20160729 TZHC Dodoma1

IN THE HIGH COURT OF TANZANIA At

AIDODOMA (PC) Probate Appeal No. 2 of 2015 (Arising from the decision of the District Court of Dodoma in Probate Appeal No. 6 of 2013 and Original Probate Cause No. 14 of 2013 at Chamwino Primary Court) SANGO R. KIPOZI APPELLANT

VERSUS KARWA IBRAHIM ATHUMANI ........... 1st RESPONDENT KASOLWA IBRAHIM ATHUMANI 2nd RESPONDENT 3.WAFARA IBRAHIM ATHUMANI ......... 3rd RESPONDENT 4. PANGAPANGA IBRAHIM ATHUMANII 4th RESPONDENT

JUDGMENT Date of Last Order: 19/07/201 6 Date of Judgment: 29/07/2016 SEHEL, J. This appeal originates from Chamwino Urban Primary Court (hereinafter referred to as "the trial court"). On 21st day of February, 2012, the appellant, Sango R. Kipozi filed a Probate and Administration Cause No. 4 of 2013 at the trial Court seeking to be appointed as administrator of the estates of her late father, Ramadhani Athumani who died on 20th day of November, 1997 at Dodoma. Plot No. 1 Block 12 situate at Mji Mpya within Dodoma Municipality was amongst the estates listed by the appellant as 1 AAZ forming part of the estates of her late father, Ramdhani Athumani. On 22nd day of February, the trial Court appointed the appellant as the administrator of the estates of Ramdhani Athumani. On 7th day of March, 2013, the respondents filed their objection at the same Court objecting the appointment of the appellant by advancing the following reasons: Family members meeting was not convened to cloth the • appellant with a right to petition for letters of administration; Ninety days notice was not issued by the trial Court to enable persons who have objection to object for the appointment; Plot No. 1 Block 12 Mji Mpya Dodoma is already under the administration of the 1st respondent since 28th day of October, 1993. The objection was heard by the same magistrate and both parties called their witnesses.

At the end, the trial Court dismissed the objection. It held: "Mahakama hii baada ya uchambuzi na ufafanuzi wa kina inatupilia mba/i pin gamizi hi/i Ia wapingaji kwa kuwa Msimamizi San go R. Kipozi ni halali na taratibu zote zilifuatwa, mamlaka nyingine juu ya ardhi na jinai zinao wajibu wa kushughulikia swala hi/i kwa kina. Kadha!ika hakuna utata kuwa nyumba iliyo kiwanja No. 1 Block 12 ni mall ya Ramadhani Athumani Baba wa Msimamizi wa shauri hill The respondents were dissatisfied with this decision hence they filed an appeal to the District Court of Dodorna at Dodoma (hereinafter referred to as the first appellate Court) advancing two main grounds of appeal; namely: That the Honourable trial Magistrate erred in law and fact in not mentioning the appellant as parties in this matter in his judgment while the appellant are the oneswho raised the objection;• That, the Honurable trial Magistrate erred in law and fact in holding that the house on Plot No. 1 Block 12 Mji Mpya Dodoma Municipality belongs to Ramdahani Athumani, the father of the respondent without any evidence to that effect. The appeal at the first appellate Court was disposed of by way of written submissions. In arguing ground number one, the respondents also raised an issue of failure to place a ninety days publication. After hearing the appeal, the first appellate Court revoked the appointment of the appellant

with the reason that the proper procedure for appointment was not followed as no publication was made to allow interested parties to respond. It further went on to say that Rukia Ramdhani who is the close relative of the appellant did not adduce evidence at the trial Court to confirm the appointment of the appe 3 Aggrieved with the finding of the first appellate Court, the / appellant through the services of Machibya Professional Attorneys filed an appeal to this Court. Three grounds of appeal were fronted, these are: That, the Honourable District Court erred in law and fact in revoking the appointment of the Appellant as the administratrix without legal justification; That; the Honourable District Court misdirected itself in deciding itself on the matters which were not appealed and the appellant was not given opportunity to be heard on them. That, the Honourable District Court erred in law and fact in not considering the submission of the appellant and legal arguments raised therein. At the hearing of the appeal, Machibya, learned advocate from the law firm of Machibya Professional Attorneys appeared to represent the appellant while the respondent had the legal services of Nyabiri, learned advocate from Nyangarika & Company Advocates. Mr. Machibya, in arguing the first ground of appeal, submitted that the appointment of the appellant was revoked by the first appellant Court while it was not one of the grounds of appeal. He also argued that the reasons for revoking the appellant's appointment had no justification since the respondents were able to 4 file their objection despite that there was no publication. It was the counsel's view that the first appellate Court should have in mind Section 37 (1) of the Magistrates' Courts Act, Cap.

