grace peter adam msuri grace david sawe another vs adam peter msuri 2023 tzhc 20582 31 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF ARUSHA

AT ARUSHA PROBATE AND ADMININISTRATION CAUSE NO. 8 OF 2021 (Originating from Probate And Administration Cause No. 08 o f2021, High Court of the United Republic o f Tanzania at Arusha) GRACE PETER ADAM MSURI @ GRACE DAVID SAW E............. 1st PLAINTIFF MATILDA PETER ADAM MSURI @ MATILDA MNDEME............2nd PLAINTIFF

VERSUS ADAM PETER M SU R I................................................................DEFENDANT

JUDGMENT 12th July & 31st August, 2023 TIGANGA, J. In Probate Cause No. 8 of 2021, the plaintiffs Grace Peter Adam Msuri @ Grace David Sawe and Matilda Peter Adam @ Matilda Mndeme petitioned for Probate of the Estate of their father the late Peter Adam Msuri, (deceased) who passed away from heart and diabetes diseases on 16th December, 2020. The plaintiffs claimed that, their late father left a Will dated 07th April, 2002 which appointed them as executers. The petition was contested by the defendant through a caveat in terms of section 59 of the Probate and Administration of Estate Act, Cap 352 R.E. 2002 and rule 82 of the Probate and Administration of Estate Rules, G.N. No. i 369 of 1963 hence the instant suit. The defendant, Adam Peter Msuri, deceased person's son, contested the petition on the following grounds; i. That, the Will is invalid as the same included the property in Plot No. 22 Block X at Levolosi Street in Arusha with Certificate of Tittle No. 2335 which is his; ii. That, the said Will was witnessed by one of the beneficiaries Leo Adam Msuria; iii. That, the defendant and Rose Peter Msuri being biological son and daughter of the deceased were not bequeathed anything in the said Will and no reasons were given for their exclusion and; iv. The said Will appointed the beneficiaries Leo Adam Msuri, Grace Peter Adam Msuri and Matilda Peter Adam Msuri to be the

Executors. Before commencement of the proceedings, the following issues were framed for determination; i. Whether the Will of the late Peter Adam Msuri executed on 07/04/2002 was valid. ii. Whether the landed property described as Plot No. 22 Block X Levolosi Arusha belongs to the caveator/Defendant or is part of the estate of the late Peter Adam Msuri. iii. Whether the Court should grant probate to the petitioners/plaintiffs. iv. To what reliefs are the parties entitled to. During the hearing, the plaintiffs were jointly represented by Mr. John Mushi, whereas the defendant was dully represented by Ms. Winnie Evarist and Mr. Omary Gyunda all learned Advocates. The plaintiffs7case was supported by the testimonies of Grace Peter Adam Msuri @ Grace David Sawe (PW1), Matilda Peter Adam Msuri @ Matilda Simon Mrema (PW2), Rose Peter Msuri (PW3), Simon Peter Msuri (PW4), Ahmed Huna Kishele (PW5), Aranyia Philip Naanshao (PW6) and Joseph Peter Adam Msuri (PW7). Through these witnesses, six (6) exhibits were tendered, which are the Death Certificate, the Will of the late Peter Adamu Msuri, Judgment of Matrimonial Cause No. 10 of 2000 before F.J. Mushi-RM, the Judgment of Criminal Appeal No. 23 of 2002 before A. Shangwa, J., Judgment of Matrimonial Cause No. 10 of 2000 before D.C. Kamuzora, RM, (as she then was), and proceedings of Matrimonial Cause No. 10 of 2000. These were admitted as

exhibits PI to P6 respectively. On the defence side Peter Adam Msuri testified as DW1 and Anastazia Simon testified as DW2. They tendered two exhibits, the Catholic Identity Card and a Copy of Official Search which were admitted as exhibit D1 and D2 respectively. Led by Advocate John Mushi, PW1 Grace Peter Adam Msuri @ Grace David Sawe, told the court that, she is the eldest daughter to the deceased born in 1964 followed by Julian born in 1967, Matilda born in 1969 and the youngest is Joseph born on 1971. That, their father sired another child, the defendant, born from another mother who went by the name Vanda. She stated that, after the burial of their father's, they received information from Advocate Timoth Maeda that, their late father left a Will. The same was read before them but the defendant was not satisfied, thus, he left in the middle of the meeting. The death certificate of the late Peter Adam Msuri issued on 01st February, 2021 and the Will titled WOSIA WA NDUGU PETER ADAM MSURI dated 07th April, 2002 were admitted as exhibits PI and P2 respectively. PW1 kept on testifying that, their father had the following properties as mentioned in this Will; two houses at Levolosi, one house at Njiro, another house which was changed to a guest house at Kondoa, a garage at SIDO - Unga Limited, two cars one in Arusha make Noah Toyota and a Peugeot Saloon at Kondoa and a farm with

