2 KULWA ZENGO VS JOSHUA NDAMA final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUB REGISTRY OF SHINYANGA

AT SHINYANGA PC CIVIL APPEAL No. 805 OF 2025 (Arising from the Judgment and Decree in Probate Revision No. 4590 of 2024 of Maswa District Court before Hon E.S Missana dated on 20 /12/2024). KULWA ZENGO NG’HALI ……………….………………. APPELLANT

VERSUS JOSHUA NDAMA SALU …….….………………………... RESPONDENT

JUDGMENT 12th & 28th February, 2025 Massam J. The respondent was appointed as administrator of the late Zengo Ndama Lunyela, however the appellant filed Probate Revision No. 4590 of 2024 in Maswa District Court challenging the appointment of the respondent as administrator on the ground that death certificate was forged and contained wrong particulars of the deceased. After the full trial the District Court held that there is no sufficient reason to revoke the respondent as administrator and hence upheld the decision of the primary court. Being distressed by the decision, the appellant appealed to this court based on the ground of appeal that; - 1 1. That, the learned Magistrate erred in law and fact to rely on the function of administrator and considered the evidence adduced by respondent on the place of death which led to insert the wrong particulars of the deceased in death certificate. Would the court consider that the respondent was telling lies could not reach that decision. During the hearing of this appeal the both parties appeared in person unrepresented and the matter was heard orally. Arguing, appellant stated that he was aggrieved with the decision of the 1st appellate court because he was not invited to participate in clan meeting during appointment of administrator. Also the said meeting was convened at Muhita while the deceased assets are located

at Nyashimba. Additionally, the appellant said that he was not present during the hearing of the probate case at Badi primary court, Moreover, appellant submitted that the respondent was appointed while there was a close relatives of the deceased. Likewise, the respondent misleads the court that the deceased died at Maswa hospital while he died at Nyashimba to the local healer. 2 On his side, respondent said that when the deceased died he left the plot to his wife, and after two years, his wife died and the plot was left to the appellant who is his aunt one Kweji Nghali and Busilili Ntiga. Additionally, respondent said that he was selected by the clan meeting and then filed probate case at Badi Primary Court, where he was appointed and all procedures for his appointment were adhered. Moreover, respondent said that the appellant is opposing his appointment because he wants to possess all properties in the deceased estate. Again the respondent said that he knows only one plot of deceased and he insisted that if the appellant knows other property of the deceased he can disclose it to him so that he can administer the same. In the way of rejoinder, appellant had nothing to add but prayed his appeal to be allowed. Having scanned the submission filed by both parties, the issue for deliberation is whether this appeal has merit. It is a trite law that the 1st appellate court has power

to re- evaluate on the record and drawn its own inference and findings of fact subject, having regard to the fact that the trial court had the advantage of watching and assessing the witness as they gave evidence. See the 3 case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 CAT Mwanza, Jamal. A. Tamim vs Felix Mkosamali & The Attorney General, Civil Appeal No.110 of 2012 (unreported) and Martha Wejja vs Attorney General and Another (1982) TLR 35. Also, it is the principle in civil cases, that the burden of proof lies on the person who alleges anything in his favor. More over the burden of proof envisaged above is on the balance of probabilities. See the case of Anthony Masanga vs. Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014 and Hamza Byarumshengo vs. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). Notably, the civil principles above are also reflected under Regulation 1(2) and Regulation 6 of the Magistrate’s Courts (Rules of Evidence in Primary Courts GN 22 of 1964, the law governing evidence in Primary courts. Therefore, in determining this appeal, I shall be guided by the above principles. Responding to the ground of appeal, appellant argued that he did not participate in clan meeting and the death certificate was forged while the respondent said that he was appointed by the clan meeting 4 and

all procedure was adhered and there was no forgery of the death certificate. This court having gone through the records and the submissions carefully. Indeed, the trial records shows that the respondent was selected by the clan meeting, then he filed the Probate Case at Badi Primary court where he was dully appointed by court after all procedures was adhered as enshrined under Primary Courts (Administration of Estates) rules GN 49 of 1971 and 5th Schedule of Magistrates Courts Act Cap 11 RE 2019 and as it was observed in the case of Beatrice Brighton Kamanga ad Amanda Brighton Kamanga vs Ziada William Kamanga, Civil Revision No. 13 of 2020, HC Dar es salaam. Also, SU3 (Busilili Ntiga) during cross examined by the appellant, he said that the respondent was appointed because he is able to administer the estates of the deceased but also was appointed by a clan meeting. Coming to the reasons which was given by appellant that he was not among the people who elected respondent to be administrator and the respondent lied to this court that deceased died at Maswa hospital while he died to the local healer, this court finds out that the place where the deceased died is not an issue as long as deceased had some properties 5 and the same required to be administered. Also the issue that appellant was not among the people who seat in clan meeting this court also find out that it is not

necessary that all deceased relatives was supposed to be in the said clan meeting, the important thing was if the quorum of the meeting was complete and the minutes of the said meeting was taken according to law. So according to the above facts this court finds out that appellant failed to adduce good reasons for revocation of respondent as the reasons given are not among the reasons which can lead the revocation of the administrator. The appellant could wait for the respondent to conduct his duties as administrator and if he finds out that the respondent is not administering the deceased properties as per the law then he could have a good reasons to come to the court to file application for revocation but bringing this application was too early, respondent is obliged faithfully to administer the deceased's estates by first paying the just debts of the deceased, distributing the residue according to the law, making and exhibiting a full and true inventory of the deceased's properties and credits and rendering a true account of the administration. See rule 5 to the 5th schedule to the Magistrates' Courts Act and the case of Joseph Shumbusho Vs Mary Grace Tigerwa and 2 others, Civil Appeal No. 183 of 2016 CAT 6 Dar es salaam and the case of Naftal Joseph Kalalu v Angela Mashirima, PC. Civil Appeal No. 145 of 2001, High Court of Tanzania at Dar es Salaam, Moreover, regarding to

the issue of forgery which was raised by appellant there was no evidence brought from the relevant authority to prove that the said death certificate was forged, so it is the view of this court that there were no any cogent reasons adduced by appellant to revoke respondent to be administrator as the law requires under Rule 9(1) of the Primary Court (Administration of Estates) rule GN No. 49 of 197. From above observations. I find that the 1st ground of appeal has no merit and it is dismissed. Consequently, this appeal is dismissed and the decision and orders of both lower courts is upheld. In regard of the relationship between the parties of this case, I make no order as to costs. It is so ordered. DATED at SHINYANGA this 28thFebruary, 2025. R. B. Massam Judge 7