paulina john supila suing as an administratrix of the estate of the late john amos supila vs simon yonathani mguhi 2023 tzhc 21668 4 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY)

AT MOROGORO LAND APPEAL NO.44 OF 2023 (Arising from Misc Land Application No. 124 of2015;in the District Land and Housing Tribunalfor Morogoro^ at Morogoro) PAULINA JOHN SUPILA (Suing as an Administratrix of the Estate of the Late John Amos Supila) APPELLANT

VERSUS

SIMON YONATHANI MGUHI RESPONDENT

JUDGEMENT 4'" October, 2023 ' ■' chaba:!" Before the District Land and Housing Tribunal for Morogoro, at Morogoro (the DLHT/Tribunal)the appellant sued the respondent via Land Application No. 124 of 2015 in respect of a Plot No. 41, Block "B.3", located at Kiwanja cha N.dege area within Morogoro Municipality claiming that the respondent invaded the suit premise and started living in the premises together with his family. Based on the above claims, the applicant prayed the trial DLHT to declare her as the lavvful owner of the suit premises, respondent be declared as a trespasser and consequently order vacant possession against her. Page 1 of 11 After hearing evidence from both sides, the trial Tribunal adjudicated the matter in favour of the respondent and dismissed the appellant / applicant's claims on merits. Discontented, the appellant on 13'*^ day of March, 2023 she lodged this appeal seeking to challenge the decision of the DLHT delivered on 25^*^ day of January, 2023 based on the following two grounds of appeal: - 1. That, the DLHT erred in law for not considering the will of her father, and . ■ 2. That, the DLHT failed to consider the fact that the summary / minutes of the family clan was forged.. • At the hearing of the appeal which was conducted orally, the appellant appeared in person, and unrepresented, whereas the respondent enjoyed the legal service of Mr. Richard

Giray, the learned advocate. Arguing in support of the appeal, the appellant submitted that, the will of their deceased's father, who passed away in the year 2000, which stated that the overseers of the deceased's estates could be the deceased's wife one Vaileth Mussa, Augusta John Supifa and Amos John Supira was not considered-. She said, according to the said will which was submitted at the Urban Primary Court of Morpgoro in ,the year 2013, the deceased said through his will that his house should not be sold. ' " She averred'that, the one who sold the deceased's property was not an administrator of the deceased's estate but the so called 'Nmwangalizi wa rhali za rnafehemu" narriely, Amos John Supila, a brother to the appellant. She Page 2 of 11 submitted further that, one Ampsi John Supila forged the minptes purported to be the family/Clan meeting to show that he involved the family members of the late John Amos Lupira, something which is not true. In reply, Mr. Richard Giray, the learned advocate for the respondent gave a brief background of the matter at hand to the effect that, through Probate Cause No. 199 of 2005, AmOsi Raphael Supila was appointed as an administrator of the estates of the late John Amosi Supila and that oh 29/7/2012 the said administrator sold the house to the respondent herein under the umbrella of administratorship of the deceased's estates. ■ He

averred that, through Civil Appeal No. 89 of 2015, the District Court of Morogoro, at Morogoro nullified the appointment of Amosi Raphael Supila, but at the time of the reyoGation,,he had,already sold the house in dispute to the respondent herein^ As-regards to the second ground that, the deceased's WILL was not cohsidered, Mr. Giray Gdntehded that, the issue of the said will was not an issue before the DLHT and that it has never been submitted and delt by the DLHT and thus admitted as an exhibit. He further asserted that, the DLHT could hot rely oh an attachment to make her decision. He said, if the appellant wished for the said. WILL to be an exhibit, she was duty bound,to comply with the guidance of the Court as it was expounded by the Court of Appeal of Tanzania in the case pf Japan International Cooperation Agency(JICA) Vs. Khaki Complex Limited (Giyil Appeal 107 of 2004)[2006] TZCA 4(17 July Page 3 of 11 2006). He concluded his submission by praying and urging the Court to dismiss the present appeal with costs. In her brief rejoinder, the appellant insisted that no family meeting was conducted in the year 2005 her family dispersed and only persons who were at home were her mother, George John Supira, Amosi John Supila and herself. The appellant averred that> even the revocation of the then Amos John Supira was done by the District Court on the ground of forgery. In

