final HASHIMU ZARAWONGA Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI PC CIVIL APPEAL NO. 3753 OF 2024 (Arising from the decision of Judgment of the District Court of Same at Same dated 22nd January, 2024 in Civil Appeal No. 26005 of 2023 and originated from Probate Cause No.13 of 2021 from Same Urban Primary Court.) RAMADHANI HASHIM MUSA……………………………..…………...1ST APPELLANT HAMAD HASHIM MUSA………………………………………………...2ND APPELLANT VERSUS HALIMA HASHIM ZORAWANGA (Administrator of the estate of Hashim Musa Ngulai)……………….…. RESPONDENT JUDGMENT 2nd & 18th September, 2024. A.P. KILIMI, J. This is a second appeal where the appellants herein are challenging the decision of the District Court of Same at Same in Civil Appeal No. 26005 of 2023 which arose from probate and administration cause No. 13 of 2021 at Same Urban Primary Court. An extended background as per the facts gathered from the trial court record of Same urban primary court are that; on 16th July 2021, Hashim Musa Ngulai died intestate living total of twelve (12) children whom among seven (7) children including the respondent herein were born 1 in wedlock and five (5) other children including the 1st and 2nd appellants herein were born out of wedlock. The respondent herein Halima Hashim Zorawanga vide Probate and Administration Cause No. 13/2021 at Same Urban Primary Court “the trial Court” petitioned for grant of letters of administration of her late father Hashim Musa Ngulai. Her application was met with an objection from her brother the first appellant herein Ramadhani Hashimu Musa that she was not fit to administer the deceased estate as he was not involved in a clan meeting and that he was not recognized as the deceased child in that meeting. On 11/01/2022, the trial court dismissed the objection and proceeded to appoint the respondent as an administrator of the deceased estate. Upon her appointment to administer the deceased estate, On 28th February 2022, the 1st appellant herein filed a complaint at the trial court challenging the administration of the deceased estate by the respondent. Upon hearing both parties on 08/04/2022 the trial court found the complaint without merits and dismissed the same. 2 In the course of administering the deceased estates, the respondent filed inventory at the trial court where it was succumbed with an objection from other five deceased children’s (her brothers) including the 1st and 2nd appellants herein and one Miraji Hashimu Musa, Musa Hashim Musa and Abdallah Hashimu Musa. All together challenged the respondent’s distribution of their father’s estate stating that it isolated them from inheriting while they were also the children of the deceased despite being born out of wedlock. They prayed for the trial court to appoint another administrator and an order for equal distribution of the deceased estates. After hearing both of the parties, on 16/09/2022 the trial court upheld the objections but it did not revoke the respondent appointment but ruled out that all children were equal to inherit from their deceased father estate despite being born in or out of wedlock. The trial court decision of 16/09/2022 angered the respondent herein who filed her appeal to the District Court of Same via Civil Appeal No.5 of 2022 with five grounds. One was that the then respondents had no locus standi to object distribution of the deceased estates to the legal heirs, that the trial Court erred in law and fact by not considering the valid oral will of the deceased and going against the wishes of the deceased, that the trial 3 court failed to accord the weight of evidence and that; the trial Court erred in determining (sic) the respondents/appellants herein as the beneficiaries and heirs of the deceased. Having considered the evidence, the appellate Court upheld the trial court decision and dismissed the appeal. It reasoned that the appellants had locus standi in objecting the distribution of estate since the same interfered with their interest as the lawful heirs of the deceased estate. The appellate court further reasoned that, the deceased died intestate as there were no proof that he left an oral will, and upon observing that the gist of the appeal was centered on the question between the children born in and out of the wedlock, the appellate court noted that the appellant/respondent herein failed to state which law she was using to distribute the deceased estates, thus after dismissing the appeal, it further directed the appellant/respondent herein to specify the law she will use while distributing the deceased estate fairly. After the appellate decision and upon distributing the deceased estates, the respondent returned to the trial court in order to close a probate cause administration No.13/2021. She then filed an inventory and accounts of the deceased estate and specified to have used Islamic law in 4 distributing the deceased estate with the help of opinion from BAKWATA. The 1st and 2nd appellants were not happy with the use of Islamic law in distribution of the deceased estates and filed objection at the trial Court stating unfairly distribution as they were left out. They proposed the use of Pare Customary law since they were redeemed by the deceased