Neema Gabriel Majaliwa vs Saraweki Israel Salema and 3 Others (Civil Appeal No. 442 of 2022) [2024] TZCA 1308 (27 December 2024)

AT DODOMA ( CORAM: LILA. J.A.. MURUKE. J.A. And MDEMll. J J U CIVIL APPEAL NO. 442 OF 2022 NEEMA GABRIEL MAJALIWA APPELLANT VERSUS NURDIN RASHID MANG'ANA . SHABANI RASHID MANG'ANA SARAWEKI ISRAEL SALEMA .... MANG'ANA RASHID MANG'ANA 1 st RESPONDENT 2 nd RESPONDENT 3 rd RESPONDENT 4™ RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Dodoma) The appellant and the 1s t respondent were both recognized by members of the family to be widows of the deceased Rashidi Mangana Marwa who died intestate and the rest of the respondents as sons. Central in this appeal is the propriety of her (the appellant) annulment as administrator of the estate and recognition of the 1s t respondent as one of the beneficiaries (rightful heirs) of the estate by the High Court. But how did the controversy and hence the appeal before us arise? these brief facts provide the details. In the family members' meeting held (Mansoor, J.1 dated the 7th day of August, 2020 in Civil Revision No. 24 of 2019 JUDGMENT OF THE COURT 12th & 27th December, 2024 LILA. J.A.:

on 11/4/2018 so as to propose to the court suitable person(s) to administer the estate of the late Rashid Mangana Marwa who died intestate on 14/11/2017 at JKCI Hospital in Dar Es Salaam in which the appellant also participated, both the appellant and Saraweki Israel Salema, the 1s t respondent, were listed as widows of the late Rashid Mangana Marwa while Robert Mangana Makwaya, Mangana Rashid Mangana (2n d respondent), Nurdin Rashidi Mangana (3r d respondent), Richard Rashidi Mangana and Jordan Rashidi Mangana were listed as sons of the late Rashidi Mangana Marwa. The meeting proposed Mwita Marwa and Robert Mangana. It was also decided that, following the death of the deceased's parents, the widows and the sons will be the persons to inherit the deceased's estate. In compliance with the family members' resolution, the duo petitioned for grant of letters of administration before Makole Primary Court on 10/4/2017 and just after two days, that is on 11/4/20118, they were duly appointed. Unhappy with the appointment, the appellant successfully preferred an appeal to the District Court of Dodoma in Probate Appeal No. 6 of 2018 challenging the grant of letters of administration of the estate to Mwita Marwa and Robert Mangana basically raising two grounds namely; that, the primary Court lacked jurisdiction to deal with the matter because the deceased professed Christianity and that, there was no proper citation

issued for informing those interested persons on the existence of such proceedings. The appointment was therefore annulled. The appellant seized the opportunity to petition for letters of administration before the court of District Delegate of Dodoma at Dodoma in Probate and Administration Case No. 24 Of 2019. Her attempt to obtain consent of all the legal heirs in terms of rule 71 of the Probate and Administration Rules, GN No. 163 of 1963 (the Probate Rules) was unsuccessful as Mangana Rashidi Mangana, Nurdin Rashid Mangana and Shabani Rashidi Mangana did not cooperate for not giving their consents. Only Robert Mangana Makwaia and Jordan Mangana gave consent. Relying on rules 71 and 72(2) of the Probate Rules, the learned magistrate dispensed with the requirement of consent and citation, respectively. The appellant was thereby granted letters of administration on 19/6/2019 and she was directed by the court that; - "The administrator is required to coiiect and file inventory to this court within the period o f six months from this date. Aiso she is hereby required to fiie inventory to this court within the time prescribed herein above." Displeased with the manner the appellant handled the estate, the respondents moved the High Court by way of revision, in Civil Revision

