judith ndabita vs hepifania oscar 2023 tzhc 16893 21 april 2023

I N T H E H I G H C O UR T O F T H E U N I T E D R E P UB L I C O F T AN ZA N I A I N T H E S U B -R E G I S T RY O F K IG O M A

AT K I G O M A { P C ) P RO B AT E A P P E A L N O . 6 O F 2 0 2 2 (Arising from the District of Kigoma Probate Appeal NO. 7 of 2022, Originating from Ujiji Primary Court Probate Case No. 85/2020)

JUDITH NDABITA APPELLANT

VERSUS H EPIFANIA OSCAR ••a •••••••••••••••••••••••••••••••••••• RESPONDENT Date of Last order: 15 .03. 2023 Date of judgement: 21 .04. 2023

JUDGEMENT MAGOIGA, J. The appellant JUDITH NDABITA successfully petitioned for grant of letter of administration of the estate of her late husband GIDEON RWEGASIRA BISHANGA in the Primary Court of Kigoma Ujiji vide Probate and Administration Cause No. 85 of 2020 who died on 14/9/2020 which was granted on 08/12/2020. In the course of administering the estate, the respondent HEPIFANIA OSCAR emerged before the Primary Court of Ujiji exercising its jurisdiction in administration cases challenging the exclusion of his two children Alison Gideon Lwegasira and Veronica Gideon Lwegasira ~ Page 1 of 13 a s h e irs to esta te s o f th e ir la te fa th e r in th e sa m e P rob a te an d A d m in istra tio n C a u se N o .8 5 o f 2 020 in th e d istrib u tio n o f the m o n ie s fr o m N S SF . T he re sp o nd e n t's ca se w a s p u re ly b ase d o n b irt h ce rt ifica te s . T h e a p pe lla n t, h o w e ve r, stro n g ly resiste d the in cl u s io n o f the tw o ch ild re n fo r tw o reaso n s; o n e , sh e doe sn 't recog n ize h e r a s w ife o f the la te h u sb a n d , a n d tw o , tha t th e la te hu s b an d n e ve r in trod u ce d th e tw o ch ild re n in his lifetim e to th e fa m ily a nd a s su c h a re stra n ge rs to th e esta te . T h e tria l C o u rt h e a rd p a rt ie s a n d de live red its ru lin g o n 2 3 /4 /2 02 1 o rd e ring th e a d m in istra trix o f e state to

in cl ude th e n a m e s o f Aliso n G id io n Lw eg asira a nd V e ro n ic a G id eo n Lw eg a s ira in th e list of b e n e fi cia rie s o f th e estate , in p a rt icu la r, m o n ie s fr o m N S S F . N o a p p e a l w as p re fe rre d a g a in st th is o rd e r. It is on record that, the appellant complied with the order of the trial court but the problem arose as to the entitlement of the deceased's NSSF benefits, where according to her, the NSSF declined to recognize those other two children who were not registered as beneficiaries in the NSSF Pension. The trial court, then, on 27/05/2022 overruled itself in its earlier decision and agreed with NSSF that the two children are not entitled to the estate of the deceased's estate. Aggrieved by that order, the respondent appealed to the District Court of Kigoma vide Probate Appeal Case No. 7 of 2022 where the first appellate ~ D-,,na ., n f 1 :t c o u rt a llo w ed th e a p p e a l a nd s e t a s id e the tria l c ou rt 's d e c is io n da te d 2 7/0 5 / 2 0 2 2 a n d a m o n g o th e rs , o rd e red th e dis trib u tio n o f th e m o n ie s in d is p u te b y o rd e ring a p p e llan t to c o m p e n s a te th e tw o c h ild re n o f th e re s p o n d e n t h e re in a bo ve the m o n e y w h ic h the y w e re in t itle d to re c e iv e fr o m N SS F b e n e fi ts . T he fi rs t a p pe lla te c ou rt fu rt h e r o rd e re d

th a t, b o t h the a pp e ll a n t a n d th e resp o n d e n t b e e x cl u d e d a s b e n e fi c ia rie s re as o n in g tha t the y w e re n o t lega lly m a rrie d to the d e c e a s e d , h e n c e , n ot leg a l h e irs . Ag g rie v e d w it h th e o rd e rs , the a p pe ll a n t b y w a y o f th is a p p e al k n o c ked th e d o o rs o f th is c o u rt a rm e d w it h s ix g ro u nd s o f a p pe al, n a m e ly :- 1. That, the district court erred in law and in fact in excluding the appellant among the lawful heirs of the estate of the deceased husband on the ground that the Appellant had no lawful marriage/ a matter that was not before the court and in total disregard of the 21 years of marriage with the deceased and the fact that customary marriages are also valid marriages in law.

