Christina Joseph

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI DC CIVIL APPEAL NO 10582 OF 2024 (Originating from Civil case No. 2 of 2022 in Mbulu District Court) 1. CHRISTINA JOSEPH (As the administratrix of the estate of the late SAULO JOSEPH HAALI).................................... APPELLANTS 2. EMMANUEL HHAWAY (The 2nd administrator of the estate of the late SAULO JOSEPH HAALI).............................................. VERSUS MAGANGA TLUWAY........................................................................... RESPONDENT JUDGMENT 22nd July and 22d August, 2024 MIRINDO, J:. The late Saulo Joseph Haali who died intestate on 16 June 2021 had three homesteads and three wives. At the time of his death the first wife, Elineema Dughang was living at Haydom Village, Mbulu District; the second wife, Yohana Weiwei was living at Wandera Village, Hanang' District; and the third wife, Loema Paulo, was living at Msemembo Village, Makuru Ward in Manyoni District. On 29 March 2022, the Bassotu Primary Court appointed Christina Joseph, the 1 deceased's daughter to his second wife and the deceased's sibling, Emmanuel Hhaway, for joint administration of the estate. Maganga Tluway, the deceased's young brother also had two homesteads, one at Wandera Village and another at Msemembo Village. He also owned herds of cattle at Msemembo Village. In the course of collecting the properties of the late Saulo Joseph Haali certain herds of cattle in Msemembo Village were considered to form part of his estate. The administratrix, Christina Joseph, after obtaining requisite documents went to Msemembo Village to trace the herds of cattle. With the assistance of Msemembo Village Chairman, Chairman of Gisemwa Kitongoji, Ward Executive Officer of Makuru Ward and acting Village Executive Officer, on 22 July 2022, she seized certain herds of cattle and have them placed under the custody of the deceased's second wife. Maganga Tluway brought a suit before Mbulu District Court complaining that his 78 herds of cattle were unjustifiably seized and made part of the estate of the late Saulo Joseph Haali. He sued the administratrix and the administrator. At the conclusion of the trial, the trial Senior Resident Magistrate held in favour of Maganga Tluway. Aggrieved with the decision of Mbulu District Court, they appealed to this Court. 2 At the first hearing of the appeal, I directed that owing to the nature of the proceedings, there was no reason for change of parties' position in the trial court. The direction was made on the account that the administrator appeared as the second respondent rather than the second appellant. After this consultation, the memorandum of appeal was duly amended to retain parties' position at the trial court. In their amended though repetitive memorandum of appeal, there are nine grounds of appeal. These grounds can conveniently be grouped into three. First, the decision of the trial court is based on insufficient evidence. Secondly, the trial was marred by procedural irregularities. Thirdly, the trial court erred in awarding unspecified and unjustified interest. The respondent and the first appellant were represented by the counsel who advocated for them at the trial court. These were Mr Paul Eugen for the first appellant and Mr Basil Boay for the respondent. The second appellant was unrepresented at the trial court and before this Court. He supported the decision of the trial court. I will first briefly deal with the complaint that the trial was marred by procedural irregularities. In the sixth ground of appeal, Mr Eugen, learned counsel, argued that the successor magistrate gave no reasons for taking over. This means that the proceedings were irregular. In defence of the successor magistrate, Mr Boay, learned counsel, admitted that the proceedings do not 3 expressly state whether the successor magistrate gave reason for succession. Mr Boay was quick to point out that the proceedings indicate that when parties met on 22 January 2024 parties explicitly stated that they had no objection to the succeeding magistrate continuing with the case after the transfer of the predecessor magistrate. I agree with this contention. For easy comprehension of Mr Boay's defence of the proceedings by the successor magistrate, I will reproduce part of the trial court's proceedings which are the subject of this complaint: Date: 22/1/2024 Coram: J.Kijuwile, SRM Plaintiff: Present For plaintiff: Basil Boay - Advocate For 1st defendant: Mr. Eugen Paul - Advocate C/C: Florian Mr. Basil Boay: The matter is for defence hearing, due to the transfer P/N and the absence of 2nd defendant, we pray for another hearing date. Mr. Paul Eugene: We have no objection we pray the matter to be scheduled on 8th February, 2024 Order: Defence hearing on 8th February, 2024 - Parties to appear SGD J.KIJUWILE, SRM 22/1/2024 4 Date: 8/2/2024 Coram: J.Kijuwile, SRM Plaintiff: Present in person Defendant: Present For 1st plaintiff: