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THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA CIVIL APPEAL NO. 20485 OF 2024 (Arising from the decision in Probate Appeal No. 8535 of 2024 before the District Court of Ceita at Geita and original Probate and Administration Cause No. 7 of 2023 before Bugando Primary Court) ISSA MAFURU MAJURA ..............................1st APPELLANT BAHATI MAFURU MAJURA.…………………. 2nd APPELLANT VS LUCIA MAFURU MAJURA (Administratrix of the late MAFURU MAJURA).……..……….….RESPONDENT JUDGMENT Date of last Order:11/09/2024 Date of Judgment: 08/11/2024 K. D. MHINA, J. Parties to this second appeal, despite their legal dispute, share a familial bond. They are all the offspring of the late Mafuru Majura, who 1 died intestate on 14 June 1995. They are battling over the distribution of the estate left by their deceased father. The background to this appeal briefly, as it can be gathered from the records, is that the respondent, vide Probate Case No 7 of 2023 at Bugando Primary Court, on 23 May 2023, was appointed to administer the estate of the late father, Mafuru Majura. For better understanding and later discussion in this appeal, I will quote the decision of the Primary Court, as that was the starting point of this matter. “HUKUMU YA MAHAKAMA Hili ni shauri la maombi ya kuteuliwa kuwa msimamizi wa mirathi ya marehemu. Mwombaji katika shauri hili ni LUCIA MAFURU ambaye anaiomba mahakama hii imteue kuwa msimamizi wa mirathi ya marehemu Mafuru Majura. Mwombaji aliieleza mahakama hii kwa kiapo kuwa aliteuliwa na ukoo wa marehemu Mafuru Majura Ushaidi huu wa mwombaji uliungwa mkono na mashaidi wake ambao ni Sijaona Malima (SMI) na Malima Mafuru. Mahakama hii inaona kuwa mwombaji amethibitisha maombi yake hivyo anateuliwa rasmi kuwa msimamizi wa mirathi ya marehemu Mafuru Majura. 2 HAKIMU 23/05/2023. Haki ya rufaa imeelezwa HAKIMU 23/05/2023 Msimamizi: ninaomba unipe ruhusa ya kwenda kuligawa shamba la marehemu kwa warithi kwani kwa kipindi kirefu limekuwa kwenye mikono ya kaka zangu ambao ni Issa Mafuru na Bahati Mafuru ambao wapo hapa mahakamani. Ni shamba Ekari 62. Issa Mafuru : Itabidi tukae ili tujue namna ya kugawana Bahati Mafuru : Shamba hilo ni Zaidi ya ekari 62 hivyo lazima tukae ili tuligawane. Hakuna shida yoyote itakayojitokeza Mahakama : Msimamizi wa mirathi agawe mali zote kwa warithi na kuleta mgao huo hapa Mahakamani. HAKIMU 23/05/2023” 3 The two persons who had no objection to the distribution of 62 acres of land are the appellants, who are the brother of the respondent. Thereafter, the administratrix performed her duties and managed to distribute the estate of the late Mafuru Majura to the ten legal heirs, including herself (the respondent) and the appellants. She distributed from 12 June - 20 June 2023. However, on 13 June 2023, the appellants applied for the revocation of the administrator. In principle, they advanced one reason that no clan meeting sat and appointed the respondent to be the administrator of the estate of the late Mafuru Majura. On 26 September 2023, the appellants wrote a letter to the Magistrate in charge of the trial court requesting to be given back “their farms”, which were included in the estate of the late Mafuru Majura and distributed to the heirs. On 27 October 2023, the trial court dismissed for want of merits that application based on the reasons that: one, the appointment of the administrator was lawful; two, the appellants participated in the distribution; and three, the appellants failed to prove their allegations. 4 Relentless, on 30 October 2023, the appellants filed an objection challenging the distribution of the deceased properties. They claimed that their lands were wrongly included in the deceased's estate and subjected to division. Ultimately, on 20 March 2024, the trial primary court dismissed their objection. Undaunted, the appellants appealed to the District Court of Geita vide Probate Appeal No. 8535 of 2024. They preferred the following grounds; 1. That the Court misdirected itself legally and logically by improperly evaluating the evidence provided by the Appellants and giving a decision that relieved the Respondent regardless of the weight of the evidence, particularly Documents of purchase and allocation of the disputed area of land provided by the Appellants thus it led to an incorrect decision because the Respondent's evidence is silent and does not prove that the allocated landed property belongs to the late MAFURU MAJURA. 