Emmanuel Nkinda Mpina vs Mugha Mwigulu Nkinda

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CIVIL APPEAL NO. 03 OF 2023 (Originating from the Mpanda District Court in Civil Appeal No. 40 of 2022, Originating from Mpanda Urban Primary Court in Civil Case No. 137 of 2022) ..L EMMANUEL NKINDA MPINA................ ... ..... APPELLANT VERSUS MUG HA MWIGULU NKINDA.....3L. RESPONDENT JUDGMENT MWENEMPAZI, J. The appellant herein named has registered four grounds of appeal encompassed in the; petition of appeal expressing his grievance against the decision of the District Court of Mpanda as the first appellate court and now he wants to challenge it in this court. The grounds registered are as follows: i 1. That, the first appellate court erred at law to interfere with and assume the role of Administrator by its act of dividing the deceased person's property which has already been divided to the beneficiaries. 2. That, the first Appellate Court erred at law to state that the Probate was not closed contrary to the Evidence adduced which proved closure of the probate and indeed no complaints Wereraisedformore than six years. 3. That, the first appellate court erred both at law-and fact to provide eight acres to the Respondent which were not part of the Respondent's claims. 4. That, the first Appellate Court erred at law and fact to give its Judgment in favour of the Respondent and divide eight acres to him (Respondent) who failed to prove his claims in the preponderance of probability required at law. In reliance to the grounds raised herein above, the appellant prays for the appeal to be allowed; that, the decision of the trial court (Mpanda Urban Primary Court) in Civil Case No. 137 of 2022 be maintained; and any other reliefs) this Honorable court deem fit and just to grant. 2 At the hearing of the appeal, the appellant was being represented by Ms. Sekela Amulike, learned Advocate and the respondent was unrepresented. Hearing was conducted viva voce. In the submission in chiefs the learned counsel for the appellant, Ms. Sekela Amulike, submitted that the appellant is aggrieved by>the decision of the District Court of Mpanda; he has filed four grounds.She prayed to submit starting with the 3rd ground, 4th ground, 1st and 2nd ground.' Submitting on the 3rd ground of appellant the counsel a that the 1st ' appellate Court erred in law by distributing 8 acres which relief was not prayed for. In the primary court the respondent was claiming for Tshs. 50 million. Even the proceedings show the claim was for Tshs. 50,000,000/=. Surprisingly the 1st appellate Court issued an order for the appellant to give eight (8) acres to the respondent which was not prayed for and there were no reasons for issuing such an order. The counsel submitted that it is a legal position that the Court cannot give that which has not been prayed for. In the case Eckson Mtafva vs Michael Mtafva (Probate Appeal 6 of 2020) [2020] TZHC 3604 (29 September 2020) (Tanzlii), Justice Ndunguru at page 10 observed that: 3 "The Court is not your mother to grant what he not been pleaded or asked for". The respondent has never prayed for land. He claimed for cash money. He failed to prove that is why he was not granted. Thus, granting him 8 acres is against the law. The 1st appellate Court did not clarifyjwhere to obtain the said eight (8) acres. Thus, the counsel for the appellant prayed for the appeal to be allowed. '"'v, ' :v'- - T • • j■' " *■' On the 4th ground of appeal, the counsel for the appellant s 1st ""'T< ; appellate Court erred in law to give judgment in favour of the respondent and divide and award to the respondent eight acres of land. In civil cases, the case has to be proved. Rule 6 of the Rules of Evidence (in Primary Courts Regulation). Shows how to prove a Civil Case Ni Primary Court. The Magistrate Courts (Rules of Evidence a Primary Courts) Regulation, GN. No. 66/1972. Also, in the same regulation, Regulation 1(2) provides, how the plaintiff is supposed to prove his case. In our case the Respondent did not prove his claims of Tshs. 50,000,000/- which was due to failure by the appellant to distribute the estate. It was 4 verified that he had to prove his case. But the 1st appellate, ordered the distribution. If it was not proved why the District Court in its appellate jurisdiction granted 8 acres which were not proved. For the reasons, the counsel prayed that the decision of the 1st appellate Court be quashed and the decision of the trial Court be upheld. The counsel while submitting on the l^ ground of appeal stated that appellate Court erred by assuming the: role of administrator of estate. It is the position of the law that the estate of deceased is distributed by the administrator of the estate. Iterq' 5. of part II of 5th schedule of the .?_r.