ocr mwai tanzlii mwai 22889 MANGOMBE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEM EKE SU B-REGISTRY ONE STOP JUDICIAL CENTRE AT TEMEKE PC. CIVIL APPEAL CAUSE NO. 22889/2024 (Appeal from the decision delivered by Ho. KALUYENDA PRM on the lFh November, 2022 at the District Court of Kinondoni, in Civil Appeal no. 68 of2021, the appeal is originating from the decision ofP.FKOMBA HAKIMU in Probate and administration cause No. 71 of2021 at Manzese/Sinza Primary Court) MECK DAUDI KASANE............................................................. APPLELLANT VERSUS AMOS GOI MANG'OMBE..........................................................RESPONDENT JUDGEMENT Date of last order: 28/11/2024 Date ofJudgement: 29/11/2024 S. D. MWAI POPO J This is an appeal filed by Meeh Daud Kasane, the Appellant against Amos Goi Mang'ombe, the Respondent herein challenging the decision of Hon Kaluyenda PRM delivered, at Kinondoni District Court on the 15th day of November, 2022. As per the records contained in the e-case file, the matter was initially filed by the Respondent at Manzese/Sinza Primary Court in Probate and Administration cause No. 71 of 2021 whereby the Respondent prayed for the court to appoint him as an Administrator of the estate of the late Esther John Mwacha. Upon determination of the matter, the Primary Court dismissed the case and ordered the relatives of the deceased persoirto convene a meeting and appoint an administrator of the estate in accordance with the legal procedures. Aggrieved by the said decision, the Respondent filed civil appeal no 68/2021 at Kinondoni District Court praying for the court to reverse the and set aside the decision of Primary Court of Manzese/Sinza(Hon P.F Komba Magistrate and appoint the Appellant as an Administrator of the estate of his late wife Esther John Kasane. Upon hearing the matter, Kaluyenda PRM, allowed the appeal, quashed and set aside the decision of Manzese/Sinza Primary Court in probate cause no 71/2021 and appointed the Appellant as an Administrator of the estate of the late Esther John Mwacha. Dissatisfied with the decision of the Kinondoni District Court, the Appellant has preferred an Appeal before this court armed with five grounds as they appear in the Memorandum of Appeal as follows; 1. The District Court Magistrate erred in law and fact in holding that the Respondent was the husband of the late ESTHA JOHN MWACHA while the presumption of marriage between the Respondent and the said deceased person was rebutted when he failed to prove that he went through any form of marriage with the deceased. 2. That the District Court Magistrate erred in law and fact in fact in appointing the Respondent to be the administrator of the deceased estate without considering the fact that he is not one of the beneficiaries of the deceased. 3. The District Magistrate erred in law in ruling on the fact that Grace Rodson Kawa, Caroline Rodson Kawa and Shoes Rodson Kawa who are issues of the elder Maternal sister of deceased are not heirs of ESTER JOHN MWACHA. 1 < : ?. 4. That the District Court Magistrate erred in law and fact in not ■ r ' *'■{' V’’1 considering the fact that the Minutes which were produced by the Respondent were signed by one Michael a person who was not the secretary' and was not in the meeting something which proves that the same was doctored after the persons in attendance signed on the attendance part. 5. That the District Court Magistrate made a very poor analysis of evidence and ended in a very wrong decision. Based on the above grounds, Appellant seeks for judgment and decree as follows; 1. That this court be pleased to declare that the presumption that the Respondent was married to the late ESTHER JOHN MWACHA was rebutted when he failed to prove that he was married to the deceased under any law governing marriages in Tanzania. . 2. This court to nullify the appointment of the Respondent as the administrator of the late ESTHER JOHN M WACHA which was made by the District Court and order the family members (clan) to sit and appoint an administrator of the estate. 3. This court to make any order which it deems fit 4. Costs be provided for. The hearing of this appeal proceeded by way of written submission pursuant to the timetable ordered by the court. ■ : Atrtheacbmmencement of hearing, both parties were represented. The . Appellant enjoyed legal services from learned Advocate Barnabas Lugua and :the Respondent enlisted the services of learned Advocate Lucas Kaminija. Submitting in support of the Appeal, the Appellant stated that he would : . argue both ground 1 and 2 together. However, in the submissions the ' approach taken was different. Therefore, I will follow the way the submissions appear. With: regard to the first ground of appeal the Appellant submitted that the •/ District Court Magistrate erred in law and fact in holding that the Respondent was the husband of the late ESTHA JOHN MWACHA while the . presumption of marriage between the Respondent and the said deceased person was rebutted when he failed to prove that