Court name
Court of Appeal of Tanzania

Violet Ishengoma Kahangwa and Jovin Mutabuzi vs Administrator General and Eudokia Kahangwa () [1990] TZCA 13 (16 July 1990);

Law report citations
1990 TLR 72 (TZCA)
Media neutral citation
[1990] TZCA 13

Kisanga, Makame and Mfalila, JJ.A. This appeal arises from the decision of the High Court (Mapigano, J.) H upon an application to him for directions on matters relating to intestate succession.
The deceased Bruno Kahangwa died intestate on 28.12.86. He was survived by his widow Eudokia Kahangwa (the second respondent) with whom he had celebrated a monogamous Christian marriage on 6.11.82. He was also I survived by a female child (Lilian) of that marriage

KISANGA JJA, MAKAME JJA AND MFALILA JJA
A born on 17.8.83. At the time of death, however he and his widow, Eudokia, had been estranged and were living apart but their marriage was still subsisting. Their daughter Lilian was staying with the mother. In the meantime the deceased was living or cohabiting with another woman, Violet Ishengoma (the first appellant) with whom he B contracted a customary law marriage as evidenced by a marrying certificate put in evidence and dated 25.6.86. During their association or cohabitation the deceased and Violet begot two children - Reynold born on 1.12.84 and Diana born on 9.2.86.
C Following the death of the deceased, his widow Eudokia, applied that the Administrator-General (the first respondent) be appointed administrator of the deceased's estate. The application was duly granted by the High Court, but subsequently Violet Ishengoma (the first appellant) and Jovin Mutabuzi, a brother of the deceased (the D second appellant) applied for the revocation of that appointment and instead asked that the said Jovin Mutabuzi (the second appellant) be appointed to administer the estate in accordance with the customary law of the Bahaya. In the High Court the applicants/appellants Violet Ishengoma and Jovin Mutabuzi were represented by Mr. E Malingumu Rutashobya. Mr. Ngoto appeared for the first respondent, the Administrator-General while Mr. W.B.L. Kapinga was for the second respondent Eudokia Kahangwa. At the hearing before the High Court however, the applicants/appellants abandoned their application for the revocation of the appointment of the Administrator-General as the administrator of the estate, but the Court was asked by the parties for direction on F two matters:
1. Whether the customary law of the Bahaya should govern the distribution of the estate, and
G 2. Whether the two children of the deceased viz. Reynold and Diana by the first appellant would qualify for a share or shares in the distribution of the estate.
The learned Judge in a painstaking decision came to the conclusion that the distribution of the estate was governed H by the customary law of the Bahaya, it appeared to him that the life style of the deceased at the time of his death was governed by the traditions, customs and practices of the Bahaya tribe to which he (the deceased) belonged. Accordingly, the learned Judge directed the Administrator-General to apply that law.
I On the second question the learned Judge held that the two children did not qualify for distribution because they were illegitimate. This is

KISANGA JJA, MAKAME JJA AND MFALILA JJA
how he arrived at that conclusion. The purported customary law marriage between the deceased and the first A appellant was, under section 38 (1)(c) of the Law Marriage Act, a nullity because in terms of section 15 (1) of that Act the deceased had no legal capacity to marry by reason of his prior and subsisting monogamous marriage with the second respondent. The two children were, therefore illegitimate because they were born of an adulterous B association between the deceased and the first appellant. And under the Local Customary Law (Declaration) (No.4) Order 1963 published as G.N. No. 436 of 1963 and made applicable to the Bahaya tribe vide G.N. 605 of 1963, illegitimate children cannot inherit from the father's side upon the father dying intestate. Accordingly the C learned Judge directed the Administrator-General that the two children did not legally qualify for distribution. It is from that decision that this appeal arises.
Before us Counsel appearances were the same as they were in the High Court except that the D Administrator-General was now represented by Mr. T.Z. Ruganzibwa. Mr. Rutashobya filed and argued two grounds of appeal. For convenience, we set out here in below the two grounds together with the order he has asked for: E
1. That the learned Judge erred when he held that the estate of Bruno Kahangwa be administered according to the customary law of the Bahaya Tribe and yet declared that the two children of the deceased Raymond (sic.) Kahangwa and Diana Kahangwa do not legally qualify for distribution. F
2. That the learned Judge misdirected himself when he directed Administrator-General to apply the customary law of the Bahaya Tribe administrating the estate of the deceased without taking into account G the fact that the matter then came within the jurisdiction of the Primary Court competent to adjudicate on the matter where the Administrator General had no locus standi.
It is proposed to ask the Honourable Court of Appeal of Tanzania for the following Orders: H
(a) A declaration that the two children of the 1st Appellant Violet Ishengoma Kahangwa, Raymond (sic.) Kahangwa and Diana Kahangwa are entitled to succeed the estate of their father the late Bruno IKahangwa;

