roza mturumutwa mbigili vs kulwa ibrahim mawona administrator of the estate of the late edward ibrahim mawona 2023 tzhc 20374 11 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) ATIRINGA CIVIL APPEAL CASE NO. 10 OF 2023 (Arising from Mise. Civil Application No. 12 of2022 of the Njombe District Court before Hon. I.R. Mlowe, RM, Original Probate Cause No. 2of2012 of the Primary Court of Njombe District at Makambako before Hon. J.N. Maroda, RM) ROZA MTURUMUTWA MBIGILI .................................... APPELLANT VERSUS KULWA IBRAHIM MAWONA (administrator of the estate of the late ........ ................ RESPONDENT Edward Ibrahimu Mawona) JUDGMENT 2dh July & 11th August, 2023 I.C. MUGETA, J: The appellant was the first wife of the late Edward Ibrahim Mawona who died intestate on 28/12/2011. The deceased left surviving him 11 children born to two different wives and one outside the wedlock. Those are Jestina Nyaluke (deceased) and Hellena Sanga (deceased) who were dully married and Hellena Sanga, mother of Elizabeth E. Mawona. His son Emmanuel E. Mawona was appointed to administer his estate on 4/4/2012. Up to 21/9/2021, the administrator had filed neither the inventory nor the accounts. The probate court summoned and gave him ultimatum to close the administration. He filed the accounts on the said date and he was Page 1 of 11 |a directed to inform all the heirs about the accounts so that those dissatisfied could raise objections. The administrator complied, he gave notice to the heirs. From 21/9/2021, the case was adjourned to 30/9/2021. On 30/9/2021 the learned magistrate remarked: "Baada ya Mahakama kutoa tangazo /a kufunga mirathi upande wa watoto wa mke mdogo wa marehemu alipokuwa akiishi naye Makambako waHfika hapa mahakamani kutaka kujua ni kiva nini ndugu wa mke mkubwa wanataka nyumba ya Makambakona ha/i mke mkubwa alikuwa ana nyumba Kihesa na Ihimbo. Ndipo kwa busara ya mahakama hi/ Hiwataka kuwa familia wakae kikao kuf/kia uamuzi wa kufunga mirathi hii". Beside the above statements, the learned magistrate did not record what transpired between the administrator and the heirs who attended the proceedings. The case was adjourned to 2/11/2021 with an order that all heirs to attend. On 2/11/2021, the probate court decided to revoke the letters of administration granted to Emmanuel Mawona. It proceeded to appoint Kulwa Ibrahim Mawona as interim administrator until when the family members proposes another person to apply for letters of administration. Page 2 of 11 a4 k Once again, the learned magistrate did not record family members who attended the proceedings and reasons leading to revocation of the grant of letters of administration. The procedure adopted by the probate court is unusual because it does not reflect what transpired before making such order. It is not on record if Emmanuel was heard before the grant was revoked. This makes the record of the probate court wanting in regularity and this fact has seriously exercised my mind on its propriety. Initially I formed an opinion that the learned magistrate was acting on extraneous matters. On reflection, I concluded that the magistrate was not recording everything that transpired in court. For example on 30/9/2021 the learned magistrate ordered two things to be done and be reported upon on 2/11/2021. Firstly, the family meeting to be held to deliberate on the accounts filed. Secondly, all hears to appear. However, the coram for 2/11/2021 is silent on whether they appeared. Be as it may, the irregularity of the proceeding affected more Emmanuel E. Mawona whose letters of administration was revoked. However, he never appealed and he supported the respondent when he applied for letters of administration. He testified as SM2 and said he had Page 3 of 11 confidence in the respondent. The record shows that Kulwa Mawona (the respondent) who is the brother of the deceased applied for letters of administration after the appointment of Emmanuel was revoked. He was appointed on 13/3/2023 and on 01/6/2022 he filed the accounts. On 9/6/2022 the probate was closed. According to the accounts, chidren inherited properties which belonged to their mothers. Those from same womb got shares together in the land their mother cultivated and houses where they domiciled. The appellant was aggrieved by this mode of division of the estate. She filed Revision Application No. 12/2022 in the district court. Her major complaint according to paragraph 6 of her affidavit is that she did not get her share as contribution in the matrimonial properties. The district court found that there was no evidence that the properties complained about were acquired in the name of the appellant or during substance of her marriage with the deceased. The appellant was aggrieved with that decision. She has appealed to this court on 8 grounds of appeal as follows: 1. That the trial court had no jurisdiction to deal with the matter (Probate Cause No. 02 of2012) Page 4 of 11 2. That the first appe/iate court erred in both fact and faw by failing to re-eva/uate evidence to reach a Just decision. 3. That the first appe/iate court erred both in fact and law by holding that the appellant failed to prove her interests over the house /eft by the deceased. 4. That the honourable magistrate of the first appellant court erred in law and fact by holding that the deceased had three wives in law, basing on the statement of the appe/ianta layperson. 5. That the first honourab/e appellate court manifestly erred in law and fact by failing to find that the appellant as a sole wife of the deceased was given her shares from the estates of her late husband. 6. That the first honourab/e appe//ate court erred in both fact and law by holding that the decision of the trial court was correct. 7. That the first honourab/e appe/iate court erred in law and fact by its failure by its failure to find that the trial magistrate erred in law and fact by failure to comply with requisite procedure in hearing the Probate Cause No. 2 of 2012. 