he went through any form: of marriage with the deceased. He cited the case of ZACHARIA LUGENDO VS SHADRACKLUMILANGOMBA 1987 TLR 31 at page 32 where the court held that if there is no proof of marriage provided then it would taken as if parties were in concubinage. The Appellant further contended \ that the Respondent did not state at any point that he’ paid dowry but he merely gave TZS 40,000/ to his. father-in law and that one of his ■ witnesses denied specifically that there 'was no any marriage ceremony between' the Respondent and the late ESTHER MWACHA. He cited the. ) Indian/Succession Act to drive point home that inheritance flows from the ■ blood line and solemnization of the marriage is one of the ways in which one could inherit from the deceased person however in the case at hand ■ there is no any evidence of solemnization of the marriage then the • Respondent cannot inherit the properties left by the deceased person and ■ since the relationship between the Respondent and the deceased person was a. concubinage no one could even sue the other oh etoltery. He concluded that since the parties were living informally;e:then the presumption of marriage was rebutted, hence there was-tier proof of marriage. > Regarding the second ground of appeal the Appellant contended that the District Court Magistrate erred in law and fact in appointing the Respondent to be the administrator of the deceased estate on account of the fact that he was the husband of the deceased and therefore he had interest in her estate. The learned counsel cited item 2 of part I to the 5th Schedule of the Magistrate Courts Act Cap 11 RE 2019 which empowers 'the Primary court. He submitted that the court is required to consider the aspect of the interest of the person and whether he is within the relationship of succeeding that person or must have a right of a share in ,fhe estate. He argued that the Resident Magistrate of Kinondoni District .Court erred in law in holding that the Respondent abovenamed was the husband pt the deceased and went ahead to appoint him as the administrator, of the estate of the late ESTHER MWACHA while the evidepce^and-.the submissions proved that the two were not married under^apyJaw^.That failure to prove the existence of the marriage between them-made, him lack interest in the estate. In such circumstances he oughtto.- have.let the family of the late DAUDI KASANE and Esther Mwacha^jn., Moshi to convene and determine the issue of the administration pf^the pstate.of their kinsman as what the Primary court did by disqualifying,the petitioner who posed as the husband and the said daughters of RODSON! KAWA who have been included as the children of the deceased while it was proved that there is no blood link with the deceased1 leaving out the Appellant who is from the same father and shared the same mother with the deceased and denying the paternal relatives to deliberate on the said estate. Basing on the above submissions the Appellant prayed for; the court to allow the 2nd ground of appeal and order that the appointment of the Respondent by the District Court to be the administrator .of the estate of the late ESTER MWACHA on the ground that he .is shis husband is improper due to the fact that he failed to prove that he was married to the deceased. Regarding the third ground of appeal, the Appellant submitted that, the District Magistrate erred in law in ruling on the fact that Grace Rodson Kawa, Caroline Rodson Kawa and Shoes Rodson Kawa who are issues of the elder Maternal sister of deceased are not heirs of ESTER JOHN MWACHA. With regard to the fourth ground of appeal, the Appellant submitted that the District Court Magistrate erred in law and fact in not considering the fact that the so called children of the deceased were proved that they were not her issues and that the same was written controversially hence the court did not take judicial notice of the same. The learned counsel for the Appellant submitted that the minutes which were made for the purposes of filing the Petition'for letters of Administration has named GRACE RODSON KAWA and CAROLINE RODSON KAWA as heirs of the estate of the late ESTHER MWACHA being her children. When the two were arraigned to testify it was established that the said deceased had never given birth to any child and that the two were the children of RODSON KAWA who were delivered vide the maternal sister of the late ESTHER MWACHA hence they were not within the blood line of the deceased. He argued that evidence above has proved that the so called heirs are not legal heirs of the deceased but to the contrary the District Court has ordered for the appointment of the Respondent as the administrator of the estate and maintained the said two daughters of RODSON KAWA be included in the list as; beneficiaries of the deceased estate in their capacity as children. He contended that this is against the law due to the fact that being a heir is a legal status the same ought to be proved. That the evidence on record has proved that the two were not children of the