shadrack francis mtimbwa vs mtimbwa david mtimbwa 2021 tzhc 9530 30 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT MOROGORO PC. CIVIL APPEAL NO.44 OF 2021 (Original - Probate Cause No. of 20 of 2016 from Magole Primary Court & Civil Appeal No. 39 of 2020, in the District Court of Kilosa, at Kilosa - Before Hon. F. G. Kessy, RM)

SHADRACK FRANCIS MTIMBWA APPELLANT Versus

MTIMBWA DAVID MTIMBWA RESPONDENT

JUDGMENT 02"'' & 30^ November, 2021 CHABA,J: According to the record at trial, on the 23'^ day of January, 2017 the appellant, Shadrack Francis Mtimbwa was appointed by Magore Primary Court (the Trial Court) in Kilosa District via Probate and Administration Cause No. 20 of 2016 to administer the estates of the deceased one David Francis (His young brother). It is alleged that the deceased left ten (10) issues in total. Five issues (5) from his lawful wedlock and other five (5) issues without the wedlock. All these children were born from three different mothers. While in the course of administering the estates of the deceased, some complaints arose. Three children among those who were born out of the wedlock, lodged their complaints before the trial court to the effect that they were not happy with the appointed administrator, in particular on how he handled the whole process of administration of the Page 1 of 17 deceased's estates upon failure to perform his duty pertaining to distribution of the deceased's estate to the beneficiaries as required by the law. The ones who lodged these complaints are Mtimbwa (the respondent herein), Mariam and Damaii who are son and daughters of the deceased. According to the trial court record, the complaints were heard, and the trial court was satisfied that the same were genuine. It was revealed that the appellant had mishandled the

deceased's estate, discriminated some of the beneficiaries during distribution of properties and sold part of the deceased's property by involving only few heirs while also failing to give sufficient explanations as well as to account for the proceeds generated from the property in question (vijana guest house). As if that was not enough, the administrator sought to close the Probate and Administration Cause No. 20 of 2016 at Magole Primary Court while the complaints had already been lodged before the trial court. The court record further reveals that the appellant applied for filing inventory before the trial court on 14/07/2020 without accounting for the proceeds of the sale of the said guest house and even showing the statement of previous status of such property whether there were any profits or otherwise. At the end of the day, the trial court gave an order to the effect that the appellant had to file the correct account of the proceeds of the said property, namely Vijana Guest House from the date of his appointment to the date of ruling. More so, the appellant had to verify the transactions involved in the sale process. Page 2 of 17 Discontented with the trial court decision, the appellant filed an appeal before the District Court of Kilosa, at Kilosa armed with eleven (11) grounds of appeal. On scrutiny, the District Court found that since the grounds of appeal were

intertwined, the crucial question before it was whether or not the trial court erred in law and fact when denied the appellant or the administrator to close the said Probate and Administration Cause No. 20 of 2016 for one reason that at the material time still there was a dispute among legal heirs regarding equal distribution of one of the deceased estate's property (vijana guest house) whereas the appellant had filed the inventory plus all the respective documents or forms. The first Appellate Court had an opportunity to assess and examine the trial court proceedings and ruling, it was satisfied that the appellant's appeal had no merit and ended to dismiss it with no order as to costs, hence this second appeal. The appellant filed six (6) grounds of appeal as hereunder shown: 1. That, the District Court erred in Jaw and fact to uphold that the time for appealfor a decision from Primary CourtIs only 15days.

2. That, the appellate District Court erred In law and fact by upholding that the dispute between the legal heirs denies the right of the administrator to dose the administration.

3. That, the appellate District Court erred In law and fact to dwell on questioning about the property which was excluded from the deceased's estates during the granting ofletters ofadministration.

4. That, the appellate District Court erred In law and fact by upholding that the administrator has duty to discuss and agree with all beneficiary during discharging ofhis dudes. Page 3 of^l7 5. That, the Appellate District Court erred In law and fact by upholding that the valuation report dated 2017 will not suffice the market price in 2020 while Ignoring the history ofselling the same from 2017 to 2020.

