HAMSON D. GHIKAS v LUDWINA G. GHIKAS 1992 TLR 288 (CA)

 HAMSON D. GHIKAS v LUDWINA G. GHIKAS 1992 TLR 288 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mfalila JJA, Kisanga JJA, Mapigano Ag. JA

21 September 1992 B

Flynote

Administration of Estates - Grant of probate - Conditions for grant - Necessity of a

will.

-Headnote

The respondent petitioned for, and was granted, probate by the High Court in respect

of the estate of her late father. The appellant, also the child of the same deceased C

father applied for a revocation of the grant of the probate to the respondent but the

High Court refused the application. The appellant appealed to the Court of Appeal. In

the course of hearing and upon perusal of the High Court proceedings, the Court

noted a D number of irregularities whose details are found in the order of the Court.

Held: The petition for probate by the respondent was misconceived as the deceased

died intestate and the purported grant of the same was null and void. E

Case Information

Order accordingly.

Ngalo, for appellant

Masuma, for the respondent. F

Judgment

Kisanga and Mfalila, JJ.A. and Mapigano Ag. J.A.: The record in the matter before us

shows that the respondent has petitioned for, and was duly granted, probate by the

High Court (Chua, J.) in respect of the estate of her father, the late Adolf D. G

Ghikas. Subsequently the appellant who is also the child of the deceased, applied for a

revocation of the grant to the respondent, but the High Court (Mroso, J.) refused the

application.

It is from that refusal that this appeal is preferred. Before us the appellant is

represented by Mr. C.M. Ngalo, learned advocate, while Mr. C.J. Maruma, learned

advocate is H for the respondent.

When the appeal was called on for hearing counsel for both sides informed us that

they were applying for a consent order to provide for, inter alia, a variation of the

Grant of Letters of Administration issued to the respondent so as to include the

appellant I

1992 TLR p289

KISANGA JJA, MFALILA JJA, MAPIGANO AG. JA

as a joint grantee of Letters of Administration in respect of the estate in question. A

It was at once apparent that there was a serious problem in the matter. While the

learned counsel are asking us to vary the Grant of Letters of Administration issued to

the respondent, the record makes it quite plain that what was issued to the

respondent B was not a Grant of Letters of Administration; it was a Grant of Probate

duly issued in pursuance of the respondent's application for the same. It is therefore

impossible to make the consent order as proposed by counsel for the simple reason

that we cannot vary a Grant of Letters of Administration which was never issued in

the first instance. C

But the matter does not end there. There is the further question of the validity of the

said Grant of Probate issued to the respondent. Section 24(1) of Probate and

Administration Ordinance (Cap.445) provides that: D

24-(1) Probate may be granted only to an executor appointed by the will.

And rule 33 of the Probate Rules requires, inter alia, that: E

(a) the last will of the deceased and all codicils thereto shall accompany the

petition for grant of probate.

The reading of both provisions makes it abundantly clear that the petition for, and

grant of, probate presuppose the existence of a will. In the instant case, however, the

F purported position for probe by respondent was not accompanied by any will, and

going through the entire record there is no mention whatsoever of any will left by

the deceased. Indeed the very fact that counsel are asking for consent order, to vary

the grant of Letters of Administration so as to make the appellant a joint grantee of G

Letters of Administration clearly suggests that no will of the deceased exists or has

been traced.

In the circumstances, therefore, it seems plain to us that the petition for probate by

the respondent was grossly misconceived and the purported grant of the same was

simply H null and void. When those matters were pointed out to the learned counsel

for the parties, they readily conceded.

In the result we set aside the purported grant of probate as being null and void, and as

this is entirely a family matter we make no order for costs.

I Order accordingly.

1992 TLR p290

A