2. That the Court misdirected itself legally and logically by improperly evaluating the evidence given by the Appellants and giving a decision that comforted the Respondent regardless of the weight of the evidence given by the Appellants as a result led to an incorrect decision because the evidence of the Respondent is silent and does not prove that the Appellants participated in all eight (8) 5 days of bequest distribution—13/06/2023 to 20/06/2023 and received the relevant distribution. 3. That the Court misdirected itself legally and logically by improperly evaluating the evidence provided by the Appellants and giving a decision that pleased the Respondent regardless of the weight of the evidence provided by the Appellants, and so it led to an incorrect decision as the court's letter dated 05/06/2023 contains instructions which are contrary to the procedure, and relevant laws and instructions were not implemented properly as well as the court letter dated 05/06/2023 was not issued as proof of the court order. 4. That the Court misdirected itself legally and logically by improperly evaluating the evidence provided by the Appellants and giving a decision that calmed the Respondent regardless of the weight of the evidence provided by the Appellants, consequently led to an incorrect decision since the objection of the administratrix of the estate and her implementation was initially presented by the Appellants in the Bugando Primary Court on 13/06/2023 and a decision was issued on 27/10/2023 without the Appellants having notice of the decision and the Appellants received the relevant decision on 20/03/2024. 5. That the Court misdirected itself legally and logically by improperly evaluating the evidence given by the Appellants and giving a decision that pleased the Respondent regardless of the weight of 6 the evidence given by the Appellants, which led to an incorrect decision since the objection dated 30/10/2023 is the second objection after the initial objection presented by the Appellants in the Court of First Instance-Bugando on 13/06/2023. In its decision, the 1st appellate court dismissed the appeal for being devoid of merits. Aggrieved again, the appellants, through the services of Mr. Ernest Makene, appealed to this Court. They preferred the same grounds of appeal (in a manner and wording) as they preferred before the 1 st appellate court. At the hearing, the appellants were represented by Mr. Ernest Makene, a learned advocate, while the respondent had the services of Mr. Paul Hombo, also a learned advocate. Faulting the lower courts’ decisions in the 1 st ground of appeal, Mr. Makene submitted that the basis of the objection was the inclusion of appellants’ land located at Lwezela Village, at Lwezela Ward, within Geita District in the estate of the late Mafuru Majura. He explained that at the trial, the appellants tendered the documents. The 1st appellant tendered the letter dated 30 December 1983 issued by the 7 Ten Cell leader indicating that the 1st appellant purchased 17 acres of land from Selele Makanza. Another document was the agreement regarding the compensation of five acres of farm dated 20 September 2006; the 1 st appellant compensated TZS. 600,000/= to Paskazia Nselele, Leti Nselele and Yovito Nselelele. Furthermore, the 2nd appellant tendered three documents: the letter/ sale agreement of land dated 5 July 1979, in which he bought five acres from Bupamba Mihayo. Another document was the letter dated 5 September 2005, issued by the committee dealing with social service at Lwezela. The committee handed the 2nd appellant 4 acres of land. The last document was also the letter issued by the committee dealing with social service at Lwezela dated 9 December 2005, which handed the 2 nd appellant the land measured 4 acres. He also argued that, on the other hand, the respondent did not tender any document and evidence that the late Mafuru Majura owned the land objected to by the appellants. Regarding the 2nd ground, he submitted that the respondent was appointed an administrator on 23 May 2023. In executing her administratrix 8 duties, the exercise of distributing the deceased land commenced on 13 June 2023 up to 20 June 2023. During that exercise, the appellants did not participate as per the report tendered at the Primary Court with a title “Taarifa ya utekelezaji wa ugawaji wa mirathi ya mashamba ya Mafuru Majura chini ya usimamizi wa Lucia Mafuru.” In that report, the names of the appellants appeared; however, they did not sign as indicated at page 3. Therefore, the appellant did not agree with the distribution of the deceased estate, which included their lands. Submitting on the 3rd ground, Mr. Makene stated that there was a letter from the primary court dated 5 June 2023. That letter directed what is contrary to the law. That letter requested that village leaders participate in distributing the deceased estate in collaboration with the administrator. That was against the law, as the administrator was supposed to distribute the estate. On the 4th and 5th grounds, he submitted that on 13 June 2023, the appellants filed the objection and complained that their lands were included in the estate of the late Mafuru Majura. Up to the end of October 2023, there was nothing regarding the determination of their appeal. 