2. That, since the decision to exclude the Respondent's two children among beneficiaries of the deceeseds NSSF benefits was made by NSSF in accordance with its rules and in abidance to the deceased's wishes in their special forms which the trial court accepted as Page 3 of 13 correct, the district court erred in law and in departing from NSSF's rules without a hearing to why the decided so.

3. That, the district court erred in law and in fact in entertaining the Respondent's appeal that had been taken out of time instead of dismissing it.

4. That, the district court erred in law and in fact in entreating the Respondent'appeal that had been wrongly instituted in her personal names instead of a guardian/next friend for the minor children, rendering the Respondent a wrong party.

5. That, the district court erred in law and in fact in holding that NSSF benefits could not be used as the appellant did in the absence of complaints from the heirs.

6. That having decided to distribute NSSF benefits among heirs, the district court erred in law and in fact in apportioning her entitlement of each heir. At the hearing of this appeal, both the appellant and respondent were present and unrepresented. The appellant had nothing to submit other than asking this court to consider her grounds of appeal on the record and allow the appeal except for the ground No.3 which she prayed to w it h d r a w . D,:,oo A nf 1~ O n th e o th e r h an d, th e re s p o nd e n t to o in v ite d th is c o u rt to c on sid e r h e r rep ly to th e pe titio n o f a p p e a l an d c o n tin u e to d is a ll o w the a p p e al w it h c o sts . Fo r th e p u rp o se o f p ro p e r u nd e rs ta nd ing o f this a p p e a l, I w ill als o re p rodu c e th e re p ly w h ic h is to b e ta ke n a s th e s u bm issio n o n th e p a rt o f th e re s p o n d e n t a s h e re u n de r s ta te d :- T h e p re lim in a ry obje c tio n o n p o in t o f la w w a s ta k en tha t the in s tan t a p p e a l w a s fi le d h o p e le s s ly ou t o f tim e o n 4 th October, 2022 beyond the statutory period of 30 days without leave of the court. On that point, the respondent urged this court to dismiss this appeal with costs. In the alternative and without prejudice, the respondent replied to the memorandum of appeal as follows:- 1. The contents of paragraph 1 of the petition of appeal are vehemently disputed by the Respondent. The Respondent states further that the decision of the first appellate court was correct Otherwise, the respondent is put to strict proof.

2. The contents of paragraph 2 are denied. The Respondent states further that the decision to exclude Respondents two children was not done by NSSF as there is no place where NSSF rules provides that legitimate heirs of the deceased who are to listed on the NSSF forms are not entitled to inherit from NSSF benefits, so the decision Page 5 of 13 ~ to exclude two respondent's children was done by the appellant herself that's why the Ujiji Primary Court ordered for the respondent's two children to be included in their deceased father estates after the respondent made follow up to NSSF office. Otherwise/ the Appellant is put to strict proof thereof.

3. The contents of paragraph 3 are denied in total by the respondent for otherwise the appellant would have raised a preliminary objection in the trial court (Kigoma District Court). The Respondent states further that the ruling of Ujiji Urban Primary Court was delivered on 27/5/2022/ through no copies was supplied to the parties; hence the appeal filed by the respondent before Kigoma District Court was within time whereby she filled it on 24/6/2022. Otherwise/ the Appellant is put to strict proof thereof.

4. The contents of paragraph 4 are strongly denied. The respondent states further that the Appellant's a/legation is an stterthouqbt, otherwise the Appellant is put to strict proof thereof.

5. The contents of paragraph 5 are strongly denied. The Respondent states further that the District Court was right to give a decision that the appellant was wrong to use the benefits from NSSF as she did because she was required to first distribute the benefits to the heirs ~ D::,oo I. nf 1 :l and th en she would use th em according to th e shares she received. Oth erwise/ the app ellan t is p ut to strict pro of thereof.