deceased. In fact the grand mother of the deceased gave birth to the mother of the deceased who was married to DAUD KASANE hence the Appellant and the deceased on the other hand the said grand mother gave birth to another daughter with another man and the said daughter came to be married to ROBSON KAWA who gave birth to the two daughters who are claiming to be the sole beneficiaries of the estate. Hence the relationship is too far and that they are in no way entitled to benefit from the said estate. He thus prayed for the court to reverse the decision of the District Court and order that the Petition of the Respondent is incompetent and that the said twins who are named as heirs are not heirs and the whole petition be rejected accordingly. Submitting on the 4th ground of appeal the Appellant contended that the District Court Magistrate erred in law and fact in not considering the fact that the Minutes which were produced by the Respondent were signed by one Michael other than the Secretary to the meeting, someone who did not attend the meeting. He stated further that the deceased ESTHER MWASHA was laid to rest at her clan land in Moshi. By then the Appellant was staying in the house of her sister. For the reasons which are not apparent, the children of RODSON KAWA summoned the Respondent from his homestead upcountry who came down and caused a meeting to be held in Dar Es Salaam. The minutes of the said meeting are appended and were produced at the primary Court. He further submitted that the attendance was recorded and each person in attendance signed against his name. That from the attendance, one BELGRADE RODSON KAWA was appointed, the chairman and one MARRY MECKFERSON was proposed to be the Secretary. After the meeting the minutes were written and instead of MARRY MECKFERSON who was appointed the secretary to the meeting, a different person by the name of Michael signed in her place and the chairman signed in his place. This other person was not in the meeting. He complained that the minutes were doctored to suit the Respondent and the said daughters of Rodson Kawa. That the evidence is clear that the minutes were signed by the said anonymous person at unknown place. That is the reason that the Appellant filed a caveat. The fact that, it is not signed by the Secretary of the meeting is clear. He thus challenged the District Court as opposed to the primary court in relying on based on the above submissions he prayed for the court to not give reliance on the minutes which were signed by the different person. Basing on the above arguments he prayed for the court to allow the 3rd and 4th grounds of the appeal.. With regard to the 6th ground of appeal, the Appellant did not submit on the point that the District Court Magistrate made a very poor analysis of evidence and ended in a very wrong decision. In conclusion he prayed for the court to issue the Judgment and Decree as follows: i. That the decision of the District Court be quashed and set aside and that this court should revoke the appointment of the Respondent and allow the family members (clan) to sit and appoint the administrator of the estate. ii. That this court be pleased to declare that the assumption that the Respondent was married to the late ESTHER JOHN MWACHA is rebutted due to failure to prove the marriage hence he had no interest in the estate of the late ESTHER MWASHA. iii. Costs of the Appeal Submitting in rebuttal, the learned counsel for the began by stating that the Respondent (AMOSI GOI MANG'OMBE) and the Deceased ESTHER JOHN MWACHA (hereinafter the Deceased) started to live as husband and wife from 1985 up to the time of the death of the latter. They were not blessed with any issue of marriage. The couple managed to jointly acquire two houses situated at Mwenge Mlalakua in Dar es Salaam as well as one house and a farm both situated in Moshi. The Deceased also had a CRDB Bank Account in Dar es Salaam. That on 07th March, 2021 the Respondent was proposed by the family/clan members to be appointed as Administrator of the estate of the Deceased. The Appellant herein also participated in the family/clan meeting and signed the minutes thereof wherein he posed as MARKPASON DAVID. The Appellant’s daughter called MARY MARKPASON also participated in the said family/clan meeting and signed the minutes thereof as Secretary. The said Minutes of the Family/Clan Meeting were then submitted by the Respondent to the Primary Court to back up his application to be appointed as an Administrator of the estate of the Deceased. The Respondent’s application was advertised in the Mwananchi Newspaper of 17th April, 2021. He submitted further that, surprisingly, subsequent to the aforesaid Family/Clan Meeting, the Appellant, posing as MECK DAUDI KASANE, changed his mind and raised an objection (caveat) in the Primary Court that the Respondent should not be appointed as an Administrator of the estate of the Deceased. The Primary Court sustained the objection. On appeal the District Court set aside and quashed the decision of the Primary