eva saulo nsalamba another vs magreth saulo nsalamba 2023 tzhc 18341 14 june 2023

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CIVIL APPEAL CASE No. 14 OF 2022 (Arising from Probate Appeal No. 09 of 2022 of Sumbawanga District Court, Originating from Probate Cause No. 88 of 2021 of Sumbawanga Urban Primary Court) EVA SAULO N SALAM BA......................................... 1stAPPELLANT AUDIA SAULO NSALAMBA................................... 2nd APPELLANT

VERSUS MAGRETH SAULO NSALAMBA................................. RESPONDENT

JUDGMENT MWENEMPAZI, J.: The appellants herein are aggrieved by the decision of the first appellate court which overturned the decision of the trial court. The core of this matter is the Probate Cause No. 88 of 2021 of Sumbav anga Urban Primary Court in which after the respondent (Administrator) had divided the late Saulo Nsalamba's properties amidst his heirs, a misunderstanding arose when the division reached to two houses which were owned by the deceased, whereas one house is alleged to be i located in town and it seems to be the taste of the cake while the other house is alleged to be located in the rural area at the deceased's farmyard. The late Saulo Nsalamba had two wives and he had two houses where his two wives were living. At the trial court, where the respondent was appointed as the Administrator of the deceased's estate, she distributed the two houses between the two families by declaring the house located in town to be inherited by the family of the elder wife and her children and that the house which is located in the rural area will be inherited by the other wife and her children. The latter family was not satisfied with the decision and filed an objection in which the trial Honourable magistrate accepted the objection and ordered a redistribution of the properties specifically the two houses. The respondent was not satisfied and appealed to the District Court of

Sumbawanga, and through its revisional powers as found under Section 21 (1) of the Magistrates' Courts Act [Cap. 11 R.E. 2019], the District Court quashed and set aside the decision and orders of the trial court by declaring that the distribution of the deceased's estate submitted at the trial court was proper and that the duty to collect and distribute the estate is bestowed to the Administrator alone. 2 Aggrieved by this decision, the appellants rushed to the doors of this Court with a Petition of Appeal which consists of Seven (7) grounds of appeal as reproduced hereunder; 1. That, the appellate court magistrate erred in law and facts for failure to analyse and evaluate the evidence adduced by both parties.

2. That, the appellate magistrate erred in law and facts when her decision based on the involvement of the beneficiaries on the distribution of deceased's estate is not a requirement of the law. While administrator had biasness in the distribution of the property.

3. That, the appellate magistrate erred in law and facts for making decision in favour of the respondent without considering the nature of the objection raised by the appellants hence unfair decision.

4. That, the appellate court magistrate erred in law as she was bias when hearing this case which resulted to the issue of the ch- dren in wedlock and out of wedlock in the decision which is contrary to the law. 3 5. That, the appellate court erred in law and facts to hold the matter in favour of the respondent without any proof as where does each family reside.

6. That, the appellate magistrate misdirected herself on the latin maxim if volenti non fit injuria which was not proved in this case.

7. That, the appellate court erred in law and facts based on the issue of the contribution shares of the wives which was not proved by the respondent in the trial court. For the above ground, the appellants prayed for this court to allow this appeal by quashing and setting aside the decision of the first appellate court and the decision of the trial court be upheld, and the costs of this appeal be borne by the respondent. At the hearing of this appeal, the appellants were represented by Ms. Tunu Mahundi learned advocate while the respondent enjoyed the legal services of Mr. Peter Kamyalile, learned advocate. Both parties settled to present this appeal by way of written submissions, and tb’s court granted leave to the parties in accord to their prayer. Ms. Tunu, advocate for the appellants, submitted the 1st and 2nd grounds together. In doing so, she submitted that the appellate court never considered the evidence on records that the distribution of the 4 properties amidst the heirs of the deceased was based on the contribution of the wives of the deceased, in which this matter originated from Probate cause and not Matrimonial cause. She added that, the distribution did not involve the beneficiaries whereas their involvement was so crucial in determining the division of the properties between them all, in which it would have led the administrator to be less biased and

