20120907 TZHC Moshi

IN THE HIGH COURT OF TANZANIA

AT MOSHI (PC} CIVIL APPEAL NO.8 OF 2009 C/F PROBATE APPEAL NO.6 OF 2008 ORG. PROBATE AND ADM. CAUSE NO.83/2007

MOSHI PRIMARY COURT GILBERT C. NGOWl.. ..................... 1 st APPELLANT AGNESS C. NGOWl.. ........................ 2 nd APPELLANT

VERSUS RHODA JOSEPH ....................................... RESPONDENT (Appeal from the decision of the District Court of Moshi, at Moshi} (MKISI, Resident Magistrate}

JUDGMENT MUGASHA, J In the Urban Primary Court of Moshi, the respondent applied and was appointed Administratrix of estate of late Joseph Ngowi who died intestate on 12/12/2004. The respondent contends to have been legally married to the deceased and they were blessed with two children on of them being deceased and the other aged fifteen years. The petition was objected by the appellants Gilbert Charles Ngo~i_ deceased's ./ - --·------··-~ ~ --~ ..:......._ 1 \ brother and Agnes Charles Ngowi deceased's mother. The grounds of objection as stated in the letter dated 31/6/2007. I reproduce the letter as follows: AGNESS CHARLES NGOWJ, P.

0. BOX 3040,

MOSHI 31/06/2007 HAKIMU MFAWIDHI, MAHAKAMA YA MWANZO,

MOSHI YAH: KUPINGA SHAURILA MIRATHI NO. 83/2007

MWOMBAJI RODA MNDORWA MAREHEMU - JOSEPH CHARLES NGOWI Kichwa cha habari kama kilivyo chahusika. Mimi Gilbert ndugu yake marehemu Charles Ngowi na mama yangu Agness Charles Ngowi tunapinga Shauri la mirathi No. 83/2007 ilifunguliwa na Rhoda Mndorwa ya marehemu Joseph Charles Ngowi kwa sababu:- 1. Ukoo wa Wangowi na familia ya mzee Charles Ngowi hafjamteua rasmi mwomba;i' afungue shauri hi/a la mirathi na wa/a hakuna kikao chochote kilichofanyika hadi lea.

2. Mwombaji eneo analoomba kuwa msimamizi wa mirathi bado Jina kesi Baraza la Ardhi Wilaya Na. 112 hivyo ni vema akasubiri shauri /Ji'she. Kwa sababu hizo zilizotajwa hapo juu naomba mahakama yako tukufu isiende/ee na Shauri hili iii kudumisha Amani kwenye ukoo. 2 ;. Asante, (Sgd) Raia wa mwaminifu, Gilbert Charles Ngowi, Agness Charles Ngowi, Mama wa marehemu. Nakala: 1. Hakimu Mfawidhi, Mahakama ya Wilaya.

2. Mkuu wa Wilaya, Moshi Vijijini. The English rendering of the grounds of objection are: 1. That the clan of Ngowi and family of Charles Ngowi had not formally nominated the respondent to commence probate proceedings and no clan meeting has ever been conducted to date.

2. The area which is a subject of the application is a subject in a District Land and Housing Tribunal case No.11 and it ,s advisable that the applicant must wait for its determination. 3 The objection was dismissed by the trial court. Aggrieved, the appellants unsuccessfully appealed to the District Court and hence this appeal with following grounds of appeal.

1. That the appellate court erred both in law and in facts in joining and supported The trial magistrate's decision which is contrary to the law.

2. That appellants further on state that each and every point of law as stated in the procedures of law has been adhered to by the appellants.

3. That the appellants furthermore states that the central question that arises here is that how an administrator can be appointed without presence of minutes of the clan this is bad in law.

4. That, the appellants still further on state that the clan is the body who knows the entire family then hose comes that the respondent denies not to know the one supposed to be inheritor of his father. 4 5. That the appellants still further stated that by the respondent to cite that does not know Charles Joseph Ngowi who is son of the deceased is baseless meaningless and yet immaterial.

