ocr PRISCA MBELWA VS FRANCE L

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB- REGISTRY) (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 7032 OF 2024 PRISCA MBELWA (The Administrator of the Estate of the late Mercy Hillary)........................................................................ APPELLANT VERSUS FRANCE LEONS MALISAWA.......... .................. „lstRESPONDENT MERCY HILARY.......................................... DECEASED JUDGMENT Date of last order: 27/05/2024 Date of Judgment: 05/07/2024 OMARI, J. For easy appreciation of the gist of the appeal before me, I find it prudent to give a background of what led the parties to this court. The Appellant <f herein, Prisca Mbelwa is the Administrator of the estate of the late Mercy Hillary Mhina. While the probate matter was at the Primary Court of Kinondoni; the Respondent herein, France Leons Malisawa through a letter I dated 12 August, 2022 requested the trial court to give him his rights as a widower as a result of being the husband of the late Mercy Hillary Mhina. This concerned the pension from the National Social Security Fund (NSSF). Page 1 of 16 In the presence of both parties, the court heard his claims, whereby the Respondent sought to establish he was married to the deceased by tendering a Certificate of Marriage. The Respondent also informed the court that he only came to know of the Administration Cause when he got a call from the NSSF as they have his details as the next of kin in the deceased's file. The Appellant produced a witness who testified to the effect that the deceased had been separated from her husband since 2016. And, another who testified on procedure for payment of pensions. The Primary Court in its ruling addressed three issues, whether there was a marriage between the Respondent and the deceased, whether he is a legal heir and, if he is entitled to receive the pension as a husband of the deceased. The first issue was found in the affirmative since there was no evidence of divorce between the Respondent and the deceased from any court. Therefore, the trial court found there was an existing marriage between the two up to when the deceased succumbed to death. On the second issue, the trial court found that the Appellant at the time of applying for letters of Administration informed the court that the deceased was not survived by a husband, parents or children and that there is no evidence to show the deceased was wed. The trial court observed that since Page 2 of 16 there was no divorce decree, then the Respondent would be a beneficiary of the deceased's estate by virtue of being married. The'last issue was also found to the extent that the Respondent is an entitled beneficiary to the estate including the pension at NSSF as the law recognizes that a spouse is an heir/beneficiary of the estate of a deceased spouse. Dissatisfied with the decision of the trial court, the Appellant preferred an Appeal at the District Court of Temeke at One Stop Judicial Centre suing the Respondent as the 1st Respondent and the deceased as the 2nd Respondent. She had four grounds of appeal comprising of the following: I i. The learned trial court exceeded jurisdiction by directing the administration of the estate to distribute proceeds therefrom to the 1st Respondent ((sic)). ii. That the learned trial magistrate failed to analyse, asses and apply the law to the evidential facts adduced and produced before him and in doing so arrived at a decision that,was not proper in circumstances of the case. ((sic)). iii. That the trial court erred both in law and facts to grant properties to the responded without considering tn nnt division of the same. Page 3 of 16 iv. That the trial court erred in law and in facts to order that there was a living marriage between the respondent and the deceased. If the trial magistrate directed to the law and evidence, we should hold that there was no existing marriage basin on the reasons of absence of conjugal right for a period of nine years^/<2J. In his judgment the first appellate court magistrate reminded the Appellant that she was the Administrator of the deceased Mercy Hillary Mhina's estate, thus it was not proper for her to sue the deceased. He thus, expunged the name of the deceased as 2nd Respondent. He then went on to remark that his court was not clothed with a mandate to deal with marriage issues as a probate court cannot determine matrimonial issues and thus, chose not to deliberate on all such issues. As regards the first ground of appeal the first appellate court judgment was clear; that it would be a sin if the court had distributed the properties and that the appellant ought to differentiate between the duty to distribute the estate and the order of distribution of certain assets to the beneficiaries. He observed that the trial court did not state the percentage or share to be distributed to the Respondent its order was only limited to