conclusion, the appellant beseeched the Court to investigate this case file and decide judiciously. - Having carefully-gone'through the parties' submissions, theTrial Tribunal's record and the grounds of appeal, the sole issue for determination and deliberation is whether or not the instant appeal has merits. in determining this appeal, I will tackle the grounds of appeal as they were raised arid argued in seriatim. Commencing with the first ground of appeal, it was the^appellant's submission that, the trial Tribunal failed'to consider the deceased's WILL (a legal dbcumerit containing instructioris for the disposition of the fieceased's estates) which restricted the sale of his house. On the other hand, the Counsel for the,respondent highlighted that, the qgestion of the said WILL was not an issue before the-DLHT,. and that the WILL was not admitted as an exhibit: before the DLHT. • In a bid to resolve this ground of appeal, I was obliged to travei through the entire records of the trial DLHT and noticed to miy satisfaction that, truly Page 4 of 11 the sbid WILL was not admitted as an exhibit but it was admitted'drily for identificafioh purposes. For ease of refOfehce/ I find it peftiiient tO reproduce the ruling of the Hon. Chairperson dated on 16/9/2016, after the then Counsel for the applicant / appellant tendered before the trial DLHT a photocopy of the impugned WILL for it

to be admitted as an exhibit and form part of the evidence. Hereunder is what the Hon. Chairperson held after considering legal arguments put forward by both sides: - " I agree that, since the relevant last will Is a photocopy, the same is hereby admitted as identification exhibit 1 because the applicant did not tell as to whether it is lost and whether it cannot be available. The Applicant therefore is at liberty to tender the original last will. It is so ordered....". From the above excerpt, it is clear that the WILL was admitted for identification purposes and not as an exhibit parse as claimed by the appellant. However, the question that is arises in my mind is, what is the legal effect of admitting a document for identification? In as much as the binding precedents are concerning, the ansv\/er is not far-fetched. Upon being faced with akin situation the CAT in the case of Rashsd AmiivJabal and Anotlier-Vs. CriminaLAppeal No.,.204 of 2008,(unreported^^ it was held that: - . Page 5 of 11 "The law is settled that any physical or documentary evidence marked for identification only and not produced as an exhibit does not form part of the evidence hence does not have evidential value". Guided by the decision of the CAT, it is clear to me that the purported WILL was neither a part to the evidence adduced at the trial DLHT nor an issue before it. In my considered opinion, that

could also be a reason as to why in his judgment, the Honorable Chairperson didn't bother to consider or make determination on the same. Bringing the issue of a WILL at this appellate stage, in my: vi§W:, that is an :afterthou and to- be, frank, I arn not prepared to entertain the same as it was underscored by the Apex Court in the case of Remigioiis Muganga Vs. Bar,rick Bulyanhulu Gold .Nine (CJvi! A 47 -of. 2017) ,[2018:},1"ZCA 219 ,(10 October 2018) (Extracted fro.m www.tanzli.oraT where the Court observed inter-aliaXh^X-. "It Is a settled principle that a matter which did not arise in the lower court cannot be entertained by this Court on ■ appidi. Tri the Hassan Buhdala'(^ Swaga v.' ■ ' 'Republic, Crimiriai Appeal No. 386 of 2015(unfepbrted), for ■- example, the Court stated as follows: • , , "It is now settled that as a matter of general principle this Court will only !ook into the matters which came up in the Sower courts and were decided; and not Page 6 o.f 11 . new matters which were neither raised nor decided by neither the trial court nor the High Court on appeal." [Erriphasis supplied]. On the basis of the above observation, I am fortified to hold that, as the issue of the contents of the WILL was not determined by the trial DLHT which was nevertheless not a proper platform to determine the Same but the probate Court which was in a better position to examine the

validity and contents of the said WILL, I am afraid that, the issue of the said WILL could neither be determined by the,trial DLHT, nor .be raised in this appellate.:Stage. In this regard, the first ground of..appeal hit the rock and it is hereby dismissed. As to the second'ground, the appellarit lamented that the trial DLHT failed to consider that; the imihutes of family clan meetihg was forged. At the outset, I Would say that, this grouhd need not detain me much as in my view,the DLHT was not a proper forum for determination as to whether the said minutes of the faimliy clan rhefeting vvas forged or not. In my opinion that was.within the powers of the probate Court which from the.records available, there is no,point in time the same declared that.the minutes were forged and on the.contrary according to the testimony of AW-I, the Probate Court explained to them., that Amos Raphael Supila legally soid the house in dispute. , . . . . . . ■ ^ . ' AtThis juncture, r find it pertinent for better understand dh the side ef the appellant to state that, soon upon realizing that the minutes Of the family / Page 7 of 11 clan meetirig was forged, as family members, were^ required to lodge an objection proceeding before the respective Probate Court against the appointment of the administrator. Failure of which it resuited into the appointment of the administrator who in the eyes of the iaw