6. That the appellants further on state that up to now the said administrator has misused assets of the deceased contrary to the law. 1 That the appellants are in view that the Suit/and in dispute has not been given to any one of the parties by the original owner of the Suit/and 8. That appellants further on states that the original owner of the plot is deceased Charles Joseph who passed away on 13/4/2007 and again it is surprising on staring that the same day before funeral service of the same the respondent filed a probate cause in a court of law.

9. That appellant's further state that she could not file up a probate cause during the death of her late husband who died on 12/12/2004. Parties were unrepresented during the hearing of the appeal. 5 During hearing, pt appellant maintained that the respondent was not nominated by clan members to commence probate proceedings after death of deceased. When asked as to who was sup.posed to convened the clan meeting, he claimed to be the one because he was a young brother of the deceased. According to him the clan meeting could not be convened until on 17/4/2007 after death of their father. In that meeting it was decided that, the respondent and son of deceased must reside at house of deceased. pt appellant contended that in the said meeting he was appointed as administrator of estate of the deceased. However, later they heard that the respondent had commenced probate proceedings they unsuccessfully objected. It was also the pt appellant's contention that, the respondent was not nominated by clan meeting and that the notice in respect of probate application was not posted at notice board. The gist of the submission of the pt appellants is in respect of 3rd and 4th grounds of appeal is to the effect that the clan did not nominate the respond_ent to administer estate of the late Joseph Ngowi. The appellants did not make any submission on the remaining seven grounds of appeal. 6 The

2nd appellant and mother of deceased asked this court to appoint ist appellant as administrator of estate. She further told this court that, the respondent may stay at the deceased residence but she should not expect to inherit. On the other hand, the respondent told court that, she commenced probate proceedings because the deceased during his life time was not in good terms with appellants and in particular the deceased was not in talking terms with his mother the 2nd appellant. When the respondent asked deceased on reason for stalemate, the deceased told respondent that, during infancy he was breastfed by Elizabeth Ngowi after his biological mother (2 nd appellant) neglected him. The respondent concluded her submission by urging this court to uphold the decisions of subordinate courts. In the absence of the appellants' submission in respect of the l5t, 2nd 5th to 9th grounds of appeal, I consider those grounds of appeal to have been abandoned by the appellants. 7 This being a second appeal, it imperative to see if there are any points of law worth consideration by this court. It is the contention of the appellants that the respondent was not nominated by Ngowi clan to commence probate proceedings. According to the certificate of death No. 00323348 the deceased died on 12/12/2004. Probate Proceedings were commenced in April 2007 more than three years after death of deceased.

That, the clan meeting could not be convened is conceded by the ist appellant who told this court to be the one supposed to convene the Ngowi clan meeting but could not do so because of the alleged intervention of one Abuu Ally. However, this court was not told if Abuu Ally is from the Ngowi clan. After a careful perusal of the record and what parties have submitted, the issue for determination is whether absence of minutes of clan meeting nominating administrator invalidates appointment of the respondent as the administrator of estate of the deceased? Section 33(1) of the Probate and Administration of Estate Act CAP 352 provides: 8 " Where the deceased has died intestate, letter of administration of his estate may be granted to any person who, according to the rules for the distnbution of the estate of an intestate applicable in the case of such deceased would be entitled to the whole or any part of such deceased's estate" The deceased and respondent were husband and wife. As such, the respondent is amongst those entitled to either whole or part of the estate of the late Joseph Ngowi. Having probate application accompanied by minutes by clan is not a legal requirement. As such, the absence of the minutes cannot invalidate the appointment of the administrator. Besides, in the case under scrutiny, it is vivid that, the clan could not convene a meeting for more than two years.