discriminatory in her duty of distributing the properties. Ms. Tunu insisted that, the administrator being an elder child of her late mother who was the elder wife of the deceased, intended to distribute the properties the way she did so that she would evict the widow of her father and other children from the house located in town. She cited the case of PC Probate Appeal No. 4 of 2022, Ruth Victor (as administratix of Estate of the late Benjamin! Philipo Badehe vs Edward Emmanuel Badehe & Kulwa Benjamini Philipo) at page 4 of the judgment, in stressing on her argument. Ms. Tunu insisted that the administrator is supposed to be impartial and unless otherwise she is not fit to be an administrateTo support her argument, she referred this court to the case of Sekunda Mbambo vs Rose Ramadhani [2004] TLR 439 and cited Section 9(1) of the Law of the Child Act of 2009 which requires no body to deprive the rights of any child to inherit the estate of their parent, but 5 also with consideration of the widow or widower who remains in that estate as the survivor. That, in the matter of distribution all parties concerned must be satisfied as all are beneficiaries they should be treated equally. Arguing for the 3rd ground of appeal, Ms. Tunu argued that the respondent did not furnish the appellate court with intense information as to whether the appellants and their mother do reside at the

house located in town or not. The fact as claimed by the respondent that an administrator can do as she pleases as far as the deceased's estate is concerned, Ms. Tunu argued that if that is so, why does the law require an administrator of an estate to file an inventory of properties collected and account for the distribution of the same to the heirs. And that, the law is clear, if the administrator misuses the properties of the deceased, can be sued under his or her capacity as the administrator of the estate. Coming to the 4th ground of appeal, she submitted that it was not fair for the appellate magistrate to separate the children of the deceased that, there are children born within the wedlock and some arc born outside the wedlock. Ms. Tunu insisted that all the children deserve to be treated equally as far as distribution of deceased's properties is concerned. She said, being discriminatory as these children are of 6 wedlock and these are outside of the wedlock is being unfair to the said children. The learned counsel then argued grounds 5 and 7 together as follows. That, there was no proof if each family lived or resides in a different house and not at the house located at Jangwani which the deceased lived with his family. She added that, the appellants proved that they lived and still live in that house and that the house at Msanduka is not fit for human habitat and

decided to renovate it because it had no value as it is located in the rural area while the one at Jangwani is in the urban area. The learned counsel insisted further that, the issue as to whether the appellants' mother was a wedded wife to the deceased or not, it has not been proved in this matter for this is a Probate Cause and not a Matrimonial Cause hence there is no issue of distribution of matrimonial properties, and as such the whole proceedings are tainted with discrimination of the appellants. Arguing for the last ground of appeal, Ms. Tunu submitted that tne appellate magistrate was wrong to apply the principle in the latin maxim: volenti non fit injuria as the appellants deeds were solemnly goodwill and therefore to decide the case in favour of the respondent is unfair to the appellants. That, the act of demolishing the house at Msanduka had intentions of renovating it so that it would be possible to 7 protect one self against the natural calamities as it was testified during the trial that the said house was in a bad condition which was unfit for human use, and that the administrator erred by allotting the house to the appellants' family as the owners of the said house. Ms. Tunu concluded that, through the submissions she has made, the appellants pray for this court to allow this appeal and set aside the decision of the District Court and uphold the Primary Court

decision. In response, Mr. Kamyalile submitted that he will reply to grounds 1 & 2 together that, the distribution was based on the fact that the deceased left two families and each family had its own house and that it was correct for the administratrix to distribute the said houses as she did, so that each family remains with its house. He continued that, the house at Jangwani was constructed by the deceased and the mother of the respondent and her siblings while the house at Msanduka was constructed by the deceased and the appellants' mother. He added that the distribution done by the respondent was a good practice. In support of his argument, Mr. Kamyalile cited the case of Trezia Kaluli vs Daudi Kalulu, Miscellaneous Land Case Appeal No. 40 of 2013, HC (LAND DIVISION) AT MBEYA (Unreported) at page 1 where this Court held that: - 8 "According to customs in this area, a fast learning and focused polygamous husband allocates to each wife part of his wealth through which each mother's children's (if any) right of inheritance may be traced. This good practice in my view, assists to great extent, solutions on the inheritance conflict related issues." Mr. Kamyalile added that it is not true that the appellants were not involved in the process of distribution, that according to the evidence adduced at the trial Court by the 2nd appellant, proved that there were two meetings held

