Tereza Paulo vs John Petro Nyanda and Another (HC. Misc. Civil Application No. 74 of 2000) [2000] TZHC 533 (24 August 2000)

I ,/ IN THE HIGH COURT OF TANZANIA , AT MWANZA (HC) MISC. CIVIL APPLICATION_ NO-:, ¥OF 2000 (Originating from High Court of Tanzania at Mwanza Probate and Administration CatiSe No. 12 of 1999.) TEREZA PAULO APPLICANT VERSUS

1. JOHN PETRO NYANDA ) RESPONDENT
2. MOU'...S PETRO ) RULING MROSO, JUDGE. The applicant, Tereza Paulo, filed in this Court an application. by Chambers Summons, under section 49(1)(b)&(c) of the Probate and Administration Ordinance, Cap.445 and Rules 14 and 29 of the Probate and Administration Rules, GNs. 1963 Nos.1O, 107 and 369. In the application she makes three substantive prayers, namely that:- (a) A grant of letters of Administration to the respondents be revoked; (b) The applicant be substituted in the grant for letters of a.dministration; and (c) Costs of the application be provided for. She intended that the application be heard ~-pa.rte but the court ordered that it be heard . inter parties. The applicant appeared in person while the respondents - John Petro Nyanda and Moles Petro Nyanda were represented by Mr. Kweka of the Tanzania Legal Co?poration but on the dae ·ot hearing Mr. Muna, learned advovate held Mr. Kweka's brief because the latter was indisposed. The applicant informed the court that she had filed written submissions and that she had nothing to add. In that case, and sinc_e the respondents counsel was not present I made an order that the respondents, through theirs advocates, should also file written submissions. Those submissions have been filed. The background to the application is that on 13th March,2000. one John Petro Nyanda and Moles Petro Paul were jointly granted by this Court letters of administration of Faul Manoni Nyanda who died on

2 1st November,1998 in Mwanza, in Probate and Administration Cause No.74 of 20000 On or about 9th May, 2000 the applicant, brought the application which is now before this Court.· Ip the affidavit in support of her a.pplication the applicant says she is the only surviving daughter of late Paulo Manoni Nyanda . and that the deceased was survived by three widows, Steria Nchiru Paulo, Steria Mashiru Paulo and Mary John Paulo and that the widows and the applicant were entitled to a share of the dee.eased•s estate. It is claimed in the affidavit that the respondents purposely omitted to mention them as beneficiaries in their petition for letters of administration. It is further alleged that Elias Petro and. Emma Petro who gave evidence to the petitioners in Probate and Administration Cause No.12 of 1999 lied when they indicated that they were sons of the deceased. The truth, according to the applicant, iE that those two were grandsons of the deceased and not entitled to a share in the estate •. It is further claimed by the applieant that the respondents gave false information in their petition for letters of administration when they claimed that there had been no proceedings for grant of probate on letters of administration of the estate of the deceased before any court other than the one they made themselves. The truth of the matter was that in fact there was pending in the Urban Primary Court of Mwanza petition No. 128 of 1999 which was filed on 21/6/99, of which the respondents were allegedly aware. The respondents' f1.11"ther are also said to have been given property by the deceased'dtiring his life time. The advocate for the respondents, Mr •. Feran Kweka, ae swor~ and filed a counter-affidavit which, with all due respect, is more of submissions rather than an affidavit. Out of five paragraphs in Mr. Kweka's affidavit, only paragraphs 4(b)(c) and (d) and 5 relate to facts. In paragraph 4(b) it is alleged that the applicant is a marriec

woman and in paragraphs (c) and (d) it is alleged that despite notice the applicant failed to enter caveat to in Probate and Administration Cause No,12 of 1999 of the High Court and that the respondents were chosen by the clan to be (apply for letters of ad.ministration) .administrators of the estate of the deceased - Paul Manoni Nyanda. The clan is said to have specifically excluded the applicant because as a woman,. She was barred from being an administrator of the estate of her late father~ In her writeeri submissions the applicant in the main repeated what she had stated in her affidavit but elaborated that the father of the respondents Petro Paulo Nyanda who pre-deceased the deceased Paul Manoni Nyanda, was a son of the deceased and had been given his share of the property of the deceased while the two (the deceased and Petro) were still alive and, therefore the respondents who were expected to inherit the property of their late father would not be entitled' to benefitfrom the estate of the deceased. On the respondents' written submissions prepared and by the Tanzania Legal Corporation it is submitted that the applicant's application is time barred and that it was brought under wrong provisions of the law_ It was further submitted that the applicant's affidavit was undated and that according to Sukuma Customary law, a married woman could not be an administrator of the estate of her late father and that, in any case, the applicant was confusing being granted letters of administration and entitlement to benefit from the property of a deceased person. The clan of the deceased had listed the applicant as one of the beneficiaries of the estate of the deceased. Unfortunately, the submissions purported to controvert fa,tual,allegations in the applicant's affidavit. That approach is a mis??nception. Factual allegations in an affidavit can only ·be controverted in a counter-affidavit, not in submissions •. Thus

