rozalia mkoyi vs juliana mkoyi administratrix of the estate of the late martin mkoyi 2024 tzhc 405 15 february 2024

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CIVIL APPEAL NO. 15 OF 2023 (Arising from the decision of Nzega District Court in Civil Appeal No. 3 of 2023, Original Probate and Administration Cause No. 1 of 20.15> Ndala Primary Court) ROZALIA MKOYI............... ....APPELLANT VERSUS JULIANA MKOYI (As Administratrix of the estate of the late Martin Mkoyi)...................... ..... ............................ ............................RESPONDENT JUDGEMENT 15/1.1/2023 & 15/02/2024 MANGO, J On 11th April 2015, Appellant, Rozalia Mkoyi was appointed to be the administrator of the estate of the late Martin Mkoyi who passed away oh the 5th day of August 1986. It is alleged that the Appellant did not administer properly the estate of the late Martin Mkoyi. On 9th March 2023 the Respondent, Juliana Mkoyi filed application for revocation of letters of administration granted to the Appellant. In her application for revocation of letters of administration granted to the Appellant, the Respondent advanced three grounds; that the Appellant is not trustworthy, she does not distribute the estate to the heirs and she has been using the deceased estate for her own benefits. After hearing of the application, on 13th March 2023 the probate Court granted the application, revoked the Appellants letters of 1. administration and appointed the Respondent, Juliana Mkoyi to be the administrator of the estate of the late Martin Mkoyi. Dissatisfied by the decision of the probate Court, the Appellant unsuccessfully appealed to the District Court of Nzega through Civil Appeal No. 3 of 2023. Tirelessly, the Appellant has approached this Court challenging the decision of the two Courts. In her first appeal, Civil Appeal No. 3 of 2023, the Appellant raised the following grounds; • That the court erred in law and in facts for revoking the letters Of administration granted to the Appellant basing on mere allegations which was not proved before the Court • That the trial Court erred in law and facts for conducting serious procedural mistakes by taking unsworn statements from relatives in attendance during proceedings whose status was not clear whether they were witnesses or among Appellants • That the trial Court erred in law and facts for taking into account extraneous matters which were not based on evidence • That the trial Court erred in law and in facts for failure to evaluate and scrutinize evidence tendered by both parties hence reached into a wrong decision The first Appellate Court found the appeal to be unmeritorious and dismissed the same on the ground that the Appellant has failed to file inventory and final account of the deceased estate for about 9 years since her appointment. 2 The Appellant preferred the appeal at hand armed with five grounds of appeal which read as follows: - 1. That the first appellate Court erred in law and facts for failure to hold that revoking of letters of administration granted to the Appellant by the trial Court was based on mere allegations which was not proved before the Court, 2. That the Appellate Court erred in law and in fact for disregarding the truth that the trial Court considered unsworn words from relatives attended the proceedings without being termed as witnesses but took into account matters which were not based on evidence 3. That the first Appellate Court's judgement is bad in law for inserting the name of the Respondent without stating if he stands on his personal capacity or as the administrator of the estate which differs from petition of appeal filed before it. 4. That the first Appellate Court erred in law and fact for failure to take into consideration the factors which make the Application fail to file inventory and accounts of the estate but hasten to support the trial Court's decision without proper scrutiny of the facts 5. That the Appellate Court erred in law and fact for failure to make a deed evaluation of the evidence adduced at the trial Court hence supported a wrong and unjustifiable decision. On 15th November 2023 when the appeal was called for hearing, both parties appeared in person and registered their readiness to proceed with hearing of the appeal orally before the Court. 3 In her submission in support of the appeal, the Appellant submitted that the reasons that led to revocation of letters of administration were fabricated. She argued that, she has never caused any family disagreement or conflicts in the course of her term as an administrator of the deceased's estate. She argued further that, she has never limited any beneficiary from using the estate nor did she keep the estate for her own use. She conceded that the witnesses who testified in the application for revocation of letters of administration gave sworn testimonies before the probate Court. She however insisted that, their testimony was full of lies. The Appellant conceded also that she did not distribute the deceased estate. In this she submitted that, the estate of the late Martin Mkoyi comprises of clan properties only which according to their clan rules, the properties are not supposed be distributed but they should only be preserved for use by all clan members. She insisted that, she administered the deceased estate as required by the clan rules. She added that, distributing the estate will cause chaos as not all clan members will be given a share of the estate. The Appellant faulted the first appellate Court for failure to indicate the status of the Respondent as it appears in the petition of appeal filed before the Court. She argued that, the Respondent was sued as administrator