Court name
High Court of Tanzania

Seif Marare vs Mwadawa Salum () [1979] TZHC 3 (10 June 1979);

Law report citations
1985 TLR 253 (TZHC)
Media neutral citation
[1979] TZHC 3

Katiti, J.:  Upon the demise of one Zena, one Mwadawa Salum the respondent herein, sought her appointment as an administrator of the estate she claimed was Zena's, in Musoma Urban Primary Court.  Despite objections and protestations by C Seif Marare, herein to be referred to as the appellant, the respondent was on mere majority of assessors given judgement, and hence her appointment as an administrator of the claimed estate.  The appellant unsatisfied, appealed unsuccessfully to the District Court.  The District Court, having upheld the Primary Court's decision, the appellant has appealed to this Court. D
This, is therefore, the 2nd appeal, and this being the 2nd appellate court, that is not easily disposed to disturb concurrent finding of facts of the two lower courts, unless they are obviously wrong, the facts as rightly found are as follows.  Late Masudi Magori and late Zena w/o Magori, were husband and wife.  They were tribally different, but professed E and lived under the guidance of Islamic religion.  Mwadawa Salum was, or, is the sister of Zena w/o Magori.  The two spouses were living in a house, that is to be subject to administration.
Human life is short, and Masudi Magori's was no exception.  He died only to be survived by his widow (then) Zena w/o Magori.  On his death the question of F administration of his Estate was not raised.  Zena Magori did not live too long thereafter, as she died too.  The two spouses had been living in this house, that was in the name of late Masudi Magori.  The house, has a history, that is curious though not ably challenged by the appellant or his witnesses.  The evidence unhidingly disclosed, that the plot was G initially bought by Zena's mother from one Said Kisugura, and that after Masudi Magori's retirement as Prison warden, he lived in there with his wife Zena.  After the death of Zena's mother the plot was transferred in the name of Masudi Magori by Zena herself.  The two spouses were not survived by any child or children, and a period after H Zena's death, Mwadawa Salum, her sister, and a moslem too, sought and obtained her appointment as an administrator of estate.  The appellant objects, saying she is not entitled to be so appointed, while the respondent maintained, that, as a sister of late Zena, she was under Islamic Law very close, and therefore entitled to administer the estate. I
Having read the record, I have come out unhappily because, while

at no time, did the respondent say she was seeking to inherit the property, although in A fact, she could ultimately be considered the right candidate, the Primary Court, and the District Court in particular treated it as an inheritance situation, and hence the latter's journey into the inheritance.  However for the avoidance of doubt, I shall herein consider B her in the right perspective, that she was applying to administer the deceased's estate.
The Court's duties in such a situation is, on application by any person interested in the estate of the deceased to be administered, and with regard to any wishes which may have been expressed by the deceased, to appoint an administrator.  It seems to me, that C unless the court considers otherwise, the person to be appointed must have an interest in the estate, and as per wishes of the deceased, if any had been expressed.  In this case, the appellant's relation with the deceased - Masudi Magori is evidentially no more than that nephew.  Masudi Magori died in 1963, and the fact that nobody came up with a Dclaim on the said house for such a long time creates a confident impression that late Zena Magori was considered owner or inherited of the said house.  It was after the death of Zena Magori that this case came about,
The comparison of relationship between the appellant and late Masudi Magori, on one E hand, and the relationship of the respondent and Zena Magori on the other, provoke questions of laws of inheritance, and the conflict of the same.  For while the appellant can only sustain his claim through customary law if applicable, the respondent may claim to inherit the house through Islamic Law, again if applicable.  Thus considered in either F way, both parties are interested, in the estate depending on which law is applicable.  It follows, in my view, that, if the respondent was appointed an administrator by the Primary Court, as it in fact did, it applied no wrong principles at all.  I am therefore confirming the appointment, with a note of caution, that problems of inheritance in respect of the house, and which law to apply in solving the same, might arise when the G actual administration takes place.  The appeal is dismissed with no order as to costs.
H Appeal dismissed
 
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