samweli nchahagwa vs josephine nchahagwa 2020 tzhc 4116 7 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA)

AT KIGOMA (APPELLATE JURISDICTION) (PC) Probate Appeal No. 6 of 2020 (Arising from Probate Appeal No. 05/2020 of Kasulu District Court before Hon. I.E. Shuli - RM, Original Probate Case No. 4/2015 of the Primary Court of Buhigwe District at Manyovu, before Hon. F. Mtega - RM) SAMWELI D/O NCHAHAGWA........................................................... APPELLANT

VERSUS JOSEPHINE D/O NCHAHAGWA................................................... RESPONDENT

JUDGEMENT 18th Nov. & 7th December, 2020 C. I. MUGETA, J. On 7/10/2015, the appellant was appointed administrator of the estate of the late Nchahagwa Banigwa who died intestate in 2006. He was appointed despite the objection raised by the respondent. The trial Primary Court found the appellant to be the fit person to administer the estate because he managed to keep the estate particularly land since death of the deceased. 1 | Page The record shows after appointment, the appellant distributed the estate and on 19/1/2017, he filed with the court a report that he had distributed the land to each heir except for some trees which were to be sold and the proceeds therefrom to be distributed too. Upon presentation of the account report, the trial magistrate wrote on that report 'seen', he signed and stamped it and that became the end of the story. On 30/1/2020, the respondent who had objected the appointment of the appellant filed a complaint that the letters of administration granted to the appellant be revoked because he has failed to distribute the deceased estate. The complaint was heard by Hon. F. Mtega, RM while the letters of administration were granted by Hon. P. Rupia, RM. Upon hearing the application for revocation of the letters of administration, the trial court held 'Baada ya kuupitia Ushahidi wa pande zote mbiii uiiowasiiishwa hapa Mahakamani ni wazi kuwa kwa mujibu wa

kieieiezo DEI ni wazi watoto wote wa marehemu akiwemo mieta pingamizi waiipata mgawo wa mirathi ya marehemu' 2 I Page Despite this finding, the trial court proceeded to order that the distribution made was unlawful for breach of Waha customary law in division of the deceased estate. That custom requires that where the deceased had many wives, the properties ought to be divided into groups according to the number of wives and heirs shall inherit in the group allocated to their mother. The learned magistrate held further that the administrator had taken the lion's share and had distributed to some heirs land not forming part of the deceased's estate. On this account, a redistribution was ordered which aggrieved the appellant. He unsuccessfully appealed to the district court which upheld the decision of the Primary Court on ground that 'the family members were not in agreement with the way the appellant distributed the estate'hence this appeal on the following grounds:- 1. That the trial court grossly erred in law and fact by failure to consider the evidence adduced by the Appellant in the aforementioned said case and hence wrongly directed administrator to divide the said property by customary law.

2. That the trial learned Magistrates of District Court of Kasuiu and Primary Court 3 | Page of Manyovu both erred in law and facts by deciding a case in favour of the Respondent without considering that the Appellant divided the properties of his /ate parent equally to all legal heirs as he was previous directed in Probate Cause No. 4/2015 before Hon. P. Pupia (RM) at Kasulu Urban Primary Court.

3. That the learned trial Magistrate erred in law and facts when they failed to consider the evidence adduced by the Appellant on the said case hence ended up pronouncing judgment in favour the Respondent who legally have no evidence to support his allegations.

4. That the learned trial magistrate erred in facts and law when he failed to consider that the respondent failed to prove his case to the required standard (balance probability) the Appellant divided the estate of the /ate NCHAHAGWA BANIGWA equally to all heirs but came up with her own allegations that the estate should be 4 | Page divided to the three families as per Ha customary law without considers number of legal heir to each family and said Ha customary law on the distribution of the deceased estate is repugnant to the laws of the country. That the trial Primary Court and District Court erred in law and fact when it entertained the matter over the issue of division of the deceased estate while the same was already resolve in probate cause No. 4/2015 before Hon. P. Rupia. Hence res-jurisdiction. At the hearing Mr. Silvester Sogomba, learned advocate, appeared for the appellant. The respondent appeared in person. The learned counsel combined the first and second grounds of appeal and argued them together. He also compressed the third, fourth and fifth grounds of appeal into one. On the first, second and third grounds of appeal, Mr. Sogomba submitted that Waha customs discriminates against daughters and widows when it 5 | P age comes to inheritance. That being mindful of this fact, that is why the trial court before Hon. Rupia on 7/10/2015 when granting letters

of administration ordered the division of the estate to be done equally among heirs without discrimination based on gender. He complained that to order a redistribution based on Waha customs means to disposses those groups including the respondent which act the appellant, as administrator of the estate, is not prepared to do. On the third, fourth and fifth grounds of appeal, the learned counsel argued that after the appellant filed the account on 1/7/2017, the court became 'fanctus officio'. Even, if he used the legal term 'res judicata' instead of' functus officio', the learned counsel is of a firm view that since the appellant had accounted for the administration by filing a report on the final account, the trial court had no powers to reopen the file in relation to properties already distributed. The respondent replied that to her knowledge, the estate has not been distributed. That according to customs, the land is supposed to be divided into three pieces as the deceased had three wives and the children should inherit per their mothers' line which was not done by the adm 6 | Page She complained further that the appellant has retained most of the land without distributing it to the heirs. Was the District Court right to uphold the decision of the trial court? This being a second appeal, I am not entitled to interfere with the concurrent findings of the two lower courts