three acres also at Kondoa. That, in the said Will, she was tasked to execute the said Will and upon filing her petition, the defendant objected on the ground that, the house at Levolosi Plot No. 22 Block "X" which is item 1 in the Will is his personal property something which is not true. She expounded further that, the said plot was acquired in 1980's and registered by the name of Adam Msuri who is their paternal grandfather, thus, their late father registered it in his father's name to honour him. She mentioned another proof that the said plot is not of the defendant's is because at that time, the latter was only around 9 (nine) years and there was a divorce case between defendant's mother and the deceased thus, he could have not registered the impugned plot under defendant's name. A copy of judgment in Matrimonial Cause No. 10 of 2000 filed and decided by the District Court of Arusha and its appeal emanated thereof Civil Appeal No.23 of 2002 were admitted and marked as exhibit P3 and P4 respectively. In the latter case, the matter was ordered to start afresh hence another copy of judgment in Matrimonial Cause No. 10 of 2000 was admitted as exhibit P5 whereas the proceedings was admitted as exhibit P6. The trial court declared the impugned house as a matrimonial house between the defendant's mother and the deceased and ordered defendant's mother to be given five rooms, two

for her accommodation and three for renting to earn livelihood. PW1 told the court that, in the absence of further appealed, these judgment proves that, the house in question never belonged to the defendant. PW1 went on telling the Court that, the defendant did not have a good relationship with the deceased as he was stubborn from his school years to supervising some of their father's investments. As a result several meetings were convened, the defendant asked his father's forgiveness but he never changed. She added, even when the deceased was sick and admitted both at KCMC and Muhimbili prior to his death, the defendant never contributed to his treatments thus, in her opinion that made the deceased not trust him. PW1 further told the Court that, their sister Rosemary is not in the Will because, she was introduced to their family late but in the said Will their father has directed them to take good care of her. She prayed her to be appointed as one of the executors of the estate of their late father, and that Plot No. 22 Block X, located at Levolosi, Arusha be declared a property of the deceased and not the defendant's. When cross examined PW1 stated that, she was given a house at Levolosi in Plot No. 22 Block X in Arusha City together with her young sister so that they can collect the income and take care of their mother and young brother Joseph. She also acknowledges that, in

the said Will the defendant and their sister Rose were not mentioned and that, one of the beneficiaries of a Will, Leo Adam Msuri, deceased person's brother, was a witness to the said Will. She also pointed out that, the defendant's mother has also passed away. PW2 Matilda Peter Adam Msuri @ Matilda Simon Mndeme told the Court that, she is the third born out of six children of the deceased. She corroborated PW l's evidence regarding the death of their father, the cases he had with defendant's mother, properties he possessed before his death and the Will regarding distribution of such properties. She edified the distribution as per the Will to the effect that, PW1 and PW2 were bequeathed a house on Plot No. 22 Block X located at Levolosi and the money collected therefrom be used to take care of their mother and disabled young brother Joseph Adam Msuri who were bequeathed house No. 343 Block "X" Levolosi, Arusha. The house at Kondoa was allocated to the defendant, Leo Adam Msuri, Selestine Adam Msuri and Anna Adam Msuri. The garage which is at Unga Limited, was given to Simon Peter Adam Msuri. It was the deceased wishes as per the Will that, they receive, accept and assist Rose Msuri as their relative. It was PW2's further testimony that, the defendant is not a trustworthy person because he was introduced to them in 1980 and joined Naura Primary School but he failed. He was then

