adamu yahaya luyagaza vs haridi yahaya and another 2023 tzhc 15753 20 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA)

AT KIGOMA (PC) CIVIL APPEAL NO. 09 OF 2022 I (Arising from Civil Revision No. 07 of 2021 in Kigoma District Court Before Hon. K.V. Mwakitalu - RM and the original Probate and AdministratiofCCause No. 05/2019 in Mahembe Primary Court, before Hon. M.X Luchunga - RM) ADAMU YAH A YA LUYAGAZA «■! APPELLANT

VERSUS HARIDI YAHAYA . RESPONDENT LUYAGAZA YAHAYA 2ND respondent

JUDGMENT 1/12/2022 & 20/2/2023 L.M. MlachaJ This a second appeaU It originates from the primary court of Kigoma district at Mahembe. It has interesting facts. The parties are brothers from the same father but with different mothers. They are sons of the late Yahaya Luyagaza Lubabwa who died intestate on 3/4/2019. He managed to have three wives during his life time, namely; Fatuma Sehele Kibara, Fatuma Chabugufi and Mariamu Bakumbula (hereafter referred to as the first, second and third wife respectively where need arises). He had the second and third wives only at the time of his death. The first wife was long divorced and lived somewhere separately. He left 19 children from the three wives. Following the death of the deceased, the appellant, Ada mu Yahaya Luyagaza, son of the first wife, moved to Mahembe primary court and filed Administration Cause No. 5/2019 on 22/8/2019 seeking to be appointed the administrator of the estate. The respondents, Haridi Yahaya and Luyagaza Yahaya who come from the third wife, say they were not involved in the matter and has been opposing the appointment and distribution of estates in the two courts below. They are also objecting. Mahembe primary court Is located at a distance of 13.49 kilometers from Ujiji where the parties live and where there is a primary court called Ujiji primary court. No explanation was given as to why the case could not

be filed at Ujiji. The records simply show that the magistrate received the petition on 24/10/2023 and appointed the appellant to administer the estate of his late father. It is also recorded that there was no objection. The appellant filed Form No. VI on 24/3/2021 showing the manner in which he had distributed the estates to the heirs. He distributed the assets to the three wives (including the divorced wife). Children were directed to 2 take their shares from their respective mothers. The distribution partem was as follows: "Fatuma Satehe Kibaba Mjane 20% Fatuma Chabugufi Mjane 40% Mariamu Bakumbula Mjane 40%" What is contained in the percentages was reflected in a paper which was annexed. Form No. VI was received without objection. The administration was marked closed on the same date. The respondents Harldi Yahaya and Luyagaza Yahaya appear^ at a later stage to oppose the appointment and distribution. They resisted strongly on a four point memoranda. The four points can be reproduced as under; 1. Msimamhi huyu wa mirathi hakuchaguHwa na familia kwenye kikao cha familia, lakini ahtengeneza Muhtasari wa uongo na kuieta Mahakamani Hi achaguHwe kuwa msimamizi wa mirathi.

2. WanafamiHa wa tumbo ia pHi na la tatu hawakuwa na taarifa kuwa msimamizi wa mirathi ameieta maombi ya kuteuHwa kuwa msimamizi wa mirathi mahakamani.

3. Hata baada ya kuteuHwa na mahakama msimamizi wa mirathi aiiidanganya mahakama kuwa amegawa mah za marehemu kwa 3 warithi wake takini kiukweli msimamizi wa mirathi aligawa kwa tumbo moja ambalo ndio tumbo lake tu.

