IN THE COURT OF APPEAL OF TANZANIA
AT
ARUSHA
(CORAM: RAMADHANI, C.J., MROSO, J.A. And RUTAKANGWA,
J.A.)
CIVIL
APPEAL NO. 73 OF 2003
MR.
ANJUM VICAR SALEEM ABDI ………………….. APPELLANT
VERSUS
MRS.
NASEEM AKHTAR SALEEM ZANGIE …….. RESPONDENT
(Appeal
from the Decision of the High Court of Tanzania
at
Moshi)
(Munuo,
J.)
dated
the 7th day of January, 2003
in
HC Civil Case No. 20 of 2001
JUDGMENT
OF THE COURT
22 October & 30
November, 2007
RUTAKANGWA, J.A.;
The
appellant is the first born in the family of the late Mr. Saleem Abdi Zangie
(the deceased) and Mrs. Naseem Akhter Saleem Zangie (the respondent
herein). The deceased died on 13th
June, 1985 in London
The
deceased left behind an estate which included landed property. One such property was a parcel of land
containing houses and a borehole described as Plot No. 27 Block JJJ Section III
within the Municipality
of Moshi
It was the
respondent who instituted the said suit against the appellant. The basis of the suit was that following the
demise of her husband the entire estate including the suit land devolved upon
her and her four children (appellant inclusive) in accordance with Islamic law
and values. She further claimed that she
and the two sons continued to live on the suit land while the two daughters who
had secured permanent residence in England
In the suit,
the respondent prayed for the following reliefs:-
(a)
A perpetual injunction
against the appellant restraining him from arrogating the properties of the
estate of the deceased to himself and harassing her and other family members;
(b)
A declaration that she has
a right to quiet possession and enjoyment of the matrimonial home;
(c)
General damages for emotional
anger, mental torture, pain and suffering;
(d)
Costs of the suit.
The suit was firmly resisted by the
appellant. He only admitted that he was
the son of the deceased and the respondent.
He, however, told the trial High Court that by a will duly executed by
the deceased before the late advocate Trivedi in the presence of Eliud Mboya
and Yusuf Lumerei on 13th January, 1983, the entire deceased estate,
including the suit land, had been unreservedly bequeathed to him and his young
brother Khalid. The said will was
admitted in evidence as Exhibit D15. The
said Eliud Mboya, testified in the case on behalf of the respondent as PW2
totally disowning Exhibit D15.
The appellant, who testified as DW4,
went on to tell the trial High Court that on the strength of Exhibit D15, with
his younger brother, they instituted probate proceedings in the Court of the
Resident Magistrate at Moshi. This was
Probate and Administration Cause No. 18 of 1986 (the Probate Cause
henceforth). The two brothers were
appointed by the said court as executors of the deceased Will dated 13th
January, 1983 and were granted Letters of Probate (Exhibit D26) on 3rd
February, 1987.
Although the appellant and his brother
were granted Letters of Probate, his own evidence, and that of Hatizayo
Mgalitinya (DW1), a Land Officer, Moshi Municipality, Taabu J. Nkya (DW2) the
Assistant Registrar of Titles, Moshi, show that they had prior to the said
grant of probate, successfully applied to be registered as the owners of the
suit land. To prove this fact, the
appellant tendered in evidence as Exhibit D7 the Certificate of Title in
respect of the suit land. Exhibit D7 was
signed by the appellant on 6th February 1986 and by Khalid on 8th
February, 1986, before the late advocate Trivedi. Regarding the borehole the appellant
testified to the effect that it was constructed by M/s M. A. Zangie & Company Limited
between 1998 and 1999, that is long after the death of his father.
Concerning the claims of the respondent
against him, he categorically told the trial High Court that his mother did not
benefit from the estate save for sterling pounds 50,000 which their father had
allocated to her. He accordingly prayed for the dismissal of the
suit.
From the pleadings the trial High Court
had framed the following issues:-
“(1)
Whether the property on Plot No. 27 Block JJJ Section 3, Moshi Municipality
(2)
Whether the Plaintiff is
entitled to half a share in the property described in issue one.
(3)
Did the husband of the
Plaintiff die testate?
(4)
Is the Plaintiff entitled
to any damages for harassment, mental anguish and other discriminatory
malpractices from the defendant?
(5)
Has the defendant effected
development on the suit plot?
(6)
To what reliefs are the
parties entitled?”
In resolving these issues the learned trial judge
doubted the authenticity of Exhibit D15 (the Will dated 13th
January, 1983) which she took to be “a
creature of forgery”. She then left
the probating of it “to the court which
will deal with the succession of the estate of the deceased”. Having so held she proceeded to annul the
probate proceedings in Probate and Administration Cause No. 18 of 1986 as the
Court of Resident Magistrate had no jurisdiction to entertain them. The learned trial judge then quashed and set
aside “all the transactions founded on
the cause including the transfer and registration of the matrimonial property
of the plaintiff in favour of the defendant”.
