Court name
Court of Appeal of Tanzania

Mwanahawa Muya vs Mwanaidi Maro () [1992] TZCA 12 (13 May 1992);

Law report citations
1992 TLR 78 (TZCA)
Media neutral citation
[1992] TZCA 12

Mnzavas, Omar and Ramadhani, JJ.A.: This is an appeal against the decision of D the High Court (Nohalla, J.), in Misc. H.C. Civil Application No. 161 of 1986 dated 26/1/90 in which the court held that the decision of the R.M.'s Court in Misc. Civil Application No. 51/81 granting letters of administration to the appellant/applicant, E Mwanahawa Muya, was null and void.
Arguing in support of the appeal Mr. D'Souza, learned counsel for the appellant submitted that the High Court failed to consider the appellant's application which was brought under the Probate and Administration Ordinance, Cap. 445 of the laws. It F was the learned counsel's submission that the appellant's application before the High Court was that in granting letters of administration of the estate of the deceased Al-Hadji Karama Maro, to the respondent, Mwanaidi Maro, in the Probate and Administration Cause No. 5/1986 the High Court, (Chua, J.) was misled in that the G applicant, now the respondent, failed to comply with Rules 32 and 71 and section 49 of the Probate and Administration Ordinance. Mr. D'Souza also submitted that in his application for letters of Administration before the High Court, (Chua, J.), the respondent has misled the Court when she said that no proceedings for grant of H probate and/or letters of administration had been commenced before any court inside or outside Tanganyika. In support of this argument the court was referred to page 45 of the proceedings. According to Mr. D'Souza's submission instead of considering applicant's application which was based on non-compliance with the provisions of the Probate I and Administration Ordinance, the High Court,

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA
(Nchalla, J.), dealt with the case as if it was an appeal and quashed the decision of A the R.M.'s Court which granted letters of Administration to the appellant; a matter which was not before him.
It was argued that if the respondent had been aggrieved by the decision of the R.M.'s Court in Probate and Administration Cause No. 51/1981 in which letters of B administration were granted to the appellant he should have appealed to the High Court or alternatively she could have applied for revocation of the grant under section 49 of the Probate and Administration Ordinance.
Lastly Mr. D'Souza argued that the High Court, (Nchalla, J.), erred in invoking his C revisional powers suo moto in the course of writing his ruling. The Court was invited to allow the appeal on the ground that the High Court, (Nchalla, J.), failed to deal with the application before him.
In rebuttal Mr. Mahatane, learned counsel for the respondent argued that it was not D clear whether the matter should have been handled as a small estate or as a big estate. It was submitted that for purposes of revocation of a small estate section 82 of the Probate and Administration Ordinance applied whereas section 49 of the Ordinance dealt with revocation of big estates.
It was Mr. Mahatane's submission that proceedings in the lower courts show that the E matter was treated as a small estate and that in a fit case the High Court can interfere with a grant of letters of administration by a lower court. The learned defence counsel argued that in the present case the High Court, (Nchalla, J.), granted letters of F administration to the respondent after it had revoked the grant by the district court. It was finally submitted that the appellant had already been divorced five years before the death of the deceased, Alhadji Karama Maro, and that as such she had no interest in the estate as she had already received her "Kithumni".
In reply Mr. D'Souza argued that the appellant had not been divorced before the G death of her husband. That she was a widow of the deceased the court was referred to page 9 of the proceedings.
As for the provisions of section 82 of Cap. 445 Mr. D'Souza submitted that this argument has been brought rather too late in the day. It was submitted that if the matter H was treated as a small estate by the lower courts the respondent was required to file an application before Chua, J. under R. 85 of Cap. 445. It was also argued that under Rule 71 filing of consent of the other interested parties was mandatory and that no consent was filed by the respondent in her application for letters of Administration before, Chua, J. I
It was finally argued in reply that the ruling of Mr. Kiyeyeu