6. Th e con tents of paragraph 6 are strongly denied. Otherwise/ the appellan t is p ut to strict proof thereof. Having carefully gone through the record of appeal, grounds of appeal and reply of appeal and also the short submission for and against the appeal, and after going through the evidence on record in the trial proceedings, I find the central issues for determination of this appeal is, whether the appeal is time barred and if not, if it has merit or not. In determining this appeal, I will start with the preliminary objection, whether this appeal was filed out of time or not. Having revisited the record of appeal, I found this point misconceived and of no merits because the appellant filed her appeal on 16/09/2022 vide exchequer receipt No.32009845 issued by the Resident Magistrate Court of Kigoma as evidently stamped in the petition of appeal but it was the record that was forwarded on 04/10/2022 to this Court for its admission and assignment. Without much ado, and upon such observation, the preliminary objection raised is without merits and same is hereby dismissed. Further and much as the appellant dropped ground number three which was that the appeal from the Primary Court to District Court was out of 4 Page 7 of 1 3 tim e , th is c o u rt n o w , w ill g o to d e te rm ine the m e rits o r oth e rw ise o f th is a p p e al. I will d ea l w ith e a c h g ro u n d ra

ised a nd a rgue d in the o rd e r th e y a pp e a r. T he fi rst g ro u n d o f a p pe a l's ma in c o m p la in t w as th a t th e fi rs t a p p e ll a te C o u rt e rred in la w to e x cl u d e th e a p p e ll an t fr o m b e in g a b e n e fi c ia ry o f th e d e cea s ed esta te o n th e g ro u nd tha t s h e w a s n o t leg a ll y m a r rie d to the d e cease d . T h e res pon de n t in re p ly to th is g ro un d s im p ly s u p p o rt ed th e fi rs t a p p e lla te co u rt 's d e c is io n a s c o rre ct w ith o u t an y su g g e s tio n h o w it w as co rre ct . H a v in g c o nsid e re d th is p o in t alo n g side th e e v id en c e on re c o rd , I fi nd this p o in t m e rite d in th is a p pe al. I w il l e x p la in . One, the issue of marriage between the appellant and the deceased as rightly stated in the first ground of appreal was raised by the first appellate court suo moto and was not an issue in Probate and Administration Cause No. 85 of 2020 nor was it a ground of appeal before the first appellate court. Two, the first appellate court had no jurisdiction to determine the issue of marriage between the deceased and the appellant because, in case of any dispute as to the marriage, same was to be dealt with in proper forum using Law of Marriage Act, [Cap 29 R.E.2019] and not in Administration cases. Three, the first appellate court, condemned the appellant

unheard on this point because, the issue was suo moto raised and determined by the first ~ P::.aP ~ of 1:-:l appellate court without hearing her which is contrary to the rules of natural justice, that a party should not be condemned unheard in any proceedings. On the foregoing reasons, I find merits in the first ground and consequently, I overturn and quash the order of the first appellate court, excluding the appellant from being beneficiary on the reason that she was not legally married while there is evidence on record that the two were customarily married and have been in marriage for more than 21 years blessed with three issues and the clan meeting recognized her so. Not only that, but clan meeting as well appointed her so and is one of the beneficiaries. The appellant is thus declared as beneficiary of the deceased estate until proven otherwise in proper forum, if any. This takes me to the second ground of appeal which main complain centers on the who is the beneficiary of the deceased's contribution from the NSSF. The reply by the respondent was that the decision was by the appellant and not NSSF. The first appellate Court found that the second decision by the trial court on who are the beneficiaries given on 27/05/2022 was erroneous and quashed it. I agree and affirm first appellate court's decision on this point. However, having gone through the trial court proceedings

and the resultant decision of the first appellate court same was arrived on for cM{ Page 9 of 13 failure to analyze evidence on record. The decision of the trial Court dated on 23/04/2021 was solely made based on birth certificates of the two children. The first child was born 5th July, 2013 and the second child was born on 14th April, 2015 with C/No.02842336 and C/No.02842340 respectively. They were issued by one person Emmy K. Hudson. These two certificate numbers leave a lot to be desired, because the difference between when one was issued is 4 numbers meaning between 2013 and 2015, a period of two years, when they were born, only 3 children were issued with the said certificates in the entire district of Kasulu, which is not possible. Not only that, but the said certificates were issued on the same and registered on the very day the child were born. No explanation was offered on how this is possible from the respondent. With the above observation, the birth certificates in my considered opinion were calculated with intention to defraud the rightful heirs by the respondent. Another reason, I find the first appellate failed to analyse evidence is that NSSF form subject of this appeal, the deceased joined NSSF on 30/06/2015 when all the alleged two children were already born. The big question without answers by the respondent why did he not include them because were in