6. That, the Appellate District Court erred in law and fact by ignoring to address some grounds of appeal which have merits if entertained separately from other grounds. By consent of the parties, the appeal was argued by way of written submissions. This was adequately done, and I am grateful to all counsel for the parties for adherence to the court's schedule. Mr, Aziz Mahenge, learned advocate from Jubilee Attorneys entered appearance for the appellant, whereas the respondent appeared In person. At the hearing the learned advocate for appellant opted to drop ground No, 6. Arguing in respect of the first ground of appeal, Mr. Mahenge submitted that the right to appeal as stipulated under Section 20 (3) of the Magistrates Courts Act [Cap. 11 R.E, 2019] is thirty (30) days and not within fifteen (15) days as it was pronounced by the trial court. He submitted that by so stating, the primary court set a precedent contrary to the law, and it misdirected the parties and the District Court as well, because it upheld the trial court decision. As regards to the second ground of appeal, the learned advocate submitted that the duty of an administrator is clearly stated under Section 108 of the Probate and Administration of Estates Act [Cap. 352 R,E. 2002], but the administrator was wrong to close the administration while the legal heirs were still in dispute among themselves and it

was not even clear as to whether the said estate had been distributed fairly in accordance with the law. Page 4 of 17 On the third ground, the learned advocate submitted that the trial court erred in law and fact by dwelling on questioning about the property not distributed while it had the knowledge that the respective heirs had a dispute over the deceased's properties and some of them were excluded during time of grant of the letters of administration. Referring to the trial court proceedings, Mr. Mahenge underlined that at pages 3 and 4 of the typed judgment of the trial court, it shows that there was a dispute between the respective heirs. It read: "There was misunderstanding among the heirs and that they were involved in selling of the property of the deceased who is their father and that the division was fair among the beneficiaries." From the above cited passage, the learned advocate invited this court to step into the shoes of the trial court and settle the matter under the umbrella of what he named as "Justice should not be done, but should manifestly be seen to be done". To bolster his argument, he referred this court to the case of M/s Darsh Industries Limited v. M/s Mount Meru Miilers Limited, (Civil Appeal 144 of 2015)[2016] TZCA 144(23 October 2016); where the Court held among other things that: "the trial court had failed to uphold the appellant's right to

be heard when It arrived at Its decision and therefore violated a constitutional right". In another case of Muro Investments Co. Limited v. Aiice Andrew Mieia, (Civil Appeal No. 72 of 2015) [2018] TZHC 24 (02 February, 2018); the Court held inter-alia that the decision of the trial court giving rise to this appeal could not be allowed to stand on account Page 5 of 17 of being arrived at in vioiation for the constitutional, a right to be heard". In the result the appeal was granted. In respect of the fourth ground of appeal, Mr. Mahenge underlined that on the basis of Ruie 5 of the Fifth Scheduie to the Magistrates Courts Act [Cap. 11 R.E. 2019] the administrator had a duty to coiiect properties of the deceased and then distribute accordingly to the legal heirs. He further averred that the administrator (the appeiiant) went far by caiiing a family meeting to inform them what was going on. On the fifth ground, the counsel stated that the market value of the landed property largely depended on the use of the property in line with the available market at the material time. He submitted that, usualiy cuiturai vaiues attached to the property determines the vaiue itself. As the property is iocated at rural areas, the value may stick and remain the same for some years if the same cannot be deveioped. From the foregoing, the iearned advocate prayed the court to uphoid the instant

