LADHA JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA PC CIVIL APPEAL NO. 5706 OF 2023 (Arising from Probate Appeal No. 11 of 2022 in the Nyamagana District Court and from Probate Cause No. 186 of 2020 in the Mwanza Urban Primary Court) YUSUPH RAZAC LADHA……………………………………………….1ST APPELLANT TATU HAMIS MPEMBA………………………………………………..2ND APPELLANT

VERSUS ARAFAT RAZAC LADHA………………………………………………..RESPONDENT

JUDGMENT 21st & 2nd April, 2025 KAMANA, J. This is a second appeal in which the appellants are challenging the decision of the Nyamagana District Court in Probate Appeal No. 11 of 2022, which upheld the decision of the Mwanza Urban Court in Probate Cause No. 186 of 2020. In the said probate cause, the trial court held in favour of the respondent who was the estate administrator of the late Razac Ladha. The facts that led to this appeal are as follows: Arafat Razac Ladha is the son of the late Razac Ladha who joined his ancestors on 5th June, 2020. After his death, the respondent, through the clan meeting, was 1 proposed to be appointed as the administrator of the estate of the late Ladha. The respondent applied for letters of administration. On 6th November, 2020 the letters were granted to him by the Mwanza Urban Primary Court. When he was in the course of administering the estate of his late father, Yusuph Razac Ladha, the first appellant challenged the administration of the estate on the ground that the administrator had left him out of the list of heirs while he was the deceased’s son. The appearance of the first appellant led the respondent to contend that the former was born out of wedlock, and hence, he was not entitled to inherit from his father’s estate. However, the wisdom prevailed, and on 2nd February, 2021, the trial court was informed that the first appellant had

been recognized as the heir to the estate and was given some of the estate of the deceased. On 17th March, 2021, the respondent sought an extension of time to finalize the probate cause. He was granted two months to accomplish the purpose. However, the cause was not closed within the extended time. On 28th September, 2022, the trial court was informed that the first appellant and Tatu Hamis Mpemba, the second appellant, had filed an 2 application seeking to revoke the appointment of the respondent as the administrator of the estate. The reasons behind seeking revocation of the appointment of the respondent were several. One, the administrator was using Islamic law to administer the estate while there was no will by the deceased that his estate should be administered in Islamic law; no proof as to his lifestyle; and there was no consensus of the heirs that the deceased estate should be administered in Islamic law. Two, the administrator failed to include the first appellant and the second appellant, who was the deceased’s wife, in the list of heirs. Three, the administrator included a dead person in the list of heirs. Four, the administrator failed to close the matter within the four months stated in the law. Five, the administrator had embezzled the estate. Six, the administrator entered into a void agreement with the first appellant by giving him part of the estate without the

same being reflected in Forms No. V and VI. The appellants, through their Advocate Mr. Gibson Ishengoma, argued for the revocation, while Mr. Lubango Shiduki, learned Counsel representing the respondent, argued against the revocation. In its ruling dated 15th November, 2022, the trial court dismissed that application. Following the dismissal, the matter was closed on 21st November, 2022. 3 The appellants were not amused by the decision of the trial court which refused to revoke the appointment of the respondent. Given that, they filed an appeal in the Nyamagana District Court. Upon hearing the parties, the first appellate court dismissed the appeal, hence this appeal which is premised on three grounds which are: one, the first appellate court failed to observe that the appellants were not given the right to be heard; two, the first appellate court failed to observe that the appellants were lawful heirs of the estate of the late Ladha; and three, the first appellate court was unable to observe that the respondent had no qualifications to hold the office of the administrator hence was supposed to be revoked. Pursuant to the order of this court, the appeal was disposed of by way of written submissions. However, upon considering the facts that led to this appeal, I believe that the case at hand invites this court to exercise its revisional powers to promote the interests of

