Civil Appeal 11845 of 2024 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY OF SUMBAWANGA)

AT SUMBAWANGA CIVIL APPEAL NO. 11845 OF 2024 (Arising from the District Court of Sumbawanga at Sumbawanga in Civil Appeal No. 4882 of 2024, and originated from Sumbawanga Urban Primary Court in Probate and Administration Cause No. 99 of2023)

BETWEEN GERVAS KASUNGA....................................................................... APPELLANT

VERSUS CHRISANT WACHUMWA......................................................... RESPONDENT

JUDGMENT 12th November & 12th December, 2024 MRISHA, J. The crux of the matter at hand is that the appellant does not want the respondent to administer the estate of the late Henerico Kutumwa Kasunga (the deceased) who it is not disputed, is his father and senior brother of the respondent. His efforts to object the respondent from acquiring such legal status, began on 15.11.2023 before Sumbawanga Urban Primary Court (the trial court) which was set to hear and determine Probate and Administration 1 Cause No. 99 of 2023 after being moved by the respondent who applied for the Letters of Administration after being proposed by the family meeting to be the administrator thereof. The records reveal that among the appellant’s major complaints against the respondent, were that the latter was escalating family conflicts, sabotaging the deceased’s estate and unable to do justice to the beneficiaries of the deceased’s estate. However, after hearing the caveat entered by the appellant inter partes, the trial court dismissed the appellant’s objection for want of merit and proceeded to appoint the respondent as the administrator of the deceased’s estate. The above decision did not amuse the appellant who then rushed to the District Court of Sumbawanga at Sumbawanga (the first appellate court) and lodged Civil Appeal No. 4882 of 2024 in which he urged the said court to intervene by allowing

his appeal, revoke the appointment of the respondent as the administrator of the deceased’s estate, order another family meeting to be convened for the purpose of reappointing the administrator of the deceased’s estate and, grant any other reliefs as it would deem fit and just. Unfortunately, the first appellate court upon hearing the first appeal on merit, dismissed it without costs. Still aggrieved and eager to continue with the battle, the appellant decided to approach this second appellate court with a 2 five grounds petition of appeal coupled with the prayers that the appeal be allowed, the judgment of the first appellate court be quashed and set aside, the court be pleased to make an order that the clan meeting be convened afresh and, also to grant any other relief (s) as it may deem fit and just to grant. His grounds of appeal as canvassed in his petition of appeal, are to the effect that: 1. That, the District magistrate erred in law and fact in crashing two grounds of appeal among three grounds as one of the respondent’s replies to the petition of appeal received on 20/03/2024 and hence reached to the wrong decision.

2. That, the District magistrate erred in law and fact in basing completely to the respondent’s side (sic) whom denied twenty people not to attend the clan meeting and hence condemned them unheard to the clan meeting while they are clan members; and thus, the respondent proved failure to be the Administrator together with (sic) his District Magistrate. Also, mostly this act is against the mother law the constitution of the United Republic of Tanzania on freedom of expression No. 18 (a) every person has a freedom of opinion and expression of his ideas. 3 3. That, after the respondent condemning twenty clan meeting members the respondent remained (sic) amending horrible secret clan meeting between two people only without fulfilling clan column (sic) whom are (i) Elias Kasunga (ii) Linus Kasunga and respondent. This was informed through submission but the district magistrate ignored and thus reached to the wrong decision.

4. That, the District magistrate erred in law to use all unreported administration cases to judge the appeal, hence it is not gazetted (peruse on page 6 line 7).

5. That, the District Magistrate erred in law and really failed to announce that family clan or family minutes is not requirement of the law but is a matter of practice. (The Mother law the constitution of The United Republic of Tanzania of 1977 heading the government and people No. 8 (c) say The Government shall be accountable to the people). NB: No people no Court. The choice of the Court without people will remain for the Court. This failure was amended to base completely to the respondent. I thought it would be just, prudent and fair to let all the grounds of appeal by the appellant be replicated as they are, due to the fact that a court of law is always there to do justice to all parties with impartiality and by abiding to the 4 relevant principles of the law governing a particular matter before it, regardless of how the party moving it has fronted his grounds of grievance. What matters is to look at the contentious matter dispassionately, put under scrutiny and determine it as per the law. Reverting back to the matter at hand, it should be noted that at the hearing of the instant appeal, both parties appeared in person and made their submissions orally without any legal representation and, from the way those submissions were made, it appears that the appellant adopted his petition of appeal and had some further submissions to make. So did the respondent. In brief, the

