PC CIVIL APPEAL NO 6704 of 2024 EDITED

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH ]COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 6704 OF 2024 (Originating from Probate & Administration Case No. 52 of2023 of the Primary Court of Masasi District at Chikundi and Civil Appeal No. 12 of2023 ofMasasi District Court at Masasi) MARIA CHRISTOPHER CHINYAMA......................... .............APPELLANT VERSUS NOEL FRANK ERIYO (Administrator of the Estate of the Late FELISTA ALFONSIMKAOMBE).......... .............................. RESPONDENT JUDGMENT 215 August 2024 & 16!: October2024 DING'OHI, J. This matter traces its origin from the Probate and Administration cause No. 57 of 2022 of the Primary court of Masasi district at Chikundi (the trial court). In the trial court, the present respondent, NOEL FRANK ERIYO as the administrator of the estate of the late FELISTA ALFONSI MKAOMBE successfully applied for letters of administration. He was duly appointed the administrator of the estate of the late FELISTA. That was on 30/01/2023. According to the inventory filed in the trial court, the properties the respondent was required to administer were a house and a Page 1 of 13 shamba. In the course of the duty of collecting the properties of the deceased person by the respondent, on 20/06/2023, the appellant raised an objection against the properties listed to be administered on the ground that those properties are not among the properties left by the late FELISTA but they were left by the late CHRISTOPHER CHINYAMA, her father. After hearing from both sides, the trial court found that the objection by the appellant had merit. For the avoidance of doubts, the part of the ruling of the trial court over the objection reads as follows; '..AUs? kuzingatia Ushahidi uiiotofewa na kwa mujibu wa aya 2 (h) ya Nyongeza ya tana ya Sheria ya Mahakama za Mahakimu sura 11 Rejeo ia 2019, mahakama inaamua kuwa orodha ya maii iiiyowasiiishwa mahakamani ambazo ni nyumba moja na shamba moja ni batiii kwani maii ziiizowasiiishwa siyo maii za marehemu na mahakama inaamuru maii hizo kuondoiewa kwenye orodha ya maii za marehemu.' That decision did not please the respondent. It prompted him to appeal against the same in the first appellate court, Masasi. That appeal succeeded. In its decision, the first appellate court believed the complaint by the respondent that the suit properties were not the properties of the Page 2 of 13- appellants side but of the respondent's as they belonged to the late FELISTER ALFONSI MKAOMBE. Feeling aggrieved and dissatisfied with the decision of the District Court of Masasi at Masasi (first appellate court} as above, the appellant preferred the present appeal before this court challenging the decision made by the first appellate court. The grounds of appeal by the appellant read as follows; a. That, the learned trial Magistrate of Masasi District Court erred in law arid facts by holding that the exhibit tendered by the appellant during the trial at Chikundi Primary Court are forged while the appeal was not criminal in nature and the respondent failed to object and cross examine the appellant on the validity of the exhibit tendered, b. That, the learned trial Magistrate of Masasi District Court erred in law and facts by not considering that the respondent herein uses the umbrella of being the administrator of the estates of Christopher Chinyama and Felister Millanzi hence deprives the heirs of the Late Christopher Chinyama in his actions. Page 3 of 13 c That, the learned trial magistrate of Masasi District Court erred in law and facts by not evaluate properly the evidence adduced during the trial at Chikundi Primary Court hence arrived into erroneous decision. The record is clear that the respondent is an administrator of two estates; One, the administrator of the estate of the late Felista Alfonsi Mkaombe and, the administrator of the estate of the late Christopher Chinyama. It was the same trial court which respectively made the appointments of all the administrators of the deceased named above. The records revealed further that the mentioned deceased were once the husband and wife. They were married in 1956. Their marriage was happy until 1981 when Felista Alfonsi Mkaombe, the wife, died leaving the husband (Christopher Chinyama). Later Christopher married another wife, Edither Mpanda, who is the mother of the appellant. Christopher passed away in 2020 leaving the properties which are subject to this matter. At the hearing of the appeal, both the appellant and the respondent appeared in person, unrepresented and, they prayed that this appeal be heard orally. The appellant opted to argue her grounds of appeal in style, arguing all three grounds together with just a few words. She submitted that the Page 4 of 13 properties that had been listed