VIOLET ISHENGOMA KAHANGWA AND JOVIN MUTABUZI v THE ADMINISTRATOR GENERAL AND MRS. EUDOKIA KAHANGWA 1990 TLR 72 (CA)

VIOLET ISHENGOMA KAHANGWA AND JOVIN MUTABUZI v THE ADMINISTRATOR GENERAL AND MRS. EUDOKIA KAHANGWA 1990 TLR 72 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Makame JJA, Mfalila JJA

F 16 July 1990

Flynote

G Administration of Estates - Intestacy - Customary law applicable - Whether

Administrator-General can administer the estate under customary law - Whether

Administrator-General needs to appear before a Primary Court by reason of

administering the deceased's estate under customary law.

H Administration of Estates - Father dies intestate - Whether illegitimate children

qualify for distribution of the deceased's estate.

Family Law - Children - Meaning of.

I Family Law - Putative father's duty to maintain children - Nature of the duty -

Duration of the duty.

1990 TLR p73

KISANGA JJA, MAKAME JJA AND MFALILA JJA

-Headnote

In an application for directions the High Court directed that the life style of the

deceased at the time of his death was A governed by the traditions, customs and

practices of the Bahaya tribe to which he (the deceased) belonged, therefore, the law

applicable in administering the distribution of the estate was the customary law of the

Bahaya. The High Court further directed that since the first appellant was not

lawfully married to the deceased because the B previous monogamous marriage to

the second respondent was still subsisting, the 2 issues of the deceased's cohabitation

with the f irst appellant were illegitimate children who under the applicable Bahaya

customary law did not legally qualify for distribution, because an illegitimate child

cannot inherit from the father's side upon his dying C intestate. On appeal to the

Court of Appeal against the directions.

Held:(i) In administering the estate the Administrator-General does not have to

appear in the Primary Court for any purpose because he is not acting as an advocate

representing a particular party. All that is required of him is to D distribute the

estate to all those who qualify for distribution. In case he runs into a difficulty he may

turn to the High Court f or direction.

(ii) under paragraph 43 of the Local Customary Law (Declaration) (No.4)

Order, 1963, G.N. No.436 as applied to the Bahaya tribe vide G.N.No.605 of 1963, an

illegitimate child cannot inherit from the father's side E upon his dying intestate;

(iii) a child as defined under the Law of Marriage Act, 1967 does not include

an illegitimate child, thus the word "children" in section 129 (1) of the Law of

Marriage Act does not include illegitimate children;

(iv) a putative father's obligation to his illegitimate children is personal and

ends with his death. It does not F survive him and cannot attach to his estate upon

his dying intestate.

Case Information

Appeal dismissed.

Malingumu Rutashobya for the appellants G

Rugonzibwa, for the first respondent

W. Kapinga, for the second respondent

[zJDz]Judgment

Kisanga, Makame and Mfalila, JJ.A. This appeal arises from the decision of the High

Court (Mapigano, J.) H upon an application to him for directions on matters relating

to intestate succession.

The deceased Bruno Kahangwa died intestate on 28.12.86. He was survived by his

widow Eudokia Kahangwa (the second respondent) with whom he had celebrated a

monogamous Christian marriage on 6.11.82. He was also I survived by a female child

(Lilian) of that marriage

1990 TLR p74

KISANGA JJA, MAKAME JJA AND MFALILA JJA

A born on 17.8.83. At the time of death, however he and his widow, Eudokia, had

been estranged and were living apart but their marriage was still subsisting. Their

daughter Lilian was staying with the mother. In the meantime the deceased was

living or cohabiting with another woman, Violet Ishengoma (the first appellant) with

whom he B contracted a customary law marriage as evidenced by a marrying

certificate put in evidence and dated 25.6.86. During their association or cohabitation

the deceased and Violet begot two children - Reynold born on 1.12.84 and Diana

born on 9.2.86.

C Following the death of the deceased, his widow Eudokia, applied that the

Administrator-General (the first respondent) be appointed administrator of the

deceased's estate. The application was duly granted by the High Court, but

subsequently Violet Ishengoma (the first appellant) and Jovin Mutabuzi, a brother of

the deceased (the D second appellant) applied for the revocation of that appointment

and instead asked that the said Jovin Mutabuzi (the second appellant) be appointed to

administer the estate in accordance with the customary law of the Bahaya. In the

High Court the applicants/appellants Violet Ishengoma and Jovin Mutabuzi were

represented by Mr. E Malingumu Rutashobya. Mr. Ngoto appeared for the first

respondent, the Administrator-General while Mr. W.B.L. Kapinga was for the second

respondent Eudokia Kahangwa. At the hearing before the High Court however, the

applicants/appellants abandoned their application for the revocation of the

appointment of the Administrator-General as the administrator of the estate, but the

Court was asked by the parties for direction on F two matters:

1. Whether the customary law of the Bahaya should govern the

distribution of the estate, and

G 2. Whether the two children of the deceased viz. Reynold and Diana by

the first appellant would qualify for a share or shares in the distribution of the estate.

