bruno so sospeter vs paskazia wo sospeter 2021 tzhc 5414 30 july 2021

IN THE HIGH COURT OF TANZANIA

AT BUKOBA (PC) CIVIL APPEAL NO. 51 OF 2020 BRUNO s/o SOSPETER........................................................APPELLANT

VERSUS PASKAZIA w/o SOSPETER........................................... RESPONDENT (Appeal from the decision of District Court of karagwe in Civil Appeal NO. 3 of 2020)

JUDGMENT 8 & 30 July, 2021 MGETTA, J: At Nyabiyonza Primary Court (henceforth the trial court) the appellant, Bruno S/0 Sospeter (henceforth the appellant) was appointed as administrator of the estate of the late Sospeter Katabazi Kanyomoza, (henceforth the deceased) in Shauri la Mirathi Na. 2 of 2018. On 26/8/2019, Paskazia w/o Sospeter instituted a suit in Shauri la Mirathi No. 3 of 2019 before the trial court praying for revocation of the appellant from being a sole administrator. The reasons advanced by the respondent was that the appellant had withdrawn himself from being administrator of the deceased estate; suddenly he started distributing the deceased estate and that he failed to submit inventory. She prayed that his appointment be revoked, i distribution of estate he had done be declared as null and void. Her application for revocation was dismissed on 20/12/2019 by the trial court. Aggrieved by the decision of the trial court, on 20/01/2020 she appealed to Karagwe District Court (henceforth the district Court). On 8/5/2020, the district court quashed and set aside the decision of the trial court. It proceeded to give it sown orders that; i. The respondent's administration is hereby revoked as an administrator of the estate of the deceased for being unfaithfully and discriminatory. ii. The respondent to surrender the instrument of appointment, which is probate from no.

IV. iii. The distribution of the deceased estate is declared null and void for failure to follow the law. iv. The case be tried de novo before another magistrate of competent jurisdiction who should sit with new set of assessors v. Other administrator/administrators from different families be appointed. vi. The respondent to pay coats of this case. 2 The appellant was dissatisfied with the decision of the district court. Through a legal service of Mr. Aaron Kabunga, the learned advocate, he lodge three ground petition of appeal complaining: 1. That the District Court Magistrate grossly erred in law and misdirected himself to nullify the trial Court decision which was sound both in law and facts without any sound reason known at law.

2. That, the District Court Magistrate erred grossly in law and in fact to make a problematic and chaotic decision which is against wishes of the beneficiaries of the deceased estate which had already been administered and inventory filed by the Appellant as required by law.

3. That, the District Court Magistrate grossly misdirected himself on evidence on record on the issue of Administration of the deceased estate and such misdirection resulted to issuing illegal and stringent orders which are tainted with illegality and injustices in the Administration of the deceased estate. At the hearing of the appeal, Mr. Kabunga appeared and submitted in favour of the appellant; while, the respondent appeared in person unrepresented. Mr. Kabunga chose to argue for the appeal generally. 3 He submitted that the district court gave strange orders which did not follow the law. He submitted those orders not only brought big disputes but also chaos to the beneficiaries and family members, the appellant and respondent being one of the family members. Except the respondent, others have agreed with that appointment. The deceased survived with seven wives who are still alive, the eighty wife had already passed away. He also survived with thirty seven children. He left farms, houses, heard of cattle and other properties. He submitted that on 23/5/2019, the appellant distributed the deceased estate and each and every wife was given her own shares. The respondent did not attend the deceased estate distribution meeting, but the following day she appeared and given her shares. She insisted that she should be given 16 cow out of 105 cows left by the deceased, while the

distribution was that each and every wife be given one cows. However she was given three cows, instead or one of or 16 cows. It is on the record that other co-wives testified to the effect that they had already received their shares, although had not yet seen them physically. What I have noticed in the whole proceedings of the trial court and district court is that the deceased properties have not yet been fairly 4 distributed. There are still complaints from some of beneficiaries such as Geofrey Sospeter (Sm3), the respondent (Sml), Antony Sospeter (Sm2), Mapinduzi Sospeter (Sm3), Flomen Sospeter (Sm6), Maria Sospeter (Sm7) (appellant's Mother), Godfery Sospeter (Sm6). Gidion Galeba said that he was not sure if the decease's properties had been distributed to beneficiaries. Some complained that the deceased's properties were distributed, but the same had not yet been physically handed over to the respective beneficiaries. There are other beneficiaries who were present at the time deceased properties were being distributed. They accepted their shares and signed on the inventory. These include the appellant himself, Thereza Sospeter (Su3), Anamaria Sospeter (Su4) Agripina Sospeter (Su5), and Benadetha Sospeter (Su6). From the foregoing findings, I am satisfied that the appellant has not yet performed fully his duty of distributing the deceased estates without discrimination to

all the beneficiaries. He still has the inventory. He tendered it as exhibit, while the case was being heard at the trial court; those who said they have not yet received their shares have not yet signed. Hence the inventory is still a in complete and not yet submitted to the trial court. The appellant is tasked to ensure that he 5 distributes the deceased estates and each and every beneficiary be physically handed over his/her shares physically, then inventory be signed and submitted to the trial court and a copy to be submitted to the district court. Both courts are again tasked to inspect thorough the inventory before accepting it in court that distribution went well without discrimination. In similar vein, the appellant will discharge his duties once he finish to distribute the deceased properties to even those in schools and colleges by handing over their shares to their respective mothers, deceased wives, and not to remain with them in his possession. I urge the respondent to go and collect her shares (cows, shamba, rooms) and shares for her children. Each and every mother shall take care of their respective children by giving them basic needs such as education, clothes, food, shelter, etc. What would be the reason behind of not giving shares of those at school and college to their respective mothers in fact there is no valid reason. It is for interest of justice to see

this matters not being prolonged unnecessarily any more. In view of that it was wrong for the district court to revoke the appointment of the appellant as administrator of the deceased estate. 6 As a result, the appeal is accordingly allowed to the extent explained herein. The district court decision and order therefrom are quashed and set aside. The trial court decision only that the appellant is recognized and will continue to perform the duty of administer of the deceased estate to its full completion is restored. In the circumstances each party has to bear its own costs. It is so ordered. ///I*/ 7— M if"! >'?S. MGETTA

JUDGE \\ .A WsA 30/7/2021 AaS-.. // COURT: This judgment is delivered today this 30th July, 2021 in the presence of Mr. Frank Kalory John, the learned advocate for the appellant ahd in'the presence of the respondent in person. XHS. MGETTA

JUDGE '30/7/2021 COURT: Right of appeal to the Court of Appeal is fully explained.