Court and ordered the Respondent to be appointed as an Administrator of the estate of the Deceased. The Appellant is aggrieved by the decision of the District Court, hence the present appeal. Similarly, the learned counsel for the Appellant in the course of presenting his submissions he raised a preliminary observation or issue to the effect that the Appeal has been overtaken by events He submitted that the present appeal was filed in this court on 13th September, 2024_has been overtaken by the events since the decision of the District Court of Kinondoni in Civil Appeal No. 68 of2021 which is the subject of this appeal was implemented by the Primary Court of Manzese/Sinza on 15th December 2022 when it appointed the Respondent as an Administrator of the estate of the Deceased. He referred the court to the Order of the Primary Court appointing the Respondent as an Administrator of the estate of the Deceased annexed hereto as A-I). he argued that the aforesaid Order is still valid and binding since it has not been reversed by any higher Court by way of appeal or revision. He cited the case from the decision of the Court of Appeal of Tanzania in Zuliat Sued Versus Isack Issa & Others Civil Reference No. 2 of 1997 — which was cited and relied on by this Court in Aliasghar Halai (As The Legal Representative Nilofer Rafik Halai v. Exim Bank (Tanzania) Limited and others, Commercial Case No. 95 of 2021, High Court of Tanzania (Commercial Division) at Dar es Salaam — TANZLII (at page 8) - where the Court of Appeal of Tanzania held that: "Every judgment whether obtained by fraud or given without a jurisdiction remains effective and binding and is capable of being executed, until it is .reversed by a higher court. A judgment may be reversed either on appeal or revision (Emphasis added) He contended that in the instant matter, he stated that the Primary Court order appointing the Respondent as an Administrator of the estate of the Deceased is still valid and binding since it has not been reversed by any higher Court by way of appeal or revision, and since the present appeal was filed after the Primary Court had implemented the decision of the District Court, the present appeal has been overtaken by the event. In addition, the aforesaid Order of the Primary Court appointing the Respondent an Administrator of the estate of the Deceased cannot be reversed by this Court since the present appeal does not emanate from it. Thus, entertaining the present appeal will cause chaos in the administration of justice generally and in the administration of the estate of the Deceased in particular. With regard to the first ground of appeal touching on the issue of the presumption of marriage, the Respondent submitted that the District Court Magistrate did not err in law and fact in holding (at pages 6 and 7 of the typed judgment) that the Respondent and the Deceased were presumed husband and wife under the same roof for 35 years. He contended that in their submissions in-chief on the 1st ground of appeal, the learned Counsel for the Appellant has submitted that the Respondent and the Deceased were not husband and Wife since they did not go through form of marriage ceremony nor did the Respondent observe any ritual to solemnize a marriage relationship so as to prove the presumption of marriage. He argued that, the aforesaid Appellant's submissions in-chief are legally incorrect and unfounded due to the following reasons:- Firstly, the testimony of the Respondent (at page 2 of the judgment of the trial Court) clearly proves that he and the Deceased were presumed husband and wife, WALIOANA KIENYEJI (SIYO KIMILA) - meaning that they did not contract any formal marriage — be it customary, civil or religious. He referred the court to the evidence of SM4 NEEMA RABSON KAWA and SMS BELGRAM RODSON KAWA who categorically testified that the Respondent and the Deceased lived as husband and wife for 35 years; and their testimonies were not disputed by the Appellant in the trial Court. This means that the Respondent and the Deceased had a presumed marriage within the meaning of section 160 (1) of the Law of Marriage Act, Cap. 29 R.E 2019 (hereinafter the LMA). He argued further that, a presumption of marriage under section 160 (1) of the LMA is not proved/constituted by solemnization of a ritual or ceremony; rather, as it was clearly held by this Court (Hon. Mwalusanya, J.) in John Kirakwe v. Iddi Siko 1 1987 1 TLR 215, it is proved/constituted by three elements, to wit, (i) that the parties have cohabited for over two years (ii) that the parties have acquired the reputation of husband and wife couple. Applied in this appeal, the Respondent and the Deceased had cohabited for 35 years, acquired the reputation of husband and wife (as corroborated by the testimonies of SM4 NEEMA RABSON KAWA and SM6 BELGRAM RODSON KAWA in the trial court) and did not conduct any formal ceremony between them; hence they had a presumed marriage and were therefore duly married as husband and wife in the eyes of section 160 (I) of the LMA. He