The learned Judge in a painstaking decision came to the conclusion that the

distribution of the estate was governed H by the customary law of the Bahaya, it

appeared to him that the life style of the deceased at the time of his death was

governed by the traditions, customs and practices of the Bahaya tribe to which he

(the deceased) belonged. Accordingly, the learned Judge directed the Administrator-

General to apply that law.

I On the second question the learned Judge held that the two children did not

qualify for distribution because they were illegitimate. This is

1990 TLR p75

KISANGA JJA, MAKAME JJA AND MFALILA JJA

how he arrived at that conclusion. The purported customary law marriage between

the deceased and the first A appellant was, under section 38 (1)(c) of the Law

Marriage Act, a nullity because in terms of section 15 (1) of that Act the deceased had

no legal capacity to marry by reason of his prior and subsisting monogamous marriage

with the second respondent. The two children were, therefore illegitimate because

they were born of an adulterous B association between the deceased and the first

appellant. And under the Local Customary Law (Declaration) (No.4) Order 1963

published as G.N. No. 436 of 1963 and made applicable to the Bahaya tribe vide G.N.

605 of 1963, illegitimate children cannot inherit from the father's side upon the father

dying intestate. Accordingly the C learned Judge directed the Administrator-General

that the two children did not legally qualify for distribution. It is from that decision

that this appeal arises.

Before us Counsel appearances were the same as they were in the High Court except

that the D Administrator-General was now represented by Mr. T.Z. Ruganzibwa.

Mr. Rutashobya filed and argued two grounds of appeal. For convenience, we set out

here in below the two grounds together with the order he has asked for: E

1. That the learned Judge erred when he held that the estate of Bruno

Kahangwa be administered according to the customary law of the Bahaya Tribe and

yet declared that the two children of the deceased Raymond (sic.) Kahangwa and

Diana Kahangwa do not legally qualify for distribution. F

2. That the learned Judge misdirected himself when he directed

Administrator-General to apply the customary law of the Bahaya Tribe

administrating the estate of the deceased without taking into account G the fact that

the matter then came within the jurisdiction of the Primary Court competent to

adjudicate on the matter where the Administrator General had no locus standi.

It is proposed to ask the Honourable Court of Appeal of Tanzania for the following

Orders: H

(a) A declaration that the two children of the 1st Appellant Violet

Ishengoma Kahangwa, Raymond (sic.) Kahangwa and Diana Kahangwa are entitled to

succeed the estate of their father the late Bruno I Kahangwa;

1990 TLR p76

KISANGA JJA, MAKAME JJA AND MFALILA JJA

A (b) An order directing that the probate (sic.) proceedings in respect of the

estate of the deceased should be adjudicated upon in a Primary Court of competent

jurisdiction and that the estate of the late Bruno Kahangwa should be administered by

the 2nd Appellant Jovin Mutabuzi according to the customary law B of the Bahaya

tribe.

It is at once apparent that ground 2 is both incompetent and misconceived. Before the

High Court Mr. Rutashobya C had abandoned his application to the court to revoke

the appointment of the Administrator-General, and henceforth the matter proceeded

on the footing that the Administrator-General was the duly appointed administrator

of the estate. That is to say the matter was agreed to and duly settled in the High

Court. For the learned Counsel to seek on appeal to question or criticize the

appointment of the Administrator General is tantamount to re-opening the D issue

to which Counsel himself had conceded. That, in our view, he cannot properly do

because it would lead to endless proceedings.

