flora mashine bakula v magaka masele masunga 2023 tzhc 21468 29 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

ATSHINYANGA PC PROBATE APPEAL NO. 62 OF 2022 (C/F Bariadi District Court in Probate Appeal No. 1 of 2022, Originating from Luguru Primary Court in Probate and Administration Cause No. 13 of 2021)

BETWEEN FLORA MASHINE BUKULA................... ................... APPELLANT

VERSUS MAGAKA MASELE MASUNGA.................. RESPONDENT

JUDGMENT 13" July & 29th September, 2023 MASSAM, J.: At Luguru Primary Court, the respondent petitioned to be appointed as the administrator of the estate of the late Bahati Masele Lameck, who died intestate on 19/08/2021 leaving behind three children from two different mothers as he never married. The appellant filed an Objection claiming that she was a legal wife of the late Bahati Masele Lameck, however her objection was overruled, and the respondent was appointed as administrator of the estate of the late Bahati Masele Lameck. Pagel of 8 The decision of Luguru Primary Court aggrieved the appellant who unsuccessful appealed to Bariadi District Court, hence the present appeal. The appellant preferred this appeal based on seven (7) grounds of appeal as follows; (1) That the appellate magistrate erred in law and facts by failure to consider properly the evidence on records on the existence of marriage between the appellant and the deceased one called Bahati Masele Lameck. (2)That the appellate magistrate erred in law and facts by relying on the absence of marriage celebrations while the evidence on record is dear on the presence of the said marriage. (3) That the appellate magistrate erred in law and facts by failure to consider that the respondent side made false evidence in different aspects. (4) That the appellate magistrate erred in law and facts by failure to consider that

the appellant was entitled to administer the estates of her late husband one Bahati Masele Lameck based on the relationship they had as couples. Page 2 of 8 '(5) That the appellate magistrate erred in law and facts by failure to note that the case at the trial court was wrongly conducted of which the appellant was denied a right to cross examine the evidence from respondent's witnesses. (6) That the appellate magistrate erred in law and facts by failure to state anything on the absence of sureties towards to the appointment of the respondent as the administrator. (7) That the appellate magistrate erred in law and facts by creating new things against the appellant on the administration of estates. During the hearing of the appeal which was done by way of written submission/ both the appellant and respondent appeared in person/ unrepresented. Starting with the 1st and 4th grounds of appeal, the appellant submitted that she did proved that she was married to the late Bahati Masele Lameck by submitting exhibit "Pl" which is a prove of payment of bride price. She submitted further that Yumbi Masunga who was the guardian of the late Bahati Masele Lameck did prove that they received cows as her bride price. More to that, the appellant stated that, she is the right person to administer the estate of the late Bahati since she Page 3 of8 knew where his properties are especially those in

Singida where they used to live together. Coming to the 2nd ground of appeal, she complained that according to Sukuma tribe once the bride price has been paid the marriage ceremony is conducted. Further to that, she said that, she went to live with the late Bahati at Singida where he was a police Officer and that is enough to prove that they were legally married. Regarding to the 3rd ground of appeal, she started that, the respondent was not honest in administering the properties of the late Bahati as he lied that, deceased was a peasant while he was a police officer. She stated further that, in death certificate the respondent said the deceased died on 19/8/2021 but when he was testifying in court, he said that he died on 19/9/2021, the same proved the respondent was not an honest person to administer the deceased estate. She submitted further that even the two children mentioned by the respondent were not the deceased's children and even their father's name was Emmanuel Paul and not Bahati Masele Lameck, they were just made to deprive her right to the properties of her husband. On the 5th ground of appeal, she submitted that she was denying a chance to cross examine the witness namely Baraka Emmanuel Paul Page 4 of 8 when he was testifying to the court the act which is contrary to Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. Thus, the

proceedings of trial court were tainted with illegality. Coming to the 6th ground of appeal, the appellant submitted that the requirement of having sureties prior to the appointment of the administrator was not adhered to by the trial court which is contrary to the law. Lastly, on the 7th ground of appeal, she complained that the evidence regarding the children is confusing, therefore it was wrong for the appellate court to question her by refusing to identify the other two children as the children of the late Bahati. She prayed for the court to find merit in all her grounds of appeal and allow the appeal with costs. Responding to what was submitted by the appellant, respondent replied that the allegation that the appellant is a legal wife of the late Bahati is just a mere word as there is no proof to that. The late Bahati had a clan and relatives who did not identify the appellant as the wife of the late Bahati. Thus, the Ist and 4th ground of appeal should not be considered. Page 5 of 8 She submitted further that, on the remaining grounds of the appeal, the appellant was only challenging as to who is the right person to administer the properties of the deceased between the appellant and the respondent. He submitted further that the marriage need to be open and not a secret matter and if there was one, they could know or hear about it.The document submitted by the appellant

does not show if it was a bride price nor being a conclusive proof of marriage between them. The appellant was only challenging her appointment without any justifiable cause. He argued further that he was an honest man that's why the clan appointed him to administer the estate of the late Bahati Masele Lameck. Thus, he prayed for the appeal to be dismissed. Having heard the rival submission from both parties, the issue for determination is whether the appeal is meritorious or not. Upon revisitation to the grounds of appeal raised by the appellant together with her submission this court noted that the main issue challenged by the appellant is the failure by the trial court and the 1st appellate court to identify her as the Legal wife of the late Bahati Masele Lameck, hence a rightful person to administer his estate. The appellant relied on exhibit "Pl" alleged to be a bride price payment and that after the same was paid, she went to jive With the Page 6 of 8 deceased at Singida. She argued further that the said payment of dowry was witnessed by one Yum bi Masunga who was the gua rdian of the late Bahati Masele La meek. Unfortunately, the said Yumbi Masunga was not called to testify at the trial court to support the allegation of the appellant. This court support the argument of the 1st appellate court that in order for a customary marriage to be recognized as a Lawfully

Marriage certain customary rites must be followed, and the marriage need to be registered. As it was provided under Section 43 (5) of the Law of Marriage Act, Cap 29 R.E 2019 provides that: "When a marriage is contracted according to customary law rites and there is no registration officer present, it shall be the duty of the parties to apply for registration, within thirty days after the marriage, to the registrar or registration officer to whom they gave notice of intention to marry!1 (Emphasis is mine), Guided by the cited provision, the appellant was supposed to register their marriage to the registrar's office in order for it to become valid. The same was not done. Page 7 of8 In our present case, as it was correctly decided by the lower courts, the appellant failed miserably to prove that she was the legal wife of the late Bahati Masele Lameck. As they failed to register their marriage according to the law, the same cannot be recognized as a valid marriage, let alone the facts that the clan of the deceased were not aware of the existence of their marriage. See the case of Leornald Reed Harrison and Kwigema samson Gabba [1995] TZHC 8. Thus, the trial court was correct to overrule the objection for the appellant to be appointed as the administrator of the estate of the late Bahati Masele Lameck as she was not lawfully married to the deceased. Therefore, this courts fids no merit on all grounds of appeal. Consequently, the appeal is miserably failed. The decision of the 1st appellate court is hereby upheld. Taking into consideration nature of the matter, no order as to costs. It is so ordered. DATED at SHINYANGA this 29th day of September 2023 Page 8 of 8