PHARES RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA MISC. CIVIL REVISON NO. 202404081000007607 (Arising from Probate Revision No.06 of 2023 from Bariadi District Court, the same arise from Probate and Administration Cause No.18 of 2011 from Somanda Primary Court) PHARES JOHN ...........................................................APPLICANT

VERSUS 1. TABITHA PHARES 2. EUNICE JOHN ..............................RESPONDENTS

RULING 12th June 15th July 2024 F.H. MAHIMBALI, J The nutshell of this matter is that the first respondent had filed objection proceedings before the first appellate court challenging the appointment of the applicant being administrator of the estates of her late father. It was further alleged that in 1994 the first respondent’s father one Phares Salyungu died intestate and left the first respondent and her sister Sapora Phares who now is also a deceased, who prior 1 petitioned for letters of administration before the trial Court. Sapora Phares was successfully appointed admnitratrix of the estate of her deceased father. She then distributed all the properties of the deceased, but before she had closed the probate file, she ultimately died on 2017. Being the case one Lugembe Phares Ngussa re-opened the matter and successfully petitioned once again for letters of administration of the estate of the late Phares Salyungu via probate Cause No.3 of 2021 before the trial court and granted letters of administration thereto. The first respondent was unhappy with that appointment she then successfully appealed to the first appellate court via Probate Appeal No.6 of 2021 and thus she was appointed as admnistratrix, she was then directed to proceed from where one Sapora Phares had ended. Lugembe Phares Ngussa was aggrieved by that decision, he lodged an appeal to this Court being Pc.

Civil Appeal No.54 of 2022 but the same was withdrawn. The second respondent filed objection proceedings before the trial court challenging the appointment of the first respondent on stance that she has no locus stand. The trial court ruled out by appointing the second respondent and the applicant to be co administrators. The acts not amused the first respondent, she then filed the impugned civil 2 revision before the first appellate court. The first appellate court after its thorough findings nullified the decision of the trial court and proceeded to revoke the appointment of the second respondent and the applicant. Dissatisfied by such decision the applicant had filed this revision contending that this court be pleased to call for and examine the record proceedings in Probate Revision No. 6 of 2023 of the first appellate Court alleging that he was not heard. During the hearing of the matter both parties appeared in person and unpresented. Amplifying for his application, the applicant submitted that being a son of John Phares who died intestate in 1990 and his grandfather one Phares Salyungu died in 1994. He further contended that the probate of the late Phares Salyungu was first administered by Ms Sapora and later replaced by the 1st respondent and the second respondent and himself as well. However, following his appointment with Eunice John as co-administrator, it has been

unfortunate that the District Court of Bariadi vide its revision No. 06 of 2023 revoked his appointment without being given the right to be heard. This is contrary to the dictate of the law. 3 He thus prayed that his affidavit be adopted by the court to form part of his submission. He however alluded that the 1st respondent cannot fill form No. iv as she was not appointed as administrator of the estate of the late Phares Salyungu. Whereas, the applicant fortified that Plot No. 120 Block A at – Sima Bariadi was not made part of the estate of the late Phares Salyungu. There is a clan meeting minutes in which establish the fact that the said property was not made part of that estate. The purported milling machine granted to the deceased John Phares, as per form no. vi, it was the personal property of John Phares, thus wrongly distributed to him in the process of administration of the estate. It is unfortunate that the deceased John Phares was distributed the said property while he had already died. There is nowhere the deceased John Phares signed accepting the said distribution. With plot No. 519 also – Sima Bariadi, the same is not the property of Phares Salyungu and thus not part of his estate. Re –introducing them as part of the properties of the deceased is introducing problems. The clan meeting’s minutes explicitly establish so. Also, looking at Form No. vi, the heirs of