Basil Boay Advocate For Defendant: Paul Eugen Advocate for 1st Respondent Mr. Basil: The matter is for defense, we are ready, and we have no objection for you to proceed with the hearing. Mr. Paul Eugene: Your honor, we also have no objection, and we have two witnesses ready to proceed. Defense Case Continues This part of proceedings indicates that parties were not only fully aware of the circumstances under which the successor magistrate took over the proceedings but also had no objection to her succession. It follows that this complaint has no merit at all and it is accordingly dismissed. I now turn to consider the major complaint in several grounds of appeal which boil down to the question whether the trial court's decision is supported by insufficient evidence. Mr Eugen, learned counsel, complained that the findings of the trial court are against the weight of evidence. The respondent's evidence in exhibit Al is that 77 herds of cattle and one donkey were seized. However, the plaint stated that 78 herds of cattle were seized and makes no reference to the donkey. This was contrary to Order 6 Rule 7 of the Civil Procedure Code in view 5 of the decision in Yara Tanzania Limited v Ikuwo General Enterprises Limited (Civil Appeal 309 of 2019) [2022] TZCA 604. The learned counsel pointed out contradictory aspects of the respondent's evidence. He complained about the variation between the plaint and the evidence. Another contradictory aspect related to the total number of cattle seized in view of the testimony of the second and third respondent's witnesses. Mr Eugen, learned counsel, attacked the trial court's finding that the appellants admitted seizing the cattle from the respondent's compound. He contended that the first appellant and her witnesses explained that the herds of cattle were seized from the deceased's compound. The learned counsel, Mr Boay, arguing in support of the decision of the trial court contended that the variation on the total number of cattle pleaded in the plaint was fully accounted for in the trial. He observed that there was no conflicting testimony. Mr Boay argued that there was no evidence to show that the cattle belong to the deceased's estate. He clarified that the testimony of the first appellant is clear that when she went to seize the cattle, he found the respondent's sons at the compound. The puzzle here, the learned counsel argued, is if the respondents' sons were found in the compound where the herds of cattle were 6 seized it beats common sense to say hold that the cattle belonged to the deceased's estate. This puzzle is complicated by the fact that the handling over was in writing. I will first address this complaint about the insufficiency of evidence. In doing so, I will review the evidence adduced at the trial court. As mentioned at the beginning of this judgment, Maganga Tluway had two homesteads one in Wandela Village, Gentuwas Ward, Hanang District and another Msemembo Village in Manyoni District. When he went to Msemembo Village establish a homestead in 2010, he moved with herds of cattle. In the handwritten version of the cross-examination, Maganga Tluway stated that the deceased also had herds of cattle in Msemembo Village/ ...Saulo Paulo was living at Msemembo Village, he had head of cattles [sic] to his second wife... The second and third respondent's witnesses testified that although Christina Joseph seized the cattle from their father's cowshed, the late Saulo Joseph Haali also had cattle in Msemembo Village. Part of the testimony of Joseph Maganga Tluway, the respondent's son in examination is that: The deceased one Saulo Joseph was living at Manyoni District in Msemembo Village. At the Saulo Joseph house, his young wife is living there. I know the 7 place from our place to their place is about one hour by deceased's heads of cattle... [s/c] Upon being cross-examined by the first appellant's counsel, he stated partly that: .... One Saulo Joseph was living at Msemembo Village, he owned head of cattle's [s/c].... Another respondent's son, Pius Maganga Tluway, testified as the third respondent's witness. He also admitted in cross-examination that the deceased had cattle in Msemembo Village. Further admission came out from the testimony of the fourth respondent's witness, Herman Wilbroad Haali, who stated in examination in chief that: ...In Singida Region the deceased had a wife together with their children and cows [s/c], in the meeting they mention eight cows and one donkey... One thing is clear from the respondent's evidence: both the deceased and the respondent owned herds of cattle at Msemembo Village. The next question for consideration is: whose cattle were seized on 22 July 2022? There is no sufficient evidence to show that all the 77 herds of cattle belonged to the respondent or the deceased only. The respondent's evidence is unclear on the exact location of the deceased's cattle. Besides, Christina Joseph, the first appellant, did