9 On 30 October 2023, they submitted the objection again, which was determined, and the same is the subject of this appeal. The reason advanced by the trial court was that the distribution was done in June 2023, while they filed the objection in October 2023. That was incorrect because the appellants submitted their objection on 13 June 2023, the day the distribution commenced. Responding to the submission in chief, Mr. Hombo stated that the trial court disregarded the exhibits because of anomalies. The appellants were requested to call the witnesses to those documents, such as sellers, but they failed to do so. Therefore, the respondent proved her case on the required standard per section 110 of the Evidence Act. On the 2nd ground, he submitted that the appellants participated in the meeting when the estate was distributed, and that was why, in the attendance dated 13 June 2023, they signed the report. The 2 nd appellant was number 18th in attendance, and the 1st was number 19th. They both signed, which means they participated in distributing the deceased estate. Further, the appellants were the ones among the heirs who were given large chunks of land compared to other beneficiaries. The 2nd appellant was 10 given 3.5 acres, the 1st appellant 3.5 acres, and the remaining beneficiaries were given 3 acres each. Therefore, the appellants participated in the distribution, and they did not raise such a claim that their lands were included in the deceased estate. For the 3rd ground of appeal, Mr. Hombo submitted that the Ward Executive Officer of Lwezela did not participate in distributing the deceased estate. The letter requested him to supervise the distribution of the farms to the beneficiaries. Lastly, on the 4th and 5th grounds, he submitted that the grounds do not have merits because the appellants participated in the exercise of distribution of the deceased estate as indicated in the last page of the trial court’s decision. In a brief rejoinder, Mr. Makene submitted that there was nowhere in the trial court, and the 1st appellate court's decisions indicated that the exhibits tendered were with anomalies. Further, the trial court did not order the sellers of the land to the appellants to be called and testify to prove the sale of lands to the appellants. 11 Regarding the 2nd ground, he rejoined that the appellants did not sign that they participated in the distribution meeting, as indicated on page three of the report. They attended and signed the meeting to identify the deceased land. For the 3rd ground, he reiterated his earlier submission in chief that the duty to distribute the deceased property was for the administrator; therefore, the letter from the court to WEO was contrary to the law. He concluded by reiterating his submission in chief concerning the 4 th and 5th grounds of appeal. Having objectively gone through the grounds of appeal, the submissions by both parties and the entire records of appeal, I have found that most of the grounds of appeal are intertwined. On scrutiny, I find that grounds 1 and 2 centred on the weight of evidence. The complainants argue that the lower courts did not consider the documents of purchase and allocation of the disputed land tendered by the appellants and that the lower courts improperly evaluated the evidence given by the appellants. Grounds No. 4 and 5 revolve around the appellants' complaints that on 13 June 2023, they filed the objection and complained 12 that their lands were included in the deceased estate, but the trial court erred by holding that they filed on 30 October 2023, four months after the distribution. Ground 3 centred on the complaint that the letter dated 5 June 2023 to the WEO was contrary to the law as it requested the village leaders to participate in distributing the deceased estate in collaboration with the administrator. Before delving into the merits or demerits of the grounds of appeal, it is crucial to reiterate the established principle in the second appeal. Courts should seldom interfere with concurrent findings of fact by the lower courts unless there has been a misapprehension of the nature and quality of evidence and other recognized factors leading to a miscarriage of justice. This principle, as stated in Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported), where the Court of Appeal held that; "... The law is well-settled that on a second appeal, the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature or non-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice”. 