taken to a private secondary school where he ended in form II, the deceased decided not to support his education again but PW1 decided to chip in and finance his secondary education up to form IV. Thereafter, the defendant was given a kerosine selling business but he stole the money and left claiming that he took his share. According to PW2, the defendant later joined forces with his late mother invaded the Levolosi house and occupied five rooms which angered the deceased and outcasted the defendant. Later, the defendant apologized, the deceased accepted him back and joined him in his business as he appointed him a manager to supervise the House at Kondoa which was developed into a guest house. However, the deceased still complained that, he was not remitting profit. PW2 also told the Court that, the deceased took a loan on house No. 22 Block X of Levolosi Arusha, but failed to pay such loan, thus, before the Bank proceeded to sell it, PW1 and PW2's husband joined forces, paid the debt and redeemed the house. Regarding Rose, PW2 told the Court that they have been assisting her as per their father's wishes. PW3 Rose Peter Msuri added weight to PW1 and PW2's testimonies that, she is the daughter of the deceased and she became aware of the Will following their father's funeral and that, PW1 and PW2 have been assisting her in paying school fees for her children and have given her

a capital to start business just as per their father's wishes in the Will. Another plaintiff's witness was PW4 Simon Peter Msuri, the deceased person's son, his testimony did not differ from that of PW1 and PW2 regarding their father's death, presence of a Will and how the defendant does not approve of the same. He added that, following a long time differences between the deceased and the defendant, the latter asked him to apologize to their father. The deceased wanted him to apologize in person, which he did and the deceased forgave him on conditions that, he shifts from Embakasi House Plot No. 22 of Levolosi, Arusha and not to take sides in involving his parents' conflicts. From thereon their relationship resumed but not 100%. He acknowledges that, in the Will he was given the garage at Unga Limited and unfinished house at Njiro. He prayed that this Court do them justice. PW5 Ahmed Huna Kishele, told the Court that, the deceased was his good friend since 1977 when he convinced him to join CCM as he was a CCM Chairman at Levolosi. He joined and became a branch political 9 committee member and later a street government committee member since then to 2020. He mentioned the deceased properties as testified by PW1 and PW2 witnesses and further told the Court that, on 7th April, 2002, the deceased was sick and asked him to witness his Will. That, the deceased also called other

elders as witnesses unfortunately they have all passed away. The sixth plaintiffs witness was Aranyia Philip Ndanshao deceased wife. She told the Court that, she started living with the deceased on 1962 at Kaloleni Kibra Street until 1976 when they had their third child and moved to Levolosi house which she lives with PW2 to date. She told the Court that she had 4 children with the deceased, PW1, Juliana Adam Msuri who died, PW2 and Joseph Peter Adam Msuri. However, she later came to know of Rose, Simon and the defendant as her other husband's children and has accepted them. She also mentioned that, the deceased managed to build a house at Kondoa, a house at Levolosi at Embakasi, unfinished house at Njiro and another house which she currently lives in. She also explained the strained relationship between the deceased and the defendant and the fact that the latter was not in good terms with his father until his death and also, the fact that, he does not approve the Will left by the deceased. She prayed that this Court do them justice. 10 During cross examination she told the Court that, she was married by the deceased through a customary marriage and that, when the house at Levolosi was bought, the defendant was not in their lives yet, thus the deceased registered it in the name of his late father. The last Plaintiff's witness was PW7 Joseph Peter Adam Msuri, another deceased

son, he testimony did not vary from that of other witnesses. He only added that, the defendant was introduced to them in 1982. That marked the end of plaintiffs case. Led by Mr. Gyunda, DW1 Adam Peter Msuri @ Adam Msuri testified that, he is the son of the deceased and that, he uses two names interchangeably; Adam Peter Msuri and Adam Msuri. That, Adam Peter Msuri is in the National Identity card and Adam Msuri is in the Baptism Certificate admitted as exhibit Dl. Further that, following the burial of his late father, a meeting was convened and a Will was read, however, he was not included in the said Will while Flouse No. Plot 22 Block X Levolosi mentioned in a Will and bequeathed to other siblings was his property as his father had already given it to him. He also asserted that, in the said meeting, he was told if he wanted to contest the Will further, he had to go to court. He later realized a Probate cause had been filed in Court hence, he made his objection after 11 applying for official search which proves that the house in question is his as it has his name. Application for official search of Tittle No. 2335 dated 17th June, 2021 was tendered and admitted as exhibit D2. DW1 also told the Court that, prior to his death, the deceased told him that the house at Kondoa was meant to be his and that, apart from other properties mentioned the plaintiff and their witnesses,