Even assuming that it was open to him to raise that point at this stage, his ground for

the complaint does not appear E sound. If we understood him correctly his argument

is that it is the Primary Court which was competent to administer the customary law

of the Bahaya, but that the appointment of Administrator-General was irregular in

that it would make it impracticable for him (the Administrator-General) to

administer the estate because he has no locus F standi in the Primary Court. By

saying that the Administrator-General has no locus standi in the Primary Court we

understand him to mean that the Administrator-General has no right of audience in

that court. If this is what learned Counsel meant, and we could not figure what else

he could have meant, then with respect he must have got G mixed up as to the role

and function of the Administrator-General in the matter. In administering the estate

the Administrator-General does not have to appear in the Primary Court for any

purpose. For, he is not acting as an advocate representing a particular party. All that is

required of him is to distribute the estate to all those who qualify for distribution. In

determining who qualifies for what share he, as a lawyer, is to apply the customary

law of the H Bahaya, and in case he runs into a difficulty he may turn to the High

Court for directions. In such circumstances it seems to us that the learned counsel's

contention that the Administrator - General has no locus standi meaning he has no

right of audience, in the Primary Court is of little or no relevance because, as already

noted, his appointment I to administer the estate does not entail any appearances in

the Primary Court.

1990 TLR p77

KISANGA JJA, MAKAME JJA AND MFALILA JJA

It is quite apparent that Mr. Rutashobya was not aggrieved by the learned judge's

direction that the Bahaya A customary law should be applied. Indeed this is what

the learned Counsel himself had specifically asked for, and we are satisfied that for

the reason given by the learned Judge as referred to hereinbefore, that direction was

perfectly sound. Mr. Rutashobya's real grievance is that the second appellant, and not

the Administrator-General, should B administer the estate but, as we have

sufficiently indicated, that issue was settled at the commencement of hearing the

application before the High Court following Mr. Rutashobya's own conceding the

same, and no grounds have been advanced for re-opening it on appeal. C

In the remaining ground of appeal Mr. Rutashobya asserts that the learned Judge

erred in holding that the two children did not qualify for distribution and asks us to

fault that direction. He did not seriously challenge the finding that the two children

were illegitimate. Indeed he could not have done so because there was overwhelming

evidence D to support that finding. Nor can there by any argument that under

paragraph 43 of G.N.No.436 of 1963 read together with G.N. No. 605 of 1963 an

illegitimate child cannot inherit from the father's side upon his dying intestate.

However learned counsel urged us to say that the two children qualified for

distribution on the ground that their deceased father had legal and moral obligation

to maintain them, and that upon his death that obligation E continued and attached

to his estate. In support of the submission counsel referred us to, inter alia, the

provisions of section 129(1) of the Law of Marriage Act and two English decisions in

the cases of In re Joslin [1941] Ch. F 200 and In re Makein [1955] Ch. 194.

We have given most anxious consideration to Mr. Rutashobya's submission, but we

are unable to accede to it. His reference to section 129(1) of the Law of Marriage Act

was undoubtedly influenced by the views expressed by the learned Judge about that

provision. The learned Judge was comparing the present state of our law on intestate

G succession with that of England and observed that the Tanzania law militates

against illegitimate children. He noted that in England a number of statutory attempts

have been made to try to alleviate this situation but that there have been no

equivalent or corresponding efforts in Tanzania. It was in this context that he made

reference to section 129 H (1) of the Law of Marriage Act and said that was about

the only relevant statutory provision on the subject. That provision says:

129 (1) Save where an agreement or order of court otherwise provides, it shall be the

duty of a man to maintain his infant I children,

1990 TLR p78

KISANGA JJA, MAKAME JJA AND MFALILA JJA

A whether they are in his custody or the custody of any other persons, either by

providing them with such accommodation, clothing, food and education as may be

reasonable having regard to his means and station in life or by paying the cost thereof.

B The learned judge construed the word "children" appearing in the subsection to

include illegitimate children in which case the deceased was duty bound to maintain

the two illegitimate children, and, taking the queue from there, Mr. Rutashobya

submitted that that duty continued and attached to the deceased's estate upon his

dying intestate.

C Mr. Kapinga submitted that the learned Judge wrongly construed the word

"children" to include illegitimate children. In his view the word "children" here

excluded illegitimate children, and in support therefore referred to the meaning

assigned to the word "child" in section 2 (1) of the Law of Marriage Act:

D 'child' includes an adopted child.

The learned Counsel contended that this shows the clear intention of the Legislature

to exclude illegitimate children, E otherwise it would have expressly extended the

meaning to such children like it did for adopted children. We think that Mr. Kapinga

is right. The point he puts forward to support his argument seems quite strong, and

we can only say a few words to amplify it The category of illegitimate children is not

a negligible proportion of the country's F entire population. Nor can one really say

that it is smaller numerically or in any other way lesser as compared to that of

adopted children. In those circumstances the fact that parliament singled out adopted

children for including in the meaning of "child" and said nothing about illegitimate

children increasingly adds to the view that the scheme of the G Law of Marriage Act

did not have illegitimate children in its contemplation.

