20181009 TZHC Mwanza

r ,,.

IN THE HIGH COURT OF TANZANIA {DISTRICT REGISTRY)

I

AT MWANZA PC: PROBATE APPEAL NO. 11 OF 2017 (Arising from the Decision of the Tarime pistrict Civil Appeal No. 2/2016 Originating from Primary Court o!T~rime Probate,~o. 22/2016] MILALU SAMARA NDEGE ......... '. .................... r..-.'.............. ~L-ANT VERSUS . ~ ~ RAMADHANI NDEGE .. ................ --~~PONDENT J~ Last order: 27 .09.2018 Judgment Date: 09~.10.201<8 A.Z.MGEYEK~ r p ~ J ; n e before me as the second appeal. ,It emanatdJrimary Court, Civil Case No, 22 of 2016. In the said case, ~,appellant filed an application before the Tarime District Court for being appointed as the 'a~ministrator of _the deceased estate of the late Josephate Ndege Onduru. The appellant appealed to this court following his dissatisfaction with the decision 1 I l"i \ I I l I I ' j of the District Court of Tarime in the Civil Appli.cation Case No. 02 of I 1 2016 which dismissed the application filed by the appellant. I J . j The appeal before this court proceetied I exparte since the I respondents did not appear five times without not-iEe to the court, despite that he was duly served and he "~"- f this matter. ~asI aware~0.- . The applicant appeared in person, unrepreS~~~ / \ \ .l Having not much to say the ~pP.ella\tvir;:i~s ·submission submitted that he had filed an aP.P.:.eel~ ~~Court to handle . the matter of administration 6 / ~ ' ¥ e ~ e late Josephate Ndege. He submitted

tbdl>i~Rri~JY~ourt his young brothElr objected him being ap/£ie~~~7istrator of t~~ est~te of the late Josephate NdelJ~e.~breover, ~ ma., tter of adm1nistrat1on of the . . "· '\~ J/ ; this court tox~---~~f estate 1s not ye-t-dec1€1 d by~/lower courts hence he prays for the mattf in question. A a r e f . \ & perusal of the! record of the case, the testim~nies ad~ced by the partiei and the final submissions submi~~by-/a/ties. I should state at t~e outset that, in the course of ~ I determining this case I will be guided by the canon of civil justice I which suggests that, one "the persqn whose evidence is heavier i than that of the other is the one whb must win" - Hemedi Said Vs. I ' Mohamedi Mbilu ( 1984) TLR 113. Two) "where doubts are created in J i I ) 2 / evidence, the same should be resolved in/ favour of the opposite J party" - Jeremiah Shemweta Vs. Republic ( 1985) TLR 228. l Concerning the grounds of the appeb1 all are centered in the j decision of the District Court and Primary Court related to appointment of the administrator of the est~te. ~ After having heard concerns from /th~la~~efully perused the records of the lower court ahd ~0tea,th'Elf tnel'Primary Court of Shirati, Tarime District, Proba~~ C ~ ~ 2 of 2016. Pri~ary Court ~rdered that Tang~0l;~~~~he hearing was adJourned until 17/09/2016. ~~~~, the respondent objected to the Primary ;=,edit ~t~he ~n meeting did

not take place to appoint an adfr-(nistrnrf8r,of t~estate of the late Josephat Ndege and he obj~~\~e8~en~ance. Witnesses also stated the same that,tne,Onclu~'edirw6c1ah meeting was not held, the deceased 'Qi~s a~\ot distribut:kd and the appellant has ~v ~"0 I · nevez@e~O~~m.ed the clan mkmbers about his intention of being ele~)s ah~dministrator of thb estate of the late Josepha/ Nde~e. The de:,e\ce witnesses to testifiJd that the Clan meeting was ~ -.d_J I held on 20~0y of December 2015 and they appointed the elder brother (the appellant) to be the ad~inistrator of the estate of the late Josephat Ndege. The decision of the Primary Court in regard to the point of objection raised by the respondent Jas that the Clan Meeting was 3 I I .1 I I 1 I I not held and it was ordered that the Clan Meeting to be held and j appoint an administrator of estate of th~ late Josephat Ndege by I , 1 involving all clan members and a 30 days' 1 time-frame was set. I I In the record it· is shown that thj appellant on 5th day of . I December 2016 filed a Probate Appeal No. 2 of'2016 before the District Court of Tarime after being dissatisfied-by t~cisi~f the Primary Court of Sirari and prayed for /he ~~oe?!~{arime among others to struck out the ruling Gl'{he ~r.v:?~rt of Sirari ~~ \ I' and declare the appellant the le-g~ml~rat~ of the estate of the late Josepha! Ndege a n d ~ ~ ~ be retrained

from selling the family propertiesAtw c0~~missed. I have foun<N~a!~,~yf'af)pointing the administrator of \.~ -~~ J, I the estate of .,e..la~~~A~ege yvas unsolved. The tangazo as per the or~er~'?i~m~Court of ~irari was not adhered to. the orde~m-1s~ct 01N-8 th-day of November 2016 and 30 days was issu,ar'furt~\~;;;ing to app~int the administrator of the estate\of the ~te Josepha! Ndege th/Jt means the timeline ended on t h ~ ) ~ l f December 2016. T~e clan meeting was not held I until the 5th day of December 2016 12 days before the expiring of the j order of the Primary Court when the appellant appeared before the I District Court of Tarime. ,I I i ,I I I 4 I i I Subsequently, the order of the Primary Court did not adhere, the applicable law which governs the/ administration of the deceased estate is Customary Law and this law is vested in Primary Court. Hence, the applicant was required/ to fulfill the requirement l stated by the Primary Court then appear fbefore the Primary Court for an appointment of the administrator of/the de€"eased estate. On the contrary, this matter before this couct~ ~ t u r ~ and misplaced. I find the District Court findings ( e \ ~ ~ ~ d . Having analysed the evidencre--~~d, l'tm unable to find any fault in the decision by~h~LHT"'G~ime to reject the appellant's case. Since ~ or~i~e Primary Court did not adhere, the applicable aw whic~~~he

administration of the deceased estate is,Cus o\rnar{~ 0ndl this law is vested in Primary Court. Therefore t~"ma\~1::>e·f2/ thi~ court is prematurely and misplaced. n(~ Di~~-C~ndinds were right determined cou ':\t,_lhis ju~,ure must desist from t~e interfering with the findings of the "IOW.e.rlourts made on the dasis of their believability or ~ . credibility. In the Court of Appeal /of Tanzania decision in Ali Abdallah Said v Saada Abdallah Raja~ [1994] TLR 132 the Court held l that: I " Where a case is essentially oJe of fact, in the absence of any I I indication that the trial cou: flls to take some material point or I circumstance into account, it is improper for the appellate court to say that the trial court has come( to an erroneous conclusion. Su~~~~uently, I am satisfied that J insta~t case there are no extraordinary circumstances that requir~ me to interfere with the ·lower courts' findings of fact, the respondent evide'ci'-Ge overweighed the respondent's evidence. I would acdordir-igjy di~~econd ground of appeal. / . ~ ~ Based on the foregoing arfciiy:si~ nill merit in all two grounds of appeal. For that recfson~~-/ iss the)ppeal with costs. ,;~ Order ac~ordingly. .KWA

JUDGE I /10/2018 Deli( rEJdin :;'<_the presenhe of both parties this date 09.10~&01a. o,. ~ ~:-_ l, \A' ?;.- 2}\) ({MG~YE~WA /,. JUDGEJ 09/10/2018 Right to appeal is full explained. 6 I I