contended that this presumption of marriage was not rebutted by the Appellant both in the trial Court and in the first appellate Court. Thus, the case of Zacharia Lugendo v. Shadrack Lumilang'omba 119871 TLR 31 cited by the learned Counsel for the Appellant is inapplicable to the present appeal. Secondly, he argued that even if it could be assumed that the Respondent and the Deceased lived as concubines as argued by the Appellant's Counsel (the argument which he do not support), still the Respondent would be interested and be appointed to administer the estate of the Deceased (co-cohabitant) under section 2 (a) of the 5th Schedule to the MCA, since the two lived/stayed together under one roof for 35 years and managed to jointly acquire properties as stated in the preceding paragraph; the fact which was not disputed by the Appellant both in the trial Court and in the first appellate Court. He argued that it is now settled law in Tanzania that proof of concubinage (cohabitation) only deprives the cohabitants the right to petition for divorce or separation (see Harubushi Seif v. Amina Rajabu [19861 TLR 221), but does not deprive them of their right to the division of properties they jointly acquired during the time of their cohabitation. Still the cohabitants have right to the division of properties they jointly acquired during the time of their cohabitation. This was authoritatively stated by the Court of Appeal of Tanzania in Hemed S Tamim v. Renata Mashayo 119941 TLR 197, wherein it held, inter alia, that: "Where the parties have lived together as husband and wife in the course of which they acquire a house, despite the rebuttal of the presumption of marriage as provided under s 160(1) of the Law of Marriage Act 1971 the courts have the power under section 160(2) of the Act to make consequential orders as in the dissolution of marriage or separation and division of matrimonial property acquired by the parties during their relationship is one such order. Regarding the second ground of appeal which is to the effect that the District Court did not err in law and fact in appointing the Respondent to be the Administrator of the estate of his deceased wife since he has interest in the same, the Respondent submitted that the District Court did not err in law and fact in appointing the Respondent to be the Administrator of the estate of his Deceased wife since he has interest in the same. He submitted that the argument by the Appellant that the District Court erred in law in appointing the Respondent as an Administrator of the estate of the Deceased since the two were not married under any law, hence he lacked interest in the estate are legally baseless and unfounded. He state further that, the law governing the appointment of Administrators in the Primary Court is the 5th Schedule to the Magistrates' Courts Act, Cap. 11 R.E 2019 (hereinafter the MCA) and that nowhere in sections 1 — 11 of the 5th Schedule to the MCA is it stated that in order for a person to be appointed by the Court to be an Administrator of the estate of the deceased, he must adduce evidence to prove that he was the husband of the deceased. Further, he submitted that section 2 (a) of the 5th Schedule to the MCA confers jurisdiction on the Primary Court, either of its own motion or on application by any person interested in the administration of the estate, to appoint one interested in the estate of the Deceased to be an Administrator. Applied in the circumstances of this case, he stated that, the Respondent lived with the Deceased as presumed husband and wife under the same roof for 35 years and jointly acquired properties (two houses situated at Mwenge Mlalakua in Dar es Salaam, one house and a farm situated in Moshi and CRDB Bank Account in Dar es Salaam), the facts which were not disputed by the Appellant in the lower Courts. Thus, the Respondent is an interested person in the administration of the estate of his Deceased wife in the eyes of section 2 (a) of t He contended that the learned counsel for the Appellant has just reproduced (incorrectly) the aforesaid ground of appeal in their submissions in-chief, but has not made any submissions or clarifications on the same. At any rate, he submitted that the said ground of appeal is legally baseless and unfounded due to the following reasons: - Firstly, GRACE RODSON KAWA and CAROLINE RODSON KAWA are the children of the Deceased's sister (from the same mother and father). They were taken and raised by the Deceased from 1978 (as little children) up to the time of her death. Both the husband of the Deceased (the Respondent) and the family members unanimously agreed to list them as among the heirs of the estate of the Deceased. Even the Appellant (who then posed as MARKPASON DAVID) and his daughter SM 5 MARY MARKPASON (who was the Secretary to the family meeting) participated in the family meeting, agreed with the decision of the meeting and signed the family minutes thereof. Secondly, the Appellant failed to tell the lower Courts not only the alternative names of persons