of the estate of the late Martin Mkoyi and not in her individual personal capacity as it appears in the judgement of the appellate Court. She concluded her submission by praying the Court to allow the appeal and find the revocation of her letters of administration to be unlawfully done. 4 In her reply submission, the Respondent supported the decisions reached by the probate and first appellate Court. She argued that, the probate Court acted correctly in revoking the letters of administration which were granted to the Appellant. She added that, the main reason for the revocation which was proved before the court is that the Appellant has not distributed the deceased estate and she did not file inventory of the estate as required by the law. She is of the view that, the two courts evaluated well evidence in record and reached into a correct decision by revoking letters of administration which were previously granted to the Appellant. Having gone through background of this matter, Court record and submissions made by the parties, I can now comfortably determine the appeal before me. I will start with the 3rd ground appeal which concerns the omissions that appears on the face of judgement of the first appellate Court. Court record indicates clearly that, the Appellant filed Civil Appeal 3 of 2023 against Juliana Mkoyi as the administrator of the estate of the late Martin Mkoyi. However, the Respondent's status as the administrator of the deceased estate is not reflected in the title of the judgement of the first Appellate Court. However, such omission does not qualify to be raised as a ground of appeal because the law empowers courts to rectify clerical, arithmetical and typographical errors that appears in the judgements. The relevant provision, section 96 of the Civil Procedure Code [Cap 33 R.E 2019] read: - "Clerical or arithmetical mistakes in judgments, decrees or orders, Or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either of its own motion or on the application of any of the parties," 5 In that regard; the Appellant may approach the first Appellate Court to rectify the omissions in the name of the Respondent as it appears in its judgement. The first, second and fifth grounds of appeal are also bound to fail since the Appellant conceded that the probate Court acted on sworn testimony of witnesses. I hold so while aware that, the Appellant alleged that the witnesses did not give a true account of facts as to what transpired because, the Appellant did not avail the court with any evidence to disapprove what she alleges to be false testimony of the witnesses who in the application for revocation of letters of administration previously granted to her. It is trite law that he who allege must prove as provided by section 110 of Evidence Act, [Cap. 6 R.E 2019]. Since the Appellant failed to disapprove testimony of the Respondent and her witnesses she cannot fault the decisions of the two courts by mere allegations. It is well established that he whose evidence weighs more than the other must win, see the case of Hemed Said v. Mohamed Mbilu [1984] TLR 113, The Respondent availed the Court with both oral and documentary evidence regarding the misunderstandings in the administration of the deceased estate under the Appellant. The Appellant did not avail the court with any evidence on how she administered the deceased's estate. In such circumstances, the Court correctly revoked letters of administration which were previously granted to her. The fourth ground of appeal which is the main reason of the contention in administration of the deceased estate is also bound to fail. Court record 6 establish clearly that, the estate that moved the Appellant to file Probate and Administration Cause No. 1 of 2015 is the estate of the late Martin Mkoyi and not clan properties. In her petition for letters of administration, the Appellant mentioned the properties that she expected to collect to include a farm measuring 30 acres located at Uhemeli village, Ndala division and a house located at Ndaia. She did not inform the Court that, the said land is a clan property and that the deceased left no estate to be collected and distributed to the beneficiaries. Another question that I find prudent to be asked is what moved the Appellant to petition for letters of administration of the late Martin Mkoyi, more than 25 years after his death while she was aware that Martin Mkoyi left no estate to be administered. A question similar to that, is what moved, the Appellant to appeal against revocation of her letters of administration if the deceased left no estate to be administered. Response to the two question is that, the late Martin Mkoyi left behind an estate that need to administered and the Appellant, for reasons best known to herself, decided to treat the estate of the deceased as part of clan properties. In such circumstances, I am of a considered view that, the Appellant allegations that the deceased estate comprises of only clan property is merely an afterthought which was correctly ignored by the two courts. Since the Appellant does not wish to have the estate of the late Martin Mkoyi to. be distributed to his beneficiaries, I join hands with the Probate Court and the first appellate Court that, she is not a fit person to be an administrator of the deceased estate. 7 In that regard I find no reason to fault the decisions of the two Courts which have dealt with this matter. The Appeal is hereby dismissed. Given the fact that this is a probate matter involving blood relatives whose family ties need to be protected, I award no costs. Dated at Tabora this 15th day of February 2024 Z. D. MANGO JUDGE Right of Appeal explained 8