MOHAMED HASSANI v MAYASA MZEE AND MWANAHAWA MZEE 1994 TLR 225 (CA)

 

MOHAMED HASSANI v MAYASA MZEE AND MWANAHAWA MZEE 1994 TLR 225 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 20 OF 1994

23 December, 1994 H

(From the decision of the High Court of Tanzania at Tanga, Msumi, J)

Flynote

Probate and Administration - Administration of Estate - Powers of the Primary Court

to appoint and replace an administrator - Rules I

1994 TLR p226

A 2(a) and (b) of the First Schedule of the Magistrates' Courts Act, 1984.

Probate and Administration - Challenging validity of appointment of an administrator

- Onus of proof.

Probate and Administration - Disposition of property - Whether consent from all

heirs is necessary before sale of property. B

-Headnote

This was an appeal against the decision of the High Court that the appointment of one

Mfundo Omari as an administrator of the estate of the late Mzee Risasi was void

because it was done under Rule 2(b) and not under Rule 2(a) of the Fifth Schedule to

the Magistrates' Courts Act, 1984, and thus he had no power to C dispose the

property of the deceased's estate and, therefore, his sale of the house to the appellant

was null and void. It was argued by the appellant that the appointment was valid

under Rule 2(b) because it was a replacement and not a first appointment.

D Held:

(i) Primary courts are empowered under Rule 2(a) of the Fifth Schedule to

the Magistrates' Courts Act, 1984, to make first appointment of administrators of

estate and Rule 2(b) of the same schedule for appointment of a replacement.

Therefore the Judge was wrong to restrict the powers of Primary Courts to appoint

administrators to Rule 2(a). E

(ii) It is up to the person challenging the validity of appointment of an

administrator by the court to show that the person so appointed does not have the

required qualifications to administer the estate.

(iii) The administrator is not legally required to obtain consent of all the

heirs before disposing of property or sale of a house. F

Case Information

Appeal allowed.

Case referred to:

(1) Aziz Daudi Aziz v. Amin Ahmed Ally and Another, Civil Appeal No 30

of 1990 (unreported). G

Semgalawe, for the appellant.

Lamwai, for the respondents.

[zJDz]Judgment

Mfalila, JA, delivered the following considered judgment of the Court: H

In the Court of the Resident Magistrate at Tanga, the appellant, Mohamed Hassani,

sued the two respondents with another person, Mfundo Omari, now deceased,

claiming that the three should convey to him the house on plot No 2 Block 86 Central

Ngamiani area in Tanga Municipality, the house which had been sold to him by I

1994 TLR p227

MNZAVAS JA

Mfundo Omari in his capacity as administrator of the estate of the late Mzee A

Risasi. The two respondents, the sisters Mayasa and Mwanahawa, are the daughters of

the deceased Mzee Risasi, while the late Mfundo Omari was appointed administrator

of the estate of the late Mzee Risasi by the Primary Court Tanga in Cause No 6 of

1984. The appellant won his claim in the Resident B Magistrate's Court which

ordered the respondent's to convey the house to him and also to refund him all the

rents they had been unlawfully collecting from the date of purchase of the house to

the date of judgment. The respondent successfully appealed to the High Court at

Tanga where Msumi J held that since Mfundo's C appointment as administrator of

the estate was void under Rule 2(a) of the Fifth Schedule to the Magistrate's Courts

Act, he had no power to dispose of the property of the deceased's estate and that

therefore his sale of the house to the appellant was null and void. Accordingly, he

restored the house to the two D respondents. The appellant felt greatly aggrieved by

this decision, he lodged this appeal complaining in his three point memorandum of

appeal first that the learned Judge erred in law when he held that the Primary Court

had no power to appoint Mfundo Omari administrator of the estate of the late Mzee

bin Risasi and that he was not properly appointed according to Rule 2(a) of the Fifth

Schedule to the E Magistrate's Courts Act.

Secondly, the appellant complained that the learned Judge erred in fact when he held

that the sale of the suit house was arbitrary and did not take into consideration the

interests of the estate when there was ample evidence to prove that the suit house

was at stake. F

Thirdly, that the learned Judge erred in law in holding that there was no consent of

the beneficiaries to sell the suit house when in fact the authority to sell was vested in

the administrator by the operation of the grant under which he was appointed. G

At the hearing of this appeal, Mr Semgalawe, learned advocate who appeared for the

appellant, argued in support of the first ground of appeal that since Rule 2(a) applies

to grants made in the first instance and not replacement, Mfundo Omari must have

been appointed under Rule 2(b) and that therefore his appointment was valid. H

In opposing this ground, Dr Lamwai, learned counsel who appeared for the

respondents, advanced three reasons for his view that Mfundo Omari was not

properly appointed and that therefore this Court should uphold the appointment of

the first respondent Mayasa Mzee as administrator of the estate. First, he said that the

purported appointment of Mfundo Omari was made while Mayasa's I

1994 TLR p228

MNZAVAS JA

A was still in force, it had not been revoked as claimed. He conceded that the

Primary Court Magistrate (PW 5) gave evidence to this effect but he added that that

witness did not produce the record of the Primary Court to confirm his evidence.