who are family members but also the names of true legal heirs of the estate of the Deceased, other than the Respondent, GRACE RODSON KAWA and CAROLINE RODSON KAWA. Thirdly, the Appellant and the Deceased only share the same mother but their fathers are different. The Deceased's father is JOHN MWACHA from Kibosho while the Appellant’s father is DAUDI KASANE from Marangu. Thus, the Appellant does not belong to the paternal side of the Deceased's clan — the MWACHA Clan; hence he has no authority to say anything on who are the heirs of the estate of the Deceased. The MWACHA Clan attended the family/clan meeting and did not/have not raised any caveat against the appointment of the Respondent as an Administrator of the estate of his Deceased wife. Fourthly, he stated that the issue of GRACE RODSON KAWA and CAROLINE RODSON KAWA as heirs of the estate of the Deceased is irrelevant and has nothing to do with the fact in issue i.e. appointment of the Respondent as an Administrator of the estate of the Deceased. Fifthly, he submitted that the Appellant is not truthful and has ill-will on the properties (estate) of the Deceased and wants to mislead the Courts so as to plunder them. This is due to the fact that, in his written caveat, the Appellant lied to the trial Court on the exact location of the properties of the Deceased by falsely saying that the Deceased left two houses and a plot, both situated at Makongo Juu. He state that; truth is that the Deceased’s properties are: (i) two houses situated at Mwenge Mlalakua — Dar es Salaam, (ii) one house and a farm situated in Moshi whereby the Appellant was permitted by the Deceased to reside and take care of her house in Moshi but he does not mention the said properties situated in Moshi in his caveat) and (iii) CRDB Account. This truth is reflected in the undisputed testimonies of the Appellant (SMI) and SM4 NEEMA RABSON KAWA. Submitting on the 4th Ground of Appeal, on the Minutes which were produced by the Respondent in the trial Court being signed by one Michael a person who was not the secretary and was not in the meeting something which proved that the same were doctored after the persons in attendance signed on the attendance part, the Respondent contended that the 4th ground of appeal is legally baseless and unfounded since it was not raised in the trial Court. It was raised for the first time in the first appellate Court. He argued that the Appellant failed to prove before the two lower Courts that the said Minutes of the family members were signed by one Michael other than the Secretary to the meeting. He referred the court to the testimonies of the Appellant in the trial Court, whereby neither the Appellant nor his daughter, SM 5 MARY MARKPASON, who admitted in the trial Court that she was the Secretary to the family meeting and signed the Minutes, testified that the Minutes were signed by one Michael who was not the Secretary to the family meeting'. Even the name of the alleged Michael is not mentioned in the Minutes of family meeting as well as in the testimonies of the Appellant and his daughter SM 5 MARY MARKPASON in the trial Court. Further, he contended that nowhere in the testimony of SM5 MARY MARKPASON (the Appellant's daughter, testified that one Michael signed in the place of the Secretary to the family meeting (i.e. in place of SM 5 MARY MARKPASON):. That the said alleged one Michael only features in the Appellant's submissions in the first appellate court as well as in this second appellate court, the allegation which cannot be proved by way of submissions. He argued that, it is now settled law in our country that facts or allegations cannot be proved by way of submissions since submissions are merely summaries of arguments; they are not evidence and cannot be used to introduce evidence. He referred the court to the case of TUICO v. Mbeya Cement Co. Ltd. and another 120051 TLR 41. Similarly, in the case of Morandi Rutakyamirwa v. Petro Joseph [19901 TLR 49, where the Court of Appeal of Tanzania held (at page 52) that: submissions are not evidence but are arguments on the facts and the law raised before the court; such submissions are made without oath or affirmation, and the party making them is not subject to cross-examination by his opponent. Submitting on the 5th Ground of appeal he stated that the District Court did not make a poor analysis of evidence and did not end in a wrong decision as suggested by the Appellant. He argued that the Appellant has just reproduced the aforesaid 5th ground of appeal in their submissions in­ chief, but has not made any submissions or clarifications on the same. At any rate, the stated that ground of appeal is legally baseless and unfounded since the first appellate Court analyzed the evidence, of both sides clearly and objectively, thereby reaching a right decision. In conclusion the Respondent prayed for the appeal to be dismissed in its entirety with costs. In rejoinder, the Appellant reiterated his submissions in chief. Havingcgone through the submissions of the parties, the central