That the administration had been obtained fraudulently; (b) That the grant had been made in ignorance of facts the existence of which rendered the grant invalid in law; (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 wilfully or negligently against the interests of creditors, herein or beneficiaries of the estate. (Emphasis added). Based on the reasons stated above, I find merit in the first ground of appeal. On the second ground, the appellant challenged the decision of the District Court for deciding that, the Primary Court had no jurisdiction to revoke the respondent’s appointment who had already filed the inventory. According to the first appellant’s court reasoning, the trial court lacks jurisdiction to revoke appointment immediately after the administrator files an inventory. I should emphasize, the 6 Primary Court has the power to revoke the administrator’s appointment upon the existence of sufficient cause. The court may do this at any time before the closure of the file which is always done after the administrator has discharged all the duties including ensuring that the estates are in the names and hands of the beneficiaries. On this point, I wish to stress the second paragraph of the Fifth Schedule to the Magistrates’ Courts Act, Cap. 11 RE 2019 which provides that: 2. A primary court upon which jurisdiction in the administration of deceased's estates has been conferred may- (a) either of its own motion or an application by any person interested in the administration of the estate appoint one or more persons interested in the estate of the deceased to the administrator or administrators, thereof, and, in selecting any such administrator, shall, unless for any reason it considers in expedient so to do, have regard to any wishes which may have been expressed by the deceased; (b) either of its own motion or on application by any person interested in the administration of the estate, where it considers that it is desirable so to do for the protection of the estate and the proper administration thereof, appoint an officer of the court or some reputable and impartial person able and willing to administer the estate to be administrator either together with or in lieu of an administrator appointed under sub-paragraph (a); (c) revoke any appointment of an administrator for a good and sufficient cause and require the surrender of any document evidencing his appointment; 7 (d) make orders as to the administration of the estate, and, in particular but without prejudice to the generality of the foregoing, as to the law to be applied in the distribution of the estate and as to advertising for creditors; (e) require an administrator to sign an undertaking to administer the estate faithfully; (f) require an administrator to give security for the due administration of the estate; (g) make orders as to the payment of the share in the estate of any minor or other person under a disability to a relative or other suitable person for the maintenance or otherwise for the use of such minor or person under a disability, or with the consent of the Public Trustee, to the Public Trustee; or (h) make any order which it has the power to make under this Act in cases of a civil nature. (Emphasis added). Also, according to Rule 8 of the Primary Courts (Administration of Estate) Rules, GN. NO. 49 of 1971 provides that: Subject to the provisions of any other law for the time being applicable the court may, in the exercise of the jurisdiction conferred on it by the provisions of the Fifth Schedule to the Act, but not in derogation thereof, hear and decide any of the following matters, namely (a) whether a person died testate or intestate; (b) whether any document alleged to be a will was or was not a valid or subsisting will; (c) any question as to the identity of persons named as heirs, executors or beneficiaries in the will; 8 (d) any question as to the property, assets or liabilities which vested in or lay on the deceased person at the time of his death; (e) any question relating to the payment of debts of the deceased person out of his estate; (f) (f) any question relating to the sale, partition, division or other disposal of the property and other assets comprised in the estate of the deceased person for the purpose of paying off the creditors or distributing the property and assets among the heirs or beneficiaries; (g) any question relating to investment of money forming part of the estate; (h) or any question relating to expenses to be incurred on the administration of the estate. (Emphasis added). The duties of the administrator of estate do not end by simply filing the inventory. A person remains an administrator until he/she discharges all the duties and the file is closed. During the tenure of administration, the Primary Court has the power to revoke his/her appointment where there are grounds stated in Rule 9 of the Primary Court (Administration of Estate) Rules GN. No. 49 of 1971. I entirely agree with the appellant’s argument that the District Court erred in deciding that the Primary Court had no power to revoke the respondent’s appointment on the mere reason that she filed the inventory. I find merit in the appellant’s ground. On the third ground, the appellant argued that, the District Court did not give further directives after setting aside the decision of the Primary Court. On the other 9 hand, Mr. Luoga argued that the District Court ordered the administrator to complete the task of administration. In this case, the District Court set aside the decision of the Primary Court and further advised the parties to resolve their differences over the filed inventory. However, the District Court did not provide any direction in case the administratrix is not willing to correct the contested inventory. Also, the District Court’s advice to the administratrix was just a repetition of what the Primary Court had already done but the respondent was not willing. In my view, the District Court’s decision left the parties in dilemma. I also find merit in this ground. In the upshot, the administratrix in this case is not willing to resolve the differences in the contested distribution of estate. Instead of distributing the estate, the administrator has turned herself into the valuable beneficiary. The administrator has gone further by distributing the estates to her child while knowing that the same child is not the biological daughter of the deceased. I find the administrator has acted against the interest of the beneficiaries and should be stripped of the powers of administration. I hereby allow the appeal, set aside the decision of the District Court and uphold the decision of the Primary Court. The file should be remitted to the Primary Court for the appointed neutral person to administer the estates according to the applicable law. No order as to costs. It is so ordered. 10 DATED at Mwanza this 21st Day of June 2024. Ntemi N. Kilekamajenga. JUDGE 21/06/2024 Court: Judgment delivered this 21st Day of June 2024 in the presence of the appellant and respondent present in person. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 21/06/2024 11 12