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA
did not revoke the earlier decision of the district court. It was submitted that Mr. A Kiyeyeu's ruling concerned Mr. Munuo's application to be heard. In support of this argument the court was referred to page 64 of the proceedings.
This matter has a chequered history. It first started in the primary court from where it was transferred to the district court as the appellant (then petitioner) had indicated that B he was employing an advocate. On 16/4/81 letters of administration were granted to the appellant, Mwanahawa Muya, by the district court - ARUSHA RESIDENT MAGISTRATE'S COURT MISC. CIVIL APPEAL. NO. 51 of 1981. C
Despite this grant the respondent, Mwanaidi Maro, filed a petition for letters of administration in the High Court - probate and Administration Cause No. 5 of 1986 in respect of the same estate and on 20/8/86 the High Court, (Chua, J.), granted letters of administration to the respondent. D
Dissatisfied by the grant of letters of administration by the High Court, (Chua, J.), to the respondent, Mwanaidi Maro, the appellant, Mwanahawa Muya, filed Misc. Civil application No. 161/86 before the High Court challenging the grant of letters of administration by the High Court, (Chua, J.), to the present respondent and (b) of the E Probate and Administration Ordinance, Cap. 445 and Rules 32 and 71 of the same Ordinance; and prayed that the grant of letters of administration to the respondent by the High Court, (Chua, J.), be revoked.
The application was heard by the High Court, (Nchalla, J.), in Misc. Civil Appl. No. F 161/86 in which the learned judge said inter alia ... "There are several documents on record in this matter indicating that the size of the deceased's estate in this matter is quite substantial, amounting to hundreds of thousands of shillings.
On the foregoing facts and reasons, I am quite satisfied that the order of the district G court made on 8/4/81 in Misc. Civil Appl. No. 51/81 granting letters of administration to the applicant. Mwanahawa Muya, ... was null and void. ... In the circumstances I invoke, the revisional powers of this court both under section 31(1)(2) of the Magistrates' Courts Act ... and section 79 of the Civil Procedure Code, 1966, and Hhereby quash the whole proceedings ... The instant application is dismissed with costs.".
The High Court also said that the respondent, Mwanaidi Maro, was to remain the administrator of deceased's property as appointed by the High Court, (Chua, J.), in the Probate and Administration Cause No. 5 of 1986. I

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA
It is against this decision by Nchalla, J., that the appellant has come to this Court. A
After hearing arguments from both learned counsel for the parties and after our close examination of all the records, we are satisfied in our own minds that the High Court. (Nchalla, J.), did not at all deal with, nor determine, the issues before him. B
As clearly brought out from appellant's application by chamber summons (page 8 of the proceedings) the learned judge was asked to determine whether or not the grant of letters of administration to the respondent by Chua, J. was invalid as the respondent being the sole administrator did not file an affidavit as required under Rule 32 of the C Probate Rules.
The grant was also said to be invalid because, it was argued by the appellant in his application before Nchalla, J., the respondent did not file "CONSENT" of all those who would be entitled to the whole or part of the deceased's estate as required by Rule 71 D of the Probate Rules.
Finally the learned judge was required to decide whether or not the grant by the High Court, (Chua, J.) was invalid by reason of being obtained fraudulently by the respondent who was alleged to have made false suggestion and/or concealing from the court E something material to the case.
Apparently no where in his lengthy ruling does the learned judge mention, leave alone discuss, the serious allegations levelled against the respondent.
As we have already mentioned above the learned judge merely invoked his powers of F revision suo moto and held that the resident magistrate's court had no power to grant letters of administration to the appellant and dismissed appellant's application which challenged the grant of letters of administration to the respondent by the High Court, (Chua, J.). G
Clearly, and as the learned judge will no doubt agree with us on reflection, the question whether or not the resident magistrate's court had power to grant letters of administration to the appellant was not the issue before him. The issue before him was whether, as alleged in the chamber summons, the respondent had misled and/or H concealed important information from the High Court, (Chua, J.), and thereby causing it to grant letters of administration to the respondent; which letters of administration the High Court would not have granted had the true facts been divulged by the respondent to the court. I
As rightly argued by Mr. D'Souza, learned counsel for the

