20190328 TZHC Dar es Salaam

,I

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM PC.CIVIL APPEAL NO. 12 OF 2017 HALIMA ZERAFI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .APPELLANT

VERSUS . ALLI MOHAMED PAZI ........................ .. RESPONDENT - (Appeal from the decision of Ifakara District Court in Probate Appeal No. 13 of 2016)

JUDGMENT MGETTA, J: This is a second appeal. Originally, in the Primary Court of Ifakara (henceforth the trial Court) in Probate Cause No. 5 of 2015, Alli Mohamed Pazi, (henceforth the respondent) successfully applied to be appointed as an administrator of the estate of the late Yahaya Alli Pazi (henceforth the deceased) who passed away on 10/10/2014. The trial Court decision was handed down on 3/3/2015. Following the said appointment, the respondent proceeded to perform his duties including distribution of the deceased estates to the lawful heirs. One Katherine Simba who was said to be amongst the wives of the deceased was given one house situated at Pogoro Street in Ifakara (henceforth the house). Ms Halima Zerafi (henceforth the appellant) being amongst the wives of the deceased was dissatisfied on the reason that 1 Katherine Simba was not the deceased's wife, but a mere tenant therein. Following the said grievance, the appellant filed a complaint_ in the trial Court against the same. For the sake of clarity and avoidance of doubts, the trial court record reveals that the proceedings in respect of the said complaint were registered in the file titled Probate Cause No. 5 of 2015, while its decision which was delivered on 22/8/2016 appears in the file titled Probate Cause No. 47B of 2016. In its decision, the trial court disregarded the complaint of Ms Halima Zerafi, the

appellant. All in all, the trial court was of the view that it was proper for Katherine to be given the house. The appellant was still dissatisfied with that decision. She unsuccessfully appealed to the District Court of Kilombero at Ifakara (henceforth the appellate court) in Probate Appeal No. 13 of 2016. She was once again aggrieved; hence, this appeal. She had raised five grounds of appeal against the decision of the appellate Court. These are: 1. That the appellate Court Magistrate erred in law and fact in holding that the Islamic law was properly applied in administration of the deceased's estate; 2. That the appellate Court Magistrate erred in law and fact in holding that no error in law done by the trial Court Magistrate. 2 3. That the appellate Court Magistrate erred in law and fact in holding that the distribution of the deceased"s estate under Islamic law by the trial Court was proper andjustified.

4. That the appellate Court Magistrate erred in law and fact in holding that one Katherine Simba is the lawful wife of the deceased under Islamic law.

5. That the appellate Court. Magistrate erred in law and fact in holding that the house was jointly acquired with Katherine Simba. Before I dwell into the merits of the appeal, it is now appropriate to narrate in brief the facts leading to the matter at hand. As I have pointed earlier, after the deceased had passed away, the respondent successfully applied to be appointed as an administrator of the deceased's estate. However, in the course of performing his duties as an· administrator, the house was given to one Katherine. Simba. Thereafter the appellant come out complaining that Katherine Simba was not the deceased's wife but a mere tenant and therefore she did not deserve to be given that house. On the other side, the respondent strongly opposed what had been amplified by the appellant. The adduced evidence suggested that the deceased had three wives and one of them was Katherine Simba, and 3 therefore she deserved to be given her share out of the estate of the deceased. When the appeal was called on for hearing, Mr. Nolasko Mpota, the learned advocate appeared for the appellant; while, Mr. Francis Mwita, the learned advocate appeared for respondent. They requested to argue the appeal by way of written submissions. Both advocates filed their respective written submissions within the prescribed time, save to the appellant's rejoinder which was filed on 7/11/2018. The same was

supposed to be filed herein on or before 6/11/2018. For that reason, in determination of this appeal, I shall disregard the same for being lately filed in court. Upon going through the written submissions as well as the entire Court record including the raised grounds of appeal, I found one issue· which can easily dispose of this appeal. The issue is whether it was proper for the respondent to give the house to Katherine Simba or not. In the written submission filed by her advocate, the appellant answered the same in a negative. The reason was that at the time when the deceased had passed away, the appellant was only the deceased's lawful wife. The appellant went further by alleging that there was no evidence to contradict the same since there was no any marriage between the deceased and Katherine. Furthermore, the appellant submitted in the 4 minutes of the clan meeting, Katherine was not there, but her name was lately inserted by the respondent. Therefore, she was of the view the appellate court merely confirmed the findings of the trial court, but it did not reassess the evidence adduced at the trial Court. At the end, she prayed the appeal be allowed with costs. In response to the above, the respondent through written submission filed by his advocate, Mr. Francis M. Mwita basically opposed the stance which had been propounded by the appellant's side. Mr. Mwita