justice. Without repeating the grounds on which the appellants premised their application for revocation of the appointment of the respondent, I am of the considered view that the trial court misdirected itself by not allowing the appellants to adduce evidence to establish their claims. It is an established principle that when there is an application under Rule 9 of the Primary Courts (Administration of the Estates) Rules, 1971 (GN. 4 No.49 of 1971) for revocation of the appointment of the administrator of the estate, the applicant has the right to adduce evidence to support his claim. Likewise, the administrator has the right to adduce evidence in defence. This position was lucidly stated in the case of Miraji Salimu Nyangasa v. Ramadhani Omary Sewando (As Administrator of the Estate of the late Hussein Omary Sewando, Civil Appeal No. 686 of 2023-CAT (Unreported) where it was held: ‘Parties must be made aware that, much as the administrator is an independent person who must work without being interfered but his reports are not without question. They can be objected by creditors, heirs or beneficiaries of the deceased's estate if they will be found to contain a false information or a distribution which is unfair or fail to include an heir in the distributions; If it is objected, the objection must be in writing and filed in court. The court will then invite the objector

to state his case; adducing evidence to prove what he is saying. The administrator will be called to make his defence. The court will make a ruling on issues raised.’ (Emphasis Added). 5 From the records, that was not the case when the appellants sought the revocation of the appointment of the respondent from the office of the administrator. What was done by the trial court, as rightly contended by Mr. Edward John, learned counsel for the appellants, was to invite Mr. Ishengoma and Mr. Shiduki, learned counsel for the parties, to make submissions. That was contrary to the dictates of the law as enunciated by the Court of Appeal in the cited case. Unfortunately, the defect went undetected in the first appeal. With such circumstances, I am of the view that the closure of the probate cause in the trial court was vitiated by the fact that the appellants were not given the right to adduce evidence to establish their claims that sought revocation of the administrator of the estate. Further, I am astonished by the supersonic speed with which the trial court closed the matter while it gave the appellants the right to appeal and without affording interested parties to inspect the inventory. I agree with Ms. Rosemary Makori, learned Counsel for the respondent, who asserted that it was improper to appeal against the respondent who was no longer an administrator of the estate of

the deceased. However, her views are only correct when the probate cause is free from any defects affecting the fundamental right to be heard. When there is an infringement of the right to be heard of the objector to 6 the appointment of, or applicant for revocation of, the administrator, the closure of the probate cause is a nullity in the eyes of the law. This is because the right to be heard is fundamental and forms the base on which a fair hearing is premised. When a party is denied a right to be heard, the outcome of the proceedings is a nullity. This position was clearly elucidated by the Court of Appeal in the case of Deo Shirima and Two Others v. Scandinavian Services Limited, Civil Application No. 34 of 2008-CAT (Unreported), where it was stated: ‘The law that no person shall be condemned unheard is now legendary. It is trite law that any decision affecting the rights or interests of any person arrived at without hearing the affected party is a nullity, even if the same decision would have been arrived at had the affected party been heard. This principle of law of respectable antiquity needs no authority to prop it up. It is common knowledge.’ Further, the apex Court in the case of Miraji Salimu Nyangasa (Supra) had the view that the proceedings and orders of the trial court in the probate cause that led to the said appeal were a nullity as a person who sought the

revocation of the appointment of the administrator was not given the right to adduce evidence. The Court went on to state that though the trial court becomes functus officio, the 7 aggrieved party has the right to appeal or seek revision of the order that closed the probate cause, as the case may be. The Court stated: ‘The order of the court closing the administration has the finality effect; it renders the court functus officio. The magistrate cannot reopen the matter again save on review. Any aggrieved party may therefore challenge the order before the district court by way of revision or appeal depending on whether he was a party in the proceedings or not.’ The effect of this position is that when there is an order closing the probate cause but was delivered in the circumstances that there was an infringement of the right to be heard of either the objector to an appointment of, or of the applicant for the revocation of, the administrator, the said order is a nullity. In that case, the person aggrieved may appeal or apply for a revision of such an order. In other words, the administrator is not shielded by the nullity order closing the probate cause. Given that, in the exercise of the revisional powers of this court, the order closing Probate Cause No.186 of 2020 is set aside. Likewise, the proceedings, judgment and orders of the first appellate court in Probate Appeal No. 11 of 2022 are nullified, quashed and set aside. I 8 further direct that the appellants’ application for revocation of the appointment of the administrator of the said estate be heard as per the dictates of the law and the matter be dealt with and closed according to the law. No order as to costs. Right To Appeal Explained. DATED at MWANZA this 2nd of April, 2025.

KS KAMANA

JUDGE 9