Court name
High Court of Tanzania

Celestina Paulo vs Mohamed Hussein () [1985] TZHC 23 (05 September 1985);

Law report citations
1983 TLR 291 (TZHC)
Media neutral citation
[1985] TZHC 23

Mushi, J.: This is an appeal by Bi Selestina Paulo.  The appellant filed an application in the Primary Court seeking to be appointed an administrator of the estate of the late I Sawia d/o Balegu.

There is no dispute as to the beneficiary of the estate.  The beneficiary is Zainabu d/o A Mohamed Hussein.  In the Primary Court evidence was adduced which included oral testimony from the close friends of the deceased as well as documentary evidence in the form of a letter which the deceased had written to the appellant.  The respondent, B Mohamed Hussein, did not object to anything other than claiming that he should be the administrator of the estate because he was the father of the beneficiary, Zainabu, who was at that time eight years old.  The respondent did not claim that he was appointed by the deceased to be the administrator of the estate of the deceased but he thought he was entitled.  The Primary Court considered the evidence and found it conclusively C established that the deceased herself appointed the appellant the administrator of the estate and accordingly confirmed the appointment of the appellant as the administrator of the estate of Sawia d/o Balegu.  The respondent was ordered to account for the money D he had received and hand the same to the appellant.  The respondent appealed to the District Court which reversed the Primary Court decision and appointed the respondent the administrator of the estate of the deceased Sawia d/o Balegu against the will of the deceased.  The appellant was dissatisfied by the District Court decision and hence this appeal. E
The appellate magistrate was grossly wrong in his decision.  For reasons known to himself he took into account completely strange matters to defeat the will of the deceased - Sawia d/o Balegu.  It is a known fact that an ascertained will of the deceased must be respected in both letter and spirit.  The learned district magistrate did not say that the deceased had not made the will appointing the appellant an administrator of the F estate, but tried to find uncalled-for grounds which according to him would make it impossible for the appellant to be an administrator of the estate.  First he invoked religion.  He said that the deceased could not appoint the appellant as administrator of her estate because the appellant was of different religion and that her estate must be G administered according to Islamic law.  Secondly the appeal magistrate brought in clan.  He said that the appellant was of a different clan and thus she could not be an administrator of the property of the deceased.  Finally the appeal magistrate said that the beneficiary was the daughter of the respondent.  According to the appellate magistrate, H because of the above reasons, the respondent was the proper person to be the administrator of the deceased estate.  This was a regrettable decision.
I said earlier that it is an established principle that the will of the deceased must be respected in letter and spirit.  There was no dispute that the deceased in her free will and I fully aware of what she was doing she decided to appoint the appellant the administrator of her estate and

she did so fully knowing that she was moslem and the appellant was of another religion. A The property which she bequeathed was her personal property and had nothing to do with her clan.  She had the right to choose her beneficiary and she also had absolute right to choose the administrator of her own choice.  She was aware also that the beneficiary was the daughter of the respondent but she did not wish the respondent to be the B administrator for reasons known to her.  Why should the appellate magistrate purport to tell the deceased what she should have done against her clearly expressed wish?  The Primary Court decision was very sound and reasonable.  This appeal must be allowed.  The District Court decision is set aside.  The Primary Court decision is restored.  The appellant is to get costs in this court and costs below. C
Appeal allowed.

D