13 I will start with the 4th and 5th grounds. As previously alluded to in the background part of this judgment, after the respondent was appointed as an administratrix, on 13 June 2023, the appellants filed an application praying to revoke her (the administrator) for the reason that there was no clan meeting which appointed her to administer the estate of the late Mafuru Majura. For clarity, that application for revocation read as follows; MAOMBI YA KUMTENGUA MSIMAMIZI WA MIRATHI Sababu za maombi ya kumtengua Msimamizi wa Mirathi:- 1. Kwamba Waleta Maombi ni watoto wa marehemu MAFURU MAJURA ambaye alifariki mnamo mwaka 1995. 2. Kwamba baada ya kifo cha marehemu MAFURU MAJURA aliyefariki katika kijiji cha Lwezera, alizikwa kijijini hapo. 3. Kwamba baada ya kifo cha marehemu MAFURU MAJURA sisi wanafamilia ya marehemu hatujawahi kumteua LUCIA MAFURU MAJURA kuwa Msimamizi wa Mirathi ya marehemu MAFURU MAJURA. 4. Kwamba kama kuna uteuzi wa ukoo ni batili na atakuwa ametumia hila ilikufanikisha nia yake ovu ya kuiaminisha Mahakama kuwa ameteuliwa kuwa Msimamizi wa Mirathi ya marehemu MAFURU MAJURA. 5. Kwamba marehemu MAFURU MAJURA amefariki mnamo mwaka 1995 na mpaka leo hi! ni takribani miaka 28 imepita ikiwa hajateuliwa na famiiia na hajawahi kuomba usimamizi wa Mirathi ya marehemu MAFURU MAJURA. 6. Kwamba ilipaswa kuomba usimamizi wa Mirathi ndani ya miaka mitatu tangu kifo cha marehemu. Vilevile hakuna sababu iiiyotolewa au ya msingi kwa nini kwa muda wa miaka 28 hakuomoa usimamizi wa Mirathi. , 7. Kwamba katika mashahidi waliofika Mahakamani kutoa ushahidi wanaacha utata mkubwa, moia MALIMA MAFURU aliishafariki na alifariki mwaka 2016 na ni baba wa SIJAONA MALIMA lakini mwaka 2023 marehemu MALIMA MAFURU anafika Mahakamani kutoa ushahidi. 14 8. Kwamba SIJAONA MALIMA kwa sasa ndiye msimamizi wa Mirathi ya Marehemu MALIMA MAFURU na uteuzi huo ulifanywa na Mahakama hii mnamo tarehe 29/09/2019 katika Shauri ia mirathi liiilofunguliwa mwaka 2019 na SIJAONA MALIMA. 9. Kwamba SIJAONA MALIMA na LUCIA MAFURU MAJURA wanatambua nia ovu waliyoifanya mbele ya Mahakama hii tukufu. 10. Kwamba SIJAONA MALIMA aliomba usimamizi wa mirathi awali ili ajipatie ardhi inayomilikiwa na Waleta Maombi na katika majaribio mawili, Rufaa Namba 71/2018 na Maombi namba 9/2022 mbele ya Baraza la Ardhi na Nyumba Wilaya ya Geita, hakufanikiwa na mara hii ameamua kushirikiana na LUCIA MAFURU MAJURA ambaye naye alikuwa mshiriki kwenye mashauri yalikuwepo Baraza la Ardhi. 11. Kwamba LUCIA MAFURU MAJURA si mtu sahihi wa kuwa msimamizi wa mirathi hasa baada ya kukiuka taratibu na kuidanganya mahakama ili atomize nia yake ovu. Therefore, as can be gleaned from that application for revocation, there was nothing regarding the inclusion of the appellants’ lands in the estate. Further, the record indicates that the issue of inclusion of the appellants’ land in the estate was first raised informally by the appellants in their letter to the Court dated 26 September 2023. The letter read as follows; 15 YAH. KUONDOLEWA MASHAMBA YETU KUTOKA SHAMBA LA MAREHEMU MAFURU MAJULA Rejea taarifa tajwa hapo juu. Tunaomba mashamba yetu katika mgao wa mirathi ya Marehemu Mafuru Majula. Mgao huo ulifanyika na msimamizi wa kuteuliwa ambaye anaitwa LUSIA MAFURU. Mashamba yetu ni kama ifuatavyo 1. ISSA MAFURU-EKARI 22 na vielelezo vipo. 2. BAHATI MAFURU-EKARI 13 na vielelezo vipo Sisi ni watu tuliyoyamiliki muda mrefu. As it appears in the records, on 30 October 2023, the appellants formally lodged an objection challenging the distribution of the deceased estate by claiming that their lands were wrongly included in the deceased's estate and subjected to division. From the above discussion, it is quite clear that; One, the appellants did not raise the issue of inclusion of their lands on 13 June 2023, when the properties were distributed. What was filed on 13 June 2023 was an application for revocation because the administrator was not appointed by a clan meeting. Two, the appellants formally raised the issue of the inclusion of their lands on 30 October 2023. 