Having eliminated the only basis of the
appellant’s claim of title over the suit land, the learned trial judge
proceeded to invoke Article 24 of the Constitution of the United Republic of
Tanzania, 1977, Article 17 of the Universal Declaration of Human Rights,
Section 3 (2) of the Land Act, 1999 and Article 15 (2) of the Convention on The
Elimination of All Forms of Discrimination Against Women (CEDAW). The latter
provision “confers equal rights to women
in civil matters and guarantees equal treatment before the courts and other
tribunals over and above protecting women’s contractual capacity”. She then held as follows:-
“Issue 1 has to be answered affirmatively because the
property on Plot No. 27 Block JJJ Section III has since the subsistence of the
marriage of the late Zangie and the plaintiff, and until to date, been the
matrimonial house of the said spouses.
Because the late husband of the plaintiff did not specifically dispose
of his share of the matrimonial house ….. the plaintiff being the surviving widow,
is entitled to the entire matrimonial house for it was acquired through the
joint efforts of the late Zangie and his widow.
Issue two is thence resolved positively with a variation that the
plaintiff is fully entitled to the matrimonial house on Plot No. 27 Block JJJ
Section III.”
Issue No. 3
was answered negatively and the learned trial judge ordered that the deceased “estate save for the matrimonial home of the
plaintiff” be administered under
Islamic law. In order to promote
reconciliation between the parties, the learned trial judge refrained from
awarding any damages in the case.
However, she issued a restraining order to the appellant barring him
from “interfering or in any way dealing
with the property on Plot No. 27 Block JJJ Section III Moshi”. The appellant was also condemned to pay the
respondent’s costs in the suit.
The
appellant was aggrieved. Through Mr.
Joseph D’Souza, learned advocate, he has come to this Court, with eleven (11)
grounds of complaint against the entire High Court decision. On the basis of the said eleven grounds of
appeal the appellant is asking the Court to hold that the respondent’s suit was
time barred, or in the alternative, to order that the entire deceased’s estate
be administered under the provisions of the Probate and Administration of
Estates Act, Cap. 352 R.E. 2002 and the property be distributed in accordance
with Islamic law with the status quo ante being maintained. In the further alternative, the appellant
prays for just compensation for all the un-exhausted improvements made on the
11-acre suit land.
The
respondent, who was represented by Mr. Mughwai Alute, learned advocate,
vigorously resisted the appeal. We were
urged to dismiss it in its entirety with costs.
Although
the appellant initially listed eleven grounds of appeal, when the appeal came
for hearing, Mr. D’Souza abandoned two of them.
The remaining nine grounds of complaint were ably canvassed by Mr.
D’Souza. His arguments in support of the
grounds of appeal were indeed refreshing.
But so did Mr. Alute who displayed a lot of ingenuity in opposing the
appeal. We cannot hope to do full
justice to them but we pay sincere tribute to their visible efforts. We are saying so advisedly because after
reading carefully the parties’ pleadings, their entire evidence and the High
Court’s decision, we are of the decided opinion that the appeal can be disposed
of on the basis of the second and fourth grounds of appeal taken together.
The two
grounds of appeal read as follows:-
“(iii) The High Court erred
in law in not ordering the parties to apply for probate or letters of
administration and to let matters, issues and disputes as to the estate and its
administration be decided in such proceedings under the Probate and
Administration Act, Cap. 445.
(iv) The High Court erred in purporting to make a
division of matrimonial assets in a suit outside the ambit of s. 114 of the Law
of Marriage Act, 1971”.
Elaborating
on these two grounds of appeal, Mr. D’Souza submitted that the power to order
division of matrimonial property is exercisable only at the time of divorce or
separation as provided in section 114 of the Law of Marriage Act, Cap. 29. This was not a suit for separation or
divorce as the husband had long passed away before the suit was instituted, he
argued. It was his further submission
that the issue of division of matrimonial assets was mixed up with the issue of
probate and administration of the estate.
He went on to contend that the only remedy available to break the
impasse the family members have found themselves embroiled in was to apply for
proper letters of probate or administration under the provisions of the Probate
and Administration of Estates Act, Cap. 352 R.E. 2002 and the estate be
administered under Islamic law. Mr.
D’Souza significantly pointed out that it is difficult to defend the orders of
the High Court because the learned trial judge did not indicate whether she was
exercising revisional jurisdiction in overturning the probate proceedings in
the Court of Resident Magistrate, Moshi and all the subsequent transactions
founded on that cause. It could not have
been so as the proceedings before her were neither appellate nor revisional, he
argued in conclusion.