No. 3 of 2019, to revise and set aside the whole of the proceedings, ruling and order of the court of District Delegate in Probate and Administration Cause No 24 of 2019. Three areas to be examined were singled out to be:- " / ; To call for the records, revise and set aside the whole proceedings, ruling and order o f the court o f District Delegate o f Dodoma at Dodoma, in Probate and Administration Cause No. 24 o f 2019 dated 19th June, 2019 on the administration o f estates o f the late RASHIDIMANGANA MARWA, which disregard the rights o f the applicants. ii. An order that the 1st applicant who was the 1st deceased wife be declared as among the beneficiary o f the estate o f the late RASHIDI MANGANA MARWA. H i. An order that the appointment o f the Respondent herein as an administrator o f the estate o f the late RASHIDI MANGANA MARWA be nullified and set aside." After hearing the parties, the High Court agreed with the respondents and granted the orders sought in the application holding that the customary marriage between the 1s t respondent and the deceased which was contracted in 1998 could not be extinguished by the Christianity marriage contracted in 2008 between the appellant and the

deceased, the learned Judge also relied on the family meeting's minutes in which both the appellant and the 1s t respondent were recognized by the family members as being widows of the late Rashidi Mangana Marwa. As there was no evidence that after the Christian marriage was contracted the deceased denounced his traditional marriage or that such marriage was dissolved, the learned Judge found the 1s t respondent still a widow of the deceased and a beneficiary of the estate. It was the learned Judge's finding that, the appellant's petition was accompanied with a consent from her son one Jordan only who was then a minor whose consent could be obtained through his guardian in terms of rule 71(3) of the Probate Rules while that of the 1s t son of the deceased one Robert Mangana Makwaia, was filed after the petition was already lodged. For these reasons, the learned Judge found the grant of a letter of administration to the appellant was wrongly obtained citing the case of Rashidi Hassan vs Mrisho Juma [1998] TLR 134 for want of compliance with the Probate Rules. For the same reason that the consent of the 1s t deceased son was lodged after the petition was filed, the learned Judge held as improper, the affidavit on why the appellant could not obtain the consent of the other three sons of the deceased being lodged after the petition was lodged instead of being accompanied with the petition at the time of lodging the same. Her conclusion was that, the 5

letter of administration was wrongly granted to the appellant. Besides, she also found it irregular for the learned magistrate who presided over the petition to not turn the matter into a suit after a caveat was lodged by the respondents. Regarding the last point for revision, after a detailed discussion on the procedure to be followed after a caveat is lodged, the learned Judge was of a finding that it was wrong for the court of District Delegate not to take up the caveat, no matter their number, and follow the procedure provided under section 59 of the probate and Administration of Estates Act (the Act) and Rule 82 of the Probate Rules to attend to it in the manner the taw requires, that is treating it as a suit and allow the parties bring evidence to prove their side of the case in accordance with the Civil Procedure Act (the CPC) and then make a determination. The learned Judge, however, determined the revision application based on its incompetence for want of consent and held thus: - "In the view which I have taken above, the applicants are entitled as o f right to have their caveat taken on file, however, since the petition violated the law in the sense that the petition was not accompanied with the consent o f the heirs at the time it was lodged, the petition ought to have been 6

dismissed, it follows therefore that there was no valid petition for letters o f administration filed in court. Consequently, the letters o f administration granted to the respondent are hereby declared null and void. I make no order with respect to the costs thereof. "(Emphasis added) The findings of the learned Judge aggrieved the appellant who preferred the present appeal armed with two grounds of complaints couched thus: - "1, That, the learned High CourtJudge erred in iaw and fact by granting a prayer for nullification o f the appellant's letter o f administration whereas the appellant's petition was filed properly before the court. 2. That, the learned High CourtJudge erred in law and fact by declaring the first respondent was the lawful wife o f the deceased whereas there was no proof which was brought before the court to prove her customary marriage with the late Rashid Mangaha Marwa. Before us for hearing of the appeal were the appellant who appeared in person and unrepresented and the respondents who appeared in person in Court and enjoyed the services of Ms. Tecla Adolph