directing the administrator to give the Respondent a share as the husband of the Page 4 of 16 deceased. This, according to the first appellate court is a lawful mandate as stated under paragraphs 2(d) for the Fifth Schedule;to the Magistrates Courts Act, Cap 11 RE 2019 (the MCA) requiring an Administrator to give effect to the directions of the primary court when distributing the estate of the deceased to persons entitled thereto. He then dismissed the first ground of appeal. As regards the second and fourth grounds of appeal the first appellate court magistrate observed once more that a probate court cannot sit as a matrimonial court and dissolve a marriage. Nonetheless, he observed that from the evidence the Respondent and the deceased'were not divorced, thus, the Respondent cannot be deprived of his wife's estate. Separation does not amount to divorce. He found those two grounds without merit and dismissed them. On the third ground of appeal the learned magistrate after observing that it was obvious the Respondent had not denied his share rather it was the Appellant who had denied to distribute the same to him, alleging that he was divorced from the deceased. The first appellate court then agreed with the ’l trial court's decision on the same and went to dismiss the ground for want of merit. Page 5 of 16 Disgruntled with the first appellate court's decision the Appellant came to this court preferring an appeal on four grounds somewhat similar to those of the first appeal. The said grounds are: । i. The appellate court erred in law and facts to uphold the decision of the trial court which assumed the duties of the administrator of the estate by identifying heirs of the deceased. ii. The appellate court erred in law and facts to order that there was a living marriage between the Respondent and the deceased. If the appellate court would direct it mind to the law and evidence; it should hold that there was no existing marriage between the Respondent and deceased ((sic)). iii. The appellate court erred in law and facts to uphold the decision of the trial court which failed to properly analyse the evidence. iv. The appellate court erred in law and facts to bless the decision of I the trial court by directing the administrator of the estate to distribute proceeds there from to the 1st Respondent. It is on the basis of those grounds that she is praying for orders that the judgment of the primary court and 1st appellate courtfoe quashed and set aside. Further, she prays that this court declares the marriage between the Paae 6 of 16 Respondent and the deceased was automatically divorced (s/c); that the p Respondent restrains himself or his agents from requiring NSSF or anybody having custody of the deceased's property, to pay the same directly to him. He should leave the Administratrix to collect the estate.1 The appeal was heard by way of written submission, whereby the Appellant's submissions were drawn and filed by Faudhia Abdulqadir while those of the Respondent were In her submission Ms. Abdulqadir chose to canvas only 3 grounds of the appeal and she did so generally. Counsel submitted that the first appellate court improperly upheld the decision of the trial court which overstepped its jurisdiction by identifying the heirs of the deceased which as per the Probate and Administration Estates Act, Cap 352 R.E 2002 (the PAEA) is the duty of the Administrator. She cited the case of Nassoro Nasri Amran and Others 1 v. Sabri Nassor Amran (PC Civil Appeal No. 1 of 2021) [2022] TZHC14713 where this court held it is not the duty of the court to determine who should । । inherit. She also referred to the case of Mahuza Joseph Mbiso v- Eglah George Makasi (PC Probate Appeal No. 4 of 20150 [2016] TZHC 2075 where this court held that a court has no power to distribute the property of the deceased or choose who should inherit. Counsel went on to argue that Page 7 of 16 the trial court usurped the powers of the administrator!;when it designated the Respondent as the sole beneficiary; because there was no divorce between him and the deceased yet it ignored her testimony and that of witnesses that the two had separated. Counsel cited the case of John David Mayengo v. Catherine MalembekafPC Civil Appeal No. 32 of 2003) [2005]TZCA 54 to augment her contention that marriage is a voluntary union between a man and woman thus, the two had separated for more than 11 years which is in essence evidence to show the Respondent was in contravention of section 63 of the Law of Marriage Act, Cap 29 R.E 2019 (the LMA). She further emphasized that separation undermines the assertion of a living marriage even in the absence of divorce. She implored this court to I seize this opportunity to create a new precedent recognizing practical ! 