4. Hata wajane hawana taarifa kuwa tumbo la pill na la tatu mpaka leo hawajapewa mgao wao wa mall za marehemu wakati ni warithi huku wakinyimwa kutumia mail ambazo wana haki nazo na hata kupelekea msimamizi wa mirathi kuwafunguHa mashtaka poHsi kwa uonezi. Naomba mahakama itusaidie tupate haki yetu. This literally means the following, i) That the appellant was not selected by the family to come and lodge the case. And that the minutes he submitted to the court were forged, ii) That, children from the second and third wives were not aware of the petition and appointment of the appellant as administrator of the estate, iii) That, the appellant had cheated the court that he had distributed the estates of the deceased to the heirs while in reality he has given to people from his mother's side only. And iv), That, I the second and third wives of the deceased did not get any share and they are prevented to use assets of the deceased. The appellant has opened fake criminal charges against them. The objections were received by M.J. Luchungu R.M. She is the one who had made the appointment and received the accounts of estates. She received the objection but could not hear it. She shifted it to another magistrate Hon. Matech RM. Hon. G.H. Mateh declined to hear th^ 4 objection. She advised the objector to go to a higher court. She was of the view that the respondents ought to have opened

the objection at an early stage. That, the matter had been marked closed, so she had no power to do anything. The respondents moved to the district court and filed Civil Revision No. 7 of 2011. The district court (K.V. Mwakitalu RM) revised and vacated the proceedings and decision of the primary court. The magistrate had the view that the primary court decision was made in total disregard of rule 5 of The Primary Court (Administration of estates) Rules, GN. 49 of 1971 which has a requirement to summon all interested people to attend the hearing. He also had the view that the court had a legal duty to summons the heirs, debtors and creditors to come and inspect the inventory and accounts of estates and register their grievances, if any. before closing the administration, something which was not done. The proceedings and the decision of the primary court were revised and vacated based on these points. Parties were advised to go to the primary court to start afresh. The appellant could not buy the idea. Aggrieved by the decision, the appellant has come to this court by way of appeal. The grounds up on which the appeal is based read as under; 5 1. That, the District Court erred in law and fact in entertaining the purported Respondents Application against the appellant in his personal capacity and not as administrator of the deceased estate.

2. That, the District Court erred in law and facts in deciding that the Respondents were not made aware of the clan meeting Annexture Al and the opening of the probate cause before the Primary Court without considering that the Respondent acknowledged existence of the clan meeting but they alleged that the one who was appointed was one SAID LUYAGAZA and they attached the purported annexture Ml which bears no date and signatures of the alleged meeting attendants rendering the same as good as no meeting was convened by them as they alleged and without attaching an affidavit of the SAID LUYAGAZA or secretary of the alleged meeting proving the appointment or the meeting.

3. That, the District Court erred in law and facts in deciding that the primary court did not issue notice of the probate cause to all interested people to the estate of the deceased estate while the Appellant attached to the supporting affidavit Annexture A3 which 6 I was the notice to any interested person to the estate and the same was affixed into different conspicuous places.

4. That, the District Court erred in law and facts by granting the Respondents Application while the Respondent failed to state in their affidavit as to when and how they came to know existence of the probate cause and where were they for the whole period from when the Appellant was appointed up to the date of filing the application before the District Court.

5. That, the District Court erred in law and facts by entertaining the Respondents application against the Appellant without joining as necessary parties the heirs who were distributed with their shares and already sold their shares to third parties who were also not joined as necessary parties to the Respondents application. Hearing was done by oral submissions. The parties appeared In person. It was the submission of the appellant that the he was sued personally while he was supposed to be sued as the administrator of the deceased estate. He went on say that he was appointed by the family in a meeting which was also attended by the appellants. He agreed that the respondents are his brothers from the third wife in a family which has 19 children. He 7 L proceeded to say that the publication was made in all places including at the mosque but there was no objection making the appointment legal. He went on to say that the respondents call children from his mother illegitimate under Islamic Law so as to exclude them from inheritance. He asked the court to leave the decision of the primary court intact because distribution has already been made and heirs have already taken their shares. The first respondent asked the court to allow the second respondent to start to submit. The court allowed the arrangement for there is no rule which forced him to start to make the submission. It was