before his death to be his legal children through Pare Customary laws. After hearing the objection, on 26/10/2023 the trial court dismissed the appellants objections by reasoning that the mode of life of the deceased were established and proved to be Islam before his untimely death as he was also buried as per Islamic rites. The trial court dismissed the objection and held that the respondent was correct to apply Islamic law in distributing the deceased estates since it was not in dispute that the appellants were the children born out of wedlock thus, they were not entitled to inherit from the deceased estates as he was an Islam, practiced Islam and was buried as per Islamic religion. The trial court then proceeded to close a probate case No. 13 of 2021. Dissatisfied with the trial court decision of 26/10/2023, the appellants herein went to District Court of Same via Civil Appeal No. 26005 of 2023 with the following grounds of appeal; 5 1. That the honorable trial magistrate erred in law by failing to determine the objections raised by appellants herein against distribution of estates of the late Hashim Musa Ngulai and proceed to close up the probate No. 13/2021. 2. That the honorable trial magistrate erred in law and fact by admitted(sic) the distribution of the estates of the late Hashim Musa Ngulai contrary to the trial court order that every child has a right to inherit from their parent whether born in or out of wedlock the order which was not overruled in appeal no.5/2022. 3. That the trial magistrate erred in law and fact by using Islamic law in determined(sic) the estates of the late Hashim Musa Ngulai. 4. That the honorable trial magistrate erred in law and fact by determined(sic) that the applicants herein received their share from their father before his demise. The appellate court after hearing both parties on 22nd January, 2024 dismissed the appellants appeal and upheld the trial court decision by reasoning that, the trial court accorded parties right to be heard as the appellants filed their objections and the trial court heard both parties and gave its decision. The appellate court further reasoned that the respondent proved the deceased to be a Muslim as per filed (fomu ya Mirathi No.1). Thus, since the trial court records also revealed that the deceased was born, lived and died a Muslim, it was correct for the respondent to distribute deceased property as per Islamic rites. Displeased with the above appellate findings of 22nd January, 2024, the appellants are in this 6 Court challenging the said decision (civil appeal No 26005 of 2023) and praying the same be dismissed with costs and the court to set aside the trial court proceedings, judgment and decree with the following grounds of appeal; 1. That the District Court Magistrate erred in law and fact by holding that appellants herein are not entitled to inherit from their late father estates contrary to the trial court order given in probate cause No. 13/2021 as it was ordered that every child has a right to inherit from their parent whether born in or out of wedlock the order which was not overruled by the decision of the District Court in civil appeal No.5 of 2022 which was originated from the same probate cause. 2. That the District Court Magistrate erred in law and fact by holding that trial court applied accurately Islamic law in determine (sic) the estate of the late Hashim Musa Ngulai without properly considering modes of life test of deceased since deceased has(sic) five child (sic) born from different unmarried mothers and those child(sic) were legitimized under Pare Customary law. 3. That the District Court Magistrate erred in law by denied (sic) appellant herein right to be heard on the issue raised suo motu by the court on page 3 last paragraph of their (sic) judgment and proceed to determined (sic) appeal. 4. That the District Court Magistrate erred in law and facts in dismissing ground No. 3 of appeal therein by holding that it was not proper the appellants herein to raise the issue of applicability of Islamic law on distribution stage without considering the facts that the issue of applicability of Islamic law was not in place during the trial until it was order in a ruling given in civil appeal No.5/2022. 7 5. That the District Magistrate erred in law and facts by holding that the appellants herein received their share from their father before his demise without any concrete proof. When the matter was scheduled for hearing before me, the same was agreed by parties to be disposed by way of written submissions where the appellants had no legal representation as they fended themselves while the respondent enjoyed the legal service of Ms. Aisha Sengasu learned advocate. In their jointly submissions, submitting for ground number one, the appellants submitted that the trial court orders were that the deceased estates were to be distributed equally among the children since every child had a right to inherit from their parents’ estates despite being born in or out of wedlock. They stated that such orders were never overruled rather it was further upheld by the District Court via Civil Appeal No. 5/2022 thus the trial court orders were still valid and enforceable. They