in the inventory form were the properties of her parents. She is aggrieved with the decision of the first appellate court because it failed to believe and find that the property in dispute belonged to his parents, that is her mother and his late father. It was her further submission that she objected over the distribution of the listed properties because the said properties did not belong to the late Felista Alfonsi Mkaombe who died in 1981. The appellant therefore prayed that this appeal be allowed. In reply, the respondent submitted that the properties in dispute belonged to the late Felister Alfonsi Mkaombe because Felister and Christopher Chinyama were wife and husband respectively who lived together from 17th June 1956 to 12th December 1981. He contended further that the marriage between Felister and Christopher was blessed With 11 issues. He contended that when Felister Alfonsi Mkaombe passed away, the properties were inherited by the late Christopher Chinyama. According to him, the appellants mother was married to Christopher when the property had already been acquired. It is the respondents submission that Maria stood in this case mistakenly because who is required to stand Page 5 of 13 for this ease is her mother because she was the last wife of the late Christopher Chinyama. The respondent prays that this appeal be dismissed. In a brief rejoinder, the appellant completely rebuffed what the respondent had submitted. She argued that the suit house was jointly acquired by her parents sometime in 1983. According to her, even the suit shamba was owned by his parents since 1985. Yet, in 1988 and 1993, the parents added other two pieces of land where they planted cashews. Defending her locus the appellant told the trial court that he stands in this case for and on behalf of her mother who is very old. She stood as such from the trial primary court to this court. After having heard both the appellant and the respondent, the relevant issue is whether this appeal has merits. I have carefully considered the submissions of both sides after going through the records. In this case, there is no dispute that the late Christopher Chinyama during his lifetime at different times married two wives namely the late Felista Alfonsi Mkaombe whose legal representative is the respondent herein, and the appellant's mother who is still alive. Page 6 of 13 From my perspective, the relevant matter to consider, under the circumstances of this case is when the properties mentioned by parties herein were acquired. I am aware that two persons mentioned to have acquired the properties in this matter are no longer. Under the circumstances, the issue involving their estate should be proven with evidence. The law is well settled that the standard of proof in civil litigation is on the balance of probabilities. It lies to the one who alleges, as provided for under settled Regulation 1 (2) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations GN. No. 22 of 1964 and 66 of 1972 which provides that; 'Where a person makes a claim against another in a civil case, the claimant must prove all the facts necessary to establish the claim unless the other party (that is the defendant)admits the claim' The above concept has also been highlighted by the Court of Appeal in numerous decisions. For instance, in the recent decision of Michal Obiero vs Ager Ondiek & Another (Civil Appeal No. 422 of 2022) [2024] TZCA 584, the Court quoted with the approval the principle enunciated in the case of Hemed Said v. Mohamed Mbilu [1984] T.L.R. 113. It was held that; Page 7 of 13 'the person whose weight of evidence is heavier must win/ Having considered the above guiding principle which definitely will be my recipe while determining the merit or otherwise of this appeal, I had ample time to go through the Ruling issued by the trial court along with its proceedings. I have also gone through the judgment of the first appellate court. The records revealed that, during the hearing of the matter subject to this appeal, in the trial court, the appellant exposed that the late Felista died in 1981. And, in 1985, the late Felista's son Philip Chinyama sold their mother’s house for Tshs 15,000/=. The appellant tendered the sale agreement to that effect It was admitted as Exhibit Pl. The appellant also told the trial court that on different occasions in 1983, 1988, and 1993 her father bought a farm measuring five acres in a place called Mpowora within Masasi District. She tendered sale agreements to that effect which were respectively admitted as Exhibits P2, P3, and P4. The above testimony was supported by the evidence of Paul Victor Nilwa who testified as SMII. Paul avowed that the late Felista and Christopher Chinyama built their house in joint efforts sometime in 1977; Page 8 of 13 immediately after the demise