SAFARI DAUDI MARIDADI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC CIVIL APPEAL NO. 26858 OF 2023 (Arising from Probate Appeal No. 23 of 2023 of Sengerama District Court and Originating from Probate Cause No. 04 of 2008 of Nyamatongo Primary Court) SAFARI DAUDI MARIDADI…….….…………………………..………..……APPELLANT VERSUS GAMALE DAUDI FUNGAMTAMA….………………………………………RESPONDENT JUDGMENT 12th June & 12th June, 2024. Kilekamajenga, J. This matter has been in our court corridors since 2008. The deceased, Daudi Fungamtama Maridadi, died intestate on 14th September 2004 leaving behind children including the appellant and respondent; and some properties. In 2008, the respondent petitioned for appointment as an administratrix of the estate before the Primary Court of Nyamatongo and she was so appointed on 29 th May 2009 through Probate Cause No. 04 of 2008. Until 2022, the respondent never discharged the duties and responsibilities of the administratrix. Aggrieved with the respondent’s move, the appellant, who possibly did not know the proper procedure, petitioned for an appointment at Sengerema Urban Primary Court and he was appointed. After noticing the appellant’s appointment, the respondent impugned the appellant’s appointment for the reason that she was the only 1 administratrix of the estate. The District Court of Sengerema invoked its revisional powers by setting aside the appointment of the appellant. On 10th March 2023, the appellant moved the Primary Court of Nyamatongo seeking to revoke the respondent’s appointment because the respondent failed to discharge her duties as administratrix of the estate for over fourteen years. Furthermore, it was revealed that the respondent was illegally disposing of the deceased’s estates for her gain. On 11th May 2023, the respondent’s appointment was revoked. The respondent appealed to the District Court vide Probate Appeal No. 23 of 2023 where the decision of the Primary Court was reversed. The District Court extended the time for the respondent to file the inventory within four months. The appellant was unhappy with the decision of the first appellate court and hence appealed to this court with two grounds thus: 1. That, the District Court erred both in law and fact for extending time to the respondent for filing inventory while it was not seized with jurisdiction. 2. , the District Court erred both in law and fact for extending the time for another four months from 06th September 2023 to the respondent without considering the previous extension of time granted and lapsed fruitlessly. On the hearing of the appeal, the counsel for the appellant, the learned advocate, Mr. Denis Pauline prayed for the adoption of the petition of appeal. He informed the court that, the District Court had no jurisdiction to extend time for the filing of the inventory. Extending time for the respondent to file the inventory was contrary 2 to the law because it was not among the grounds for appeal. Also, the parties were not afforded the right to address the court on the issue of extension of time, something which contravenes the law as stated in the case of Said Mohmed Said v. Muhusin Amir and another, Civil Appeal No. 110 of 2020, CAT. On page 10 of the decision, the Court of Appeal quoted the case of Wegesa Joseph M. Nyamaisa v. Chacha Muhogo, Civil Appeal No. 161 of 2016 which stressed the right to be heard. The counsel insisted that the extension of time to file the inventory done by the District Court without affording the parties the right to be heard is contrary to the law. He urged the court to set aside the decision of the District Court and uphold the decision of the Primary Court. In response, the respondent, who appeared in person and without legal representation, objected to the reasons advanced by the counsel for the appellant. In her view, the District Court rightly decided this matter. She emphasized that, all the procedures for extending the time to file the inventory were followed. Therefore, the appellant has no good reason to fault the decision of the District Court. When rejoining, the appellant’s counsel stressed that, the administratrix has never filed any inventory and unfortunately, the District Court extended time to file 3 inventory without any justification. He reiterated the prayer to set aside the decision of the District Court and uphold the decision of the Primary Court. Principally, the ground advanced by the appellant revolved around one issue; whether the first appellate court was right in setting aside the decision of the Primary Court and extending the time for the respondent to file the inventory. I have already hinted, the respondent’s revocation was premised on two major reasons. First, the respondent was appointed to administer the deceased’s estate in 2009. Until the filing of the application for revocation in 2023, the respondent had never filed the inventory nor distributed the estate. A period of almost fourteen years lapsed since the respondent was vested with the power to administer the deceased’s estate. Under the law, the duties of the administrator of the estate are threefold. One is to identify the deceased’s estates. Two, to pay any debt due to the deceased. Three, distribute the estate to the lawful heirs according to the law. Rule 5 of the Fifth Schedule to the Magistrates’ Courts Act provides that: 5. An administrator appointed by a primary court shall, with reasonable diligence, collect the property of the deceased and the debts that were due to him, pay the debts of the deceased and the debts and costs of the administration and shall thereafter distribute the estate of the deceased to the persons or for the purposes entitled thereto and, in carrying out his duties, shall give effect to the directions of the primary court. 