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA
appellant, appellant's complaint before the High Court (Nchalla, J.), was based on A non-compliance with Rules 32 and 71 and section
49 of the Probate and Administration Ordinance, Cap. 445 of the laws.
Section 49 of the Ordinance enumerates reasons which may cause the grant of probate and letters of administration to be annulled: B
One of such reasons is where "the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case."
In her petition before the High Court, (Chua, J.), the respondent, Mwanaidi Maro, C stated in paragraph seven:
No proceedings for the grant of probate and/or letters of administration or otherwise for the administration of the said deceased's estate have been commenced before any court D of compactent authority whether inside Tanganyika or outside it.
It was Mr. D'Souza's submission, as already mentioned above, that the respondent misled the court when she said that there had not been any proceedings for grant of E probate or letters of administration regarding the estate; while she very well knew that the appellant had been granted letters of administration by the R.M.'s court where she (respondent) was the objector. This deliberate lie by the respondent, it was argued, would have entitled the High Court, (Nchalla, J.), to annual the grant of letters of F administration to the respondent by the High Court, (Chua, J.) - As, it was submitted, Chua, J. would not have granted letters of administration if he had been aware that letters of administration in respect of the same estate had already been granted to the appellant by the R.M.'s Court. G
Mr. Mahatane, learned counsel for the respondent, vigorously argued that section 49 of the Probate and Administration Ordinance talks about fraud and that the respondent did not fraudulently mislead the court. Mr. Mahatane also submitted that failure to adhere to the rules does not by itself harm the interests of the parties. H
With respect to the learned counsel for the respondent section 49 (1) (b) of the Probate and Administration Ordinance is very clear and does not require interpretation or interpolation. Respondent's blatant lies that there had not been previous proceedings regarding grant of probate or letters of administration while she was in fact the objector I in the R.M.'s Court when letters of administration were

granted to the appellant, amply demonstrated that she was bent to defraud other A interested parties in the estate. Had the High Court (Nchalla, J.), dealt with this issue he would no doubt have found that this was a good reason to annul the grant of letters of administration to the respondent by the High Court, (Chua, J,).
We agree that in a proper case the High Court can invoke its powers of revision in a B grant of letters of administration by the district court. Powers of revision are however usually exercised by the High Court suo moto when exercising its supervisory powers over subordinate courts. It is, in our view wrong, indeed improper, for the High Court C to resort to its revisional powers where (as it was in this case), there are specific issues calling for determination by the court.
As for Mr. Mahatane's submission that the appellant had no interest in the estate as she had been divorced five years before the deceased met his death and that she had D received her "kithumni" under Islamic law, this would have been as relevant argument by the respondent when the appellant was seeking letters of administration before the R.M.'s Court. It would also have been a relevant argument if the respondent had appealed against the grant of letters of administration to the appellant by the R.M.'s E Court.
We, with respect, do not see the relevancy of the argument in this appeal which is against the decision of the High Court, (Nchalla, J.), that he had failed to decide the issues before him.
It is our considered view that the High Court, (Nchalla, J.), did not at all consider the F application of the applicant which was brought under the Probate and Administration Ordinance - Cap. 445.
As for the decision of the High Court, (Chua, J.), it is clear from what we have stated above that letters of administration would not have been granted to the respondent had the High Court been informed of the fact that letters of administration in respect of the G same estate had already been granted to the appellant by R.M.'s Court.
We agree with Mr. D'Souza's argument that the respondent was wholly to blame in misleading the Court to do what it would not have done had it been aware of the fact H of the previous grant of letters of administration to the appellant.
In the event this appeal is upheld with costs in this Court and the courts below. For avoidance of doubt this decision does not bar the respondent from challenging the grant of letters of administration to the appellant by the R.M.'s Court if she is so minded. I
Appeal upheld.

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