was a legal representative of the deceased from the date of his appointment up to the date of his revpcation. This,position of the law was underscored by the CAT in the case of Joseph Shumbiisho Vs. Mary Grace Tigerwa & Others (Civil Appeal 183 of 2016)[2020] TZCA 1803 (6 October 2020)(Extracted from www.tanzlii.oroT where the Court observed that: "It is on record that the appeilant was appointed to be an ' administrator of the deceased estates as such by virtue of section 99 ofthe Probate and Administration Act,from the' time of hk appolhtment till the revocation of the; letters of administration, he became a personal legal representative of the deceased and stepped into the shoes ofthe deceased".[Emphasis added]. Applying the above principle in the matter under consideration, it is my finding that the fact that the family / clan members of the late Amos John Amos Supila remained silehVafter the appointment of Raphael Supila and even upon subsequent sale of the house in dispute to the respondent, this implies that the family / clan members acceded to his appointment as an administrator of the deceased's:estates but;only that they:were later dissatisfied, with the way,he Page 8 of 11 continued, to, administe the. estates,of the deceased.., Frpni. !Tiy thoroughly perusal of the records of the trial Tribunal, I have noted that the issue which was before the Primary Court of

Morogoro, at Morogoro in Probate Cause No. 199 of 2005 as well as Civil Appeal No. 59 of 2013 of,the District Court of Morogoro was not the forgery of the family meeting but the appellant and her family members were unhappy with the acts of the respondent being an administrator of the estates of: their late father, who did not distribute the proceeds of the sale of the house in dispute to other beneficiaries. For purpose of reference, I see reasonable to reproduce what was observed by the Learned District,Magistrate at page 4, para 4 of the typed judgment of.the District Court of Morogoro in Civil Appeal No..59 of 2013, which read: - , "I also heard them all during hearing and boil down all their evidence, I find out that the problem arose from the duties of the administrator that they are not satisfied with the way • he performed'his duties. They all directed their claims on • ■the housb he sdid without distributing the proceeds to them as required". The District Couitvvent'dn further stating at page 6 of the typed judgment that: "thus before, we rest and make necessary orders, I wish to say that, as.I boiled down .all grounds of .appeal into one that the appellants do not trust the administrator of Page 9 of 11 their Sate father's estate and that they w^ant him disqualified, return of their lost house and an order to appoint another administrator of their wish. I agree that

the respondent as the administrator appointed by the Court failed to well administer the estate as required ..P hereby quash and set aside the deGlsion of the triat Court, Revoke the appointment of the respondent as an administrator the respondent is hereby accountable for the money he failed to administer as required so he will have to return the same to the newly appointed administrator as ordered above for him to distribute it as the law requires..."[Emphasis added]. With the above finding' of District Court, 1 agree with the Hon. Chairperson that, Amos Suplla was legally appointed to be the administrator of the estates of the late John Amosi Suplla and that he legally sold the house belonging to the deceased in his capacity as an administrator of his estates. In my settled view, the appellant's claim cannot be directed against the respondent herein but against the ^administr^ one Amos Supila as, rightly held by the pistrlGt Court of Moipgoro in its decision 1 Civil Appeal No. 59 of,2013 which ordered.AmGs Supila to retqrn theiproceeds of sale Qf.the;hp.use,i,n dispute to the n.e^^'ly appointed administratrix pf the deceased,estate who.w distrihutp it to the deceased's, heirs;^ Again,;this ground has no merit. , Page 10 of 11 For the reasons stated above, I do not find any cogent reasons to disturb the finding of the trial DLHT for Morpgoro, at Morogoro in Land Application No. 124 of 2015. In the result, this appeal is devoid of merits and it is hereby dismissed with no order as to costs. It is so ordered. DATED at MOROGORO this 4^"^ day of October, 2023. c M. J. Chaba

UDGE 04/10/2023 Court Judgment delivered under my hand and the Seal of the Court in Chamber's this 4^1^ day of Octp^e^#^ in the presei}ep of both sides. 5? O 04/ C -y. IW. MM D

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TY REGISTRAR 4/10/2023 Court; Rights of appeal to arties fully explained 0/^ oo -7 .W. BAN DO > X V fi^

PUTY REGISTRAR 4/10/2023 Page 11 of 11