PC Civil Appeal 1586 of 2024 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY OF SUMBAWANGA) AT SUMBAWANGA PC CIVIL APPEAL NO. 1586 OF 2024 (Arising from Civil Appeal No. 35 of2023 of Sumbawanga District Court and originated from Probate and Administration Cause No. 81B of2020 of Sumbawanga Urban Primary Court) EMMANUEL NYAOZA.................................................................. APPELLANT VERSUS LWIZA NYAOZA..................................................................... RESPONDENT JUDGMENT 13th & 19th December 2024 MRISHA, J. The genesis of the present appeal is the Probate and Administration Cause No. 81B/2020 before Sumbawanga Urban Primary Court (the probate court) which involved the appellant as the objector, and the respondent. In that case the appellant was contesting the division of deceased’s estate which was filed by the respondent through Inventory Form No. VI because prior to that, the respondent had been appointed together with one Frednand Lumondo (who is 1 currently no longer alive), to administer the estate of the late Katembela Nyaoza. The records reveal that the reason which the appellant relied on to object such distribution, is that on 05.12.2022 the probate court dissolved the distribution of deceased’s estate filed by the respondent, and ordered that a land dispute between the appellant and respondent be referred to and determined by the land dispute courts, but that order had not been complied with; hence, he argued, it was not proper for the distribution filed by the respondent through Inventory Form to be done. The records also show that upon hearing the submissions of both parties, the probate court observed that when it was making such order, it was not aware or was not properly guided, that the land dispute in relation to the deceased’s estate had already been settled by Ntendo Ward Tribunal vide Land Case No. 4/2019 and by the District Land and Housing Tribunal for Rukwa at Sumbawanga (the appellate tribunal) through Land Appeal No. 2/2022 all of which made the concurrent findings that the land which is disputed between the appellant and the respondent, is the estate of the deceased person. 2 Thus, it appears that when that decision came to the attention of the probate court, the said court departed from its previous order indicating that had it been properly guided before, it would not order the said land dispute to be referred to, and determined by the land dispute courts. In lieu thereof, it dismissed the appellant’s objection on the grounds such dispute had already been settled by the decision of the appellate tribunal which was not appealed against and there were no sufficient reasons assigned by the appellant to make it sustain his objection. In the end, the probate court admitted the Inventory Form filed by the respondent, and regarded the disputed land listed therein, as one of the administrators of deceased’s estate and adjourned the matter until another date for necessary orders. Meanwhile, the appellant who seemed to be aggrieved by the decision of the probate court, lodged his appeal with the District Court of Sumbawanga (the first appellate court) which was entertained as Civil Appeal No. 35/2023. However, upon hearing the said appeal inter partes, the first appellate court determined the same in favour of the respondent on the grounds that the appellant had raised new matters which were not raised and decided by the lower probate court and, that the land dispute he was arguing about, had 3 already been settled by both the Ward Tribunal and the District Land and Housing Tribunals, hence, it dismissed the appellant’s appeal for want of merit which decisions displeased the appellant. Hence, the instant appeal in which the appellant is armed with four (4) grounds of appeal which can be paraphrased as follows: 1. That, the first appellate court erred in law to decide that the respondent be the administrator of deceased’s estate while he was not appointed by the clan and no minutes were filed with the probate court to suggest that she was appointed by the clan meeting to be an administrator of the deceased’s estate. 2. That, the first appellate court erred in law by ordering the unknown administrator to go and distribute other properties to people who are not beneficiaries of the late Katembeya Nyaoza. 3. That, the first appellate court erred in law and in fact for making an order that the distribution of deceased’s estate be continued without being authorised by the clan and, that the first appellate court erred to order distribution of the estate which is the property of the late Silvano 4 Nyaoza and not of the deceased person, hence it reached to a wrong decision. Based on the above grounds, the appellant prays that the appeal be allowed, the respondent be ordered to convene a clan meeting, the judgment of the first appellate court be quashed and set aside and the court be pleased to grant any other relief (s) which it may deem fit and just to grant. Both parties appeared in person when the matter was scheduled for hearing, but agreed that the same should be heard by way of written submissions which they later filed as ordered by the court. Their submissions, however, were not made in the manner the appellant’s grounds of appeal had been listed and, I take note that this is perhaps due to the fact that both parties are laymen and had no legal representation. In the course of making his submission, the appellant argued that the source of the dispute between him and the respondent was when the latter trespassed in the estate of the late Selvano Nyaoza who is the appellant’s late father who left his estate in the hands of his family since 1997 at Luwa Village. 5 That the respondent is forcing the ownership of the estate of the late Selvano Nyaoza without any family compromise, and she sold the estate of the late Selvano Nyaoza to Godfrey Elias Senka. That the appellant complained about the respondent’s act of trespassing into his late father and the appellate tribunal adjudged that the respondent was a trespasser. That, the respondent forced to sell the disputed land without any compromise with the owners of the said land. The appellant added that despite the fact that the clan members of his side did not want the court to choose the administrator for them, the probate court continued to announce the respondent as the administrator of deceased’s estate who then sold the disputed land to Jofrey Elias Senka. Whereafter, the appellant reiterated his prayer that the appeal be allowed and added that the respondent be ordered to vacate from the disputed land, and make a declaration that the disputed land belongs to the appellant. On the other side, the respondent briefly submitted that she is the administratix of the deceased’s estate via Probate Cause No. 81B/2020 where 6 the appellant is also a beneficiary and it is not true that she had trespassed into the estate of the late Selvano Nyaoza. She also contended that the appellant is not the administrator of the estate of Selvano Nyaoza and has no locus standi to claim such land on behalf of the said Selvano Nyaoza. Further, she submitted that such allegation is a new one which was not decided by the lower court, hence it has no place before this court. She added that the said Jofrey Elias Senka legally purchased part of the deceased’s estate as it is shown in the Inventory which was blessed by the probate court at the time of closing such probate cause, and the appellant did not dispute such issue. That the appellate tribunal declared the disputed land to be the estate of the deceased person and should be distributed to his heirs. The respondent further submitted that she was appointed to be an administratix of the deceased’s estate in accordance with the law, and the issue of clan members is not a requirement of the law. She thus, prayed to the court that the appellant’s appeal be dismissed and the court be pleased to uphold the decision of the first appellate court. 7 Having considered the grounds of appeal as presented by the appellant, the rival submissions of the parties to this appeal, and gone through the impugned decisions of the lower courts as well as their records, I am of the view that the only issue to guide me in determining this appeal, is whether the first appellate court was faulty to find the appellant’s appeal unmerited. Looking at the grounds of appeal as canvased in the appellant’s memorandum of appeal, it appears plainly that they present three major complaints whose merits or otherwise I am going to address hereunder. The appellant has complained that the first appellate court erred in law to decide that the respondent be declared as the administrator of the deceased’s estate while the latter was not appointed by the clan meeting and no minutes of that meeting was filed with the probate court to show that she was suggested to be the administrator. On the other side, the respondent has maintained that she was duly appointed by the probate court in accordance with the law, and that to be suggested by the clan meeting or to have the minutes of the clan meeting, is not a requirement of the law. Times without number, this court has emphasized that it is only the probate court which has the power to appoint a person who has interest in deceased’s 8 estate to be an administrator or adminitratix of the deceased’s estate, as the case may be. (See: Seif Marare vs Mwadawa Salum [1985] T.L.R 253. It has also been the position of this court that having the minutes of the clan or family meeting is not a legal requirement, but a matter of practice. (See: Anthony Paul Mwaluseke vs Neto Paul Mwaluseke, PC. Probate Appeal No. 03 of 2023 and Victoria Mgaza Maligo vs Nasim Mgaza Bakari, PC Civil Appeal No. 14 of 2023, both unreported). It follows that, apart from following the wishes of the deceased where the same are expressly stated, the probate court’s other duty before exercising its power of appointing an administrator or executor of the deceased’s estate, is to consider whether the person or persons whom it is called upon to appoint as an administrator or executor thereof, has beneficial interest in the estate of the deceased. (See: Godfrey Moses Mapalala vs Flora Neema Daud, Civil Appeal No. 51 of 2020 CAT unreported, and Regulation 2 (a) of the 5th Schedule to the Magistrates’ Court Act Cap 11 R.E. 2019 (the MCA). Thus, guided by the above principles of the law, I am of the settled view that the appellant’s first complaint as described above, is without merit. This is because the respondent was legally appointed by the probate court, as it is 9 shown at page 5 of the probate court’s typed Ruling dated 22nd September, 2023 and, the records are silent as to whether the appellant objected the respondent’s petition to be appointed by that court as an administratix of the deceased’s estate, leave alone there being no law which expressly provide that a clan or family minutes is a legal requirement. Secondly, it is the appellant’s complaint that the first appellate court erred in law to order the unknown administratix and force her to go and distribute other estate to people who are not the beneficiaries of the deceased’s estate. Again, I find this complaint to be without merit because as I have alluded earlier, the respondent was legally appointed by probate court whose power has been vested under Regulation 2 (a) of the 5th Schedule to the MCA. Hence, the first appellate court cannot be faulted for holding, as it did at page 12 of its judgment, that the respondent had to proceed to distribute the deceased’s estate and file an inventory after such distribution. Thirdly, the appellant has also complained that the first appellate court erred in law and fact for ordering the respondent to distribute the estate of the late Silvano Nyaoza which does not belong to the late Katembela Nyaoza. 10 Likewise, the respondent did not mince words when responding to that complaint, for she submitted that the appellant’s complaint is baseless because the land which the respondent contests to be part of the late Katembela Nyaoza’s estate, had been declared to be the said deceased’s property vide Land Appeal No. 2 of 2020. My careful examination of the Ruling and Judgment of the probate and first appellate court respectively, reveals that they both make reference to the Land Appeal No. 2 of 2020 which was heard and determined by the District Land and Housing Tribunal for Rukwa at Sumbawanga to the effect that the land which the respondent claims to be the property of the late Silvano Nyaoza, belongs to the late Katembela Nyaoza which is why in its ruling dated 22.09.2023, the probate court overruled the respondent’s objection due to existence of such appellate tribunal’s decision. I have also noted that the respondent did not challenge such decision by appealing to this court. This entails that the decision of the said appellate tribunal which was also referred to be both the probate and first appellate court in their decisions, remain to be intact. Hence, based on the foregoing deliberation, this court does not see any reason, whatsoever, to interfere with 11 the concurrent findings of those lower courts, rather it finds no merit in the appellant’s third complaint and dismiss it in its entirety. Having said the above, it is my settled view that the first appellate court was justified to find the appellant’s appeal being without merit. In the same vein and owing to the reasons I have just assigned hereinabove; I find the instant appeal to be unmerited. It is thus, dismissed in its entirety. Order accordingly. A.A. MRISHA JUDGE 19.12.2024 DATED at SUMBAWANGA this 19th day of December, 2024. A.A. MRISHA JUDGE 19.12.2024 12