19890428 TZHC Dar es Salaam

IN THZ HIGH COURT OF TAH".'..ANIA AT DAR ES SALAAM (PC) CIVIL APPEAL N0:66 OF 1987 7ERSUS J U D G E ME N T BAF..ATI, J. In this a~peal the real points for deterrninaticn are the fol:_~ir (1) Did Nanasa Madenge hav~ any letters of administraticn 1 (2) Did the avpellani have any letters of administrati~n, (3) If both of them had, which letters cf administrati0n ar~ valid, (4) If Nanasa Madenge's letters of adGinistrati2n are the valid ones, was Nanasa entitled to transfer ~he hcuso tc the respondent, (5) Is the house clan property and (6) Who was entitled tc inherit the yroperty.cif 'the Jecen~~- as between Nanasa and the 0ther relatives . . The facts in this case are not_ very clear. According t~ the appellant, the deceased who left the suit pre~ises behind aft~r his death was called Majonga IVIdawanga and h0 dj_ed ri1any ye2.rs ago. The appellant was the bephew of the deceased and the deceased left behind 5 children who have since nll died. IJsn Madenge was one of the children of the deceased and he was tl·c owner of tbe disputed prc,perty. The gurng a_p.ricll.an,.t. i~,;:1r; wai_tinr-- t_,: :~;_; 't-J ue '.i.es 1 t ,n tn 'as nc: -;,··, . : how the prcperty of Issa Madenge wasLthe adr~nistrator of Is~a'~ estate, While the ajpellant so waiteJ, h2 0ss stayine in tho suit premises. · Then the respi__::nd.cnt te,ld the a)pellant tc cct +: of the suit premises. The rnattsr was to.ken tc1 c,;urt 2nd t~,,:,r,:__ the appellant sh0wed his letters of administration. But the Court was not satisfied and so the aypellant applied in the Resident Magistrate's C,.:,urt for letters cf adrninistro.ticn afru:>. and he was granted the lett~rs of admi~istr~ti0n by the Resi:~ .t Hacistratc's Court. But the respondent was still claiming t~c house in dispute. The matter had to be adjudicated by the Pri:mary Court. /2 2 0.n the othl;r km~l, tho r0s_Jondcnt said th,1t the h1..ct.3,c in dispute ~as trn~sferred tc him by Nnnaca M~den;c. He pr~duc~d dccuments to th~t effect. The Primary Court c1ecid2c1 in f.-_w.~ur _;f the appellant 2.rguine; th,:~t Nanasa lYiaden 6 0 has nu ri13ht to r1is})..._·s0 of clan pro~erty without consulting th0 other clan LGLlbers. On apjo~l tc the District Ccurt, adaiticn~l evidence wns taken whict shGwed thnt iianasa Mad~nge got.lett0rs of administration in respect of deceased Issa's estate ~nd thut subsequently she tran~ferred the suit premises to the respond8nt. The District C0urt held that Nanasa Hadenge hacl e:very right to administGr the prcpt:;rty of her brcther Iasa Fadenge Hhv had no issues. The District Ccurt also declared the letters of ndoinistrntion of the appellant null and vcid because they were obtRined in respect of the same estate for which Nanasa Madenge already had letters cf administrati0n. The appellant filed a verbose memorandum of a~peal which oainly diso~sses the evidence. In the course of dealing with the points I have set out at the beginning of my judgment_ I will also be dealing simultanenusly with the grounds 2f apyoal. Now, as for the first point~,, the additional evidence :·.:'_::____ uced in the District Court clearly shows thnt Nanasa Madang2 had letters ~f administration, and documentary evidence sh~ws that Nanasa Nadenge h2.d even an offer of a right ,,.f cccupa:ncy JT. respect of disputed house. In his second ground of ap;e~l, the appellant allegE,s that the c1::.lcurnents vroc1uce_d in c: urt rir:.:. mere forgeries. The appellant Eust come up with concrete evidence to establish such allcguticns befcra the saLo may bs act2d upcn. He has brL-ught no such ~vidence cf fcrtery. The 'evidence shows that the letters cf adBinistration were £r~nt21 1 to'Nanasa Madenge in 1976. Then in 1978 Nanasa Madengc g~t !"'-,l the offer of a right of occupancy over the disJuted hcuse. J_' --_i_ ~..., ._ is a dccuLlont to that effect. With regard tc the sec,')nd P'1int, the d')cu.r:1cnt.::i.ry ovic7 c.:·~c,_ nnd 0vidence fr0m the appellant shows th~t ho t~c obtnine~ letters of administration fron the Ru8id~nt Magistrate's CGur~ in 1979. I come to the third 9oint. The District Court hel( that the letters of administration issued to tho appellant wer2 null and void b1;.;co.use the me.ttcr wRs 3.lro::i.dy res judicatS), I agree '--' with the Distridt Court that the lettGrs of administr~tt · granted to thG. appellant cnnnc-n be considered tc have any lr:_ .,_ l affect because the probate cf Issa Madenge had ~lre~dy bc~n dealt with by the time the appellant was applying for lett~rs of administration. 2he appellant has challenced the letters (f 3 administration cranted to Nannsa Madenge alleging thnt there was no publication en the notice beard for a pericd of 90 d~ys wi t_h regard tc the apJ.Jlicaticn for letters c;f administro.tLm by Nanasa Madenge. ~[ain·1 ~he appellant would have tG bring ~oncrutc evidence tc prove thcs8 c:ntontions; He did not bring any and sc tho grant 0f the lottars of administration to Nanasa Madongeie2nnot be faulted en mere all0gaticns. As for the fGurth ~cint I held that Nanasa hadcngc was enttiled to transfer the h~Rae to thu r~s~ondent as it was h~r pr0porty to the exclusion cf any ether perscn. The point cf tha a~pellant abc~~ tho house being clan Jroperty is net suppcrtad by any evidence, But on tho Contrary, thore·1s the cffcr of a right of occupa:ri•Y in the name cf Nanasa Naccngo. in res1)cct of the prop0rty in dist-1ut"i; which c.learly establishes that ths suit premises was the property cf Nanasa MadenfG, and that she could transfer it to anyone wj_ thou t any incurabranccs. This she in fact did, and ·1 t matters not whether the transferee· p:.:1.id hCr · anything. ~he transfer document gives the qon~idcration for 1ha trapsfer as nat\J,ral ;Love and : Lafiecticn. This is adequate ccnsideration. In his memQrandum of appe61 the appellant has alleeed that avon this dccu □ ant,ts a fcrgery. The aypellant ought to bring evidence of forgery if he wants his all0gations tc b0 taken scricusly .. There was nc reasc"Jn for the District Court tc, think that this c.ccument is C• fctgery. I have therefore ccvcrcd even point no.5. Finally the last yoint. Certainly Nanasa Ivhdcmge wt;),s .entitled. in ev.:.r~,- way to inhcri t the propGrty of her brother Issa M::-.donge. Tf}_,:t is why she obtained an offer ~fa right of ;ccupancy in her name in r2spect of the suit pro~iees. The apJellant may ta~ a relative bctt h~ is net as close gclative to the ,:L.:Cef'vSCd Issa Madonge 8.s Nanasa i.s For all those r0nsons, this appeal must fail Rnd it is dismissed with costs. r· 28/A:/1989 PartiGs present. 28TH APRIL, 1989