added that the trial court was not required to depart from its previously orders which were still intact and un overruled by any superior court. In support of the validity of a decision until overruled or dismissed by the higher court, the 8 appellants cited the decision of Paskali Nina vs. Andrea Karera (Civil Appeal No. 325 of 2020) TZCA 35. In reply to the first ground, Ms. Sengasu learned advocate argued that the respondent was not disputing that the trial court ordered the deceased estate to be distributed equally without discrimination, but she stated that the trial court did not specify which law was to be used while distributing the said estate. The counsel added that it was until the respondent appealed against such order in Civil Appeal No 5/2022 where the appellate District Court directed the trial court to specify which law was to be used when distributing the deceased estate and the trial court applied Islamic law as directed. To support her contention on rights to inherit, the counsel referred to article 19 of the Constitution of United Republic of Tanzania-1977 where she added that the appellate court was correct in deciding that the appellants had no rights to inherit the deceased estates under Islamic law as per Sunna Tirmidhi Hadith 2113 since they were children born out of wedlock.. Submitting to the second ground, the appellants stated that the mode of life of their deceased father was of the two folds, as partially customary and partially Islamic. They stated that the deceased by being 9 Muslim and being buried as per Islamic religion did not amount for an Islam rites to be used as his personal law as he was not a proper follower of Islamic religion by having other five children out of wedlock while Islam forbids adultery. They submitted that the deceased legitimized them under Pare customary law to be his children. They stated that since Islam religion forbids adultery and the deceased had other five children out of wedlock, then Islam was not proper way to be used in distribution of his estate rather a Pare Customary practices. To support their stances on modes of life tests to be used, the appellants referred to the decision of Re; Innocent Mbilinyi [1969] HCD No.283 and Re estate of the late Suleman Kusundwa [1965] E.A 247. In reply to the second ground Ms. Sengasu argued that the argument whether the deceased was a Muslim or not were properly discussed and answered in details by the appellate court in an impugned decision at page 5 paragraph 2. She stated that the deceased practiced Islam to his death where he was also buried as per Islamic rites. Supporting the third ground, the appellants submitted that the first appellate court erred by raising the issue of Islamic applicability suo motu as evidenced at page 3 of its impugned decision. Thus right to be heard 10 were denied to them as the appellate Court failed to accord them right to argue on the raised issue. Supporting their position on the issues raised suomotu by the court and affording parties rights to be heard, the appellant referred the decision of Wagesa Joseph M. Nyanda vs. Chacha Muhogo , Civil Appeal No. 161 of 2016 (unreported). Replying on that ground, Ms. Sengasu argued that the trial magistrate in District Court explained at page 6 of the impugned decision that both parties were given right to be heard and she argued that the cited decision by the appellants were distinguishable. On the fourth ground, the appellants submitted that the Appellate Court erred in dismissing ground number 3 as at first the appellants were not parties to the case thus, they were not able to access the said (Fomu ya Mirathi-1). They stated that they were not aware which law was applied at the trial court until there were orders made in Civil appeal No 5/2022. Replying the same, the learned counsel for respondent stated that at the trial court the parties clearly stated that the deceased was a Muslim and neither of the parties objected or challenged. She stated that the deceased was a Muslim as clearly stated at page 4 of the impugned appellate decision. 11 Submitting on the fifth ground, the appellants submitted that the trial court believed the respondent evidence and approved her testimony to compose the judgment as there were facts stated by the respondent at the trial court like the fact that she failed to include the appellants to the distribution of the deceased estate where the trial court believed her words over the appellants. The appellants stated that it was a trite law that the side whose evidence is heavier than that of the other must win as per the decision of Hemed Said vs Mohamed Mbilu [1984] TLR 113. The appellants argued that the court ought to accord weight presented before it for its judgment and not believing what the respondent stated. In arguing to the fifth ground, Ms. Sengasu submitted that the one who alleges must prove as per section 110 of the Tanzania Evidence Act where the same applied to the appellants who failed to prove their allegations. She then prayed for the appeal to be dismissed with costs. Having considered the rival arguments from the parties, the grounds of appeal, together with the trial courts records, the main issue for