appeal, set aside the decisions of the lower courts and order that the costs be borne by the respondent. On his part, the respondent replied seriatim commencing with the first ground. He went on submitting that the first ground of appeai has no merit because the mere mentioning of 15 days as time for right to appeal, might have been a siip of the pen or human error which iegaiiy did not prejudice the appeiiant. He underiined that as this court is a court of justice, then it should not be tied up by technicaiities and obstruct dispensation of justice by fauiting the decision of the lower courts. He cited Articie 107A (2) (e) of the Constitution of the Page 6 of 17 United Republic of Tanzania (as amended from time to time) as the main law to rely on. On the second ground, the respondent accentuated that since the administrator or appellant misappropriated the deceased's estates on his own benefit, initiated the move to close the probate and administration cause while having the knowledge that there was a dispute among heirs regarding unfair distribution of the deceased's estate and taking into account that he then involved to create classes within the family, that is why the District Court did not hesitate to uphold the decision of a trial court. He referred this Court to Rule 10 of the Primary Courts (Administration of Estates) Rules G.N. No.49 of 1971 (the Rules) which states

that, "the statement and account... may on application to the court be inspected by any creditor, executor, heirs or beneficiaries ofthe estates". Regarding the third ground, the respondent argued that there is no any property from the deceased's estate which were excluded from the estate of the deceased. He highlighted that had it been so stated, the heirs would have been involved and minutes of the meeting to such effect would have explicitly stated. Since the deceased died intestate (without leaving a WILL), the respondent said, there is no evidence to prove that some properties were excluded in distribution to the heirs by the appellant. The respondent further averred that the trial court had valid powers to question on the property under Rule 8 of the Rules (supra) because the appellant being an administrator of the deceased's estate had no absolute powers over such estate. He underscored that the District Court was correct to uphold the decision of the trial court. Page 7 of 17 On the fifth ground, the respondent averred and insisted that an ^ evaiuation conducted in 2017 cannot be equivalent to an evaluation conducted in 2020/2021. I have impassively given careful consideration to the grounds of appeal, submissions and arguments advanced by both parties and the record of the lower courts. I have noted that, the prime issue for determination at this juncture is whether

the instant appeal is meritorious. It is trite law that the appellate court should not disturb the concurrent findings on facts by the lower courts unless there is a misdirection of the law. This rule is not novel, it has been applying in the courts ever since. The cases of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores v. A.H. Jariwalla t/a Zanzibar Hotel (1980)TLR 31 and Fatuma Ally v. Ally Shabani, Civil Appeal No. 103 of 2009 CAT are relevant. Thus, in determining the instant appeal, I will be guided by the above precedents to reach to a fair and just decision. I have noted that the first ground of appeal relates to the complaint that the District Court erred both in law and fact to uphold that the time for appeal to the District Court from a decision originating from the Primary Court is fifteen (15) days. To answer this ground of appeal, I prefer to revisit the relevant law from the Primary Court Jurisdiction. The Probate and Administration of Estate Cases before the Primary Courts have two sets of law concerning procedure. One, The Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971; Two, The Magistrates Courts Act [Cap. 11 R.E. 2019] (the MCA) and Three, the Page 8 of 17 Fifth Schedule to the MCA. Starting with the provisions under Section 19 (1)(c) of The MCA, it provides: "19 (1) - The practice and procedure of primary courts shaii

be regulated and, subject to the provisions ofany law for the time being in force, their powers limited in the exercise of their jurisdiction in the administration of estates by the provisions of the Fifth Schedule to this Act, and, in matters of practice and procedure, by rules of court for primary courts which are not inconsistent therewith; and the said Code and Schedules shall apply thereto and for the regulation ofsuch other matters as are provided for therein. Under Rule 11 of the Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971, the iaw states that: "In relation to ail matters not provided for in these Rules, the provisions of the Civil Procedure Rules shaii apply to proceedings under these Rules as they apply to other proceedings ofa civil nature. By a broad interpretation of the above provisions of the iaw, it can be gathered that in case of time for appeal and procedure, the Probate Rules and the Civil Procedure Rules are silent. But the MCA itself provides for time limit and procedure. Therefore, section 20 (1)(a) and (3) of the MCA which provides for time within which to appeal from primary court is relevant here and it reads:- "Section 20(1)- Save as hereinafter provided (a)NA Page 9 of 17 (b) In any other proceedings, any party, if aggrieved by an order or decision ofthe primary court, may appeai therefrom to the district court ofthe district