there was Tshs. 50,000,000/= at bank which he does not know whether it is still there or already withdrawn. He further told the Court that, he objected the Will because, he is not mentioned therein, he was not given anything and that the late Leo Adam was among the executors and a beneficiary while he was also a witness to the said Will. Also because PW5, testified that, he signed as a witness without knowing its contents. He prayed that this Court nullify the Will and the Petition for Probate be rejected. During cross examination, DW1 told the Court that, Plot No. 22 Block X Levolosi was obtained in the year 1982 as the same was registered in his name which is also the name of his late grandfather. Further that, he lived in the said house with his mother until 2016 when her mother passed away before he shifted to Kondoa. He also told the Court that, he had been faithfully supervising the Kondoa Guest House, a garage at Unga 12 Limited and that, the fuel business died because the deceased was forced to give the capital to his other relatives. Another defence witness was DW2, Anastazia Simon, who told the Court that, the deceased was married to her sister and in the year 1971. That, the deceased told them that, if his wife would have a male child, he would give him the name of Adam Msuri. That, in the year 1973, his sister had a son and the deceased bought a house and registered

it in the name of Adam Msuri and later bought another house and registered in the name of Joseph Msuri. The fact that he wrote the said houses in the names of his sons was because he wanted each mother to live with his family. She also told the Court that, she lived with them up to 1979 when she got married and left. When cross examined, DW2 told the Court that, the deceased and her sister, the defendant's mother told her that, they bought the house in the name of their son. That, defendant's father was Peter Adam Msuri whereas the defendant goes by the name Adam Peter Msuri @ Adam Msuri. That marked the end of defence evidence. Both parties opted for final submissions which I will not reproduce in verbatim but I will consider them in the course of my analysis. That being the comprehensive summary of the evidence, I now proceed to 13 discuss the substance of the suit in relation to the framed issues. Starting with the 1st issue; Whether the Will of the late Peter Adam Msuri executed on 07th April, 2002 was valid. Section 2 of the Probate and Administration of Estates Act [Cap. 352 R.E. 2002] defines a Will as follows; "W ill means the legal declaration o f the intentions o f the testator with respect to his property, which he desires to be carried into effect after his death." Through Will, a testator can voluntarily express his desires on how he wishes his properties to be

distributed after his death and that, such desires have to be complied with. The position has been affirmed in the cases of Celestina Paulo vs. Mohamed Husein [1983] T.L.R 291 and Julius Petro vs. Cosmas Raphael [1983] T.L.R 346. According to the Black's law Dictionary 8th edition, the word 'valid' has been defined to mean legally sufficient or binding. A Will becomes valid as long as the maker complies with the requirement under the 3rd Schedule of the Local Customary (Declaration) No. 4 Order, GN No. 436 of 1963 (hereinafter, Local Customary Order). This Order provides for all the necessary prerequisites one has to follow for a Will to be authentic and legal before the eyes of the law. 14 In the matter at hand, the defendant challenges the validity of the deceased's Will. From the outset, I join hands with the caveator that the Will dated 7th April, 2002 which was admitted in this Court as Exhibit "P2" is questionable and the following are my reasons; First, the deceased wife/wives were not witnesses to the said Will contrary to rule 5 of the Local Customary Order which reads; "(5) Besides special witnesses, a wife (of a testator) or his other wives at his household must aiso witness." According to the record, the deceased had two wives, one from a customary marriage, PW7 and defendant's mother who is now deceased. The record also shows, during composition of Will in 2002,

the deceased was on a heated divorce/separation battle with the defendant's mother before various courts. Logically, they weren't in good terms for her to be witness of such Will. This however in my opinion, had to be indicated in the Will that, he was not in good terms with her, hence she would not serve as a good witness to such Will. On the other hand, PW7 whom he has mentioned as his wife in a Will was alive and the record does not show if they had any misunderstandings. In the circumstances, she ought to have been one of the special witnesses to the Will but she is not. 15 Secondly; inheritors or heirs mentioned in a Will save for the wife or wives should not be witnesses to the said will as provided under rule 6 of the Local Customary Declaration Order that; "(6). People who are mentioned as inheritors in a Wiii shall not be witnesses o f a Will except his wife or wives." From the Will produced in Court, the testator bequeathed one of his properties to his blood brother one Leo Adam Msuri, but the latter also signed as a witness to the said Will contrary to the law as quoted above. Third, witnesses to the Will have to know its content which is the main role of a witness. I have no better words to emphasize this, but I would like to borrow the wisdom of my fellow learned sister, Mutungi, J. in the case of Rose Andwedisia Tilya vs. Emmanuel Christopher Tilya, Civil Case No.

