CIVIL APPEAL NO. MR.

ANJUM VICAR Whether following the

73 OF 2003- SALEEM ABDI Vs. demise of her
COURT OF APPEAL MRS. NASEEM husband the entire
OF TANZANIA AKHTAR SALEEM estate including the
AT ARUSHA- ZANGIE (Appeal suit land devolved
RAMADHANI, C.J., from the Decision upon Respondent
MROSO, J.A. And of the High Court (i.e. wife of the
RUTAKANGWA, J.A. of Tanzania deceased) and her
at Moshi- HC Civil four children
Case No. 20 of (appellant inclusive)
2001-(Munuo, J.) in accordance with
Islamic law and
values.

Whether Suit land

bequeathed to
Respondent by the
deceased through a
duly executed Will.

Rights of Women-
Trial judge invoked
Article 24 of the
Constitution, Article
17 of the UDHRs,
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
 2

guarantees equal
treatment before the
courts and other
tribunals over and
above protecting
women’s contractual
capacity”.

Exclusion of
Matrimonial Home
from the
administration of
Estate of the
Deceased in
accordance with
Islamic Law-

Revocation and/or
validity of the grant
of probatecan 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
 3

proceedings in the
High Court either on
its own motion or on
application by an
interested party.

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, is governed by
the laws on probate
and administration of
deceased estates. It
was, therefore, wrong
for 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.

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA
 4

(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. In addition to his wife (the respondent) and the

appellant, he was also survived by one other son Khalid and two

daughters, all born of the respondent.

 5

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 or the suit land henceforth. It is this latter

parcel of land which is the bone of contention between the appellant

and the respondent in this appeal which emanates from Civil Case

No. 20 of 2001 in the High Court at Moshi (the suit hereinafter).

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 only visited them

occasionally. However, in the year 2000 the appellant started

problems. He cut off the supply of water from the borehole to the

residential houses, unilaterally partitioned the main residential house

into two sections and placed a notice at the main gate barring

people, be they occupants or outsiders from hooting in order to have

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the gate opened. She took all these acts by the appellant to be an

unjustifiable interference in her right to a quiet possession and

enjoyment of the suit land which she believed she had jointly

acquired with the deceased and which was bequeathed to her by the

deceased through a duly executed Will (Exhibit P1). She protested,

but her protests fell on deaf ears. Instead of engaging in reprisals

she resorted to the courts of law as shown above.

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.

 7

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.

 8

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.
 9

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 was and is still
matrimonial property.

(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
 10

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:-
 11

“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

 12

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.

 13

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.
 14

(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

 15

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

 16

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.

 17

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

 18

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.
 19

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

 20

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