Secondly, he said that Mfundo Omari did not qualify to be appointed administrator

under Rule 2(b) because the Court did not state Mfundo's B qualifications under that

sub-rule. Thirdly, he said that since the house was already in Mayasa's name, such

transfer was already effective under Rule 4 as there had been no complaint against

this transfer.

C On our part we do agree with Mr Semgalawe that the Primary Court can only use

Rule 2(a) to make first appointments not replacements. We also agree with him that

Mfundo Omari as a replacement could only be appointed administrator under subrule

(b), and that therefore his appointment was made under that sub-rule. We are

therefore satisfied that the learned Judge was wrong to restrict the powers of Primary

Courts to appoint administrators to sub-rule (a). The next D question is whether this

appointment was valid in light of the objections raised by Dr Lamwai. As indicated,

Dr Lamwai's first objection was that Mfundo could not be appointed administrator to

replace Mayasa whose appointment had not been E revoked for the reason which he

gave. We are satisfied that this objection has no basis. First, where is the evidence of

the Primary Court Magistrate who handled this Administration Cause, ie PW5.

According to him, he revoked Mayasa's F appointment after receiving complaints

from other beneficiaries of the estate and that therefore he appointed Mfundo Omari

as a replacement. The record shows that the Primary Court record was produced as an

exhibit. This objection must therefore fail. The second objection was that the Primary

Court did not specifically state in what way Mfundo Omari was qualified to be

appointed administrator under sub-rule (b). This sub-rule provides: G

`either of its own motion or on the application by any person interested in the

administration of the estate, where its consideration that it is desirable so to do for the

protection of the estate and the proper administration therefore, appoint an officer of

the court or one reputable and H impartial person able and willing to administer the

estate to be administrator either together with or in lieu of the administrator

appointed under Sub-paragraph (a)'.

It is clear in the circumstances of this case that Mfundo Omari was appointed under

the second limb as a `reputable and impartial person able and willing to administer

the estate'. We think that the fact of the appointment is evidence that the Court was

satisfied that the person so appointed is I

1994 TLR p229

MNZAVAS JA

a `reputable and impartial person able and willing to administer the estate', it is A

therefore up to the person challenging the validity of the appointment to show and

establish that the person so appointed does not have these qualifications. It is not

enough as Dr Lamwai sought to do in this case merely to say that the court did not B

indicate in what way the court was satisfied that the appointee possessed those

qualifications. This objection must therefore also fail. Lastly, Dr Lamwai's third

objection has no merit because the sale of the house to the appellant was made after

not before the revocation of Mayasa's appointment.

For these reasons we uphold the appellant's first ground of appeal. C

We intend to deal with grounds two and three together as those are related. We think

and are satisfied that in the circumstances of this case, selling the house and

distributing the proceeds among the various contending heirs, was the only sensible

option open to the administrator. The record shows that there are two D hostile

contending groups among the heirs of the late Mzee bin Risasi. The heirs are grouped

according to their mothers. There is absolutely no way of reconciling the two groups.

We are therefore satisfied that the decision to sell the suit house was not arbitrary, in

fact it was in the best interests of the estate and all the heirs. With regard to the

question whether consent of all the heirs should have been E sought before selling

the house, firstly, it was impossible to obtain such consent from the two hostile

groups. Secondly, the administrator was not legally required to obtain such consent.

As this court stated in Aziz Daudi Aziz v Amin Ahmed Ally & Another (1): F

`We cannot find in the evidence before the High Court that there was

anything wrong with the sale of the house. Once an administrator of the estate was

appointed then the house of the deceased owner of the property is changed in all

documents and that of the administrator is substituted and it is left to his discretion to

administer the estate in the best way he can....'. G

Accordingly we uphold the complaints in both grounds two and three. H

Before we rest and make the necessary orders, we wish only to mention that in the

course of the hearing of this appeal, two members of the court thought aloud and

wondered whether the Primary Court had jurisdiction to administer this estate

involving as it did registered land, in view of the provisions of s 18(1) of the Magis- I

1994 TLR p230

A trate's Courts Act. But since this was not a substantive issue in this appeal, we do

not intend to say any more about it.

Turning now to the appeal, we have already upheld all the grounds in the appeal, but

having done so, we are still extremely uneasy about the fairness of the sale. There are

two documents, both executed by the late administrator Mfundo Omari, B and each

of them bearing a different purchase price. The first document dated 28 March 1985

shows that the house was sold to the appellant for Shs 147,680/= whereas the second

document dated 5 October 1985 shows that the same house was sold to the appellant

for Shs 200,000/=. Which then is which? We think it C would be fair both the estate

and the heirs if this difficulty was resolved by ordering a new sale. For the foregoing

reasons, we allow the appeal and set aside the judgment and orders of the High Court.

But we set aside the two sales dated 28 March 1985 and 5 October 1985 and order a

new sale of the house by public D auction in which the present appellant will be

allowed to bid. If his bid succeeds then he can have the house and the purchase price

so far paid will be credited to him. In the event he is unsuccessful, however, the

purchase price is to be refunded to him. The appellant will have his costs both in this

Court and in the Courts below. E

1994 TLR p230

F