8. The first appellate court erred in law by failing to expunge the affidavit of the respondent for want ofsignature. Page 5 of 11 The respondent filed a reply to the petition of appeal. On the hearing date, both the appellant and the respondent said that they have nothing to add on their respective petition and reply to the petition of appeal. I shall determine the appeal as hereunder. The 1st and 4th complaints shall be treated jointly as they are interrelated. They are about jurisdiction of the court and the mode of life of the deceased. When the first administrator (Emmanuel Mawona) gave evidence as SMI he said: "Marehemu alikuwa na wake wawili". Eva Edward Mawona (SM3) said: "mimi ni mtoto wa bibi mkubwa ". She went on to say: "Kwa mama mdogo kuna watoto wanne...". Elide Mawona (SM4) said: "Mke mkubwa watoto 7 mke mdogo watoto wanne na mke wa tatu mtoto mmoja". During hearing for the appointment of the current administrator the appellant testified as SM3. She had this to say: "Marehemu aiikuwa mume wangu na mimi ni mke mkubwa..." Page 6 of 11 From the foregoing, it is undisputed that the deceased was a polygamist. Therefore, his estate ought to be administered under customary law. There is no evidence on record that he was either a Christian or a Muslim by his mode of life. Therefore, the trial court had jurisdiction to determine administration of his estate and, indeed, the deceased had many wives. I have tried to reflect why the appellant is complaining about court's jurisdiction and my search in the court record has landed my eyes to the application for the grant of letters of administration commonly referred to as form no. 1. Therein, it is recorded that the deceased was a Christian. If this was the case, then the probate court erred to proceed to entertain the probate. Primary court's jurisdiction is limited no customary and Islamic laws. However, for the evidence on record, I cannot fault the trial court as there is no evidence on record that at any given time the deceased lived a Christian life. Something must have gone wrong during registration of the probate court. In my view, by the appellant acknowledging that she was the first wife, it means that their marriage was not in a form of Christian marriage. Had it been in Islamic rite the error in form no. 1 would not have Page 7 of 11 been there. Consequently, I hold that the 1st and 4th complaints have no merits. The second and sixth grounds of appeal shall be treated jointly too. They concern evaluation of evidence and the district court upholding the decision of the trial court for failure to properly evaluate the evidence. On failure to re-evaluate evidence, I see nothing in form of evidence which the first appellate ought to have evaluated. This is because the appellant is complaining about distribution of the estate not appointment. In that respect the role of the trial court was just to confirm the account and no objection had been raised. The district court could not have faulted it after finding that the there was no evidence on acquisition of the property during subsistence of the marriage between the appellant and the deceased. I shall revert to this issue when dealing with the 5th ground of appeal. It now suffices to say that the complaints in the 2nd and 6th grounds have no merits. The 3rd complaint is about the interest of the appellant in the house at Makambako. I find this issue to be irrelevant because here we are dealing with probate not matrimonial matters. This house was given to the children of the second wife. That is the decision of the administrator which Page 8 of 11 I cannot interfere with unless there is evidence that the appellant has life interest therein which is missing. The complaint in the 5th ground is that the appellant as sole wife of the deceased was given her share from the estate. I believe the word "not" was omitted, in this complaint, therefore, the complaint is that "she was not given her share" According to the accounts, the appellant was given the house located where she lives and Iringa to share with her children. The children for the second wife was given the house at Makambako where they lived with their mother. One child born outside the wedlock was given a plot at Makambako. When the appellant complains, that she was not given her share, I fail to understand which share she refers to. Even if the trial court did not state so, I presume that as the estate was governed by Wahehe customary law as the deceased is recorded in form no. 1 as mhehe. The appellant has not argued that the Wahehe customs does not require, wives and children of a polygamist to inherit the properties at their respective homestead if they had not a shared homestead. I find the complaint in the 5th ground without merits. The complaint in the 7th ground is about the trial court's failure to comply with the procedure when hearing the Probate Cause No. 2/2012. Page 9 of 11 The appellant has not pointed out any irregularities. However, I have pointed some of them at the beginning of this judgment like failure to record heirs attending the proceedings. This withstanding, I am of the view that in terms of section 37(2) of the Magistrates' Courts Act [Cap. 11 R.E 2019] the irregularities in the proceedings has not occasioned a failure of justice. The last complaint concerns the respondent's affidavit lack of signature. I hope the appellant wished to refer to counter affidavit as the respondent did not file any affidavit at the district court. Indeed, the counter affidavit on record is unsigned. This issue was raised in the appellant's written submission but the district court did not address it. If the counter affidavit is unsigned it means there is no evidence to counter the affidavit which makes the application to stand unopposed. However, with or without a counter affidavit the unopposed application must be meritorious to win. I have reviewed the contents of the affidavit and noted that the complaint is on the distribution of the estate in that the appellant, as a wife was denied her matrimonial share which is not true. The estate was distributed according to Wahehe customs and she got her share together with her children. Her desire to get share in properties that were Page 10 of 11 I^X used by another wife cannot be entertained where the distribution is based on traditions and customs of the Wahehe. Therefore, while I agree that the district court did not address the legality of the counter affidavit which was not signed and I have disregarded it, even without it the application must fail for want of merits. In the event, I dismiss the appeal. Since the parties are of the same family, I give no orders as to costs. I.C. MUGETA JUDGE v 11/8/2023 Court: Judgment delivered in chambers in the presence of both parties in person. Sgd. I.C. MUGETA JUDGE 11/8/2023 Page 11 of 11