submitted that Katherine was the lawful wife of the deceased and was entitled to get the said share. To support the concurrent decisions of the two lower courts, he referred me to the evidence adduced before the trial court. He thus prayed the court to dismiss the appeal and uphold the concurrent decisions of the lower Courts. Now, it should be pointed out that this Court being the second appellate Court can only interfere with the concurrent findings reached by the lower Courts only if there has been a misapprehension of the evidence, miscarriage of justice or a violation of some principle of natural justice. This position was cemented in the case of Amratlal D.B t/a Zanzibar Silk Stores Versus A.H. lariwale t/a Zanzibar Hotel; [1980] T.L.R.31. 5 Having in mind the above legal position, and upon going through the entire Court records as well as the submissions from both parties, I find I am constrained to answer the posed issue herein in the affirmative. In other words, I find no sufficient reasons to fault the concurred findings of the two lower Courts for reasons given herein. In view thereof, I find that it was proper for the respondent to give the house to Katherine Simba by virtue of being one of the deceased's wives. The reason to that decision is simple. What the appellant had suggested in her written submission that the name of Katherine was inserted by the respondent

in the clan meeting minutes in later days is not supported by sufficient evidence. Upon going through the entire court record specifically in Probate Cause No. 5 of 2015, I find this allegation has no merits. At page 13 of the proceedings of the trial court in Probate Cause No. 5 of 2015, the respondent (SUl) had this to say in cross examination: •~ .. mke wa tatu alitajwa hakuwa kwenye kikao ila alikuwa na mtu wa kumzungumzia kwenye kikao. Kwenye kikao huyo mwakilishi wa Binti Simba alimzungumzia kwa mambo ya ugawaji. Marehemu pia alitamka nyumba ya Mtaa wa Upogoroni apewe Simba. Sijamchomeka Simba kwenye mirathi'~ 6 Having in mind the above extracted evidence, had it been the said Katherine was not lawful wife of the deceased, I could not have expected her (Katherine) to have an opportunity to send her representative in the. said clan meeting. Further, even the clan wouldn't have allowed her to be represented and give him an opportunity to contribute his views on her behalf in respect to the distribution of the deceased's estate. All in all, the evidence indicates Katherine was dully recognized as the lawful wife of the deceased. In the same vein, upon a further scrutiny of the adduced evidence before the trial Court, I came across the evidence of SU2 Zuena Fungamwangu (the deceased's mother) who confirmed that the deceased had three wives. These are Natalia, Binti Zerafi

(the appellant) and Katherine. The same stance as it was propounded by SU2 was corroborated by SU6 Sakina Pazi (the deceased sister). In view of the prevailing circumstances of the matter at hand, I find the allegation that Katherine was a mere tenant as it was amplified by the appellant without legs to stand. Actually, the appellant merely alleged the same by mere words with no supporting or corroborating evidence on that account as opposed to the respondent's story. For the sake of more clarity, in its totality the adduced evidence from SM2 James Samwel Kilwepu who 7 was merely as 'mwenyekiti wa kitongoji' in that area, SM-3 Mustafa Shaban who merely introduced himself as one of the family members, SM-4 Twaibu Hussein, the one who chaired the said meeting and SMS who appeared to be amongst the relatives of the deceased did not establish exactly as to whether Katherine was not entitled to get any share from the deceased's estates. Basically, their evidence was weaker compared to the evidence adduced by the respondent side who mostly seems to be closely related to the deceased. In the event, the concurred decisions of the appellate court as well trial Court should not be disturbed. For that reason, as the law requires, the instant appeal must fail. Consequently, I hereby dismiss the appeal. As the dispute between the parties emanates from probate cause, I order each party to bear its own costs. It is so ordered. c::: I ;... > 1/' q J.S.MGETTA

JUDGE 28/3/2019 COURT: This judgment is delivered today this 28th day of March, 2019 in the presence of Mr. Charles Lugaila, the learned advocate holding brief for Mr. Francis Mwita, the learned advocate for 8 'I the respondent, but in absence of the appellant for reason(s) known to herself. C: ) J.S.MGETTA

JUDGE 28/3/2019 Court: Right of appeal to the Court of Appeal is full explained. c: J I( J.S.MGETTA

JUDGE 28/3/2019 9 .