for which the primary court is estabiished. # (2)NA (3)Every appeai to a district court shaii be by way ofpetition and shall be filed in the district court within thirty days after the date of the decision or order against which the appeal is brought" (Emphasis added). From the above provisions of the law, time specified to appeal to the District Court is thirty (30) days. Looking at the trial court record, it is evident that the trial magistrate erred in law when he recorded fifteen (15) days as time to appeal from Primary Court's decision to the District Court. On the other hand, the Appellate court was also caught in the same web. As noted above, being the first appellate court, it had a duty to notice this apparent erroneous and rectify it as it has powers to do so. However, as rightly highlighted by the respondent, I am in agreement with his argument that under the circumstances such error is a minor and sterile one. In my view, it did not prejudice the appellant. Even the appellant himself did not substantiate any prejudice caused to him by such statement of the law. I have in mind that the appellant persisted to the point of the said error being a bad precedent. But, considering the fact that primary courts are not courts of record, as far as our jurisdiction is concerned, I see wisdom in invoking the provisions of Section 29 (c) of the MCA to cure the error. The powers

of the High Court on Appeal under these provisions of the law are clearly stated that: Page 10 of 17 "Section 29 - In the exercise of its appellate jurisdiction under this Part, the High Court shall have power: (a) ... N/A (b) ... N/A (c) to make any other decision or order which might have been made by the court offirst Instance". Coming to the second ground of appeal, the appellant complaint Is that the appellate District Court erred In law and fact by upholding that the dispute between the legal heirs denies the right of the administrator to close the administration. I have carefully re-read the contents of the appellant's submission, but I found myself In a crossroad. As gleaned from the appellant's submission, the learned advocate submitted that under Section 108 of Probate and Administration of Estates Act [Cap. 352 R.E. 2002], the provision provides for the duty of the administrator during administration of the deceased's estates. He further conceded that the administrator was wrong to have attempted closing the administration of the estate of the deceased while having In his mind that the legal heirs were still In dispute among themselves, and It wasn't even clear whether the said estates had been distributed fairly to the beneficiaries In accordance with the law. With due respect to the learned advocate for the appellant, the so-called Probate and Administration

of Estates Act [Cap. 352 R.E. 2002] Is Inapplicable law In the circumstance of this case. The relevant law Is the Magistrates Court Act [Cap. 11 R.E. 2019] Why? because the matter did originate from Magore Primary Court In the District of Kllosa, at Kllosa. Even though the provisions of the law under Sections 108 of the Probate and Administration of Estates Act [Cap. 352 R.E. 2002] was wrongly cited and or applied by the Page 11 of 17 learned counsel for the appellant, but the same is pari-materia to Rule 5 of the Fifth Schedule (supra). But both the learned counsels have the opinion that the appellant was wrong to attempt closing the probate and administration cause without submitting the respective inventory report. In that view, the findings of both lower courts on this aspect were correct. For the reasons aforesaid, this ground must fail. In respect of the third ground of appeal, the appellant's grievance is that the appellate District Court erred in law and fact to dwell on questioning about the property which was excluded from the deceased's estates during the granting of letters of administration. At the outset, I would like to state that this ground of appeal Is devoid of merit. I say so because, it is a trite principle of law that the powers of the administrator of the deceased's estate are neither absolute nor independent. The good practice dictates that in the

exercise of distributing the estates of the deceased, in particular where the deceased died intestate, the appointed administrator is duty bound to involve the respective heirs and abide by the directives given by the trial primary court. On perusal of the lower courts' records, I found and duly satisfied in my mind that the findings and decisions reached by the two lower courts are sound. There is no fault at all regarding the powers of the administrator, as the same are subject to the rights of the heirs. On the fourth ground, the fronted complaint is that the appellate District Court erred in law and fact when it upheld that the administrator had a duty to discuss and agree with all beneficiaries during the discharge of his duties. It is evident from the court record that the administrator held a stance that he was not ordered by the clan meeting which proposed him for the post to account for the proceeds generated Page 12 of 17 from a landed property called vljana guest house. Whether the appellant 0 was duty bound to account for the proceeds or to Involve the beneficiaries in his conduct during administration of the estates of the # deceased, I think in my opinion that, this is a point or question of law. Frankly speaking, what the appeliant stands for, is against the law. Sections 5 and 8 of the Fifth Schedule to the MCA (Supra) dedicates a correct perception of the