concerning the distribution of the deceased's estate and that the appellants were involved. He added more that, the issue was a misunderstanding on the distribution of the deceased estate. In support of his argument, Mr. Kamyalile argued that he finds it proper to reproduce part of the evidence adduced by the 2nd appellant at the trial Court as follows: - "Aiipofika kwenye kikao tu alitusomea jinsi alivyogawa tukakataa na baada ya kukataa alituletea karatasi akasen.j tusaini pesa za benki ya Posta baada ya kusaini mgao ulifanyika kwa mwenyekiti." 9 The learned counsel- then clarified that, it is not a legal requirement that the beneficiaries must be involved in the distribution of deceased's estate, and that it is not true that the respondent distributed the property without informing the beneficiaries. He added that it is also true that the house at Jangwani was distributed to the respondent and her siblings who were born by the elder wife and they had rights over the said house while the appellants and their siblings and their mother were rightly given the house Msanduka. Submitting against ground 3 of appeal, the learned counsel submitted that it is true that the decision of the trial Magistrate was unwise and unfair as submitted by the Learned Counsel for the appellants. That, the decision of the Appellate Court was wise and fair that is why it quashed and set aside the

decision and orders of the trial Magistrate. That, it is a trite of the law that living in the deceased house by the beneficiaries or widow or even if the family had opted not to distribute the properties among themselves, is not a bar for the administrator/administratix to discharge his/her duties and pr /vers conferred upon him/her under Paragraph 5 and 11 of the Fifth Schedule to the Magistrates’ Courts Act, [CAP. 11 R.E 2019], and Rule 10(l)(2) of the Primary Courts (Administration of Estates) Rules, GN. No. 49 of 1971. io In elaborating more on the above principle, Mr. Kamyalile referred this court to the case of Tom Morio vs Athumani Hassan (Suing as the Administrator of the Estate of the Late Hassan Mohamed Siara) and 2 Others, Civil Appeal NO. 179 OF 2019, CAT at ARUSHA (Unreported) at page 29 Retrieved from TANZLII where it was held that:- "As the administrator of the deceased estate, the 1st respondent neither fulfilled his duties nor exercised powers conferred upon him under paragraph 11 of the Fifth Schedule to the Magistrates' Courts Act, Cap. 11 R.E, 2002 (the MCA) and The Primary Courts (Administration of Estates) Rules, GN. No. 49 of 1971. Even though the family had opted not to distribute the properties among themselves, the 1st respondent was still obligated to file a creditor, and collected debts, with the Primary Court which appointed him." The learned

counsel submitted even further that, it is a trite of the law that once a person is appointed to be Administratix/administra or of the deceased's estate, he or she is entrusted by the Court with the responsibility of distributing the estate. In other words, she is the one who is to decide how much each heir is entitled to obtain in the estate is to be apportioned. He again referred this court to the case of Waziri li Maneno Choka vs Abasi Choka, Civil Appeal No. 51 1999z CAT at Dar Es Salaam (Unreported) at page where it was held that: - "Conversely the appointment of the appellant as administrator of his late father's estate has not yet been revoked. It is the appellant who was entrusted with the responsibility of distributing the estate, in other words he is the one who is to decide how much each one who is entitled to a share in the estate is to be apportioned." In addition to the above case, Mr. Kamyalile again referred this court to the case of Monica Nyamakare Jigamba vs Mugeta Bwire Bhakome as administrator of the Estate of Musiba Reni Jigabha And Another, Civil Application No. 199/01 OF 2019, CAT at DAR ES SALAAM (Unreported) at page 12 where the Court of Appeal fully subscribed to the observation made by the High Court that: "...the duty of seeing how the said house should be distributed and who will be entitled to get what in the said house is the duty of the

administrator of the estate." (Bold is the counsel's emphasis) Mr. Kamyalile then proceeded that since the respondent was entrusted with the responsibility of distributing the deceased's estate, 12 she used such power fairly and properly by distributing the deceased's estate in such manner because the deceased left two families and each family had its own house, therefore it was correct for the Administratix to distribute the said houses as she did so that each family to remained with their house. Mr. Kamyalile then proceeded to argue against the 4th ground of appeal that, the issue of the Children in the wedlock and those out of the wedlock was not raised by the Appellate Court or Trial Court as submitted by the Learned Counsel for the Appellant. That, such issue was raised by the appellants themselves in their objection. He added that, the appellant themselves are the ones who introduced the issue of discrimination by separating themselves from the respondent's family. The learned in emphasis insisted that the case of Judith Patrick Kyamba as cited by the counsel for the appellants is distinguishable to the instant case because in this case both are recognized beneficiaries. Mr. Kamyalile added that it cannot be claimed that the house ?t Msanduka given to the appellants has less value while it was demo! shed and replaced by another house. That, since they have demolished