determination before me is whether the appeal at hand is meritorious. For convenient of determination of this appeal, I wish to start with the third 12 ground which faulted the second appellate court failure to exercise right to be heard. In supporting the above, the appellants have cited page 3 of the impugned decision for reference. Right to be heard is crucial in determining any case. Upon scanning the records at page 3 of the impugned decision, where the appellate court while answering the grounds of appeal raised before it, it had this issue; In determining this appeal, I find one pertinent issue which once answered shall dispose of the appeal as: whether the trial court was justified to determine the estate of the late Hashim Musa Ngulai in accordance with Islamic law; In my view this is a style in writing judgment which all are used in determining and answering the issues raised while determining the case. Since the hon. District magistrate proceeded to answer every ground of appeal raised, in my view as the whole appeal centered on the said raised issue, which was used like a direction, this was a starting point in composing her judgment. Thus, in my view writing how she was going to tackle and answer the grounds of appeal before her was not an issue raised suo motu. Thus, it is my finding this ground devoid of merit hence dismissed. 13 As to the fifth ground that the District court erred in law in determining that the appellants received their shares from their deceased father without concrete proof, in my view upon perusing the impugned decision nowhere the district court have ruled that the appellants have already received their shares rather the magistrate upheld the trial court decision by dismissing their appeal and stating that the use of Islamic law in distributing the deceased estate was correct. Thus, since this was not discussed at a trial court the same in the appellate stage was a new raised matter and hence is an afterthought, thus, the same will not considered in this appeal, thus crumbles forthwith. Next, I will determine the first and fourth grounds of appeal which in my view are intertwined, thus I will discuss them jointly. The appellants herein are contending that the appellate court erred in law and facts by holding that the appellants were not entitled to inherit from their father’s estates while there was an order from the trial court which was not yet to be overruled by any superior court rather upheld by the District Court through Civil Appeal No. 5/2022 the order which stated that every child had a right to inherit from their parents despite being born in or out of wedlock. The respondent reply was that the trial court order did not 14 specify which law was to be used rather stated that every child should inherit from their parents indiscriminately without stating which law was to be used. Upon perusing the trial court records, I have noted that the trial Court records in probate and administration cause No. 13/2021 reveals that it had different rulings which were being delivered on different dates depending on the application or complaints filed before the trial court. These rulings some were subjected to appeals others were not appealed against by the parties herein. In my view two rulings of the trial court were subjected to appeal at the District court. In my scrutiny of the records, I have found that there is a trial court ruling delivered on 16/09/2022 which was appealed against by the respondent herein to the District Court of Same via civil appeal No 5/2022 where the appellate court upheld the trial court decision but with directions. At page 14 of the trial court ruling dated 16/09/2022 the trial court stated the followings, and for ease of reference I hereby reproduce the same which states: “.na kwa kuwa upande wa msimamizi/mpingwaji wameshindwa kuthibitisha kwamba watoto hawa wa nje ya 15 ndoa walipewa urithi wao wakati wa uhai wa marehemu, m ahakam a hii inatam ka kw am ba w atoto w ote w anahaki saw a ya kurithi m ali za m zazi w ao bila kujali w am ezaliw a ndani au nje ya ndoa. Na kwa mujibu wa shauri hili watoto hao ni kama nilivyowataja hapo juu” Being dissatisfied with the above decision, the respondent herein appealed to the District Court via Civil Appeal No 5/2022 where the appellate Court on 1/02/2023 after considering the grounds of appeal raised in the above quoted decision, at page 11 of its judgment decided as follows; “To cull it up, this appeal is not merited hence deserve to be dismissed in its entirely. The im pugn decision of the trial court is not faulted rather upheld. I direct the appellant who is the administrator of the estate to divide the estate of the deceased one Hashimu s/o Mussa@Ngulay fairly and shall specify the law governs the distribution of the estate thereof.” [Emphasis added] 16 From the above extract, it can be discerned that the first appellate court upheld the trial court decision but instructed now the administrator/respondent herein to specify the law she will use in distributing the deceased estates. By so doing, I have asked myself did the first appellate court exercised its power by issuing such direction. The power of the District court in exercise of its appellate jurisdiction is provided under section 21 of The Magistrates’ Courts Act CAP. 11 R.E. 2019, for the purpose of reference the same is reproduced hereunder; “21.