appellant submitted that he filed his petition of appeal with the court because he was aggrieved by the decision of the first appellate court. Hence, he urged this court to consider his grounds of appeal, allow his appeal and proceed to quash and set aside the judgment and decree of the first appellate court. Finally, he implored me to order another clan meeting to be convened. On the other side, the respondent after hearing his adversary’s submission in chief, stated that he does not support the present appeal on the ground that the first appellate court made a proper decision for the same was based on the law governing probate and administration of estates and that the said 5 court was satisfied that the respondent is an eligible person to administer the deceased’s estate. With the above reasons, the respondent prayed that this court be pleased to confirm that the respondent is the administrator of the deceased’s estate and, dismiss the appellant’s appeal for want of merit. Thereafter, the appellant had nothing to rejoin. This being the second appeal, the principle that the appellate court will not interfere with the concurrent findings of fact of the lower courts unless it is shown there are mis directions or non directions, do apply in determining the merits or otherwise of the present appeal. Starting with the first ground of appeal, the appellant has complained that

the first appellate court misdirected itself by ignoring two grounds of appeal among the three which he raised with a view to challenge the decision of the trial court. On my part, I had enough time to go through the grounds of appeal raised by the appellant before the first trial court, and observed that it is true his petition of appeal before that court, contained three grounds of appeal. However, looking at the said petition of appeal squarely, it is obvious that grounds 1 and 3 talk about a similar complaint which is about denial of the right to be heard to the appellant and other persons who were not subject to the cases before the trial and the first appellate courts. 6 Besides that, I have gone through the impugned judgment of the first appellate court and noted that the trial court indicated at 2, that there were three grounds of appeal raised by the appellant, but it only dealt with grounds 1 and 2. Hence, it is not true that the first appellate court skipped and/or crashed two out of three grounds raised by the appellant. The only ground which appears to have been skipped by the said court, is ground 3 which however, is similar to ground 1 of the appellant’s petition of appeal, just as I have hinted herein above. Nevertheless, it is the position of the law that although the appellate court is enjoined to address the grounds of appeal, it does not have to deal

seriatim with grounds of appeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately. (See: Malmo Montagekonsult AB Branch v. Margret Gama, Civil Appeal No.86 of 2001 (unreported). What the learned magistrate of the first appellate court did, as indicated above, was to consider all the grounds of appeal by the appellant and address some of them which he found to be decisive ones. In the circumstances, it is my considered opinion that the said magistrate was justified to do so. Hence, I find ground 1 of the appellant’s memorandum of appeal to be without merit. 7 Coming to ground 2, the appellant’s grievance is that the first appellate court erred in law and fact in basing completely on the respondent’s side who denied twenty people an opportunity to attend and participate in the clan meeting hence condemned them unheard while they were clan members. Without wasting the precious time of the court and parties to the present appeal, I must say that this ground lacks merit and is bound to be dismissed. It is a principle of law that the appellate court cannot deal with new matters which were not addressed and decided by the lower court. (See: Juma Manjano vs The DPP, Criminal Appeal No. 211 of 2009 and Kenedy Makuza vs Monalia Microfinance, PC Civil Appeal No. 01 of

2021 (both unreported). Despite alleging that the first appellate court erred in law and fact by basing on respondent’s side whom the appellant blamed for denying him and the rest of family members an access to attend and participate in clan meeting, the records of the trial court reveal that those allegations were not raised by the appellant during trial before the trial court. The above observation is fortified by the caveat which was tabled by the appellant before the trial court on 20.10.2023. Looking at the said caveat, it appears that the appellant raised nine grounds upon which he was challenging 8 the eligibility of the respondent to be appointed by the trial court as the administrator of the deceased’s estate. However, none of the said grounds depict that the appellant complained about being denied with his fellows, a right to attend and be heard in the clan meeting. This means that the second ground of appeal raised by the appellant before the first appellate court and now before this court, contain new matters which were neither raised, argued, nor decided by the trial court. More so, even the impugned trial court’s judgment does not show if that ground was raised and entertained by the trial court. All that entails that this appellate court cannot deal with such ground of appeal and, the only way forward is to dismiss it for want of merit, as I hereby do. Next is