Thus, the respondent being wife of the deceased acted wisely to commence probate proceedings or else the estate of the deceased could have been wasted or damaged at the expense of the beneficiaries who include the wife and child of the deceased. In the circumstances, the trial court's appointment of respondent as administrator was valid. 9 It is also the contention of appellants that, there was no notice before the appointment of the respondent. The record shows that Form 11 notice dated 13/4/2007 was issued and all those concerned with the estate were required to appear before the trial court on 20/4/2007. Pursuant to the notice, appellants on 31/6/2007 lodged an objection that, the respondent should not be appointed as administrator. Although, appellants' letter confined itself on two grounds of objection as earlier stated, during the objection proceedings, cropped up an issue of a deceased's twenty years old child born out of wedlock. However, in terms of evidence availed by the respondent, the deceased denied the child. What made the appellants not to sort out the matter when the deceased was alive leaves a lot to be desired. The probable conclusion could be a confirmation that, the appellants were not in good terms with the deceased and that is why the appellants opted to raise issue of paternity of a twenty years did child after death of the deceased. Besides, there is no

evidence that, the deceased did legalise the twenty years old child in terms of GN 279/2003 section 181. As such, this court is not placed in a position to believe that the alleged twenty years old child belongs to the deceased. The ist appellant's assertion that the twenty years old child was allowed to reside at deceased's residence is a mere statement not supported by any evidence. In terms of the record and arguments canvassed by the appellants, they do not want the respondent to administer estate of late Joseph Ngowi. This was cemented by the 2nd appellant who during the hearing of this appeal, reiterated that, the respondent can only reside in the deceased's house as a child but she is not entitled to inherit the house of the deceased. Who has the onus to prove that the respondent does not qualify to be appointed as administratrix? In the case of Mohamed Hasan vs. Mayasa Mzee and Mwanahawa Mzee (1994) TLR 225 the court of appeal among other things, held: "It is up to the person challenging the validity of appointment of an administrator by the court to show that the person so appointed does not have the required qualifications to administer the estate" 11 I fully subscribe the above reasoning and the appellants have miserably failed to prove if the re~pondent is not qualified to administer the estate of. the late Joseph Ngowi. It is imperative to clearly point out that,

what is before the court and a subject for determination is whether the rejection of appellants' objection of appointment of the respondent as administratrix. Apparently in the grant of letters of administration the trial courts powers are limited to appointment of administrators and determine objections if any while in an application for revocation of letters of administration, the powers of the trial court are limited to reasons of revocation only such as unfaithfulness, fraud in obtaining the letters of grant, misuse of estate, waste and the like. In the matter at hand, the allegations that, the respondent has misused assets appearing in the 6th ground of appeal, neither was it canvassed on appeal nor is it supported by any evidence. As such, the trial and the pt appellate court were justified to reject the appellants move to have the respondent's appointment revoked. 12 Parties to this appeal are related. The ist appellant is the brother in law of the respondent while the 2nd respondent is mother in law of the respondent. However, parties to this appeal are not in good terms as evident in the record and as demonstrated by the parties during the hearing of the appeal. In view of glaring enmity as between appellants and the respondent which could not be hidden by the parties during the hearing of this appeal, it is my considered view that, the respondent has an interest

in the estate which must be protected. The said interest is the one in respondent's own right that of her child which makes it imperative that the respondent must be availed opportunity to administer the estate of the deceased. It should be made clear that, the work of the administrator is to collect debts and assets and account for the same in court for the purpose of division amongst deceased's beneficiaries. Indeed the respondent cannot be left aside as pleaded by appellants because in the respective estate the respondent has a stake to hold so as to secure whatever rights and of her child. 13 In the premises uphold trial court's decision to dismiss the appellants' objection and confirm RHODA JOSEPH the respondent as administrator of estate of the late Joseph Ngowi who should embark to collect assets and debts of deceased, make account of same for subsequent division among the beneficiaries. In the premises, the appeal is dismissed in its entirety. Right of appeal is explained. u)

JUDGE

JUDGE 7TH SEPTEMBER, 2012 14