| dc.description | SWALEHE JUMA SANGAWE (As administrator of the Estate of the Late JUMA SWALEHE SANGAWE) AND ANOTHER VERSUS HALIMA SWALEHE SANGAWE
CIVIL APPEAL NO. 82 OF 202
COURT OF APPEAL OF TANZANIA AT MOSHI
(Appeal from the Judgment of the High Court of Tanzania at Moshi) Mwenempazi J, A
dated the 1st day of December, 2020 in Land Case No. 29 of 2017)
CORAM: NDIKA, J.A KITUSI. J.A, and MAKUNGU J,A.
FLY NOTES
Appeal-Probate and AdministratioAppeal- -Whether the respondent had legal standing to sue on her own or on behalf of the deceased's estate in the matter
Appeal-Probate and Adminstration of Estates- of Estate Whether the trial judge correct in her holding
BRIEF FACT
Juma Swalehe Sangawe, Hussein Swalehe Sangawe and Halima Swalehe Sangawe, are allegedly full siblings sharing the same parents. Their supposed father, Swalehe Mlashi, died intestate on 21st December, 1967. Halima ("the respondent") successfully sued her brothers in the High Court of Tanzania at Moshi mainly for declaratory reliefs and certain orders over landed properties claimed to be part of the estate of their deceased father. In this appeal, Swalehe Juma Sangawe (acting as the administrator of the late Juma who passed awayon 10th July, 2018) and Hussein, the first and second appellants respectively, challenge the trial court's judgment on three grounds.The respondent's claim was that her brothers had intermeddled with two landed properties falling within their deceased father's estate: one, a residential house described as Plot No. 3 Block X, Section III in Moshi Municipality registered in the deceased's name; and two, a ten-acre farmland situated at Rau village in Moshi District. It was claimed that while the first appellant fraudulently transferred title to the residential property to himself and had it registered in his name, the second appellant subdivided the farmland into pieces of land which he offered for sale to unknown persons without sharing the proceeds thereof with other heirs. On that basis, the respondent mainly sought the following reliefs, apart from interest (on rental income and proceeds of sales of land) and costs of the suit:
1. A declaration that the residential property was part of the estate of deceased and that the transfer of title thereto to the first appellant was a nullity.
2. An order that the residential property be distributed to the beneficiaries of the deceased's estate and that the first appellant be ordered to account for rental income from the property collected from 2011.
3. The second appellant be ordered to account for the proceeds of sales of pieces of land carved out of the farmland and that said proceeds be distributed to the respondent as a beneficiary.
4. The remainder of the farmland be divided and distributed to the respondent as a beneficiary.
When the appeal came up for hearing, the Court prompted the parties to address us on the three grounds of appeal lodged by the appellants as well as the question whether the respondent had legal standing to sue on her own or on behalf of the deceased's estate in the matter, an issue that was addressed and determined by the trial court. Tha appellant was represented by Faygrace Sadallah and respondent appeared in person Ms. Faygrace Sadallah, learned counsel for the appellants, and answered the above question in the negative. She contended that only an administrator of an estate of a deceased person or an executor of a will who has been granted probate can sue in respect of all surviving or ensuing causes of action on behalf of the deceased's estate while the respondent, who was self-represented, had no definitive position on the matter
Application struck out without costs
ISSUES
1. Whether the respondent had legal standing to sue on her own or on behalf of the deceased's estate in the matter
2. Whether the trial judge correct in her holding
HELD;
1. It is, therefore, our finding that she had no standing to institute the proceedings in the trial court.
2. The trial court obviously slipped into error by allowing her to maintain her action in her own name and entertaining it. The suit ought to have been struck out.
STATUTORY PROVISION REFEERED TO;
1. Section 16, 17 and 71 of the Probate and Administration of Estates Act, Cap. 352 R.E. 2002
2. Section 4 (2) of the Appellate Jurisdiction Act
CASE LAWS REFEED TO;
Omary Yusuph v. Albert Munuo, Civil Appeal No. 12 of 2018 (unreported).
LEGAL MAXIM
Locus standi
Faygrace Sadallah for the Appelant
Respondent appeared in person | en_US |