not satisfactorily account for the deceased's ownership of those herds of cattle. Her direct evidence to this fact is that the cattle were 8 seized from the deceased's camp where there were 150 herds of cattle but half of them were missing. One person who was best placed to testify on this fact was the deceased's junior wife, Loema Paulo who testified as the fourth appellants' witness. Part of her testimony in re-examination is that the deceased and the respondent shared the cowshed. In both cross-examination and re­ examination, she admitted not knowing the actual number of cattle owned between Maganga Tluway and her deceased husband. I am inclined to agree with this version of evidence because it partly explains why the respondent's sons were found at the cattle shed when the first appellant followed the cattle. She stated in cross-examination that: ...The plaintiff children and his wife were living at the deceased camp where we took the head of cows, [s/c] They went there after our father passed away.... In this regard, it is important to re-evaluate part of the testimony of Emmanuel Hhway who is the second appellant and was the second appellants' witness at the trial. Although he stated that he knew nothing about ownership of the herds of cattle, his evidence shades some light on the conditions of the cattle seizure. On being cross-examined by the respondent's counsel, he said: ...When I went to Manyoni District I went at Maganga house where I found Joseph Maganga, Pius Maganga, who are Maganga sons together with 9 Maganga wife (first wife). I didn't find any cows [sic] at Maganga house. All cows were taken by the 1st defendant and went to Saulo Joseph wife (third wife) from third wife to Maganga house is about thirty minutes, [s/c].... The fact that no herds cattle were in the respondent's homestead is due either to the seizure by the first appellant or to the cattle being shifted to a common grazing area alluded to by the third and fourth appellants' witnesses at the trial. The third appellants' witness, Raphael Galla Mwarabu, the two times chairman of Gisemwa Kitongoji, Msemembo Village, from 2014 and 2019, testified that the deceased had herds of cattle. He elaborated that he conducted animal census in 2020 and found that the deceased had 162 herds of cattle. The deceased moved his cattle to "another place at Kisema hamlet at Msemembo Village in Makuru Ward" which was a location where the Government set aside for cattle grazing. After moving the cattle, the deceased remained with eight herds of cattle. The location where the cattle were taken was identified by Loema Paulo, the deceased's junior wife who testified as the fourth appellants' witness. She identified the location as Mbugandogo. She confirmed that at home they remained with eight herds of cattle. According to her this event was witnessed by her brother, their workers, Kitongoji Chairman. The distance from Mbugandogo to where she resided is about ten minutes walking distance. In view of inconclusive proof of ownership between the respondent and his deceased brother, it is fair that the 77 herds of cattle be equally divided between 10 the respondent and the deceased's estate. Each should possess 38 herds of cattle. The conclusive evidence is that the number of the herds of cattle seized was 77 and not 78 as pleaded by the respondent. The 77 herds of cattle were seized together with a donkey. This variation of pleading and evidence on the number of the animals seized in the circumstances of this case has not occasioned miscarriage of justice given that there is no evidence to prove the deceased's ownership of the donkey. It is for this reason ordered that the donkey should be possessed by the respondent. There is one herd of cattle left out of this distribution. There is ample evidence that calves were part of the cattle seized. In fairness to both parties, it is ordered that one calf should be given to the deceased's estate. As a result, the respondent is entitled to 38 herds of cattle and a donkey while the deceased's estate is entitled to 39 herds of cattle. From above findings, there is no room to consider the issue of interest that formed part of the seventh ground of appeal. In conclusion, this appeal is partly allowed and the decision of Mbulu District Court and its resultant orders are hereby set aside. It is further ordered, as stated above, that the herds of cattle currently held in Msemembo Village be 11 distributed between the appellants and the respondent without further ado. Each party to bear its own costs. It is so ordered. DATED at BABATI this 13th day of August, 2024 F.M. MI RIN DO JUDGE COURT. Judgment delivered in chambers in the presence of the first appellant's counsel, Advocate Paul Eugen, in the presence of the first appellant and second appellant in person and in the presence of the respondent in person. B/C: William Makori (RMA) present. Right of appeal explained. F.M MIRINDO JUDGE 22/8/2024 12