16 Therefore, the trial court was correct in holding that the appellants filed their objection regarding the inclusion of their lands in the estate of the late Mafuru Majura four months after the estate was already distributed to the heirs. Further, the 1st appellate court was correct in dismissing the appellants’ complaints on the 4th and 5th grounds of appeal. In addition to the 4th ground of appeal, the appellants complained that the decision regarding their application for revocation dated 13 June 2023 was delivered on 27 October 2024 without being given a notice. Further, they were supplied with that decision on 20 March 2024. On this, briefly, I have the following; First, the records indicate that the application was heard inter-parties, and the last day of the hearing was 16 October 2023. The decision was scheduled to be delivered on 20 October 2023. Both parties were present. On 20 October 2023, in the presence of both parties, the decision was adjourned to 27 October 2023. On 27 October 2023, the decision was delivered in the presence of both parties. Therefore, the issue of being given a notice of the date of the decision was and is immaterial. The court views the appellants' complaint in this regard as unfounded. 17 Second, the issue that they were supplied with that decision on 20 March 2024 is also immaterial because, one, there is no evidence of that, and they did not even tender a letter indicating that they requested the decision. Two, the decision dated 27 October 2023 is not subject to this appeal and shortly after that decision the appellants lodged an objection on 30 October 2023, which is subject to this appeal. Therefore, the 4th and 5th grounds of appeal lack merits. Coming to the 1st and 2nd grounds of appeal revolve around the issue of the weight of evidence. That the lower courts did not consider the documents of purchase and allocation of the disputed land tendered by the appellants and that the lower courts improperly evaluated the evidence given by the appellants, I revisited the trial court’s decision and the 1 st appellate court decision dated 20 March 2024 and found that when dismissing the appellants’ objection, the trial court assigned the following reasons: one, the whole family, including the appellants, participated in the preliminary stages before the distribution and in the distribution. Two, the appellants participated in the distribution of the estate from 13-20 June 2023; they were allocated their shares and signed the attendance. Third, If the distributed estate included their lands, they were supposed to object on the 18 first day of distribution. However, they participated in all eight days when the estate was distributed and filed the objection on 30 October 2023, four months after distribution. Further, when the 1st appellate court dismissed the appellants’ appeal, it held that the appellants failed to prove that the land they complained to be included in the distribution of the estate was theirs. The appellants failed to summon witnesses from whom they claimed they purchased the land, and letters of buying land are also not proof of ownership but rather contractual arrangements toward the acquisition of land. The letters lack the legal capacity for the appellants to be owners of the land. Also, the 1st appellate court held that the distribution was not done secretly. Instead, it was open and conducted in the presence of the leaders where the disputed land was, and nothing was raised by the appellants. On the determination of these two grounds, as alluded to earlier, the records indicated that on 23 May 2023, in the presence of the appellants, when the respondent was appointed by the court to administer the estate, she raised an issue that there were 62 acres of land left by the deceased but 19 it was in the hands of the appellants. The appellants never objected or raised any complaint. That is per the records. When the clan members and the local leaders met on 13 June 2023 to identify the land left by the deceased, the appellants not only attended but also signed the attendance register. After that, from 13 -20 June 2023, the land was divided among the heirs. However, the appellants refused to sign the attendance register at the time of distribution. It was recorded in the minutes of the distribution meeting they refused without any known reason(s). Despite the above facts, the appellants never raised the issue of their lands being included in the estate until October 2023, four months later. Therefore, per the records, I agree with the trial court’s decision that the appellants knew about the land in dispute and identified the deceased land and its distribution among the heirs in June 2023. Therefore, they were supposed to object on the first day of distribution and not on 30 October 2023, four months after distribution. They missed the opportunity to object for the reasons known for themselves. 