But even if we were to assume for the sake of argument that the learned Judge was

right, which in our view he was not, in interpreting the word "children" to include

illegitimate children, we think that Mr. Rutashobya' s proposition H that the

obligation which the deceased would have to his two illegitimate children would

have attached to his estate upon his dying intestate is untenable. At any rate the

learned Judge was not prepared to go that far. A perusal of his judgment makes it

plain that he was prepared to go only as far as saying that such obligation of the

deceased attached only during his life time. Mr. Rutashobya cited no authority for the

proposition that such obligation would I survive the deceased and attach to his

estate. The problem arose, though not

1990 TLR p79

KISANGA JJA, MAKAME JJA AND MFALILA JJA

directly, in the English case of In re Harrington [1908] Ch.687 which we find to be

persuasive. There it was held A that a putative father's obligation under a bastardy or

affiliation order ends with his death, that such obligation is personal and the arrears

under such an order are not recoverable against his estate. So that even if the word

"children" in section 129 (1) of the Law of Marriage Act were to be enlarged to

include illegitimate children and B hence to say that the deceased in the instant case

had a duty under the law to maintain his two illegitimate children then on the

strength of Harrington's case such duty or obligation being only personal, would not

service him; it would have ended with his death. This, therefore appears to run contra

to Mr. Rutashobya's thesis that such C obligation, even if it existed, would have

attached to the deceased's estate.

We must say that we have much sympathy for Mr. Rutashobya's further view that

the two illegitimate children should be held to qualify for distribution on the ground

that their deceased father had a moral, as distinct from legal, D obligation to

maintain them. However, we are regrettably of the view that in the present state of

our law on the subject such a view is equally untenable. In the two cases (In re Joslin

and In re Makein) cited by Mr. Rutashobya in support of his contention, the Court

was concerned with the interpretation of the word "dependant" E appearing in

section 1 (1) of the English Inheritance (Family Provision) Act 1938 to see if that

word included illegitimate children so as to qualify them for a claim under the

distribution of their deceased father's estate. The Court in In re Makein took the view

that it would interpret that word broadly to include an illegitimate child if such

extended meaning was more consonant with the object of the Act, but in the

particular case it came to the F conclusion that such extended meaning was

unwarranted, with the result that an illegitimate son of the deceased did not qualify

for distribution from the estate of his father who had died intestate.

But we could not quite see why Mr. Rutashobya cited this case to support the claim of

the two children in the G instant case. Because here, unlike in the English case, the

court is not called upon to construe or interpret the term "child" in any law governing

distribution of the estate of a deceased person. As has been shown, the law governing

distribution of the deceased's estate in the instant case is the Bahaya customary law as

set out in G.N.No. 436 of H 1963 and applied to Bahaya vide G.N. No.605 of 1963.

Paragraph 43 of the law expressly prohibits illegitimate children from inheriting from

the father's side where the father died intestate. Thus the facts of the case fall squarely

within that provision: The two children Reynold and Diana were obviously

illegitimate and it is common ground that I their father died intestate. There is

nothing vague,

1990 TLR p80

A ambiguous, inconsistent or incomplete about paragraph 43 which having regard

to the facts of the case, would call for interpretation. Giving the words of paragraph

43 their plain and natural meaning as applied to the facts of the case, it simply means

that the two illegitimate children of the deceased cannot qualify for distribution. We

could find B no room for reading or introducing moral considerations into the

provision. In other words we could find no room for interpreting it, as urged by

Counsel, so as to make the two illegitimate children qualify for distribution on the

ground that their father had a moral obligation towards them. To do so would

amount to substituting the Court's C own views for the express provision of the

written law; that the courts cannot do.

It is perhaps appropriate to observe here that it seems advisable that in cases like this

where a father feels that he owes a moral obligation towards his illegitimate child or

children he should seek to honour that obligation by leaving D a will. That would go

some way to alleviate the hardship often facing illegitimate children; it would make

easier the task of the Courts in handling such cases when they came to Court and it

would serve to put the conscience of the putative father at some ease. When all is

said, we have to conclude the matter by stating that we could find no E ground for

faulting the decision of the learned Judge who in our view was as sympathetic as

anyone could have been with the plight of the two illegitimate children of the

deceased. For the reasons we have given in this judgment we think that the Judge

adequately dealt with, and properly directed himself on, the main issue before him

and came to the right conclusion.

F We are satisfied that the appeal against that decision cannot succeed and it is

accordingly dismissed with costs.

Appeal dismissed.

1990 TLR p80

G