'J separations and non-performance of marital duties as .'valid considerations in determining beneficiary status. Counsel then concluded her submission by reiterating the prayers as in the Petition of Appeal. When he took his turn Mr. Swedi began by questioning the jurisdiction of the i primary court to hear the matter as the deceased was a Christian. He cited । the case of Julius Nyaga Nyororo/Njololo (Administrator of the late Nyaga Nyororo/Njololo) v. Lutonja Mash!||inni 2 Others (Civil Page 8 of 16 Appeal No. 13 of 2021) [2022] TZHC12446 where In thisicourt held the issue i । of jurisdiction can be raised even at the time of composing the judgment. Since the deceased was a Christian then the primary court had jurisdiction making the proceedings nugatory. When he began his submission on the grounds of appeal he commenced with the second ground of appeal, of which Mr. Swedi was of the view that the trial court made its decision based on the evidence: He contended that it is on record that the Respondent tendered a Certificate of Marriage as proof of the existence of the marriage and the Appellant had nothing to show for her allegations. < As regards the first ground of appeal, counsel argued that the primary court acted within the provisions of Part 2, Item 5 of the Fifth Schedule of the MCA which empowers it to give directives to the administrator of the estate in the course of fulfilling his duties; thus, no interference with the duties of the Administrator was done. Further to that, Mr. Swedi pointed out that while the Appellant's learned counsel asserted that the governing law is the PAEA I! she is misconceived since the governing law is the Fifth Schedule of the MCA t I and the Primary Courts (Administration of Estates) Rules, GN. No. 49 of 1971. The Respondent's counsel then went on to submit on the third ground Page 9 of 16 'I of appeal arguing that the said ground is misconceived as the trial court heard both parties. He then concluded by praying for the appeal to be dismissed with costs. In her rejoinder, Ms. Abdulqadir began with the contention that the deceased was Christian thus, the trial court had no jurisdiction. She argued i that as per section ll(I)(b) of the Judicature and Application of Laws Act, Cap 358 R.E 2019 that would be the case only where it is apparent from the manner of life that the matter is to be regulated otherwise than by customary law. She contends that counsel needed to prove facts constituting manner of life to use the exception of applicability of customary law. He has not done so. She cited the cases of Gibson Kambumbire i v. Rose Nestory Kambumbire (2021) TZHC 6009, Benson Benjamin Mengi and 2 others v. Abdiel Reginald Mengi and another (2021) TZHC 3202, Re Innocent Mbilinyi (1969) HCD 283 and the case of Re Estate of Suleiman Kusundwa (1965) EA 247 to amplify her argument. As regards the primary court overstepping its boundaries counsel reiterated her submission in chief and argued that giving directions to the administrator does not equate to making orders that recognize or add beneficiaries. On the contention that the trial court heard both parties and reached a fair Page 10 of 16 decision counsel argued that it did not consider the prolonged separation between the Respondent and the deceased. She cited the case of Shida [ John v. Mapela Justine (PC Civil Appeal No. 56 of 2022) [2023] TZHC17792 where this court held a marriage being a voluntary union based on mutual love, with the parties being the best judges of its status. She then concluded on that issue by stating both the trial and first appellate court failed to properly asses the evidence, resulting in a miscarriage of justice. She once again reiterated the prayers in the petition. After giving a background of how and why the parties end up in this court, considered the submissions for and against the appeal I have also taken the liberty to go through the records of the two lower courts before going on to determine the appeal. However, before doing so I would like to start with I the issue of jurisdiction of the primary court which the Respondent's counsel raised in his submission and speak to the issue of marital separation so as to put it in context. In his submission to oppose the appeal Mr. Swedi brought up the issue of jurisdiction of the primary court stating that since the deceased was Christian then the trial court had no jurisdiction over her estate. I shall not belabour on this issue for it is one that should not take too much time or space. As Page 11 of 16 rightly pointed out by Ms. Abdulqadir, in the circumstances of the case that was before it, the primary court has the jurisdiction to deal with the administration. In the case of Yohana Mgema Escobar @ Yohana John Mgema v. Richard Francis Mgema, Miscellaneous Civil Revision No. 4 of 2020 at page 3 of the judgment this court was also of the view that the primary court is not precluded from entertaining matters where the deceased was a Christian. I now proceed to make a general comment as regards the legal concept of separation of spouses albeit being for discourse, I