swed mohamed wetare vs hamidu mohamed wetare 2021 tzhc 5955 31 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA PC PROBATE APPEAL NO 4 OF 2021 SWED MOHAMED WETARE............................ APPELLANT VERSUS HAMIDU MOHAMED WETARE........................... RESPONDENT {Arising from Probate Appeal NO 14 of 2020 and PC Probate Appeal No. 8 of 2018 of Musoma District Court, originating from Probate No. 30 of 2010 and Probate Cause No. 112 of Musoma Urban Primary Court). JUDGMENT 2nd & 31st August, 2021 Kahyoza, J:, This is a second appeal originating from Probate No. 112/2014, where Swed Mohamed Watare petitioned to the primary court for letters of administration of the late Mohamed Wetare's estate. The primary court appointed to Swed Mohamed Watare administer the estate. Hamidu Mohamed Wetare instituted caveat proceedings seeking the primary court to revoke Swed Mohamed Watare's appointment. The primary court allowed the objection proceedings and revoked the appointment of Swed Mohamed Watare. Unsatisfied, Swed Mohamed Watare appealed to the district court, where he lost the appeal. Still aggrieved, Swed Mohamed Watare has approached this Court on the following grounds of appeal: - 1. That the first appellate court erred in law and fact for making its decision upon the nullified primary court decision of Hon Pendo Raphel RM, in probate cause No 112/2014 of which the same was nullified in the appeal stage at the district Court of Musoma in Probate Appeal No 08/2019 Before Hon R.R Mushi, RM. 2. That the first appellate Court erred in law and fact for failure to pronounce its judgment based on the preferred appeal that is the decision of Hon Mwaikambo primary court magistrate delivered on 10th August 2020 of which the same revoked the applicant appointment as the administrator of the estate of the late Mohamed Wetare 3. That, the appellant preferred the application for review for the present aggrieved decision to the district Court of Musoma before Hon Marwa T.J who rejected the application at the admission stage, hence, this present appeal. A brief background is vital to appreciate reasons for decision in this case. Mohamed Wetare died intestate on 3rd December, 2009. The deceased was survived by one wife and 6 children. In March, 2010, Hamidu Mohamed Wetare petitioned for letters of administration of the late Mohamed Wetare's estate. The primary court appointed Hamidu Mohamed Wetare to administer the estate of Mohamed Wetare, the deceased, on the 22/4/2010. Hamidu Mohamed Wetare filed on the 3rd, June, 2010 minutes of the family members distributing the estate of the deceased. The primary court considered the distribution of the deceased's estate on the 7/6/2010 and registered it on the same day. It stated- "AMRI: kwasababu ya ukubalifu wa familia ya mareheme. Mali ya marehemu naona sinabudi kuunga mkono maoni ya washauri na kusema mali ya marehemu igawanywe kama Ukoo ulivyo kuba liana kuwa;- 2 1. Ham idu Muhamedi Wetare msimamizi wa mirathi ape we Shs. 1,210,304/=. 2. Meneja MUWASA (Mamlaka ya maji taka na maji safi Musoma apewe Shs. 63,700/=. 3. Alex Majura mdaiwa wa Marehemu apewe Shs. 60,361.61/=" The records show that on the 19th August, 2014 Swed Mohamed Wetare petitioned before the same for letters of administration of the late Mohamed Wetare's estate. Swed Mohamed Wetare's petition was baptized as Probate No. 112/2014. On the 22/8/2014 the primary court appointed Swed Mohamed Wetare to administer the late Mohamed Wetare's estate. Hamidu Mohamed Wetare objected to the appointment of Swed Mohamed Wetare to administer the deceased's estate. Hamidu Mohamed Wetare objected to the appointment after the primary court had already appointed Swed Mohamed Wetare but before he filed Form V and VI. The primary court allowed the objection annulled the appointment of Swed Mohamed Wetare to administer the deceased's estate. The parties' legal squabble is a story to tell. After Swed Mohamed Wetare's appointment was revoked, he lodged Probate Appeal No. 8/2019. The district court nullified the proceedings before the primary court. Later, Hamidu Mohamed Wetare filed another caveat proceedings seeking Swed Mohamed Wetare's appointment to be revoked. On the 10.8. 2020 the primary court revoked the Swed Mohamed Wetare's appointment, vide Probate 112/2014. Undaunted, after Swed Mohamed Wetare's appointment was revoked he appealed to the district court for second time vide Probate Appeal No. 11/2020. On the 28/9/20202 the parties withdrew Probate Appeal No. 11/2020 so as to settled their differences out of court. It seems the parties were not able to reach the settlement as Swed Mohamed Wetare instituted another appeal in the district court which was baptized Probate Appeal No. 53/2020 or 14/2020. It is not clear how did manage to institute Probate Appeal No. 53/2020 or 14/2020. The appeal is referred to by both numbers. I did not see an application for extension of time. I heard the parties on the grounds of appeal and invited them to address me on the issue whether it was procedurally collect for Swed Mohamed Wetare, the appellant to instituted Probate No. 112/2014 when the respondent (Hamidu Mohamed Wetare) had already been appointed in Probate No. 38/2010 both before