-r-, '*<•, z-.: • j iy, ?j ,<v'. ’rpv~• Magistrate's Courts Act provides,that an administrator of estate shall collect the properties of the deceased and thereafter distribute. The section is similar to section 108 of the Probate and Administration of Estate Act, [Cap]. Also, case law has the same position. In the case of Monica Nyamakale Jigamba Versus Mugeta Bwire Bukome (as administrator of estate of Mugeta Lemi Jigamba) and Hawa Salum Mungele, Civil Application No. 199/01 of 2019, Court of Appeal of Tanzania at Dar es Salaam at page 15 the Court confirmed the position. 5 In the instant case, there is no doubt that there was a person known as MWIGULU NKIDA MPINA who died and his estate was distributed. The act of the Ist appellate Court was not proper and illegal taking into consideration all properties of the estate were distributed and it was confirmed. The counsel for the appellant prayed that the decision of the 1st appellate Court be quashed and the consequent order therefrom be set aside. The counsel prayed that the decision of the Primary Court bejestatedf W The counsel prayed to abandon the 2nd ground of appeal as it will be a T;- . '' repetition. In reply to the submission in chief, the respondent submitted that his case in the 1st appellate court; was being handled by a lawyer. At the trial court he claimed for Tshs, 50,000,000/= as damages. His uncle, who also happens to be the appellant and the administrator of the estate of the late Mugha Mwigulu Nklda distributed some of the properties and left others. Basically, the respondent submitted that he was claiming for a farm. The claim was for land. Their uncle who was an administrator did not distribute all properties. In the family the respondent is the older; they are six, others are his young siblings. ‘ 6 Thus, my Lord, I explain what is before me. Even neigbours know the places. If it is true that the administrator distributed all areas, where did he get the farms in the area his father was possessing. May be if there were possibilities of visiting the locus in quo. He submitted that up until he was submitting on the case,the appellant is still possessing land inthe area where the respondent's father was owning land. W&. The appel la nt is ta king adva ntage at them as they did. not attend school. He submitted that he filed a suit in order to claim land ori behalf of the family. Even their grandfather knows the fact. He prayedto be assisted. He i. ' i. therefore prayed this appeal be dismissed. In rejoinder the counsel for the appellant Ms. Sekela Amulike, learned Advocate prayed to reiterate the submission in chief. She then submitted that the appellant has agreed that the estate was distributed. He has some land which belong to children. The counsel submitted and opined that the order of the 1st appellate Court is illegal. She prayed the appeal to be allowed; the 1st appellate Court's decision be quashed and that this court upholds decision of the Primary Court. 7 I have had an opportunity of reading the record of this appeal and also heard counsels for both parties in this appeal. Four grounds of appeal have been raised and argued. On the ground three (3) of appeal the questions for considerations is whether it was proper for the trial tribunal to provide eight (8) acres to the respondent while the original claims by the respondent were for payment of Tanzania shillings 50,000,000/= (Fifty million only). In the trial court the plaintiff herein the respondent had his claim as show in form No. 2 follows: 'W ’W Pip Wb "Madai haya dhidi ya Bwana Emmanue! or Mpina yalianza pE Wa "dz-. mwezi 9/2022 baada ya kushindwa kutekeleza ugawaji wa a. '■%. i mali za mirathi ambapo yeye ndiye aliyeteuliwa na wanandugu na badala yake anatumia mali hizo ■ kujinufaisha mwenyewe. Hivyo ninaomba kupata haki /■ yangu Tshs. 50,000,000/=". In the testimony the respondent testified that the appellant was the administrator of the estate of his late father but he has been earning money out of the estate. He wants to be given 56 acres and proceeds of money he earns from rent of the said property. 8 The counsel for the appellant submitted that the respondent has never prayed for land. He filed a suit claiming for Tshs. 50,000,000/=. She submitted that the court cannot give that which has not been prayed for the counsel cited the case of Ekson Mtafya Vs. Michael Mtafya, Probate Appeal No. 6 of 2020 High Court of Tanzania (supra) where the honourable court held that: "The court is not your mother to grant what has not been pleaded or asked for" 5 In response to the submission made: by thecounsel for the appellant the respondent submitted that he claimed for Tshs. 50,000,000/= as damages. His uncle distributed some of the properties and retained others. Basically he was claiming for land. The claim was for land and that there uncle distributed some of the