the said house, they cannot complain that it had less value because the valuation of the said demolished house cannot be done to ascertain its 13 value in order to compare to.the house at Jangwani. He insisted that the distribution given to the appellants was fair. Mr. Kamyalile then submitted against grounds 5, 6, and 7 that, the 2nd appellant at the Appellate Court submitted that they were living at Mazwi with their mother then later on, the deceased took them to the house at Jangwani. That, this shows that the house at Jangwani was constructed by the deceased and the respondent's mother. The learned counsel added that, the truth of the matter is that upon the distribution of the estate the appellants’ family who call themselves family from out of wedlock were given the house of Msanduka which is also located within urban (Municipality). That, they decided to demolish the said house and build another house without the involvement of the respondent's family knowingly that they have exclusive rights on the said house. The learned counsel found it proper to reproduce part of the evidence adduced by the 2nd appellant at the trial Court as follows: - "Ku/e Msanduka alipotugawia palikuwa hapana nyumba HHkuwa ni gofu tuliamua kubomoa na tumejenga nyumba nyingine" Mr. Kamyalile added that, the house at Msanduka was not renovated, but it was demolished. That, the act of demolishing

the 14 deceased's property and building another house without the involvement of other beneficiaries, it is not allowed by the law. That, the appellants cannot benefit from their own wrongs, they must bear the risk arising from their unlawful demolition of Msanduka House and must take the consequences arising from the distribution of deceased estate. The learned counsel insisted further that, it was proper for the Appellate Court to use the said Latin maxim of volent non fit injuria (A person who consents does not suffer injustice). That, since the act of demolishing the house and build another house did injure the respondent and other beneficiaries. In conclusion, Mr. Kamyalile submitted that the appellants are not the recognised spokesmen of the alleged widow of the deceased, hence they have no locus stand to argue on behalf of the alleged widow. That, based on the submission he had made above, and the plethora of authorities pinned in, Mr. Kamyalile prays for this appeal to be dismissed and the decision of the appellate court be upheld. In rejoinder the appellants counsel submitted thaf when the counsel for the respondent was responding to the first ground of appeal, that his reply based on matrimonial issue which is wrong because in Probate when the administrator is distributing the properties to the 15 heirs, it's not proper to consider distributing basing on the

contribution of the spouse of the said property. She added that, the counsel supported his arguments by citing the case of Trezia Kalulu vs Daudi Kalulu, Miscellaneous Land Case Appeal No. 40 of 2013, where in the first page of the said judgment read as follows, she quoted: - "... according to the customs in this area a fast learning and focused polygamous husband allocates to each wife part of his wealth through each mothers children (if any) right of inheritance may be traced." The counsel clarified more that this captioned case was a result of the customs of the given area where the Honourable Judge presided over the case and he only shared this view that the said customs are good practice to assist in solving the inheritances conflicts on related issues. She added that, in this case this was not the issue as from the beginning there was no conflict at all and so this case is distinguishable in the present matter. Ms. Tunu submitted further that it is true as it not the legal requirement for the beneficiaries to be involved in the distribution but it's legal requirement that the distribution must be fair and equal to all the beneficiaries on the properties, Ms. Tunu then supported her 16 clarification with the case of Sekunda Mbambo vs Rose Ramadhani (supra) and further cited Section 9 (1) of the Child Act of 2009 which requires nobody to deprive the rights of any child to

inherit the estate of their parents, and that also there should be a consideration of the widow or widower of remains as the survivor. Ms. Tunu proceeded that, the counsel for the respondent when replying to the third ground of appeal, he based his argument on the responsibilities of administrator to fulfil his/her duties and this is not argued at all but what is required is for the administrator to perform his/her responsibilities fairly and justly and not to decide without justifying on each share of the appropriate heirs. She continued that, the counsel cited the case of Waziri Maneno Choka vs Abas Choka, and Monica Nyamakare Jigamba vs Mugeta Bwire Bhakome but she insists that both these cases explain only the responsibilities of an administrator that is the one who will distribute and decide on each amount the heirs are entitled to get in which the appellant does not oppose at all but what the appellant is opposing is that the said responsibilities were not fair and just. Ms. Tunu did not end there, she proceeded that the counsel for the respondent while addressing the third ground did not at all reply on the issue of the objection raised by the appellant in which it was the 17 base of the third ground of appeal which resulted into wise and fair decision of the trial magistrate for the administratrix to settle and rescue the distribution in order to make equality to all