4 the claims in the respondents' submissions that it was not true that that the father of the respondents had been given their share of the property of late Paul Manoni Nyanda or the denial that the respondents had failed to obtain the consent of the widows of the deceased cannot be considered in this ruling because those submissions are not legal evidence. It will be convenient now to consider whether this application is time barred as contended by the respondents. As already mentioned an order gra.'rlting the respondents' petition in Probate and Administration Cause No. 12 of 1999 was made on 13/3/2000 •. 'rhe application for revocation was made on about 9th May, 2000. ·Neither the Probate and H Administration Ordinance nor the ules made under it spec~fy the period within which application must be made for revocation of a grant. It means therefore, that resort must be had to the provisions of the Law of Limitation Act, No. 10 of 1971. According to item 21 of Part III of the First Schedule to the Law of Limitation Act application for which no period of limitation is provided for in the Act or any other written law must be made within 60 days of the decision intended to be challenged. The application for revocation of the grant was made in 57 days so that it was in fact in time. It is true that the respondents• petition was cited in the official Gazette of 19th November,1999 and that if the applicant intended to oppose the petition she should have entered a caveat, which she did not do. But is she, for that reason, barred from applying for revocation of the grant? One of the grounds for applying for revocation of a grant under section 49 of the Probate and Administration Ordinance, Cap.445 is that the grant was obtained by many of an untrue allegation of fact essential in a point of law to justify a grq11t, even though such allegation was made in ignorance or inadvertently.

• 5 'It is op,vious that .when the respondents petitioned the High -' ' • ,., • I' ., • C r, •;:.r • \ • t ' • . Court for letters of administration in Probate and Administration Ca.use No.1-2 of ·1999 in Julyt 1999t there was already a publi• i' notice dated 21/6/99 to the effect that the applicant had petitioned th~ Uban Primary Court in Mwanza for grant of letters of. administration ·"' • ~ • lji ,-.J in r~~~-qt of the estate of late Paulo Nyanda. "1'h.e respondents are presumed to have been aware of such a petition. At any rate, on 27th f ( ': i::'.-t,/ L, '.! August, 1999 the respondent.s through their advocae. T.L.c. wrote to ... '¢,• - .. , .... ~ \ ,,•·. ~ the Resident ~ist_rate .in Charge, Mwanza,.))strict Court pra.ying for termination. of· 11 Mirath±,;.Na.a28/.99a ·of. th-e-,Urban Court for the reason i' that the respondents had filed Probate and Administration Cause No.12 "·,pf ·1999 in the. H{gh: Cort. :. The'• respbndents' nould not have filed Probate and Administration Cause No.12 of 1999 in the High Court while a similar petition was pending in another court. In eoncealing the fact that there w~~e pending proceedings in respect of the estate of the deeeased the respondents misled the High Court in believing that there were no other proceedings in another court regarding the same estate. Indeed, acting on that belief the High Court proceeded to grant letters of administration to the respondent. I think this is a valid ground for revoking the grant to the respondents and I proceed to order that the grant of the letters of administration to the respondents is hereby revoked. The applicant wishes the court to appoint her the administrator of the estate of her late father. But in my opinion that would not be a prudent thing for this court to dp. Her petition No.128 of 1999 in the Urban Primary Court was struck out on 17/7/2000 apparently for want of prosecution after a grant waJ3 mistakenly made to the respondents by the High Court which means in effect that at this point in time the estate of the deceased Paulo Manoni Nyanda is unadministered In the circumstances, it is open for either party to petition the appropriate court for letters of adrninistNttion unless a will is

.. ' 6 available in which case petition will be for probate. The applicant will get her costs. At Mwanza 1 · 24/8/2000. Applicant - _Pf~sent in person. t- • • •• . . J.- A. MROSO JUOOE Respondents:-,P.resant in-persons. \ .. • I- certify that, this is a tl'llS" cl)py or the original. MV'ANZA . ; ., . .. ,.: