EUNICE HUKUMU 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA CIVIL APPEAL NO. 7610/2024 (Arising from Probate Revision No.06 of 2023 from Bariadi District Court, the same arise from Probate and Administration Cause No.18 of 2011 from Somanda Primary Court) EUNICE JOHN .............................................................APPELLANT

VERSUS TABITHA PHARES ...................................................RESPONDENT

JUDGMENT 12th June & 15th July 2024 F.H. MAHIMBALI, J The appellant and the respondent are daughter and aunt, meaning that the respondent is the aunt to the appellant who is the daughter of John Phares – respondent’s sibling. Both the appellant’s father and the respondent are siblings to the deceased Phares Salyungu who died later (almost 4 years) after John Phares had died first. It appears that, after the respondent’s father had died intestate, one Sapora was appointed the administratrix of her father’s estate. Before she accomplished the said task, she too died. The respondent 1 was then instructed by the family/clan to accomplish the said role Sapora had commenced. The appellant successfully challenged that appointment to the trial court where then both the appellant and her sibling John Phares were appointed co-administrators in place of the respondent. The respondent was unhappy with that appointment she then successfully appealed to the first appellate court via Probate Appeal No.6 of 2023 and thus she was appointed as the sole admnistratrix, and was then directed to proceed from where one Sapora Phares had ended. She then assumed that duty. Now, not amused with the decision of the first appellate court, she has appealed to this Court armed with nine grounds of appeal which all fall under the question of evidence, procedural irregularities, joinder and misjoinder of

estates of the deceased in the list to be distributed. Both parties appeared in person and unrepresented. Arguing for her appeal, the appellant submitted that being a daughter of the late John Phares who was the son of Phares Salyungu, she was aggrieved by the decision of the first appellate Court. She further alluded that she is struggling for the right share of her deceased father from the estate of his deceased father (Mzee Phares Salyungu). She thus prayed for her grounds of appeal be adopted by this court to form part of her submission. In addition, she insisted that a house in plot No. 519 A is 2 not part of the deceased Phares Salyungu and that it was alleged distributed to John Phares but to date it is not known where is it and who is the owner of it. In addition, she pressed that house in Plot no. 120, Block A – Sima Bariadi be treated as the property of the estate of the late Phares Salyungu and be subject of distribution to all heirs of the said Phares Salyungu. The appellant further fortified that the purported distribution of milling machine to the late John Phares was not proper as it was not the Phares Salyungu’s property but personal property of John Phares. On the side of the respondent, she stated that the deceased Phares Salyungu was her father. The appellant’s father John Phares was the son of Phares Salyungu. The said John Phares died prior to his

father (Phares Salyungu). Their father got his right share during the lifetime of his father. Upon the demise of her father - Phares Salyungu, her sister Sapora Phares was the one appointed by the primary court to discharge the said administration duties as per law and as per the deceased’s wishes in his life time. Unfortunately, the said Sapora also died intestate. In her place, the respondent was then appointed by the clan so that she may finalize the said probate case filed by Sapora. What the appellant is claiming now is a strange thing to her. So, to the best of her knowledge, the 3 Phares Salyungu’s estates were all disposed by his administrator and that there is nothing pending distribution as alleged, argued Ms Tabhitha – the respondent. In rejoinder the appellant argued that by the time her father died, he had his own personal properties. However, he had a right of inheritance from his father who died in 1994. So, the said house in which her sibling – Manjale is residing belongs to their father. Therefore, there is nothing of inheritance as claimed but his own physical property. Thus, reiterated that her grounds of appeal be considered by this court and allow the appeal. Having dispassionately heard both parties and upon thorough scanning of the trial Court records the vital issue to be determined is whether this appeal is merited. The appellant had complained much on

inclusion and exclusion of some properties of the deceased. The appellant argues this court to exclude the Plot No.519 A located at Sima Bariadi as is not part of the estate of the deceased Phares Salyungu rather a property of her father John Phares. Whereas, plot no 120 block A at Sima Bariadi be included in list of estates of the deceased. She also contended that she is obliged 4 to receive share of estates of her grandfather via her late father - a son of Phares Salyungi. Much I have said when discussing Civil Revision No.7607/2024 of this Court, that the argument is misconceived as it has not substantiated with proof of evidence. Notably, there is sufficient evidence that the matter was attended to the finality by one Sapora and when wanted to close the case file, she passed away thus is when the respondent took the stadium and was directed to accomplish the stage remained of closing the probate file. However, there is a piece of evidence that, much of the estates were distributed by the deceased himself in his life time. And the remained were distributed by Sapora and thus nothing remained undistributed. With these pieces of evidence, it is therefore unfortunate that the complained argument about being or not being estates of the deceased had no room for discussion by now. The same had been addressed by the deceased himself and one Sapora as admnitratrix. Allowing

the argument by the appellant is to open ponderable box which its discussion will be endless. The appeal at hand scanning is nothing but an entertainment of series of proceedings at the instance of the 5 appellant or her agents or associates seeking to reverse the impugned decision which it confirmed that everything in administration of the estates were prior properly handled thus the respondent should only accomplish the last stage of closing probate file. Mindful, there must an end to every litigation. However, in my thorough findings I have grasped that the appellant is not a directly beneficiary to the estates left by Phares Salyungu. Herself, is only grandchild of the deceased. By the way, the surviving respondent may have more vested rights than any other over the deceased’s estate. On his demise unless the contrary is established, normally those assets follow the survivor. A deceased person does not have a right of heirship. Meaning that a deceased person cannot inherit from another deceased person. So, the argument by the appellant being grandchild thus she has right to inherit via their father who is also deceased is not correct. People must surely know the extent of their interests in the properties left by the deceased. Mostly, each one has to struggle for his own assets. Those in administration duties, should not interfere with the rights of the real heirs. In the

current matter, the appellant has to digest herself what interests she has in the said estate. If not, what share has 6 she or what vested interests is with her over the said estate to the extent that she is aggrieved by the respondent becoming administratrix? Not every live member is entitled to a share he/she did not contribute to it. It is only those with more rights in dependence that are more eligible in the administration and heirship with the deceased’s estate. Thus, the respondent having yet failed to perform such a duty, let her proceed with the said duty as appointed. All these said, I must therefore conclude that, this appeal is devoid of any merit and consequently is dismissed. Thus, the decision of the first appellate court is hereby upheld. Being a probate matter which involves relatives, I make no orders as to costs. Right to further appeal is explained. DATED at SHINYANGA this 15th day of July, 2024. F.H. Mahimbali Judge. 7