MWANAHAWA MUYA v MWANAIDI MARO 1992 TLR 78 (CA)

 MWANAHAWA MUYA v MWANAIDI MARO 1992 TLR 78 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA, Mnzavas, JJA

13 May 1992 B

Flynote

Administration of Estates - Probate and Administration - Annulment of grant of

letters of administration - Concealment of letter of administration granted by lower

court - Effect of such concealment.

Civil Practice and Procedure - Revisional powers - Suo moto - When exercisable. C

-Headnote

The appellant applied for and was granted letters of administration by the Resident

Magistrates' Court. In that court the respondent was the objector. Despite this grant

D the respondent filed a petition for letters of administration in the High Court in

respect of the same estate. The respondent deposed in her petition that there had not

been any proceedings for grant of probate or letters of administration regarding the

estate. The High Court granted letters of administration to the respondent.

Dissatisfied with the E grant of letters of administration to the respondent by the

High Court, the appellant filed a civil application in the High Court challenging the

grant of letters of administration to the present respondent and prayed that the grant

of letters of administration to the respondent by the High Court be revoked. This civil

application was heard by a F different High Court judge who instead of addressing

the issue invoked revisional power suo moto and declared the proceedings in the

Resident Magistrates' Court null and void.

The Court of Appeal considered whether the grant of letters of administration by the

G High Court was valid. It also looked into the propriety of invoking revisional

jurisdiction suo moto by the High Court over the proceedings of the lower court.

Held: (i) Respondent's blatant lies that there had not been previous proceedings H

regarding grant of probate or letters of administration while she was in fact the

objector in the R.M.'s court when letters of administration were granted to the

appellant, amply demonstrated that she was bent to defraud other interested parties

in the estate. Had the High Court (Nchalla, J.) dealt with this issue he would no doubt

have found that this was I a good reason to annual the grant of

1992 TLR p79

MNZAVAS JJA, OMARI JJA, RAMADHANI JJA

letters of administration to the respondent by the High Court (Chua, J.); A

(ii) in a proper case the High Court can invoke its powers of revision in a 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 B subordinate courts;

(iii) it is wrong, indeed improper, for the High Court to resort to its revisional

powers where (as it was in this case) there are specific issues calling for determination

by the court.

Case Information

Appeal upheld. C

D'Souza, for the appellant.

Muhatane, for the respondent.

[zJDz]Judgment

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,

1992 TLR p80

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

1992 TLR p81

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 H

hereby 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

1992 TLR p82

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

1992 TLR p83

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

1992 TLR p84

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.

1992 TLR p85

A