Phares Salyungu who were supposed to inherit from it were listed only five but including the child of the 1st respondent. This form no. vi which was filed on 18th April 2012, the said form was 4 rebutted by the applicant as he was not satisfied with it. Amongst the properties listed in form no. vi included: one machine and its structure, farms-10 acres, one house – Block A. He also stated that it was agreed in the clan meeting that all the children of the deceased Phares John had to inherit from the estate of their father irrespective whether the said children are alive or dead as they would inherit through their surviving children. Thus, he prayed for the application be allowed. On the side of the first Respondent, she submitted that she is only surviving child of the late Phares Salyungu. The applicant and the second respondents being grandchildren of the deceased, Phares John have no direct inheritance right from this estate but from the estate of their father John Phares. She thus prayed her counter affidavit be adopted to form part of her submission. She stressed that as all the deceased properties were dully distributed during his life time, there is nothing left behind for the further distribution to his grandchildren. Them being now old enough, they are advised to look for their own properties and not the estate of their grandfather. As regards the said daughter of

herself inheriting from the deceased Phares is not her distribution but it was the pleasure of the deceased Phares himself during his lifetime in which she had no dictate to alter. She amplified 5 that, the said daughter was born while at the premise of the first respondent’s father and she grew there and was considered so by the deceased Phares himself. The 2nd Respondent stated that what has been stated by Phares John (the applicant) is true and she has no any objection with it. She thus prayed that this application be granted as prayed. Resting his submission, the Applicant maintained his position as stated above. That this application be allowed as prayed. I have closely followed the arguments by both sides, affidavit and counter affidavit. The controversial issue here for deliberation is whether this application has been brought with sufficient cause. It is trite law that only a person with interests with the deceased’s estate who can be appointed as administrator of the said estate. These can be children, heirs, spouses etc. However, in my considered view, being a mere son/daughter or spouse perse is not necessarily an automatic guarantee of having an interest to the estate of the deceased. It may largely accord with a presumption right. Be it known that, in our way of living, a spouse or children may have separate properties distinct from the deceased and thus no longer

dependent to the deceased. 6 Thus, upon his demise, it is not necessarily such a spouse or son/daughter assumes heirship right as well. It is only those who were mostly or in one way or another dependent to the deceased during his lifetime who are more interested with his estate who can be administrators as well as heirs of that estate. That means therefore, reading the law and position as stated in Seif Marare v. Mwadawa Salum [1985] TLR 253; and Sekunda Bwambo v. Rose Ramadhani [2004] TLR 439 administrator of the estate even if interested, is not necessarily a beneficiary to the estate of the deceased and further not necessarily an administrator comes from members of his household. Back to the case at hand, the applicant prays before this court for revision of the matter contending that he was not heard. Going through the records of the first appellate court, reveal that the parties to the suit; civil revision No.6 of 2023 were Tabitha Phares being applicant and Eunice John being the respondent. The verdict to the impugned decision affected the latter appointment of the applicant. Being the case it is true that the applicant was not heard on the matters affected him. 7 Clearly, I may not need to site any authority, that the right to be heard is fundamental. This right to be heard has been so emphasized by the courts of law to the extent that even if the same decision

would have been reached had the parties been accorded an opportunity to be heard. See the case of Mbeya Rukwa – Auto part Ltd vs. Justina Mwakyoma (2003) TLR 25, at page 265, Shabani Absis Sherally and Another vs. Abdul sultan Haji Mohamed, civil Application No. 33/2002 cited with approval at page 5 and 6 of the CAT’s decision in the case of Pilly Ernest vs. Moshi Musani, Civil Appeal No. 39/2019 unreported. I therefore, agree with the applicant that the first appellate Court erred when failed to accord him with the right be heard on matters pertaining to him. However, there is complaint of some estates to be included in a list of estates of the deceased and some were excluded. In my thorough findings the argument is misconceived as it has not substantiated with proof of evidence. Hardly there is sufficient evidence that the matter was attended to the finality by one Sapora as when she was about to close the case file, she passed away thus is 8 when the first respondent took the move and directed to accomplish the stage remained of closing the probate file. However, there is a piece of evidence that, much of the estates were distributed by the deceased himself in his life time. And the remained were distributed by Sapora. With these pieces of evidence, it is therefore unfortunate that the complained argument about being or not being estates of the deceased had no room for