the submission of the second respondent that the appellant had forged family minutes. This is what forced them to file the revision. He said that none of them sat to propose him to administer the estate. They appointed Saidi Rwegaza to be a temporary administrator, not the appellant. He proceeded to submit that they never attended the proceedings at the primary court because they were not informed of the case. The appellant had filed it at Mahembe primary court which is far away. He added that they were not involved in the distribution. They were just shown a piece of paper. He added that the appellant had no go*: 8 I relation with their father. He went on to say that the first wife of the deceased was not lawfully married. He denied to have used religion to isolate the appellant. The first respondent had nothing to add. The court could hear other family members (off record) who were in attendance. The first wife was high In defence of the appellant and the distribution which he made. People from the other camps were in opposition. The temperature was high in the court room showing that there is a serious battle at the family. It had ample time to read the decisions oF^the two courts and the records closely. I have also considered the submissions and the grounds of appeal. I will address the grounds of appeal as they appear. Ground one has a complaint that the revision ought to

have been filed against the appellant as an administrator of the deceased estate not in his personal name. The appellant made a submission to support this point. The respondents were silent simply because they are laymen. I have considered this point carefully. I don't think that there was need of filing the revision in any other form other than the way it was filed. My reason is simple, that, the revision was not filed against anything done by the appellant as an administrator but was in respect of the proceedings filed and determined at 9 the primary court. I such a situation we don't change names. Things could be different if the respondents were third parties who had an objection against an act of the appellant, acting as an administrator of the estate, alienating any land or assets as part of the estates of the deceased for which they have an interest. In such a case, any objection or suit should be filed against the administrator. That makes ground one baseless which is dismissed. Ground two is on the existence of a family meeting. A lot of energy was spent on this ground but I think it was useless because the decision of the district was not based on the existence or none existence of the clan/family meeting. It was based on the grounds stated above making the ground baseless. I dismiss it. Ground three is based rule 5 of The Primary Court (Administration of estates)

Rules, whether there was notice issued according to the law. This aspect was raised and discussed by the district court. It said that there was no notice issued and served to heirs personally. It found this as a fault of procedure. The appellant is saying that there was a notice issued and served by affixation in public places. This area needs my attention. I will reproduce the rule in full for easy of reference as under: I 10 I "5-(l) As soon as may be after receiving an application under rule 3, the court shall inform the applicant of the date fixed for the hearing of the application. I (2) Where the court intends to proceed of its own motion under paragraph 2(a) or 2(b) of the Fifth Schedule to the Act, or receives an application under sub rule (1) or rule 3, the court shall Issue a notice in the appropriate Form to all persons (other than the applicant) known or alleged to be near relatives of the deceased person or to have been named in the will as executors, requiring their appearance in the court on such date and time as may specified in the notice: Provided that where any such person is a minor or is under a legal disability, the notice may be addressed to his guardian or the person with whom he may be residing. (3) The provision of rule 19 of The Civil Procedure Rules shall apply to the service of notice under sub rule (2) as they apply to service of summonses. (4) The

court may, if it considers necessary, cause the notice to be advertised by such means as are used locally to make public announcements or by publication in the newspaper having a substantial local circulation, whichever may be appropriate. "(Emphasis added). Rule 5 has the following. One, that, as soon as the petition Is filed, the court will Inform the applicant of the date of hearing. Two, that, the court 11 shall issue a notice in the appropriate Form to all persons (other than the applicant) known or alleged to be near relatives of the deceased person or to have been named in the will as executors, requiring their appearance in the court on such date and time as may be specified in the notice. The Form named here is probate and administration Form No. II. This is what is used for citation of the matter. It is directed to all persons who has an interest in the estate with particular emphasis on near relatives (the wife or wives, the children, the brothers and sisters etc.) and executors, where there is a will. They are called up on to attend at the hearing and register their objections to the appointment, if any. I Sub rule (3) provides for the mode of service of the notice. It takes us to I rule 19 of The Magistrates' Courts (Civil Procedure in Primary Courts) Rules, GNs. 310 of 1964 and 119 of 1983. It has the mode of service of summons. It means that, the notice should be