the third ground of appeal in which the appellant has faulted the first appellate court for ignoring his submission to the effect that apart from condemning twenty clan members unheard, the respondent convened secret meeting with two persons. Again, having revisited the records of the trial court, I am in the same vein, constrained to dismiss such ground of appeal for want of merit as it contains matters which were not raised and decided by the trial court. In addition to that, I have observed that the records of the first appellate court particularly at page 4 of the said court typed proceedings, do not show 9 anywhere if the appellant submitted to that effect and that is another reason why I have found the third ground to be unmerited. I now turn to ground 4 of the appellant’s petition of appeal. It is his argument that the first appellate court erred in law to use all unreported administration cases/causes to judge the appeal before it which according to him, were not gazetted. With all due respect to the appellant, such argument lacks merit. From pages 5 to 6 of the impugned first appellate court’s judgment, it appears that the honourable magistrate made reference to several cases including Alice Kambona Gilyoma & Another vs Adam Methusela Kabandi & 2 Others, Probate and Administration No. 7 of 2021, Shaban Mussa Muhando and Ester Msafiri Muhando, Probate and Administration

Cause No. 75 of 2020, Philipina Wilfred Malisa vs Robert Wilfred Malisa, Civil Appeal No. 12 of 2020 and Hassan Ng’anzi Khalfan vs Njama Juma Mbega & Another, Civil Application, Civil Application 218 of 2018. The good thing with our Judiciary Case Management System is that since the launching the Tanzlii Database, a bulk of cases including those which were decided by our courts of record before establishment of such database, are now available on Tanzlii and can easily be accessed by anyone, provided one has access to internet and correct citation a particular case he/she is searching for. Thus, the Judiciary of Tanzania and all its stake holders who 10 participated in making such noble innovation, deserve to be commended for making that to happen. Back to the present case, by using Tanzlii database, on 05.12.2024 it did not take me longer to search and retrieve all cases referred by the honourable magistrate who presided over the first appellate court. Hence, I do not see any reason as to why I should fault the said magistrate for his act of referring to those cases in the course of determining the first appeal. The foregoing reasons therefore, make the fourth ground of appeal to crumble as well. Last, is the appellant’s complaint that the first appellate court erred in law and really failed, to announce that family clan or family minute is not a legal requirement, but a

matter of practice. While I agree with the appellant’s argument that it is important for the family members to convene a family meeting in order to propose a person or persons who will administer the deceased’s estate, I differ with his view that a clan or family minute is a requirement of the law when it comes to filing of the petition for letters of administration or probate. There is a plethora of authorities in that aspect. To mention, but few are the cases of Hadija Said Matika vs Awesa Said Matika, PC Civil Appeal No. 2 of 2016, Anthony Paulo Mwaluseke vs Neto Paul Mwaluseke, PC 11 Probate Appeal No. 03 of 2023 and Victoria Mgaza Maligo vs Nasim Mgaza Bakari, PC Civil Appeal No. 14 of 2023 (all unreported). In the case of Victoria Mgaza Maligo (supra), my learned sister Barthy,J. stated inter alia, that: “It is now settled law that a clan or family meeting is not a mandatory requirement when petitioning for letters of administration. However, such meetings are considered important and are highly encouraged to reduce disputes and ensure the smooth administration of probate and estate matters." The above position which I subscribe to, was also taken in other cases decided by this court, as cited above. Hence, I am persuaded to follow it and proceed to reaffirm that it is not a requirement of the law for the petitioner have a clan or family minute in order to petition for

grant of probate or letters of administration, rather it is a practice which is encouraged in order to reduce disputes and ensure the smooth administration of probate and estate matters. Having deliberated as indicated above, it is my settled view that the learned Resident Magistrate who dealt with the first appeal, was justified to reason as he did, that a clan or family minute is not a requirement of the law. Thus, I find no merit in ground 5. 12 In the upshot, I am of the settled view that the appeal by the appellant is without merit. Consequently, the same is dismissed. However, considering the nature and genesis of the matter at hand, I make no order as to costs. This means each party will have to bear its own costs. It is so ordered. A.A.MRISHA

JUDGE 12.12.2024 DATE at SUMBAWANGA this 12th day of December, 2024. A.A. MRISHA

JUDGE 12.12.2024 13