the same primary court. Swed Mohamed Wetare and his blood brother, Hamidu Mohamed Wetare were appointed to administer the estate of Mohamed Wetare by the same court on different dates. Swed Mohamed Wetare, submitted that the procedure was proper. The primary court magistrate advised him to do so. The respondent contended that the appellant did not follow the procedure. He added that the appellant was required to file the objection proceedings in the same file. Given the above facts, there is no dispute that the primary court appointed Hamidu Mohamed Wetare to administer the late Mohamed Wetare's estate before it appointed Swed Mohamed 4 Wetare. Hamidu Mohamed Wetare distributed the late Mohamed Wetares estate and reported to the primary court, which appointed him. It is very possible that the heirs of the late Mohamed Wetare including Swed Mohamed Wetare were dissatisfied with the way Hamidu Mohamed Wetare administered the estate. If the heirs were dissatisfied, the remedy was not to nominate another person to apply for letters of administration of the estate of the deceased but to hold Hamidu Mohamed Wetare accountable via the court that appointed him. The heirs should have, if the administration was closed, sued Hamidu Mohamed Wetare to account of the deceased's estate or if the administration was not yet closed, applied to the primary court to annul his appointment I scrutinized the record of the primary court in Probate No. 38/2010 and found that Hamidu Mohamed Wetare did not file in Form V which is a true and complete statement of all the assets and liabilities of the deceased's estate within four months of his appointment and statements of accounts that is Forms VI. Hamidu Mohamed Wetare had a legal duty to exhibit an inventory in Form V within four months of his appointment. This duty is in accordance to rule 10(1) of the Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971. It states- 10 (1) Within four months of the grant of administration or within such further time as the liabilities court may allow, the administrator shall submit to the court a true and complete statement, in Form V, all the assets and liabilities of the deceased persons' estate and, at such intervals thereafter as the court may fix, he shall submit to the court a periodical account of the estate in Form VI showing therein all the 5 moneys received, payments made, and property or other assets sold or otherwise transferred by him. Once an administrator fails to discharge his duties, the heirs or the beneficiaries have the right to apply to the court, which appointed him for his revocation. Annulment or revocation of the administrator can be done before the administrator has not closed the administration. See the case of Daudi Mahende Kichonge V Joseph Mniko and Others. Probate and Administration cause No 48 of 1996 (HC DSM Unreported). Thus, it was not open for Swed Mohamed Wetare to petition for letters of administration of the deceased's estate afresh but to apply to the primary court to annul Hamidu Mohamed Wetare, if he he had not closed the administration. If Hamidu Mohamed Wetare had already closed the administration, then the available for Swed Mohamed Wetare was to sue Hamidu Mohamed Wetare, the administrator to claim one's entitlement from the deceased's estate. It is a settled position of the law that if the administration of the estate is closed it cannot be vacated. See Ahamed Mohamed Al Laamar V Fatuma Bakari and Asha Bakari Civil Appeal No 71/2012 (CAT unreported). The Court of Appeal held that- "In our respectful opinion, both common sense and logic dictate that one can only annul, repeal, vacate, put to an end, etc. what was previously granted or passed and still operative or existing. Nothing which has already come to an end can be put to an end or vacated." (emphasis is added) 6 For the above reasons, I find that Swed Mohamed Wetare wrongly instituted Probate No. 112/2014 in the primary court to administer the late Mohamed Wetare's estate while the same primary court had already appointed Hamidu Mohamed Wetare in Probate No. 38/2010 to administer the same estate. Consequently, I invoke my revisionally powers under S. 31 of the Magistrates' Courts Act, [Cap. 11 R.E. 2019] to nullify the proceedings in Probate No. 112/2014 before the primary of court of Musoma district at Musoma urban, and set aside the appointment of Swed Mohamed Wetare as the administrator of the late Mohamed Wetare's estate. I declare all proceedings, which emanated from the nullity proceedings in Probate No. 112/2014 before the primary of court of Musoma district at Musoma urban nullity and set aside all the judgments and rulings therefrom. If, Swed Mohamed Wetare still interested, may either apply to the primary court to annul the appointment of Hamidu Mohamed Wetare, if he has not closed the administration or sue the administrator for his share in the deceased's estate if the administrator has already closed the administration. I make no order as to costs to facilitate amicable settlement of the matter, as the parties are blood brothers. I so order. J. R. Kahyoza JUDGE 31/8/2021 7 Court: Judgment delivered in the presence the parties. B/C Millinga present. J. R. Kahyoza, JUDGE 31/8/2021 8