issue to be resolved is whether the appeal has merit. In determining this appeal, I am mindful of the fact that the appeal before^ me has been brought by the Appellant challenging the decision delivered by Hon. KALUYENDA PRM on the 15th November, 2022 at the District Court of Kinondoni, in Civil Appeal no. 68 of 2021 and that the said appeal originates from the decision of Hon Magistrate P.F KOMBA in Probate and administration cause No. 71 of 2021 decided by Manzese/Sinza Primary Court. Further, the said decision of the District Court is being challenged for the first time before this court and that this court has jurisdiction to deal with it. Therefore, this decision will focus on those two decision which have been brought before it and nothing else. Having said that, I now proceed to determine the appeal as follows: With regard to the first ground of appeal; the Appellant has submitted that the District Court Magistrate erred in law and fact in holding that the Respondent was the husband of the late ESTHA JOHN MWACHA while the presumption of marriage between the Respondent and the said deceased person was rebutted when he failed to prove that he went through any form of marriage with the deceased. I have gone through the submissions of the Appellant stating that the Respondent and the deceased person were not husband and wife since there is* no any proof of marriage and that whatever existed between them was concubinage. I have perused the records of the Primary Court and observed that the Respondent petitioned before the Primary Court to be appointed as an administrator of the estate of his late wife. The Respondent stated before ' .the court that he was appointed" to apply as an administrator of estate ;; 7 WC'j-, . since he was the husband of the late Ester Kasane whom they lived together and got married here in Dar es Salaam and also introduced himself to the parents of the deceased person in 1987' and daid TZS 40,000. He also stated that they got married "Kienyeji". Section 160 of the LMA provides for presumption of marriage, after two partners have cohabited together for more than two. years. The Respondent stated in his testimony before the trial .court that. he cohabited with the deceased person since 1987 and thqt.they did not contract formal marriage. This was also testified by SM 4 Neema Rabson Kawa and SM 6 Belgram Rodson Kawa who stated that the Respondent and the deceased lived together for 35 years. I thus agree with the Respondent that his evidence was not disputed in the trial court. Therefore, the Respondent and the Deceased person had a presumed marriage under section 160 of the LMA. In this regard I also agree with the case of John Kirakwe vs Idd Siko (supra) cited by the Respondent that, the Respondent and deceased person satisfied the requirements of cohabitation for more than two years stipulated under the LMA since the Respondent and the Deceased person cohabited for more than 30years. Thus the parties acquired the reputation of the husband and1 wife and that there was no formal marriage but cohabitation. Therefore, the . Appellant could not rebut this presumption to make the. court rule otherwise. Since the parties were presumed to have been.married hence, giving the Respondent the right to petition for administration of the/ estate. 1 Regarding the 2nd ground of appeal, the appellant has contended that the . District Court erred in law in appointing the Respondent to^be the administrator of the estate of the late Esther Mwacha. In determining this issue, I have resorted to section 2 (a) of the 5th schedule to the Magistrates Court's Act, where it is stated the Primary Court either of its motion or an application by any interested person in the administration of the estate my appoint one interested in the estate to be . an. administrator. Based on my own findings in the first ground of appeal,. I agree with the submissions of the Respondent that the Respondent lived. with the Deceased person for more than 30 years before her death j whereby ;they cohabited under one roof for 35years and jointly acquired properties, the facts which were not disputed by the Appellant in/the^ lower court. Therefore, I agree that the Respondent is an interested' person in. the estate of his deceased wife having cohabited together for ' - 35 years in line with S 2(a) of the 5th schedule to the MCA. I also agree with the District Court in this regard when it held as follows; Indeed, I concur with the appellant, that based on the cited schedule, it allows the court to grant or appoint an any interested person to be the administrator of the deceased estate, it is not mandatory that the party applying to be appointed be the husband or wife of the deceased, the important element to be analyzed by the courts is that, the applicant should have an interest in such estate. After going through the court file, and -as submitted above, the Respondent lived with the deceased as husband and wife for more than 32 years and acquired some properties ' together, this alone qualifies the