served as if it is a summons. Rule 19 (1) demands personal service of summons. This in effect means that, where it is possible, the court should order personal service of the notice to relatives and executors. Rule 19 (2) gives room for service by post, affixation to the house of relatives/executors or at the court notice 12 J 1 board. There must also be evidence of service of the notice. This may be done by affidavit of the person who effected the service. Rule 5 (4) allow service of notice by advertisement in a newspaper which has a wide circulation. The court is given power to effect service of the notice by publication in newspapers. Having read the two rules closely, I have the view that there is no single mode of service or duty of personal service of the notice In all petitions. To the contrary, we have three modes of service of the notice, depending on the circumstance of each particular case. Personal service is just one of the modes. Other modes include affixation and publication of the notice in a newspaper with wide circulation. The issue now is whether there was a notice Issued and whether It was served to the respondents in any of the modes shown above. Reading through, I could find form No. II in the file but there is no evidence of service of the notice by personal service, affixation or publication. It appears that It was just issued as a formality. The

magistrate was correct in his finding despite the fact that he has used a different approach. Ground three is equally baseless and dismissed. Ground four has a complaint that the magistrate ought not to have allowed the revision because the respondent did not say when they came to know 13 of the existence of the case. I think this is a misconceived complaint because the respondents said clearly that they came to know of the case at a later stage, when the appellant started to prevent them to use some assets saying he had distributed them to some other people. It was not important to state the date and time making the complaint baseless which is dismissed. Ground five has a complaint that it was important to join heirs In the revision. I think this is also a misconceived idea. It was not important to join any of the heirs in the revision because they were not parties at the primary court. There is also the question of interest. Before joining a person as an applicant, It is important to check if he has an interest in the application. Further, failure to get support of other heirs did not make the respondents' claims baseless because their rights did not depend on the rights of other heirs. Ground five is equally dismissed. That marks the end of the matter, but I will proceed ahead to point out some disturbing features of the matter, albeit briefly, to justify the orders which

will follow. I have five scenarios. One, the appellant agree that his mother was not a legal wife of the deceased at the time of his death, yet he gave her a share of the estate as a wife. Two, the appellant-and 1 14 majority of family members and the deceased have a place of abode at Ujiji but for reasons best known to himself, he migrated to file the case at Mahembe, some 19 kilometers away from Ujiji. Three, the appellant told the primary court that he was selected by the whole family but only two people appeared to support him. In a family of a deceased who had 3 wives and 19 children, it was important to collect the views of the three wives and a good number of children before making the appointment. Four, there was no evidence of personal service, affixation or publication of the notice of hearing, yet the case was heard and the appellant was appointed and given mandate to administer the estate. Five, the court did not receive the Inventory in Form No.V. It received the accounts of estates in Forms No VI but even so, it did not take trouble to summon the heirs. debtors and creditors and give them access to the documents to see if they have any objection. Yet, the court marked the probate closed. That said, it is obvious that this appeal Is devoid of merits. I will make the following orders: i. I re-affirm the position of the district court revising the proceedings and the

decision of the primary court and directing the family to sit afresh and propose a fit person to administrator the estate. 15 ii. I direct that the appellant should not be considered as a fit person to be proposed or appointed as an administrator of the estate for he has shown a serious biasness in his conduct. iii. I direct the petition to be filed at Ujiji Primary Court not Mahembe because most of the relatives live at Ujiji. iv. I direct the case to be heard by a magistrate other than M.J. Luchunga - RM and G.H. Mateh - RM. V. The appeal is dismissed, No order for costs. -4^ L.M. Mlache ache Judge 20/2/2023 Court: Judgment delivered. Right of Appeal Explained. L.M. iacha I Judge 20/2/2023 16