children, that this is found in the trial court's judgment at page 3 paragraph 2. The learned counsel for the appellants submitted that, concerning the issue of children born in the wedlock and those born out of wedlock it was raised by the appellate court and when one reads the proceedings from the trial court to the appellate court, there is no where that the appellants state about wedlock but they state about "Bi mkubwa and Bi mdogo" only. She added that, as submitted in chief, the appellate magistrate acted in discriminatory manner as she raised the issue of wedlock. Concluding by submitting for the grounds, 5, 6 and 7 as combined by the counsel for the respondent, Ms. Tunu submitted that the appellants did demolish the house given to them by the administrator as the evidence shows that the house was unfit for human use and so they had to renovate it and that the latin maxim of volenti non fit ii.juria cannot apply in this case at hand. She proceeded that; it was wrong for the administrator to divide to them a house which was unfit for human to live in. Therefore, Ms. Tunu prays for this court to allow this appeal with costs so justice may prevail. 18 After reading the submissions from both camps, I am of the firm view that the determinant issue here is whether this appeal is meritious before this court. This is a second appeal, the principles to be followed in dealing with

the finding of facts and conclusion reached by the lower Courts is clearly set out in various decisions of the Court of Appeal for East Africa. In Republic vs Hassan bin Said (1942) 9 E.A.C.A. 62 it was held that:- "The Court ofAppeal is precluded from questioning the finding of fact of the trial Court, provided that there was evidence to support those findings, though it may think possible or even probable, that it would not have itself come to the same conclusion." In Peter vs Sunday Post, [1958] EA 424, it was held that:- "WhHst an appellate Court has jurisdiction to review the evidence to determine whether the conclusion of the trial Court should stand, this jurisdiction is to be exercised wit! caution where there is no evidence to support a particular conclusion or if it is shown that the trial Judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has 19 plainly gone wrong, the appellate Court will not hesitate to decide." See also Salum Mhando vs Republic [1993] TLR 170. In this matter hand, both sides had exhaustively submitted for and against all the grounds of appeal as filed by the appellants before this court, and I should applause the efforts from both learned counsels. In dealing with this matter, I will deal with the grounds of appeal in general as they all suggest the unsatisfactory of appellants towards the distribution of

the estate of their late father by the appointed administrator. However, at this juncture it should be made clear that the area of dispute in this matter is the distribution of the deceased's two houses among the heirs and nothing else. First of all, an administrator of a deceased's estate is entrusted with the responsibility of distributing the estate, in other words he is the one who is to decide how much each one who is entitled to a share in the estate is to be apportioned as held in the case of Waziri Maneno Choka vs Abas Choka (supra) as cited by the counsel for the respondent. This fact has not been denied by the appellants, meaning they too know that the respondent was responsible to divide the properties of their late father amidst themselves. 20 Secondly, the objection raised by the appellants at the trial court concerned unfair distribution of the properties but did not revoke the appointment of the respondent as the administrator of the deceased's estate, meaning, the respondent was still responsible to decide how much each one who is entitled to a share in the estate is to be apportioned. Here, it is my holding that if the appointment of the respondent as administrator was revoked instead of objecting the distribution of specifically the two houses, this matter would have had a different picture all together. In referring the case of Waziri Maneno Choka vs Abasi

Choka (supra) as cited by the counsel for the respondent where it was held that:- "Conversely the appointment of the appellant as administrator of his /ate father's estate has not yet been revoked. It is the appellant who was entrusted with the responsibility of distributing the estate, in other words he is the one who is to decide how much each one who is entitled to a share in ne estate is to be apportioned." Again, in our African Culture where most men are polygamous, it is awkward and somewhat impossible for the husband to have all of his 21 wives under one roof, in most cases the husband has to produce the same services including shelter to his other wives similarly to the services and shelter he produces to his elder wife. In this I join hands with the counsel for the respondent as he quoted the High Court case of Trezia Kalulu vs Daudi Kalulu (supra) that; "According to customs in this area, a fast learning and focused polygamous husband allocates to each wife part of his wealth through which each mother's children's (if any) right of inheritance may be traced. This good practice in my view, assists to great extent, solutions on the inheritance conflict related issues." As I hinted earlier that this dispute is based on the two houses of the deceased, I am convinced that the presence of the two houses, the deceased himself had all sorted out that each wife will live in

the house that he had built for the particular wife, and as the administrator is the eldest child of the elder wife to the deceased, it is my belief that the reason she divided the houses the way she did is because she knew the urban house belonged to the elder wife of the deceased and the rural house belonged to the younger wife of the deceased. 22 As the matter of fact, I find no merit in this appeal and consequently I proceed to dismiss* it. I restrain from interfering with the findings of the first appellate court, and thereof is being upheld. I make no orders as to costs. It is ordered accordingly. Dated and delivered at Sumbawanga this 14th day of June, 2023. 23