4 The hard reading of the court record does not leave any doubt, the respondent never filed any inventory after her appointment. When the appellant applied for revocation, the respondent hastily attempted to file the inventory. Alas, that was after fourteen years. All this time, the respondent has illegally held the deceased’s estates while camouflaging herself as a needy person who deserves a lion’s share in the distribution of the estate. Further information available in the court file shows that the respondent has unjustifiably doctored unfounded criminal allegations against the other heirs. Second, there were allegations that the respondent misappropriated the deceased’s estate. The court file is packed with compelling information about the respondent’s misuse of the estates. The two above reasons prompted the respondent’s revocation. In my view, the Primary Court rightly invoked its powers. Precisely, the decision of the Primary Court was the most desired though delayed for over fourteen years. Unfortunately, the respondent does not, even on the balanced below preponderance of probability, worthy to retain the powers of an administrator of the estate. The respondent has masqueraded as the owner of the estate rather being the administrator. She does not need mercy to be stripped of the power of an administrator. Under Rule 9(1) of the Primary Courts (Administration of Estate) Rules, G.N No. 49 of 1971 the appointment of an administrator may be revoked due to the following reasons: (a) That the administration had been obtained fraudulently; 5 (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). The facts at hand do not leave any shred of doubt that the respondent has acted against the terms of the grant and she has wilfully refused to distribute the estates to the beneficiaries for over fourteen years. At best, she deserves revocation. In expounding the grounds of appeal, Mr. Pauline for the appellant argued that the first appellate court was not justified to extend the time for the respondent to file the inventory. In his view, the first appellate court unjustifiably granted an extension of time because that was not among the grounds of appeal. Also, the parties were not afforded the right to be heard on the same issue. I also subscribe to the argument advanced by the counsel for the appellant, there was no good cause to extend the time for the respondent to file the inventory after she had failed to do so for more than fourteen years. Furthermore, as rightly argued by the counsel for the appellant, the parties were not afforded the right to address the court on the extension of time. I have previously stated in other cases that, 6 the trend of justice has shifted towards strict observance to natural justice that calls for parties to be heard on every matter that may result to an order affecting their interests. The right to be heard is the fundamental constitutional right enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. See, the case of The Managing Director Kenya Commercial Bank (T) Limited and Albert Odongo v. Shadrack J. Ndege, Civil Appeal No. 232 of 2017, CAT at Mwanza (unreported). Based on the principle of justice, a court cannot decide on any matter that affects the parties without affording them the right to be heard. In the case of Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] TLR 251 the court stated that: “…natural justice is not merely a principle of the common law, it has become a fundamental constitutional right, Article 13(6)(a) includes the right to be heard among the attributes of equality before the law.” The above principle of law is reiterated in a number of cases. For instance, in the case of I.P.T.L. v. Standard Chartered Bank (Hong Kong) Ltd, Civil Revision No. 1 of 2009 (unreported), the court stated that: “no decision must be made by any court of justice, body or authority entrusted with the power to determine rights and duties so as to adversely affect the interest of any person without first giving him a hearing according to the principles of natural justice.” 7 See also the cases of Margwe Erro and 2 others v. Moshi Mohalulu, Civl Appeal No. 111 of 2014 (unreported); Mire Artan Ismail and Anr v. Sofia Njati, Civil Appeal No. 75 of 2008 (unreported) and Kluane Drilling Ltd v. Salvatory Kimboka, Civil Appeal No. 75 of 2006, Cat at Dar es salaam (unreported). The right to be heard must be guaranteed by courts regardless whether the party has substantial reasons to present before the court. In the case of Halima Hassan Marealle v. Parasistatal Sector Reform Commission, Civil Application No. 84 of 1999 the court observed the following: “The concern is whether the applicant whose rights and interests are affected is afforded the opportunity of being heard before the order is made. The applicant must be afforded such opportunity even if it appears that he/she would have nothing to say, or that what he/she might say would have no substance.” For the reasons stated above, I find merit in the appeal and hereby proceed to set aside the decision of the District Court and uphold the decision of the Primary Court which revoked the respondent’s appointment. I further direct the Primary Court of Nyamatongo to take necessary steps against the respondent for the misappropriation of the deceased’s estate. It is so ordered. DATED at Mwanza this 12th Day of June 2024. 8 Ntemi N. Kilekamajenga. JUDGE 12/06/2024 Court: Judgment delivered this 12th Day of June 2024 in the presence of the counsel for the appellant, Mr. Denis Pauline and the appellant and respondent present in person. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 12/06/2024 9