of Felista, the late Christopher Chinyama took the appellant's mother and went to live with her in that house. Later in 1985, complaints arose from Felista's children. The late Christopher then called his children and gave them their house. Thereafter, the appellant's father purchased farms in 1983, 1988, and 1993 with his new wife. He also purchased a plot in 1988 from Joseph Limbende with his new wife. In response to the objection raised, the respondent at the trial court avowed that one of the properties left by the late Felista is a five-acre farm located at Mpowora within the Masasi District. He further avowed that at the end of 1984, the late Christopher Chinyama and Felista's children bought a house from Joseph Limbebde. The respondent insisted further that the disputed properties were acquired before the appellant's mother married the late Christopher Chinyama. The above testimony was supported by the evidence of two witnesses who were brought by the respondent, KATARINA MICHAEL (SUXI) and YUSUPH MKUMBUKA (SUIII) who had worked with the late Christopher and knows their family well. Page 9 of13 From the outset, I feel not convinced to uphold the 1st appellate court’s decision for the reasons that I give here under; Upon careful perusal of the trial court records, I have realized that since the respondent (administrator) could not present any evidence to show that the disputed properties were acquired by the late Felista during her lifetime, unlike the appellant, that was the reason for the trial court to decide against the respondent. The reasoning for the decision which speaks to itself is found on page 5 of the trial court's ruling dated 31/07/2024. The part is reproduced hereunder for easy reference; 'Hata hivyo msimamizi hakuweza kuwasilisha vielelezo vyovyote kuonyesha umi/iki wa nyumba hiyo na shamba kuwa nima/iya marehemu...........' I should now step into the above reasoning and see whether the reasons for the decision adduced by the primary court (trial court) were appropriate under the circumstances of this case. It is a settled position of the law that if the parties in dispute have reduced their agreement in writing no evidence of the oral agreement or statement shall be admitted to contradict, vary, or to or add subtract from its terms. See the recent Page 10 of 13 decision of Nuru Finance & Business Services Co. Ltd vs Benjamin Adamson Masuba (Civil Appeal No. 284 of 2020) [2024] TZCA 169. Regulation 14 (1) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations GN 22 of 1964 and 66 of 1972 provides as follows; ’ Where an agreement is in writing, no orai Evidence, may be given by the parties to the agreement or their representatives, in a civil case, to contradictor vary the written terms. Exceptions: (a) evidence may be given of any fraud or duress or mistake in writing down what was previously agreed; (b) evidence may be given of a separate oral agreement on any matter on which the writing is silent which is consistent with the writing; or of a separate oral agreement made after the written agreement which cancels or modifies the written agreement.' Going through the above-cited regulation and in comparing the facts of this case, as I alluded herein above, to prove that the disputed properties do not belong to the late Felista, the appellant brought the sale Page 11 of 13 agreements (Exhibits P2, P3, and p4) which show that the disputed land was bought by her late father immediately after the demise of the late Felista. That was not all, the appellant also managed to bring an agreement in which one of Felista's sons (Philip Christopher Chinyama) sold Felista's house to Alli BakarL The respondent (administrator) could not bring any tangible evidence, other than oral testimony, to prove the ownership of the properties and how they were acquired. The witnesses who testified at his side could not prove anything about the ownership of the suit properties to the late Felista. From the above reasoning, I am satisfied that the disputed properties were acquired after the death of Felista. That is to say also that the appellant has proved the case before the trial court to the required standard in civil cases; that is to the balance of probabilities. In the upshot, the appeal is hereby allowed. I vacate and set aside the decisions of the first appellate court and restore that of the trial primary court. I endorse the decision by the trial court that the suit properties should be disconnected from the list of the properties of the Page 12 of 13 estate of the late FELISTA ALFONSI MKAOMBE administered by the respondent. Considering that parties are somehow related, I will give no order as to costs. It is ordered so. DATED at MTWARA this 16th day of October 2024. COURT: The judgment delivered this 16th day of October 2024 in the Page 13 of 13