KISANGA JJA, MAKAME JJA AND MFALILA JJA
A (b) An order directing that the probate (sic.) proceedings in respect of the estate of the deceased should be adjudicated upon in a Primary Court of competent jurisdiction and that the estate of the late Bruno Kahangwa should be administered by the 2nd Appellant Jovin Mutabuzi according to the customary law B of the Bahaya tribe.
It is at once apparent that ground 2 is both incompetent and misconceived. Before the High Court Mr. Rutashobya C had abandoned his application to the court to revoke the appointment of the Administrator-General, and henceforth the matter proceeded on the footing that the Administrator-General was the duly appointed administrator of the estate. That is to say the matter was agreed to and duly settled in the High Court. For the learned Counsel to seek on appeal to question or criticize the appointment of the Administrator General is tantamount to re-opening the D issue to which Counsel himself had conceded. That, in our view, he cannot properly do because it would lead to endless proceedings.
Even assuming that it was open to him to raise that point at this stage, his ground for the complaint does not appear E sound. If we understood him correctly his argument is that it is the Primary Court which was competent to administer the customary law of the Bahaya, but that the appointment of Administrator-General was irregular in that it would make it impracticable for him (the Administrator-General) to administer the estate because he has no locus F standi in the Primary Court. By saying that the Administrator-General has no locus standi in the Primary Court we understand him to mean that the Administrator-General has no right of audience in that court. If this is what learned Counsel meant, and we could not figure what else he could have meant, then with respect he must have got G mixed up as to the role and function of the Administrator-General in the matter. In administering the estate the Administrator-General does not have to appear in the Primary Court for any purpose. For, he is not acting as an advocate representing a particular party. All that is required of him is to distribute the estate to all those who qualify for distribution. In determining who qualifies for what share he, as a lawyer, is to apply the customary law of the H Bahaya, and in case he runs into a difficulty he may turn to the High Court for directions. In such circumstances it seems to us that the learned counsel's contention that the Administrator - General has no locus standi meaning he has no right of audience, in the Primary Court is of little or no relevance because, as already noted, his appointment I to administer the estate does not entail any appearances in the Primary Court.

KISANGA JJA, MAKAME JJA AND MFALILA JJA
It is quite apparent that Mr. Rutashobya was not aggrieved by the learned judge's direction that the Bahaya A customary law should be applied. Indeed this is what the learned Counsel himself had specifically asked for, and we are satisfied that for the reason given by the learned Judge as referred to hereinbefore, that direction was perfectly sound. Mr. Rutashobya's real grievance is that the second appellant, and not the Administrator-General, should B administer the estate but, as we have sufficiently indicated, that issue was settled at the commencement of hearing the application before the High Court following Mr. Rutashobya's own conceding the same, and no grounds have been advanced for re-opening it on appeal. C
In the remaining ground of appeal Mr. Rutashobya asserts that the learned Judge erred in holding that the two children did not qualify for distribution and asks us to fault that direction. He did not seriously challenge the finding that the two children were illegitimate. Indeed he could not have done so because there was overwhelming evidence D to support that finding. Nor can there by any argument that under paragraph 43 of G.N.No.436 of 1963 read together with G.N. No. 605 of 1963 an illegitimate child cannot inherit from the father's side upon his dying intestate. However learned counsel urged us to say that the two children qualified for distribution on the ground that their deceased father had legal and moral obligation to maintain them, and that upon his death that obligation E continued and attached to his estate. In support of the submission counsel referred us to, inter alia, the provisions of section 129(1) of the Law of Marriage Act and two English decisions in the cases of In re Joslin [1941] Ch. F 200 and In re Makein[1955] Ch. 194.
We have given most anxious consideration to Mr. Rutashobya's submission, but we are unable to accede to it. His reference to section 129(1) of the Law of Marriage Act was undoubtedly influenced by the views expressed by the learned Judge about that provision. The learned Judge was comparing the present state of our law on intestate G succession with that of England and observed that the Tanzania law militates against illegitimate children. He noted that in England a number of statutory attempts have been made to try to alleviate this situation but that there have been no equivalent or corresponding efforts in Tanzania. It was in this context that he made reference to section 129 H (1) of the Law of Marriage Act and said that was about the only relevant statutory provision on the subject. That provision says:
129 (1) Save where an agreement or order of court otherwise provides, it shall be the duty of a man to maintain his infant I children,

