SEIF MARARE v MWADAWA SALUM 1985 TLR 253 (HC)

SEIF MARARE v MWADAWA SALUM 1985 TLR 253 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

June 10, 1979

PROBATE (PC) CIVIL APPEAL 37 OF 1978 D

Flynote

Administration of Estates - Application for appointment of administrator of

deceased's estate - Duty of the court in appointing administrators.

Conflict of Laws - Application for appointment of administrator of a deceased's estate

- E Conflict between Islamic Law and Customary Law - Primary court has

jurisdiction to decide the law applicable.

-Headnote

The respondent sought and obtained from the Primary Court her appointment as an

F administrator of the Estate of the deceased. She maintained that as the sister of the

deceased she was entitled to administer the Estate under Islamic Law. The appellant,

a nephew of the deceased's husband who had himself died much earlier, disputed the

respondent's appointment as administrator. His objections failed both in the Primary

G Court and in the District Court, hence this appeal to the High Court.

Held: (i) On application for appointment of an administrator of a deceaced's estate,

the duty of the court is to appoint as administrator a person who has an interest in the

estate, H and according to the wishes of the deceased if any are expressed;

(ii) as the applicant in this case could only sustain his claim of having an

interest in the Estate through Customary Law and the respondent could only sustain

her similar claim through Islamic Law, either party may be the interested party

depending on what law the court decided to be the law applicable; I

(iii) the Primary Court (having jurisdiction under both Islamic and

1985 TLR p254

KATITI J

Customary Law) applied no wrong principles in appointing the respondent the A

administrator.

Case Information

Appeal dismissed.

No cases referred to. B

Judgment

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

1985 TLR p255

KATITI J

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 D claim 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

1984

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI, Chief Justice

Court of Appeal of Tanzania

Chief Editor

Dr. L.P. SHAIDI, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice A. RAMADHANI,

Chief Justice, Zanzibar

The Hon. Mr. Justice K.S.K. LUGAKINGIRA

High Court of Tanzania

Mr. M.A. LAKHA,

Advocate, High Court of Tanzania

Mr. E.L.K. MWIPOPO,

Principal State Attorney, Ministry of Justice

Mr. R.J. RWEYEMAMU,

Corporation Counsel, Tanzania Legal Corporation

Mr. A.M. MISKIRY,

State Attorney, Zanzibar

Mr. N.N. NDITI,

Lecturer, Faculty of Law,

University of Dar es Salaam

(Assistant Chief Editor)

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of

Appeal of Tanzania and the High Courts of

Tanzania and Zanzibar

CITATION

These Reports are cited thus [1984] T.L.R.

Judges of the Court of Appeal of Tanzania in 1984

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice A. Mustafa Justice of Appeal

3. The Hon. Mr. Justice L.M. Makame Justice of Appeal

4. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

5. The Hon. Mr. Justice Y.M.M. Mwakasendo Justice of Appeal

Judges of the High Court of Tanzania in 1984

1. The Hon. Mr. Justice N.S. Mnzavas Principal Judge (J.K.)

2. The Hon. Mr. Justice B. Samatta Puisne Judge

3. The Hon. Mr. Justice J.B. Mfalila Puisne Judge

4. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

5. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

6. The Hon. Mr. Justice E.W. Katiti Puisne Judge

7. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

8. The Hon. Mr. Justice N.M. Mushi Puisne Judge

9. The Hon. Mr. Justice W.J. Maina Puisne Judge

10. The Hon. Mr. Justice J.A. Mroso Puisne Judge

11. The Hon. Mr. Justice F.A. Munyera Puisne Judge

12. The Hon. Mr. Justice L.J. Chua Puisne Judge

13. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

14. The Hon. Mr. Justice Mwakibete Puisne Judge

15. The Hon. Mr. Justice R.B. Maganga Puisne Judge

16. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

17. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

18. The Hon. Mr. Justice C.G. Mtenga Puisne Judge

20. The Hon. Mr. Justice R.J.A. Mwaikasu Puisne Judge

21. The Hon. mr. Justice Mkatte Puisne Judge

22. The Hon. Mr. Justice A.G. Korosso Puisne Judge

23. The Hon. Mr. Justice A. Bahati Puisne Judge

24. The Hon. Mr. Justice H.A. Msumi Puisne Judge

25. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

Judges of the High Court of Zanzibar in 1984

1. The Hon. Mr. Justice A. Ramadhani Chief Justice

Cases Reported

A