Kimati, learned advocate. Both parties did not, in terms of Rule 106 of the Tanzania Court of appeal Rules, 2009, file submissions hence they orally submitted before us. Very little was said by the appellant in elaborating her grounds of appeal. She just expressed her dissatisfaction with the High Court order nullifying her appointment as administrator of her deceased husband's estate as well as the order declaring the 1s t respondent as among the beneficiaries of the deceased's estate. She was keen to ask the Court to examine the propriety of the High Court's findings and give guidance as she said the impugned orders were issued at the time she was exercising her duty to distribute the deceased's estate in which she excluded the 1s t respondent believing that she was not the deceased's wife as since her being married, she did not hear of the existence of a customary marriage being or having been contracted by the deceased with another woman although she knew and was staying with the 2n d , 3r d and 4th respondents who were introduced to her by the deceased to be his sons. She said, she had no issue with the said sons and had paid them their deserving part of the estate. Nothing new came out from Ms. Kimati's submissions as she substantially agreed with the learned Judge's findings. In her submissions

she, actually, travelled along and confined herself on the learned Judge's line of analysis, evaluation of the evidence and findings as summarized above with very little additions. To avoid repetition, we shall not recite all her submissions but we shall only show her additions. Submitting in respect of the requirement to lodge consents of the beneficiaries of the estate at the time of lodging the petition, she referred us to Rule 39(f) of the Probate Rules which she said sets it as a mandatory condition. She argued that the appellant obtained consent of only one beneficiary as that of Jordan Rashidi Mangana was, in terms of Rule 71(3) of the Probate Rules, improperly received by the court because he was a minor by then and his consent could be through his guardian. She thus invited us to agree with the High Court that such mandatory requirements were not met and hold, as the High Court did, that the appellant's letter of administration was improperly granted and that the High Court rightly nullified the same. As for those who withheld their consents, Ms. Kimati insisted, the appellant ought to have filed affidavits accounting for the failure to get their consents in terms of Rule 72(1) of the Probate Rules at the time of lodging the petition for letters of administration on 20/3/2019 but were lodged on 12/6/2019.

Presentation of the caveat and the procedure adopted by the court of District Delegate disturbed Ms. Kimati and agreed with the High Court decision that, upon the same being lodged in court, the court ought to have had stayed the proceedings in respect of the petition so as to enable it deal with the caveat as a suit in the manner prescribed under section 58(3) of the Act as was directed by the learned Judge in the judgment. By not doing so, she submitted, the court of District delegate strayed into error invalidating the granted letter of administration. As regards the 1s t respondent's status, Ms. Kimati argued that section 55(g) of the Law of Marriage Act recognizes customary marriages as among legal marriages and that the family member's minutes supported existence of such marriage between the 1s t respondent and the deceased to which fact, at pages 189 to 190, the appellant recognized her as a widow of the deceased. Based on this, she argued, the High Court rightly recognized the 1s t respondent as among the beneficiary of the deceased's estate. In the end she beseeched the Court to dismiss the appeal with costs. Rejoining, the appellant complained that it was wrongly recorded by the court that she recognized the 1s t respondent as the widow of the deceased husband.

We think and as our starting point, we should express our view that, primarily, annulment of the appellant's letters of administration was due to anomalies committed by the appellant in lodging the petition for grant of the same. That fact stems from our reading of the portion of the High Court's judgment recited above. Much as other matters like the status of the 1s t respondent was discussed and determined, the learned Judge was of a finding that the petition (application for grant of a letter of administration) itself was incompetent and ought to have been dismissed and she proceeded to declared the appointment of the appellant as an administrator of the deceased's estate a nullity, hence ineffectual. Legally, that meant that all that was dealt with and determined by the court of a District Delegate was also nullified. For this reason, it is our firm view that the result of this appeal hinges on the answer to ground 1 of appeal which if found baseless, the need to consider ground 2 of appeal shall be rendered a useless exercise. For us, it appears, there are two issues calling for our determination. One, whether the petition lodged by the appellant before the court of District Delegate was tainted with the irregularities raised before the High Court, hence vitiating the whole application and; two, and as by the way, whether after arriving at a finding that the petition was incompetent, it