KISANGA JJA, MAKAME JJA AND MFALILA JJA
A whether they are in his custody or the custody of any other persons, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his means and station in life or by paying the cost thereof.
B The learned judge construed the word "children" appearing in the subsection to include illegitimate children in which case the deceased was duty bound to maintain the two illegitimate children, and, taking the queue from there, Mr. Rutashobya submitted that that duty continued and attached to the deceased's estate upon his dying intestate.
C Mr. Kapinga submitted that the learned Judge wrongly construed the word "children" to include illegitimate children. In his view the word "children" here excluded illegitimate children, and in support therefore referred to the meaning assigned to the word "child" in section 2 (1) of the Law of Marriage Act:
D 'child' includes an adopted child.
The learned Counsel contended that this shows the clear intention of the Legislature to exclude illegitimate children, E otherwise it would have expressly extended the meaning to such children like it did for adopted children. We think that Mr. Kapinga is right. The point he puts forward to support his argument seems quite strong, and we can only say a few words to amplify it The category of illegitimate children is not a negligible proportion of the country's F entire population. Nor can one really say that it is smaller numerically or in any other way lesser as compared to that of adopted children. In those circumstances the fact that parliament singled out adopted children for including in the meaning of "child" and said nothing about illegitimate children increasingly adds to the view that the scheme of the G Law of Marriage Act did not have illegitimate children in its contemplation.
But even if we were to assume for the sake of argument that the learned Judge was right, which in our view he was not, in interpreting the word "children" to include illegitimate children, we think that Mr. Rutashobya' s proposition H that the obligation which the deceased would have to his two illegitimate children would have attached to his estate upon his dying intestate is untenable. At any rate the learned Judge was not prepared to go that far. A perusal of his judgment makes it plain that he was prepared to go only as far as saying that such obligation of the deceased attached only during his life time. Mr. Rutashobya cited no authority for the proposition that such obligation would I survive the deceased and attach to his estate. The problem arose, though not

KISANGA JJA, MAKAME JJA AND MFALILA JJA
directly, in the English case of In re Harrington [1908] Ch.687 which we find to be persuasive. There it was held A that a putative father's obligation under a bastardy or affiliation order ends with his death, that such obligation is personal and the arrears under such an order are not recoverable against his estate. So that even if the word "children" in section 129 (1) of the Law of Marriage Act were to be enlarged to include illegitimate children and B hence to say that the deceased in the instant case had a duty under the law to maintain his two illegitimate children then on the strength of Harrington's case such duty or obligation being only personal, would not service him; it would have ended with his death. This, therefore appears to run contra to Mr. Rutashobya's thesis that such C obligation, even if it existed, would have attached to the deceased's estate.
We must say that we have much sympathy for Mr. Rutashobya's further view that the two illegitimate children should be held to qualify for distribution on the ground that their deceased father had a moral, as distinct from legal, D obligation to maintain them. However, we are regrettably of the view that in the present state of our law on the subject such a view is equally untenable. In the two cases (In re Joslin and In re Makein) cited by Mr. Rutashobya in support of his contention, the Court was concerned with the interpretation of the word "dependant" E appearing in section 1 (1) of the English Inheritance (Family Provision) Act 1938 to see if that word included illegitimate children so as to qualify them for a claim under the distribution of their deceased father's estate. The Court in In re Makein took the view that it would interpret that word broadly to include an illegitimate child if such extended meaning was more consonant with the object of the Act, but in the particular case it came to the F conclusion that such extended meaning was unwarranted, with the result that an illegitimate son of the deceased did not qualify for distribution from the estate of his father who had died intestate.
But we could not quite see why Mr. Rutashobya cited this case to support the claim of the two children in the G instant case. Because here, unlike in the English case, the court is not called upon to construe or interpret the term "child" in any law governing distribution of the estate of a deceased person. As has been shown, the law governing distribution of the deceased's estate in the instant case is the Bahaya customary law as set out in G.N.No. 436 of H 1963 and applied to Bahaya vide G.N. No.605 of 1963. Paragraph 43 of the law expressly prohibits illegitimate children from inheriting from the father's side where the father died intestate. Thus the facts of the case fall squarely within that provision: The two children Reynold and Diana were obviously illegitimate and it is common ground that I their father died intestate. There is nothing vague,

A ambiguous, inconsistent or incomplete about paragraph 43 which having regard to the facts of the case, would call for interpretation. Giving the words of paragraph 43 their plain and natural meaning as applied to the facts of the case, it simply means that the two illegitimate children of the deceased cannot qualify for distribution. We could find B no room for reading or introducing moral considerations into the provision. In other words we could find no room for interpreting it, as urged by Counsel, so as to make the two illegitimate children qualify for distribution on the ground that their father had a moral obligation towards them. To do so would amount to substituting the Court's C own views for the express provision of the written law; that the courts cannot do.
It is perhaps appropriate to observe here that it seems advisable that in cases like this where a father feels that he owes a moral obligation towards his illegitimate child or children he should seek to honour that obligation by leaving D a will. That would go some way to alleviate the hardship often facing illegitimate children; it would make easier the task of the Courts in handling such cases when they came to Court and it would serve to put the conscience of the putative father at some ease. When all is said, we have to conclude the matter by stating that we could find no E ground for faulting the decision of the learned Judge who in our view was as sympathetic as anyone could have been with the plight of the two illegitimate children of the deceased. For the reasons we have given in this judgment we think that the Judge adequately dealt with, and properly directed himself on, the main issue before him and came to the right conclusion.
F We are satisfied that the appeal against that decision cannot succeed and it is accordingly dismissed with costs.
Appeal dismissed.

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