existence, if he wanted them to be beneficiaries? This is the essence of the forms, otherwise, if we allow any caveator or anyone ~ a n y h o w to c h ip in w ith o u t c og e n t p ro o f th e b e n e fi ts will go to the w ro n g b en e fi c ia rie s . F u rt h e rm o re, th e te s tim o n y o f th e resp o n d e n t w as tha t th e c h ild ren w e re k n o w n to the fa m ily m e m be rs o f th e d e ce ased bu t c a ll e d n o s in g le w itn e s s to c o rro b o ra te h e r testim o n y . T h is is a fi t c a s e to d ra w an a d v e rs e in fe re n c e a g a in s t the re s pond e n t o n this a s p e c t. An d w o rs e still , th is is n e g a te d b y the cl a n m e e tin g w h ic h did n o t re c og n iz e a n y o f th e tw o c h ild re n . A n d th e re a s o n a d v a n c ed by th e re s p o n de n t w h y s h e d id n o t a tt e nd th e bu ria l n o r cl an m eetin g a re la y e x c use tha t do n o t h o ld an y w a te r in the c irc u m s ta n c es . It is on the above reasons, among other, the first appellate court misconstrued the essence and import of the provisions of the NSSF Act, [Cap 50 R.E.2019] and the circumstances of this appeal. The children born out of wedlock have to be regularized and be made known to the family of the deceased otherwise it will be chaos to include anybody without prove. In this appeal, the respondent utterly failed to prove that

the alleged children were the biological children of the deceased. The best way to prove this was to open an application under the CHILD ACT, [Cap 13 R.E.2019]. Therefore, the holding of the first appellate court on the application of the NSSF forms was erroneous and misconceived. And the distribution made ~ Page 11 of 13 b y the a p p e ll a n t w a s p rope r a n d d ry w ith th e c irc u m s ta n c e s p e rta in in g to th is a p p ea l. It w a s a nd sh o u ld b e e m p h asized th a t it is n o t w ith in th e m an d a te o f th e P ro b a te c ou rt to d ire c t h o w th e m o n e y s h ou ld b e u se d m u c h a s w a s u se d a s th e a dm in is tra trix w ish e s . O n tha t n o te , I q ua s h the o rd e r o f th e fi rs t a p pe lla te c o u rt th a t the tw o a lle g e d c h il d re n w e re en title d to b e b en e fi c iary o f th e es ta te w ith o u t an y p ro o f a n d I h o ld tha t th e y h a d n o rig h t to g e t th e s ha re s in th e d e ceas e d e s ta te fo r w a n t o f e v id e n c e a s d e m o ns tra te d a b o v e . T his g ro un d to o h a s m e rits a n d is a ll o w ed to the e xte n t e x p la in e d a bo v e . N e x t is the fo u rt h g ro un d , in th is g roun d th e m a in c om p la in t is tha t th e resp o n de n t in s tit u te d the p ro c ee d in g s in h e r o w n n a m e a nd n ot a t th e c ap a ci ty o f g u a rd ia n o r n e xt

fr ien d o f the m in o r c h ild re n, re n d e rin g the en tire p ro c ee d in g s b e ing c on d u cted b y a w ro n g pa rty . T he resp o n d e n t rep lie d tha t th is p o in t is raised a s a n a ft e rt h o u g h t on th e p a rt o f th e a p p e ll an t. H a v in g c o n s ide red this g round s e rio us ly a nd w ha t is o n th e rec o rd , th is g ro u nd will n o t de ta in this c ou rt m u c h . It is cl e a r the res po n d e n t in te rv e n e d u n d e r th e c ap a ci ty o f gua rd ian / n ex t fr ie n d . N o o n e w a s p reju d ic ed tha t it w a s n o t rec o rde d s o . S o , this g ro und h a s to fa il, b eca u se is rais e d as te c h n ic ality . Paze 1 2 of 1 3 This trickles down to ground number five and six which I will determine them jointly because their main complaint is direction and apportioning by the trial court of how to use the benefits. Having considered these two grounds jointly, I find merits in them. I will explain. One, it is not the duty of the trial court nor any appellate court in administration cases to distribute the estate but its solely legal duty is to appoint the administrator/administratix alone. The first appellate court went over board to assume powers not vested in it and was wrong and irregular. Therefore, the direction and distribution of the estate done by the first appellate court was erroneous. By the order of this

court, I quash that order for simple and open reason that it was done without jurisdiction. The administratix of estate is the one to do that job and report to the court during the filling of inventory and accounts as ordered. In the fine, I find this appeal merited and is hereby allowed to the extent explained above, given the nature of the appeal being on administration of estates, I declined to grant costs, instead I order that each party to bear his own costs. It is so ordered. S. . ......,-..:■OIGA

JUDGE 21/04/2023 Page 13 of 13