was proper for the learned Judge to consider and declare the 1s t respondent as being among the rightful heirs of the deceased's estate. Resolution of the first issue poses no difficult to us it being a matter of law. Settled practice is that where a person dies, whether testate or intestate, there should be appointed a person who would step into his/her shoes to administer his estate. In the event a person dies testate, in terms of section 29 of the Act, a probate is lodged in court for appointment of an executor to execute the will. The situation is different when a person dies intestate as is the case herein. In terms of section 33 of the Act, an administration cause (a petition) is instituted in court for the grant of letters of administration by the court and such person to be granted such letters of administration, according to the rules for the distribution of the estate, should be one who would be entitled to the whole or any part of such deceased's estate. Lodgment of a petition is governed by law. As was rightly adjudged by the learned Judge, rule 39 of the Probate Rules, prescribes the manner a petition should be lodged and the documents necessary to be attached with it The rule provides: - "39. A petition for letters of administration shall be in the form prescribed in Forms 26 or 27 set out in the first Schedule, whichever is

appropriateand shall be accompanied by the following documents: - (a) Subject to the pro visions o frule 63 a certificate o f death o f the deceased signed by a competent authority; (b) An affidavit as to the deceased's domicile; (c) An administrator's oath; (d) Subject to the provisions o f rule 66, an administration bond; (e) A certificate as to the financial position o f the sureties; (f) Subject to the provisions o f rules 71 and 72, consent o f the heirs; and (g) In the case o f an application for a grant to a sole administrator, an affidavit as required by rule 32." The legal position being as above, on a true construction of the bolded portion of the rule, it is plainly notable that the provision is couched in mandatory terms making it inescapable that, for a petition to be valid, there should be included in the petition the listed documents at the time of lodging it. The law, as it now stands is, therefore, that such documents must be filed together with the petition for grant of letters of administration.

Relevant documents in the instant matter and forming the epicenter of the appeal in ground 1 of appeal are consents of the heirs. The record of appeal and even in the appellant's submissions before the court of District Delegate, it was no contested that the appellant obtained consent from only two heirs, Robert Makwaia and Jordan Rashidi Mangana. The 2n d and 3r d respondents, who were well known to be rightful heirs, withheld their consents. Worse still, it was common ground that Jordan Rashidi Mangana was still a minor whose consent would be obtained from his guardian in terms of rule 71(3) of the Probate Rules and the consent was required to be lodged together with the petition. To rescue the situation, the appellant could have filed affidavits accounting for her failure to obtain consent from other heirs in terms of Rule 72 (1) of the Probate Rules which were to be lodged when the petition was filed. Unfortunately, that was not done. Further, the consent of Robert Makwaia was obtained and lodged in court on 18/6/2019 while the petition was already lodged on 20/3/2019 in violation of the requirements of rule 39 of the Probate Rules. Consequently, we agree with the learned Judge that the petition was incompetent right at the time of lodging it. No valid letters of administration could be granted thereof. We accordingly dismiss this ground of appeal and hold, as proper, that the petition proceedings commenced by the appellant in the court of District delegate was

incompetent and, as properly held by the High Court Judge, the letters of administration granted to the appellant was improper and the learned judge was right to annul it. We now turn to the second issue whether upon a finding that the petition was improper at the inception, the learned Judge's consideration of the status of the 1s t respondent was proper. We think had the learned Judge first considered the propriety of the petition, she would have not considered other issues which were decided on the basis of the evidence available for, ones a petition is held incompetent, nothing can be done with it but has to be struck out. It behooves us to remind the learned Judges and magistrates that, the logic of things appears to be that they should first deal with legal grounds or issues for, which as was the case herein, they may terminate the proceedings. It follows from the foregone discussion that the learned Judge wrongly proceeded to determine and hold that the 1s t respondent is a lawful beneficiary. As there was technically, so to speak, no material before her to enable her make such determination. As the matter now stands, there is no administrator of the estate and a petition itself. It is now open for any interested person to petition for the grant of letters of administration but should strictly accord with the law when doing so. Issues like whether the 1s t respondent is or

not a legal beneficiary of the deceased's estate, in event it will arise in the petition to be lodged, will have to be determined according to law. The above findings, in our view, militate against considering the merits of ground 2 of complaint. For the above reasons, we dismiss the appeal. The respondents shall have costs in this Court as well as in the two courts below. DATED at DAR ES SALAAM this 24th day of December, 2024. S. A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 27th day of December 2024 in the presence of Neema Gabriel Majaliwa the Appellant and Mang'ana Rashid Mang'anda, 2n d Respondent for other respondents via video conference from High court Dodoma is hereby certified as a true copy of the original.