discussion it now. The same had been addressed by the deceased himself and one Sapora as admnitratrix. Meanwhile, the applicant had complained that the clan minutes had not been honoured, being grandchildren were named amongst the heirs via their late father’s share to inherit the estates of their grandfather, and thus inclusion and exclusion of properties was also a subject matter of the meeting. In normal parlance, I do not agree with the applicant simply because clan minutes are not legal documents mandatorily to be honoured. What is looked upon, is a proper administration of estates of the deceased and justice to real heirs who were solemnly dependant to the deceased. 9 In the case of Elias Madata Lameck vs Joseph Makoye Lameck, Pc. Probate and Administration Appeal No.1 of 2019, Nasubi Jacobo vs Rosemary Bega William, Pc Probate Appeal No. 17 of 2021, the court well stated that clan minutes are necessary to simplify the administration process but not legally mandatory. Now, the complaint over clan minutes that was not honoured by the first respondent in my formed view is unfounded. Being revision matter, I have noted that the applicant and second respondent are not directly beneficiaries to the estates left by Phares Salyungu a father of the first respondent. Them, are only grandchildren of the deceased. By the way, the surviving first respondent may have more vested

rights than any other over the deceased’s estate. On his demise unless the contrary is established, normally those assets follow the survivor. A deceased person does not have a right of heirship. Meaning that a deceased person cannot inherit from another deceased person. So, the argument by the applicant and second respondent being grandchildren thus they have right to inherit via their father who is deceased is not correct. The battles for appointment are most likely fueled by a misconception. The office of an administrator has always been closely 10 linked with position and duties of an administrator of an estate. It is a duty of trust, not personal gain. The Court of Appeal in the case of Naftary Petro vs Mary Protas (Civil Appeal 103 of 2018) [2019] TZCA 357 (30 October 2019) while making reference to the case Sekunda Bwambo v. Rose Ramadhani [2004] TLR 439 which is the decision of the High Court by Rutakangwa, J. (as he then was), extracted in Sekunda Bwambo (supra) at pp. 443-444 describing it as a classic exposition of qualifications of a fit person for appointment as an administrator as well as the duties and responsibilities of such a person, thus: "The objective of appointing an administrator of the estate is the need to have a faithful person who will, with reasonable diligence, collect all the properties of the deceased. He will do so with the sole aim of

distributing the same to all those who were dependants of the deceased during his life-time. The administrator, in addition, has the duty of collecting all the debts due to the deceased and pay all the debts owed by the deceased. If the deceased left children behind, it is the responsibility of the administrator to ensure that they are properly taken care of and well brought up using the properties left behind by their deceased parent After the administrator has so faithfully administered 11 and distributed the properties forming the estate he has a legal duty to file an inventory in the Court which made the appointment giving a proper account of the administration of the estate. This action is intended to help any one of the beneficiaries who feels aggrieved at the way the property was distributed and thus dissatisfied to lodge his/her complaints to the Court which would in turn investigate the same and decide the matter in accordance with the dictates of the law. In view of all this, it is evident that the administrator is not supposed to collect and monopolize the deceased's properties and use them as his own and /or dissipate them as he wishes, but he has the unenviable heavy responsibility which he has to discharge on behalf of the deceased. The administrator might come from amongst the beneficiaries of the estate, but he has to be very careful and impartial in the way he

distributes the estate." [Emphasis added] Though each case must be decided by its own facts; I fully associate myself to the findings of the Court of Appeal to the position of the administrators in the estate of the deceased. It is an endless war between relatives. People must surely know the extent of their interests in the properties left by the deceased. Mostly, each one has to struggle for his own assets. Those in administration duties, should not interfere 12 with the rights of the real heirs. In the current matter, the applicant has to digest himself what interests has he in the said estate. If not, what share has he or what vested interests is with him over the said estate to the extent that he is aggrieved by the first respondent becoming administratrix? The deceased estate being not a SACCOS property or M- Mkoba or a partnership firm with shares, not every live member connected to the deceased is entitled to a share he/she did not contribute to it or. It is only those with more rights in dependence that are more eligible in the administration and heirship with the deceased’s estate. Thus, the first respondent having yet failed to perform such a duty, let her proceed with the said duty as appointed. In addition, as I am penning down, since the matter is revision and in exercising revisional powers conferred to this Court, I have found prudent to order that despite that

the applicant was not heard yet I do not see miracle for him to succeed even if he could be heard. Thus, the decision of the first appellate court is hereby upheld. The application by the applicant is dismissed. Taking into consideration that it is a probate matter I make no orders as to costs. Right to further is explained. 13 DATED at SHINYANGA this 15th day of July, 2024. F.H. Mahimbali Judge. 14