11. For the second ground, the Counsel pointed to this Court that at page 2 of the judgment, the Senior District Magistrate stated that one of the close relative namely Rukia Ramadhani was not given an opportunity to be heard. It was the Counsel's submission that though Rukia Ramadhani is the younger sister of the appellant but she has never lodged any complaint and any appeal as such to include her in the decision as a ground to revoke was not right. For the last complaint, it was stated by the Counsel that the first appellate Court failed to consider their argument as to why there was ô need of prompt appointment further the law does not provide for a specified time frame for publication. With these submissions, the Counsel prayed for the appeal to be allowed with costs. It was responded by Nyabiri, learned advocate that the appointment of the appellant was done contrary to the law. He said Rules 5(2) and(4)of the Primary Courts (Administration of Estates) Rules, GN 49 of 1971 requires for citation before the grant but in this appeal there was no citation. He submitted that even the trial magistrate noted the requirement of the law as it is reflected at page 4 of the proceedings but the trial magistrate decided to ignore the legal requirement. It was the view of Counsel Nyabiri that the trial 5 magistrate went against the law simply because he wanted to cover the issue of the

disputed house. In support of this submission, he urged this Court to take note of the statements appeared at pages 2 and 5 of the proceedings. In conclusion, the Counsel submitted that the mischarge of justice done by the trial Court was noted by the District Court that is why the appointment was revoked. He prayed for the appeal to be dismissed with costs. It was re-joined that the proceedings and judgment referred by the Counsel for the appellant were before the objection was raised. The Counsel further reiterated that the law does not provide for specific time frame for publication and that no injustices was made to the respondents as they had a right to be heard. I prefer to start with the complaint as to whether it was wrong for the first appellate Court to revoke the appointment of the appellant. As correctly submitted by the Counsel for the appellant, the first appellate Court revoked the appointment of the appellant after noting that there was no publication before the grant and because the close relative of the appellant one Rukia Ramadhani was not summoned to testify. I gathered from the proceedings and submission of both counsels that it is true that publication was not made. Rules 5 (2) and (4) of the Primary Courts (Administration of Estates) Rules, GN 49 of 1971 reads: "(2) Where the Court intends to proceed of its own motion under Paragraph 2(a) or 2(b) of the

Fifth Schedule to the Act, 6 or receives an application under sub-rule (1) or rule 3, the court shall issue a notice in the appropriate Form to all persons (other than the applicant) known or alleged to be the near relatives of the deceased person or to have been named in his will as executors, requiring their appearance in the court on such date and time as may be specified in the notice: Provided (Not Applicable) (4) The court may, if it considers, necessary cause the notice to be advertised by such means as are used locally to make public announcements or by publication in a newspaper having a substantial local circulation, whichever may be appropriate." It follows then that it is mandatory for the nàticeto be issued to all persons known or to be alleged the near relatives of the deceased. The purpose of notice is to invite interested parties to file any objection if they have. I do not subscribe to the argument that since respondents has opportunity to file objection then no injustices was caused upon the respondents. The object of notice as I said is not targeted only to the respondents but to all interested parties. The failure to issue notice was contrary to the law and rendered the whole proceedings illegal. I concur with the findings of the ]st appellate Court that since the law was not complied with then the appointment of the administrator ought to be revoked. This

finding also disposes grounds number one and two since if cannot be said 7 with certainty that Rukia Ramadhani had no complaint over the appointment because no notice was issued to her. All in all, the appeal is hereby dismissed as the District Court was right in revoking the appointment of the administrator because the law was not complied with in the appointment of the administrator. DATED at Dodoma this 29th day of March, 2016.

JUDGE 29th March, 2016. Judgment delivered in open court at Dodoma, under my hand and seal of the court, this 29th day of July, 2016 in the presence of Ms. Mbasha, learned advocate for Appellant and Mr. Kidumage, learned advocate holding brief for Mr. Nyabiri, learned advocate for Respondents. Right of Appeal is fully explained. B.M.A Sehel .7' 1

JUDGE 29th July, 2016. '1 8 . '