unless the same is founded on misapprehension of evidence or misapplication of the law. It is therefore imperative to examine the decisions in light of the evidence on record. I shall start with the issue of application of Waha customary law. When the trial court granted letters of administration on 7/10/2015 it gave the following orders:- /7) Hati za uteuzi wa mirathi zitolewe kwa mwombaji. (ii) Mwombaji akusanye maii zote za marehemu na kuiipa madeni kama yapo na kisha kugawa kwa warithi wote sawasawa biia kujalijinsimine). 7 | Page (Hi) Mwombaji baada ya kugawa arejeshe taarifa hapo mahakamani Hi jalada Hfungwe. As rightly submitted by Mr. Sogomba, since the court ordered the administrator to equally distribute the estate, this direction superseded the Waha customs to divide the land per the number of wives. In his decision on the application to revoke the letters of administration, the learned magistrate at the trial Court rightly held that in discharging his functions, the administrator must give effect to the direction of the court per paragraph 5 of the fifth schedule of the Magistrates' Courts Act [Cap. 11 R.E. 2019] which provides:- 'The administrator appointed by a primary court shall, with reasonable diligence collect the property of the deceases and the debt that were due to him, pay the debt of the deceased and the debt and costs of the administration and shall

thereafter distribute the estate of the deceased to the persons or for the purpose entitled thereto and, in carrying out his duty, shall give effect to the directions of the primary court'. 8 | P age It is, therefore, a contradiction that being aware of the direction of his predecessor, he proceeded to order a redistribution based on customary law. The complaint that the court erred to order redistribution of the estate per the Waha customary law is, therefore, justified. Any party aggrieved by the initial order to divide the estate equally without discrimination based on gender which misapplied Waha customary law ought to have appealed against it. The next issue is whether when application for revocation of letters of administration was filed on 30/1/2020 the appellant had accounted for his administration of the estate. As I have stated above, the appellant filed a report of his administration on 19/1/2017 save for the unsold tree. Even if there is no order in the file to show what the court did in order to close the file, the administration, as far as the property reported to have been distributed were concerned, was deemed closed. The complaint that ought to have been intertained thereafter should have been limited to the unaccounted for estate, namely, the unsold trees. The court, indeed, became' functus officio'\nX\qx\ it received and filed the accounts report. It is

interesting that the learned magistrate who heard the application for revocation acknowledged, as quoted at page 2 herein above, that he was W- 9l?a8e satisfied each heir had been given his or her share. It was, therefore, a misdirecton on his part to thereafter find, without a complaint, that the administrator took a lion's share of the estate. The same apply to the finding that the administrator distributed land which does not form part of the deceased estate to Moladi Nchahagwa. Moladi has never complained about being denied a share. The complaint that the respondent lodged was not about unfair distribution but total failure to distribute the estate. Having found that heirs had been given their share the learned magistrate ought to have confined himself to the issue before him which concerned revocation of the letters of administration for failure to distribute the estate. It is my view that the unusual findings were influenced by the testimony of Calorine Samson who was summoned by the court suo motto. The record is silent on why she was summoned and her relation with the deceased. While a Primary Court is entitled to summon any material witness for the end of justice under rule 38 of the Magistrate Courts (Civil Procedure in Primary Courts) Rules, G.N. 310/1964, the record must disclose the reason for doing so and the nature of evidence of the intended witness. Where no

reason is disclosed, the evidence of such a witness 10 | P a g e becomes of no probative value for tending to suggest that the court was acting or influenced by extraneous matters. In this case, before the order to summon additional witnesses was made the learned magistrate stated:- Shauri HHkuwa Hnakuja kwa hatua ya hukumu lakinibaada ya kupitia Ushahidihuo kwa kina imeona kuwaita baadhi ya mashahidi wa nyongeza ambao ni Modester Nchahaga na mke wa Motadi Nchahaga'. No reason is disclosed in the above passage as to why additional witnesses were necessary. Even the reason to select the two witnesses among many family members is unknown which may insinuate that the court was acting on extraneous matters. On that account, I hold that the evidence of the additional witness Calorine Simon is of no probative value for want of reason for summoning her. I hereby expunge it from the record. Under the circumstances, I find merits in the appeal. I allow it. The concurrent finding of the two lower courts is set aside because of misapprehension of the facts and misapplication of the law. I order the appellant to account for the trees which he has not accounted for. Since 11 | P a ge on 19/1/2017 when the administrator filed a report of the account the court made no orders approving or disproving it, I further order that the trial court should make sure, through the village leaders, that

all heirs are shown their land as indicated on the accounts report filed by the administrator and to finally close the file after the administrator has accounted for the trees. I give no orders as to cost as this is a probate matter involving relatives. I.C. Mugeta Judge 07/12/2020 Court: Judgment delivered in chambers in the absent of Appellant and in the present of Respondent. Sgd: I.C. Mugeta Judge 07/12/2020 12 | P a g e