properties. Now as to the question whether the can award reliefs not prayed for. In the case of Anthony Ngao and Davis Anthony Ngao Vs. Kitanda Kimaro, Civil Appeal No. 25 of 2014 Court of Appeal of Tanzania at Arusha the court referred to the Morgan's law of Pleading in India 16th Edition at page 25 where it is stated: 9 "The court cannot make out a new case although and grant relief neither prayed for in the plaint nor flows naturally from the ground of claim stated in the plaint" According to Order VII Rule (1) (g) of the Civil Procedure Code the plaint must contain the relief which the plaintiff claims. Iri<the case of Cooper Motors Cooperation (t) Ltd Vs. Arusha International Conference Centre [1991] TLR 165 it was held: "A party is only awarded damages which'he pleaded and proved by way of evidence" '"T., The court of appeal went on to observe and.make a finding that: "In Morgan'sLaw of' Pleadings (supra) the learned authors .are of the view that under this prayer the court has power to grantanygenera! or other relief as it may thinkjust, to the same extent as if it has been asked fog provided that the reliefshould not be of an entirely different description from the main relief". I have the opinion that, under the circumstances of this case, the court may grant ah unprayed for relied if it conforms to the condition explained. It can io be gleaned from the record the essence of the present dispute emanates from the estate of the late MWIGULU NKINDA. As quoted above, the respondent explained himself explanation fitted the claim within the properties of the estate of MWIGULU NKINDA and for the reason I don't find any fault, although there was no specific prayer for land. The question is whether the order give the respondent 8 acres of land is a valid one. I think the answer would be positive ifJit wouldbe established that the appellant had taken some land; the propertyof the estate, for his own benefit. However, there ismo such proof in the record. The 1st appellate court therefore erred as complained and the grounds of appeal is allowed. The other question is whether the court has power to distribute and or divide properties in the estate of the deceased. In the case of Monica Nyamakare Jigamba Vs.Mug eta Bwire Bhakome & Another (Civil Application No. 199 of 2019) [2020] TZCA (16 October 2020) the court held that (at page 15): "77?^ probate or letters of administration court has no powers to determine the beneficiaries and heirs of the deceased. Similarly, it has no power to distribute the ii estate of the deceased. The law has vested that power to the grantee ofprobate or letters ofadministration. This is clearly provided under section 108 of the probate and administration Act that reads: " The executor or administrator shall, with reasonable diligence, collect the property of the deceased and the debts that were due to him;pay the debts of the deceased and the debts and costs ofadministration, and distribute the estate to the persons or for the purposes entitled to the same or to trustees for such persons or for the purposes entitled to the same or to trustees for such persons or purposes or in 'accordance with the provisions of this Act, as the case "dp maybe." ' p. The court observed that: "It follows then that it is the duty of the administrator to collect the properties of the deceased and the debts, pay the debts, identify the rightful heirs of the deceased, to 12 whom the amount of residue of the proceeds of the deceased's estate should be distributed and at what percentage each heir will be entitled to get depending on the law applicable in the administration of such estate" W- Under the circumstances it was not proper for the first appellate court to distribute the properties of the estate of the decbased. The 1st ground of appeal is therefore allowed. % 4^,. The last question thus is whether the probate and administration of the estate of Mwigulu Nkida was closed at the time the dispute arose in the trial court. According to the evidence, in the, trial court the probate and administration was closed and all heirs had been allocated their share of the property inherited from the estate as would be referred from the testimony of defence witnesses SUI, Emmanuel Nkinda, Ramadhani Ally Msanda SUII; Joseph Mpanga SUIII and Shindai Mashishanga SUIV. Under the circumstances, the appeal has merit and the same is hereby allowed, since parties are relatives and due to the nature of the dispute I issue no order as to costs. It is ordered accordingly. 13 Dated and signed at Sumbawanga this 3rd day of September, 2024. T.M. MWENEMPAZI JUDGE Judgment delivered virtually this 3rd September, 2024 virtually in the presence of Mr. Laurence John, learned advocate holding brief for Ms. Sekela Amulike Advocate for the appellant and in absence of the respondent. 14