20080318 TZHC Songea

~Vh • IN THE HIGH COURT OF TANZANIA ATSONGEA MISC. CIVIL REVISION NO. 3 OF 2005 SONGELA DISTRICT COURT PROBATE ADMINISTRATION REVISION NO! 1 OF 2005 (ORIGINAL MAPOSENI PRIMARY COURT PROBATE ADMINISTRATION CASE NO. 12 OF 2000) SIKUJUA SHAIBU KALUWA ........... APPELLANT VERSUS: SHAIB S. KALUWA .................... RESPONDENT JUDGMENT: This an appeal which originate from Maposeni Primary Court. The parties are brother and sister from same mother who is now deceased and subject matter is based on her estate. ·Ever since the death of their mother one Hadija Halfani Komba there has been unpleasant relationship between the parties. The deceased left five heirs but only the two have been quarreling for the estate. The appellant had been appointed Administrator to the estate but her appointment was reibcked by the District. She alleged to be ignorant of the revocation and that, her brother have been mishandling the deceased's estate for his own benefit. Likewise the respondent has equally blamed his sister for being untrustworthy on distributing the proceeds. I do not hastate to say openly that the two heirs might have ceremonized their mother death with greed and merriment. My reason for that observation is mainly on the manner they have both handled this issue on being appointed as administrator or administrax. The other heirs have never shown interest and they even do not appear before the Court to l ~ witness the proceedings. The appellant have written complaining letter~ to the higher authority of the Court system inspite . of t he fact that her appeal was yet to be determined. The ill humour between them has prompted into Criminal prosecution to the respondent. No wonder Goods wisdom spelt out that every person would t:at from his own sweat. Likewise the Law of negation and negation is not discriminatory to the rich or poor. One sows that which he will not reap and another reaps that which he did not sow. That is natural law which should be respected. The grounds of appeal land arguments advanced have no merit because I see both parties having ditty hands. Nobody has effected the obligations required for an administrator. Being an administrator does not mean being a hear, even if the administrators happens to be one of the heirs, he would not be entitled the assets alone he would only get that which • is of his right as an heiron division of the properties. In the case at hand each has complained against another of appropriating the properties, I have made to believe on those allegation because neither of the two have filed an inventory in fulfillment to his/her obligation as an administrator. · In the analysis I find this is a proper. estate to be administered by a natural person for the interest of Justice. I therefore exercise the powers conferred to me under section 85 (1) (b) and 2. That Law provides:- "Where an administrator of a small estate has been appointed under this part, no grant of probate of the will of the deceased or of letters of administration of his estate shall be made:- (b) by the High Court unless it considers the grant is necessary in the interests of Justice or for the protection of any beneficiary or creditor. As provided for them this court is now appointing the Administrator General to under take the administration of the estate under Section 52 of the Administrator- General (Powers and functions) Act. That is in compliance to section 85(2) of the Probate and Administration Estates Act, Cap. 352 [RE. 2002] which provides:- "A grant by the High Court of probate of the will of the deceased or of letters of administration of his estate shall operate to REVOKE any appointment of an administrator under this part. Such revocation shall have the same effect as does the revocation of letters of administration". Now that the deceased professed Islamic religion, her estate would be administered according to Islamic Law. Appeal upheld to that effect. Due t9Jhe:11at:1Jre oft he judgment I make no order as to costs. --_:.~:~:-.fi~>---~ \ .. ·. \ "· i- t:.•::: ·1 \;r,) : :,1,i f / ! t ,it- ; p /.l S.S. ~A~A77r . JUDGE 18/3/2008 SSK/PJL.