IN THE COURT OF APPEAL OF TANZANIA

AT MOSHI

fCORAM: NDIKA. 3.A.. KITUSI. J.A.. And MAKUNGU. 3.A.^

CIVIL APPEAL NO. 82 OF 2021

SWALEHE JUMA SANGAWE (As administrator of

the Estate of the Late JUMA SWALEHE SANGAWE)............FIRST APPELLANT
HUSSEIN SWALEHE SANGAWE................................ SECOND APPELLANT
VERSUS
HALIMA SWALEHE SANGAWE.......................................... RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania at Moshi)
fMwenerrmazi. 3.1

dated the 1st day of December, 2020

in
Land Case No. 29 of 2017

JUDGMENT OF THE COURT

28"' September & 4th October, 2022

NDIKA. J.A.i

The protagonists in this dispute, 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 away
on 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.

Although in their defence the appellants denied having a blood

relationship with the respondent, they admitted that the deceased passed

away on 21st December, 1967. However, they asserted that since then

nobody had been appointed to administer the deceased's estate. It was

asserted that the first appellant was the owner of the residential property

and that it was not part of the deceased's estate. As regards the alleged

farmland, the appellants claimed that the deceased did not own any such

land in Rau village.

Besides their denial of the claim, the appellants demurred that the

suit was time-barred, that it was lodged in a wrong forum and that the

respondent lacked locus standi or legal standing to sue in the matter.

Having heard the parties on the threshold points, the trial court (Fikirini,

1, as she then was) was unimpressed; it overruled them all. In the

aftermath, a trial ensued before Mwenempazi, J., culminating in the

verdict in the respondent's favour, as hinted earlier. The learned judge

granted the declaratory reliefs and other orders prayed for except for

orders on interest and costs of the suit.

When the appeal came up for hearing, we 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. As it shall become clear

shortly, the appeal turns on this threshold issue.

Ms. Faygrace Sadallah, learned counsel for the appellants, 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. It is on

record, she added, that nobody was ever appointed to administer the

deceased's estate in the instant case and that the respondent, not being

an administrator or executor, could not sue his siblings to recover the

properties in dispute she claimed to be part of the deceased's estate.

 The respondent, who was self-represented, had no definitive

position on the matter, quite understandably so. She conceded that

nobody had ever been appointed to administer the estate since the

decedent's passing on 21st December, 1967.

We have indicated earlier that the High Court dealt with the point

but overruled it. The court reasoned as follows:

"Turning to the 3d point o f locus standi, since

neither the plaintiff nor the defendants have
tetters o f administration pertaining to the
deceased's estate none can claim right o f
administering the estate over the other. For the
plaintiff, as she has letters o f administration
whereas for the defendants there was no proofo f
their claim that they were bequeathedbefore their
late lather passed away. The defendants' act o f
distributing the deceased's estate without proof
that they had validly been appointed
administrators o f die deceased's estate could be
Illegal. The point is equally overruled."

The above extract shows that while the learned judge was cognizant

that the respondent (then the plaintiff) was not an administrator of the

deceased's estate, she still allowed her to maintain the suit on the

allegation that the appellants (the defendants at the time), who were
themselves not administrators of the estate, illegally intermeddled with

the estate and distributed part of it to themselves. Was the learned judge

correct in her holding?

We should begin our deliberations on the issue at hand by noting

the provisions of section 16 of the Probate and Administration of Estates

Act, Cap. 352 R.E. 2002 ("the Act"):

"Aperson who Intermeddles with the estate o fthe

deceased or does any other act which belongs to
the office o f executor, while there is no rightful
executor or administrator in existence, thereby
makes himselfan executor o fhis own wrong:

Provided that-

(a) Intermeddling with the goods o f the

deceased for the purpose o f preserving
them or providing for his funeral or for the
immediate necessities o f his family or
property; or

(b) dealing in the ordinary course o f

business with goods o f the deceased
received from another; or

(c) action by an administrative officer under

section 14 o f the Administrator-General
(Powers and Functions) Act;
 (d) action by a receiver appointed under
section 10,

does not make an executor o fhis own wrong."

The above section protects an estate of any person after his or her

death while there is no rightful executor or administrator in existence. In

doing so, it bars any person from intermeddling with the estate of a

deceased person, subject to provisos (a) to (d) to section 16, while there

is no duly appointed executor or administrator. Any such intermeddler

acting without authority is legally known as "executor of his own wrong."

In terms of section 17 of the Act, such an intermeddler is answerable to

the rightful executor or administrator, or to any legatee or creditor of the

deceased for his acts detrimental to the deceased's estate. At this point,

we can deduct from section 17 that it is an executor or administrator of

the estate, apart from a legatee or a creditor of the deceased, who can

institute an action against such an intermeddler.

Furthermore, section 71 of the Act provides that it is the grantee

alone of probate or letters of administration that is entitled to act for and

on behalf of the deceased's estate:

"After any grant o f probate or tetters o f

administration, no person other than the person
 to whom the same shall have been granted shall
have power to sue or prosecute any suit, or
otherwise act as representative o f the deceased,
untilsuch probate or letters o fadministration shall
have been revoked or annulled."

The above provision gives legal standing to sue or being sued, for

or on behalf of an estate of a deceased person, to an executor or

administrator of a deceased's estate - see also Omary Yusuph v. Albert

Munuo, Civil Appeal No. 12 of 2018 (unreported).

In the instant case, the respondent conceded that she was not an

administrator of the deceased's estate and that nobody had ever been

appointed to administer the estate. In our view, it is only an administrator

of the deceased's estate, once appointed, who could sue on the cause of

action as presented by the respondent against the alleged interlopers.

Moreover, the respondent obviously did not sue as a creditor of the

deceased. Nor was she a legatee, that is, a person inheriting property

based upon a person's will, as the instant matter concerned intestacy. It

is, therefore, our finding that she had no standing to institute the

proceedings in the trial court. 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.

 Based on the foregoing analysis, we nullify the trial court's

proceedings and the judgment thereon pursuant to our revisional powers

under section 4 (2) of the Appellate Jurisdiction Act. We are compelled to

step into the shoes of the trial court and proceed to strike out the suit.

Each party to bear its own costs.

DATED at MOSHI this 3rdday of October, 2022.

G. A. M. NDIKA
JUSTICE OF APPEAL

I. P. KITUSI
JUSTICE OF APPEAL

0. 0. MAKUNGU
JUSTICE OF APPEAL

The Judgment delivered this 4th day of October, 2022 in the

presence Ms. Faygrace Sadala, learned counsel for the Appellants and

Respondent present in person unrepresented, is hereby certified as a true

copy of the original.

x CVa *-y! ^
C. M. MAGESA
DEPUTY REGISTRAR
COURT OF APPEAL