Respondent to have an interest in the estate. Irbave further observed that the Appellant was also ap^ointed<by:kthe’ Family meeting to apply for the grant of the letters and this:.was.proved at the trial court, pursuant to section 110 of The Evidence Act Cap 6, through the Family minutes tendered in court, which were,also signed by the Respondent as one among the heirs. I therefore find this ground of appeal to lack merit. Moving to the 3rd ground of appeal related to Grace Rodson,Kawa and Caroline Kawa being heirs of the deceased person; I have note that the Appellant indeed did not make any submissions regarding this.,ground.of appeal in his submissions in chief, however, he made his submissions in his rejoinder which relate to another ground of appeal which he reproduced in the course of his submissions in chief which relate to this one. The said ground also is to the effect that the District Court. Magistrate erred in law and fact in not considering the fact that the so called children of the deceased were proved that they were not.her issues and that the same was written controversially hence the court did not take judicial notice of the same. For the sake of clarity, I will determine these grounds together as follows; I have gone through the records of the Primary Court specifically the proceedings and noted that Grace Rodson Kawa and Caroline: Kawa were the children of the deceased's sister from the same mother and father and had been raised by the deceased person and lived with her-;ifor a long time as her children since she did not have children, until she met her death. This fact was testified in court by the Respondent hefeih'and also the Grace Rodson Kawa and Caroline Kawa. Further, the deceased person and the Respondent regarded them as their children and thWe is ample evidence that had lived with them for a long time in their lives and even cared for the deceased?before she died as demonstrated in Primary £ourt..r proceedings. Furthermore/ they were also listed by the Family meetings to be in the list of heirs. Suffices to state at this stage that they regarded as children of the deceased person as testified in the primary court. I must also point out that whether they qualify to inherit or not; I agree with the Respondent that this is not irrelevant at this stage and it is upon the Administrator of estate, at opportune time or right time , to do a determination of the right heirs of the estate and or identify all the:, beneficiaries of the estate. The main issue for now is whether he is fit to be appointed as the administrator of the estate, then other issues will follow consequentially. It is not the duty of the court to determine who are the heirs. This decision was also stated by this court in the. matter of the estate of Steven Kangero between Sgedrack Franklin Kangero . and others versus MKunde Steven Kangero Misc. Civl Application no. 24517/2024 and also the case of Monica nyamakare Jigamba vs Mugeta Bwire Bhako as an administrator of Musiba Jighaba Civil App no 19910/2019.1 therefore agree with the Respondents submissions that this ground also has no merit. Regarding the 4th ground of appeal, the Appellant contended that the Minutes which were produced by the Respondent were forged since they were signed by one Michael a person who was not the secretary' and was not in the meeting, something which proves that the same;werejdoctored after the persons in attendance signed on the attendance part. „ I have perused the Primary Court record and noted that indeed Jt Js true that this issue was not brought up in the lower court as anjssue and it„ was. raised for the first time in the first appellate court. The Appellant . could not prove that the said minutes of the family members were signed by one Michael other than the secretary to the meeting. The District Court on page 6 of its Judgement found this issue to be absurd while referring to the Appellant's arguments that he only appeared in the minutes since he was accidentally around the premises at the time, at the same time he claimed that the minutes were forged because he was not around while at the same time he was there accidentally. I agree that this, issue falls short of section 110 of the Evidence Act since submissions alone cannot prove an issue. They can only amplify further the evidence tendered. Regarding the 5th ground of appeal that the District Court made a very poor analysis of evidence and ended in a very wrong decision. I agree with the Respondent that in the first place the learned counsel for the Appellant has not submitted anything on this ground in his submissions and secondly having gone through the submissions and evidence it is my position that the court made a good analysis and arrived at a just decision based on all the issues analyzed above. In the upshot I dismiss the appeal and uphold the District Court's Judgement and Decree. Considering the nature of the matter, I give no order as to costs. Order accordingly. Dated at Temeke this 29th Day of November 2024 S.D. MWAIPOPO JUDGE 29/11/2024