In
response, Mr. Alute succinctly stated that the respondent was not seeking
division of matrimonial property or assets in the suit. Her complaint was that as her interests were
being threatened or interferred with by the appellant, they should be
protected, he submitted. However, after
observing that the High Court did not mix up the issues of division of
matrimonial property and probate, but only made a “decision in relation to the proprietary rights of the respondent in
the suit house”, he went on to assert that the High Court had the power to “declare the plaintiff to be the owner of
the suit property”.
Mr. Alute’s
concluding assertion provides us with an appropriate starting point for our
discussion. There is no gainsaying that
the respondent never went to the High Court seeking division of matrimonial
assets jointly acquired with her deceased husband. That would have been inconceivable as well as
risible as her husband had long passed away.
Equally undisputed is the fact that the respondent was not asking the
High Court to step into the shoes of the executor or administrator of the
estate and divide it amongst the beneficiaries, of whom she is counted to be
one. As already shown above, she was
seeking a mere declaration to the effect that together with her children, who include the appellant, she
has “right to share in her deceased’s
husband’s estate”. Further to that
declaration, as rightly put by Mr. Alute, she was seeking the court’s
intervention to protect her interests in the said estate against what she saw
to be the appellant’s overt acts of interference with them. That being the case can it be seriously
argued or asserted that the High Court had the powers, in these particular
proceedings, to declare the respondent as the sole and exclusive owner of the
matrimonial home or the suit land because it was “acquired through the joint efforts” of the deceased and
herself? Given these facts can it be
convincingly and sustainably argued and/or held that the learned trial judge
was right in annulling the proceedings in Probate and Administration Cause No.
18 of 1986 of the Court of Resident Magistrate, Moshi? Our short answer to each of these pertinent
questions is in the negative.
We have
provided a negative answer to the two questions for these two obvious
reasons. Firstly, the validity or otherwise of the proceedings in respect of
the said Probate and Administration Cause No. 18 of 1986 was not an issue in
the suit in which the trial High Court was exercising original
jurisdiction. The revocation and/or
validity of the grant of probate to the appellant and his brother could only be
legally made and/or challenged under the provisions of the Probate and
Administration of Estates Act, Cap. 352 and the Rules made thereunder. Similarly, the validity of the probate
proceedings would only be competently challenged in an appeal to the High Court
from the decision of the subordinate court granting probate and/or in
revisional proceedings in the High Court either on its own motion or on
application by an interested party. The
situation was different in Civil Case No. 20 of 2001.
Secondly, as we have already alluded to
above, the suit land or the matrimonial home or property as the trial High
Court labelled it, formed part of the estate of the deceased following his
death. Whether the deceased died testate or intestate, its distribution to its
beneficiary or beneficiaries, provided it was not disposed of by the deceased inter
vivos, was governed by the laws on probate and administration of
deceased estates. It was, therefore,
wrong on the part of the learned trial judge to pick out only this property and
give it to the respondent and then order that the residue of the estate “be administered under Islamic Law”. That partial distribution of the estate, in
our view, was done prematurely.
Indeed,
after the learned trial judge had annulled the earlier probate proceedings (and
all the transactions made on the authority of the annulled granted probate),
the only logical thing to have been done was to advise the parties to apply for
probate or letters of administration in a court of competent jurisdiction. Then all matters, issues and disputes in the
administration and distribution of the estate would have been resolved therein,
as correctly argued before us by Mr. D’Souza.
For the
foregoing reasons, we are of the settled opinion that the learned trial judge
erred in annulling the proceedings in Probate and Administration Cause No. 18
of 1986, the grant of probate, as well as all the transactions made on the
strength of the granted letters of Probate.
She was equally wrong in holding that the respondent was “fully entitled to the matrimonial house on
Plot No. 27 Block JJJ Section III”, within the Municipality of Moshi
We
accordingly allow this appeal by quashing and setting aside the judgment of the
High Court and all orders made therein.
The status quo ante is
hereby restored. Any person feeling
aggrieved by the proceedings, decision and orders made in Probate and
Administration Cause No. 18 of 1986 of the Court of Resident Magistrate, Moshi,
is at liberty to appeal to or apply for revision in the High Court. If successful, proper proceedings under the
Probate and Administration of Estates Act, Cap. 352 in respect of the entire
deceased’s estate should be instituted in a court of competent of jurisdiction,
and the distribution of the estate shall follow in accordance with the
governing law. As this is pitifully a
family dispute we order each party to bear his or her own costs in this Court
and the High Court.
DATED at DAR ES SALAAM this 21st
day of November, 2007.
A. S. L. RAMADHANI
CHIEF
JUSTICE
J. A. MROSO
JUSTICE
OF APPEAL
E. M. K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(F. L. K. WAMBALI)
SENIOR
DEPUTY REGISTRAR
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