20 In my view, to “emerge” four months after the distribution of the estate to the heirs and claim the ownership of part of the estate already distributed while you knew about the distribution and participated in the distribution is an afterthought. Further, during the hearing, the appellants tendered the letters and “sale agreements” indicating that they purchased land and other lands they were allocated by local authorities. On this, I agree with the 1st appellate court that the appellants even failed to summon as witnesses the persons from whom they claimed they purchased the land and the letters from local authorities lacked the legal capacity for the appellants to be owners of the land. It is trite that in a dispute of ownership of land, the seller of the land must be joined as a necessary party or be summoned as a witness to testify. This Court, in Clement John Mushi vs. CRDB Bank and two others, Commercial Case No 7 of 2007 (unreported), held that; 1. “Be that as it may, however, I think it is now settled law that in a suit for the recovery of land sold to a third party, the buyer should be joined with the seller as a necessary party defendant; non-joinder will be fatal 21 to the proceedings. (See also Juma B. Kadala vs Laurent Mnkande [1983] TLR. 103 and Damian Kakuru and two others vs Ahmed Abdallah Kinyokwe, Misc Land Appeal No. 48 of 2012 (High Court Land Division -unreported). Therefore, failure to cause the presence of the seller either as a party or witness weakens the claims of ownership. In the instant appeal, that was very important because no documents were attached to the sale agreements to indicate how the sellers obtained the land in dispute. In addition, other ownership documents tendered by the appellants were issued by a local authority known as “Kamati ya Huduma ya Jamii- Lwezera. However, when the administrator of the estate, with the assistance of the Ward Executive Officer of Lwezera, was identifying the land left by the deceased and its boundaries in the presence of the appellants on 13 June 2023, the appellants never raised that issue or showed the documents to the village authorities. 22 Another issue is whether the committee “kamati ya huduma za jamii” had a mandate to allocate the village land. I think the authority with the mandate to allocate the village land is a village assembly. On this, I shall end here. Flowing from above, the 1st and 2nd grounds of appeal are devoid of merits. The evidence and documents tendered by the appellants four months after the distribution of the estate failed to prove their ownership; it was an afterthought, and the documents were doubtful. Reverting to the 3rd ground, the last one in determining this appeal. This should not detain me long. The complaint in this ground, as raised by the appellants, that the letter dated 5 June 2023 from the trial Court to WEO was contrary to the law as it requested the village leaders to participate in distributing the deceased estate in collaboration with the administrator. As per the records, that letter was addressed to the WEO of Lwezera to supervise the distribution of the deceased estate. After that, the local leaders and the deceased family, on 13 June 2023, sat and identified the lands/ farms left by the deceased. On 13 to 20 June 2023, as per the report, the administrator distributed the lands/ farms to the heirs. The title of the 23 report is read “TAARIFA YA UTEKELEZAJI WA UGAWAJI WA MIRATHI MASHAMBA YA MAFURU MAJURA CHINI YA USIMAMIZI WA LUCIA MAFURU”. In my view, the one who distributed the deceased estate among the heirs was the administrator. Further, the participation of local leaders in identifying the land/farms left by the deceased did not oust the administrator's duty. In the circumstances of this appeal, there was no harm in involving local leaders in assisting the administrator in identifying the land and its boundaries, considering that there were three large portions of land for distribution. Therefore, the 3rd ground of appeal also lacks merit. From the above discussion, in totality, the appeal lacks merits; both grounds of appeal fail to persuade this Court to interfere with the decision of the two courts below. Consequently, I dismiss the appeal. Since this appeal originated from probate proceedings, I order no costs. It is so ordered. 24 K. D. MHINA JUDGE 08/11/2024 Court: Right to appeal explained. K. D. MHINA JUDGE 08/11/2024 25 26