-(1) In the exercise of its appellate jurisdiction, a district court shall have power- (a) to direct the prim ary court to take additional evidence and to certify the same to the district court or, for reasons to be recorded in w riting, to hear additional evidence itself; (b) whether or not additional evidence is heard or taken, to confirm reverse, am end or vary in any m anner the decision or order appealed against (including power to substitute a conviction or a conviction and sentence for an acquittal), so however that the decision or order as altered shall not be in excess of the jurisdiction of the primary court and no conviction or conviction and sentence 17 shall be substituted for an acquittal, and no sentence shall be enhanced, unless the accused or convicted person, as the case may be, has been given an opportunity of being heard.” [Emphasis added] From the above provision of the law, the powers of the district court in appellate is limited and specified as above. As rightly observed by the first appellate, the administrator did not indicate which law is used to make distribution of deceased estate though upheld the decision of the trial court that the estate was to be distributed to all heirs without bias. Thus, in my view the District court in Civil Appeal No. 5/2022 was flawed in directing the administrator to specify the law to be used while distributing deceased estate. I am saying this because under circumstances of this case where parties have shown conflict reflecting which law should be used. Therefore, the law to be used in distribution of the estate ought to be ascertained by evidence and not automatic or to leave to be the choice of the Administrator alone. According to the above circumstances of the case, it is settled law that, first, it must be shown with evidence that the deceased at any time 18 professed the Islamic religion and second, it must be shown that the deceased intended his estate to be administered in accordance with Islamic law, these two conditions can be inferred from the mode of life of the deceased which need to be proved before the trial court. see the decisions of Sharifa Saidi vs Rajabu Saidi (1976) LRT 52; Re Innocent Mbilinyi (1969) HCD no. 283; Re estate of the Late Suleman Kusundwa (1963) E.A. 247(supra); Peles Moshi Masoud vs Yusta Kinunda Lukanga PC Probate Appeal no. 4 of 2020 HC Kigoma and Hamis Said Mkuki vs. Fatuma Ally, Civil Appeal no. 147 of 2017 CAT at Tabora (Both unreported), to mention few. Therefore, for the foregoing, the first appellate court did not exercise its power envisaged by the above law above, to direct the trial court to take either additional evidence to prove the law to be used, or to usurp that power and take the evidence itself to that effect and then to direct which law should be used. As a result, by not doing so the first appellate court has created two distinct decisions of the trial court. This is because on 14/9/2023 the administrator being guided by second appellate decision, returned at the trial court directly with distribution already done and signed with the help from Bakwata under Islamic law which omitted appellants to 19 inherit as per Islamic laws since they were born out of wedlock. Nonetheless the same was objected by appellants, then on 19/10/2023 the trial court heard objections from the first appellant in respect to the said distribution, and on 26/10/2023 the trial court decided that the deceased mode of life was in accordance to Islamic faith but also intended his estate to be distributed according to Islamic rites.. In view of the above decisions, since there was a trial court decision dated 16/09/2022 which allowed the appellants to inherit from the deceased estate and the same was never overruled by the first appellate court, in my considered view, the trial court was functus officio to issue another ruling in such respect which in fact overruled its earlier decision. In the Black’s Law Dictionary, 8th Edition at page 696, functus officio is defined to mean: - “Having performed his or her office” or an officer or official body) without further authority or legal competence because the duties and function have been fully accomplished.” 20 The same was explained in the case of Bibi Kisoko Medard vs Minister for Lands Housing and Urban Developments and Another [1983] TLR 250 in which the late Mwakibete J, held that: - "A matter of judicial proceedings once a decision has been reached and m ade know n to the parties, the adjudicating tribunal thereby becom es functus officio." [Emphasis is mine] Applying the above legal doctrine, this means the trial court could not have entertained the same matter which was already decided before it. Be that as it may, the hearing of objection in respect to the Islamic law used to make distribution to my view was not proper, as alluded above, the law to be used must be ascertained by evidence after considering mode of life of the deceased. The power of the trial court to do so is provided under rule 8 (f) of The Primary Courts (Administration of Estates) Rules G.N. No. 49 Of 1971, for purpose of clarity I reproduce hereunder; “8. Subject to the provisions of any other law for the time being applicable the court may, in 21 the exercise of the jurisdiction conferred on it by the provisions of the Fifth Schedule to the Act, but not in derogation thereof, hear and decide any of the following matters, namely (f) any question relating to the sale, partition, division or other disposal of the property and other assets comprised in the estate of the deceased person for the purpose of paying off the creditors or distributing the property and assets am ong the heirs or beneficiaries.” Moreover, according to the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, the taking and recording of evidence is plainly stated under rule 46 (2) and for clarity the said provision provide; “46. Taking and recording of evidence (2) The evidence of each w itness shall be given on affirm ation save in the case of a child of tender years, who in the opinion of the court, does not understand the nature of the affirmation.” According to the record of the trial court dated 19/10/2023, the said objection was heard by way of submissions. It was the first appellant who 22 submitted and respondent briefly replied. In my view the same cannot prove the life mode of the deceased since submissions are not evidence but are generally meant to reflect the general features of a party's case. They are elaborations on evidence already tendered. They are expected to contain arguments and the applicable law. Therefore, are not intended to be a substitute for evidence. As stated above the issue of law to be used was not raised on the earlier proceeding, thus cannot be ascertained by submissions as done on the proceeding of the trial court dated 19/10/2023. Therefore, this being the second appellate court. It is a trite law that where there are concurrent findings of facts by two courts, the second appellate court should not disturb the findings, unless, it is clearly shown that there has been a misapprehension evidencing a miscarriage of justice or violation of some principle of law or procedure as it held in the case of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores vs A.H Jariwallatla Zanzibar Hotel [1980] TLR 31 and Bushanga Ng'oga vs Manyanda Maige [2002] TLR 335. Having considered the above analysis, I am of settled view, there were misapprehension of evidence which caused violation of principle of law as stated above. 23 Having observed as above that proceeding of the trial court in proving the mode of life of the deceased was misplaced, I am settled that the said law ordered to be used for distribution of the estate was wrongly reached for want of evidence, thus causes the trial court decision dated 26/10/2023 erroneous reached and consequently the decision of the first appellate court in Civil Appeal no. 26005 of 2023 which upheld the trial court decision also crumbles. For the foregoing endeavors, the two grounds discussed are hereby upheld and sustained. Consequently, the above findings in these grounds also answers ground number two deceptively, since the mode of life was not ascertained as per requirements stated above, thus this ground is also allowed and sustained thereof. In the upshot, I allow this appeal, subsequently, in exercise of the powers of this court under S. 29(a) and (b) of the Magistrates' Court Act, [Cap. 11 R.E 2019], I quash the following proceedings of the trial court in Mirathi na. 13 of 2021, proceeding dated 14/9/2023 and proceeding dated 19/10/2023. Further I set aside the two Ruling of the trial Primary courts, first, the one dated 16/09/2022 which ordered equal distribution of estate 24 to all children of the deceased and second, the other dated 26/10/2023 which ordered the administration be done in accordance with Islamic law. Subsequently, the two appeals judgment of the District Court of Same, DC Civil Appeal no. 05 of 2022 and Civil Appeal no. 26005 of 2023 are hereby nullified and set aside. Meanwhile the appointment of the existing Administrator remained undisturbed. Thus, she should continue to administer the estate of the deceased. Additionally, for purpose of consequential orders which follows, the proceeding of the trial court on objection proceeding dated 16/8/2022; and proceeding dated 01/9/2022 are hereby sustained thus remain intact. In the meantime, I further order the trial court to hear additional evidence as per requirement of the law, which together with the above proceedings sustained, the trial court should consider them and ascertain the law to be used in the distribution of the deceased estate and order accordingly. In doing so, I order the same be heard by another Magistrate in compliance with the procedures stated above. Given that the matter emanates from a Probate dispute, I make no order as to costs. It is so ordered. 25 DATED at MOSHI this 18th day of September, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 18th day of September, 2024 in the presence of the first appellant whereas second appellant and respondent absent. Sgd; A. P. KILIMI JUDGE 18/09/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI JUDGE 18/09/2024 26