am of earnest belief that it will help put to rest the Appellant's anguish that the Respondent and the deceased were separated thus, he should not be claiming to be a spouse in a probate court. The dictionary meaning of separation in normal English diction is defined in the Cambridge Dictionary (see httDs://dictionarv.cambridge.org/dictionarv/english/seDaration) in the following manner: "La situation in which two or more peopie or things are separated 2. an arrangement, often legal, by which two married peopie stop living together as a couple 3. a separation is an arrangement^ often a legal one, by which two married people stop living together as husband and wife..." ] Page 12 of 16 Additionally, Black's Law Dictionary (see Bryan A. Garner^ editor, Black's Law Dictionary 9th ed., West Group, 2009 at page 1304) defines the word separation as follows: "An arrangement whereby a husband and wife live apart from each other while remaining married, either by mutual consent of byjudicial decree" Simply put, a husband and wife can live apart while married either by their mutual consent or when the said separation is court ordered. In my opinion, this is reflected in section 111 of the Law of Marriage Act, Cap 29 R.E 2019 which provides: "A decree ofseparation shall relieve the parties of the duty to cohabit and to render each other help and companionship and, except so far as the decree otherwise provides, of the duty to maintain each other, but shall not dissolve their marital status. "(Emphasis supplied) What this means is the parties while separated are still within their marriage although they have no duty to cohabit and consortium! and unless there is an order to that effect, maintain each other. Therefore, the Appellant counsel's argument that having lived apart for 11 years, J the Respondent । allegedly being in contravention of section 63 of thej LMA as he did not Page 13 of 16 maintain the deceased and the absence of conjugal rights for nine years is I unfounded for all of the above does not render the two divorced. This in my opinion makes the cases of John David Mayengo v. Catherine Malembeka(si/pra) and Shida John v. Mapela Justine {supra} irrelevant in the context. Furthermore, as rightly stated by the first appellate court the trial court was not sitting as a matrimonial court. In my view, if at all the Appellant feels aggrieved by the Respondent's actions towards his deceased wife she can pursue the same in an appropriate forum (if any). । The probate or administration court is only vested with the jurisdiction to deal with probate and administration related matters. In this case, that the Appellant went to court and informed the same that the deceased left no I spouse surviving her while she was aware the Respondent was her husband, estranged or not makes it an administration matter which as rightly held by the first appellate court the trial court was well within its powers to determine the way it did. I I Having discussed as above, it is now opportune for me to determine the grounds of appeal which I shall do so by determining the first ground of appeal and the remaining three grounds jointly. The Appellant is faulting the ll.......................... primary court's ruling which in her view, exceeded its jurisdiction by directing Page 14 of 16 the administration of the estate to distribute proceeas unererrom to the 1st Respondent. I agree with the decision of the first appellate court on this one, as it rightly observed, under paragraphs 2(d) for the Fifth Schedule to the MCA requiring an Administrator to give effect to the directions of the primary court when distributing the estate of the deceased to persons entitled thereto. What the trial court did is to give directives [that there being a subsisting marriage between the 1st Respondent and the deceased at the time of her death then he is a beneficiary of her estate by virtue of being her spouse. I therefore find no merit on this ground and dismiss it. Moving on to the remaining grounds of appeal, as much as the Appellant's counsel aptly submitted and even encouraged this court to come up with a new precedent. I must say, I admire her tenacity in seeking to prosecute her client's appeal. However, ail the grounds are based on the fact that they are arguing separation that is long standing or in her words ^practical separation should be considered a divorce or that a marriage is dissolved. This makes the whole argument on which the grounds of appeal are anchored on has no legal basis as I have already explained above. It is for that reason that I also agree with the findings of the first appellate court on the remaining grounds of appeal and dismiss them jointly for having no merit. Page 15 of 16 On the whole, all the grounds are unmeritorious. The Appeal is dismissed. Each party to bear their own costs. Judgment delivered and dated 05th day of July, 2024. A.A. OMARI JUDGE 05/07/2024 Page 16 of 16