8A of 2021, HCT at Moshi as she observed that; "...The witnesses' main role in documents o f this nature is to ascertain the contents stated in the document as the deceased's will and last wishes. Further to ascertain the maker was o f sound mind and was not under any undue influence when making the Will. This is important because by the time the Will takes effect the person who signed it, is no longer around to say whether or not the document that is being presented to the probate Court is really his or her Will. This is the time the witnesses come into p iay to testify on what they heard and witnessed..." 16 In the matter at hand, PW5, Ahmed Huna Kishele who witnessed and signed as Ahmed J. Kishele in a Will testified not to be fully conversant in respect deceased Will. Him being the sole surviving witness, he ought to have been fully aware of the contents of what he signed, short of which his role become questionable. Lastly; Rule 34 of the Local Customary Order provides as follows; "A person who wants to deny an heir his share o f inheritance must state dearly in his Wiii and explain, giving the reasons for the denial." The above provision shows that, when the legal heirs are denied inheritance, the testator must explain in the Will the reason(s) for such denial. In the matter at hand, the plaintiffs and their witnesses only made assumptions that, owing to a bad

relationship between the deceased and the defendant, that is the reason why he was not mentioned in a Will or rather given any property. However, this remains as a mere speculation because the deceased did not explicitly adduce such reason in Will. As to one Rose, contrary to what was adduced by the defendant, the same is mentioned in the Will and that PW1 and PW2 were tasked to take care of her. Be as it may, without reason adduced in a Will, defendant's exclusion among other heirs is unjustifiable and questionable. 17 Based on the above analysis, the first issue is answered in the negative that, the deceased Will dated 07thApril, 2002 is not valid, worthy to be applied in the distribution of the deceased’s estates nor to lay foundation of appointment of the plaintiff as the executor. The 2nd issue is whether the landed property described as Plot No. 22 Block X/Levolosi Arusha belongs to the caveator/Defendant or is part of the estate of the late Peter Adam Msuri. This will not detain me much because, this is a probate matter and not a land dispute hence under section 3 (1) and (2) of the Land Disputes Courts Act [CAP 216 R.E. 2019] the Court is not fully clothed with jurisdiction deal with land dispute emerged in this case. It should be understood that, this Court has unlimited Jurisdiction to deal with land Disputes but only when it sits as the land Court. However, in the

circumstance of the case at hand, I refrain myself from declaring the owner of the property in Plot No. 22 Block X/Levolosi Arusha because, more proof including the title deed is needed to ascertain legal ownership. Parties are advised to refer their dispute regarding this property to a proper Court. This issue is also answered in negative. In the 3rd issue the Court is called upon to determine who between the petitioner/PI aintiff and the caveator/defendant should be appointed 18 as the executor of the deceased Will. The answer is also in the negative, none of the two deserve to be granted the filed probate. Having declared Will invalid, the petitioner's (plaintiff) automatic right to be the Executors of the deceased estate becomes obsolete. Likewise, the caveator cannot be appointed to administer the deceased estate due to a visible ongoing family feud between them. In that regard, putting the Will aside, parties are advised to follow the normal procedure for application of letters of administration of estate by starting with convening with a family meeting and propose the administrators who may be granted such rights by the Court and proceed with administration of the deceased estate, as if the deceased died intestate. On the last issue as to the rights entitled to the parties, this Court finds that, the defendant's caveat is merited to the extent explained above and orders the following; 1. The Will of the late Peter Adam Msuri dated 07th April, 2002 is declared invalid.

2. Ownership of property in Plot No. 22 Block X located Levolosi Arusha to be determined by a proper Land Court. 19 3. Entitled party or parties to apply to be administrators upon nomination and proper probate and administration of the estate procedures. This being a probate matter involving parties dully and closely related, I grant no order as to costs. It is accordingly ordered. DATED and delivered at ARUSHA this 31st day of August, 2023 20