administrator's duties. Unless otherwise is provided for by the iaw, the administrator is responsible to take care of all the properties in the estates with reasonabie diligence. Even the provisions of Rule 10 (2) of The Administration Rules (Supra) on the rights of heirs to inspect the statement and account implies the duty of ^the administrator to involve heirs before distribution of their rights/legacy. In Safiniel Cleopa v. John Kadeghe [1984]TLR198, the appellant sought to revoke the appointment of the respondent as administrator of the estate of the deceased on the ground that he had misapplied or subjected the estate to loss or damage. It was established on the evidence avaiiable that the administrator had under- priced some property sold and failed to account for the whereabouts of various other properties. On appeal, this court heid: (!) The sale ofproperty at beiow the market value and failure to account for the whereabouts of other properties In the custody of the administrator amounts to misapplication ofthe estate; (H) an administrator who misapplies the estate of the deceased or subjects It to a loss or damage Is liable to make good such loss or damage. Page 13 of 17 Though there is no evidence indicating that the respondent attempted to file objection proceedings seeking revocation of the appointment of the appellant as an administrator of the estate of

the I deceased on the ground of failure to account for the proceeds of sale of the said vijana guest house, but the law in express terms provides that the administrator is liable to make good any loss occasioned by his misappropriation, negligence or inaction. In my meditation, the guiding principle in the case of Safiniel Cleopa (Supra) is vital in the circumstance of this case. Thus, on this facet I find no genuine reasons to faults the findings and verdict reached by the Primary Court which ultimately was upheld by the District Court. For these reasons, this ground of appeal is hereby thrown over the board. The fifth ground hosts parties' contention as to whether a land valuation report which was conducted in the year 2017 would meet the same purpose in the year 2020. 1 think the appellant's complaint on this point deserved to be discouraged by the rule of common sense before the law can apply. According to Rule 3 of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, G.Ns. No. 22 of 1964 &. 66 1972, matters of common knowledge are taken under judicial notice. It provides: "Rule 3(1) The following facts need not be proved, but the court shall be deemed to know them; (a) ... N/A (b) ... N/A Page 14 of 17 CcJ Matters of common knowledge such as the divisions of time, the different kinds of money, weights, measures; the regions and districts of Tanzania,

and the whereabouts ofpieces in Tanzania; (d) Other matters of common knowledge such as that rain fails, cows have four iegs, Hons are dangerous animais, trains run on rails, etc." In the spirit of the above provision of the law, I hold that it is the matter of common knowledge that a valuation report on the landed property conducted in the year 2017 cannot be equated with the same report on a landed property conducted in the year 2020. As indicated above, the court is deemed to know this fact and the respondent needed not to prove this fact. As a general rule, valuation report Is prepared purposely to ascertain the current market value of the landed property. A report made from the valuation conducted some months ago can be treated as current within the range. Equally, the value so ascertained in the year 2017, in my view, cannot at any rate be equated and stand as current value In the year 2020. A period of three years is sufficient to establish and bring phenomenal diversity in market value In as much as landed property In question is concerned. In the sense of judicial notice, the appellant was and still, is duty bound to respect his post in dealing with the deceased's estate by considering the market price of the property at the material time, if at all selling of the property in question was necessary. As the lower courts were perfectly handled this complaint, again I am

afraid that this ground of appeal must fail as well. Before I conclude, I wish to address one thing which is very crucial to those vested with the powers and mandates to preside over matters Page 15 of 17 at the level of Primary| Courts. When I was preparing this judgment, I noted a serious error which is apparent on record. When the trial magistrate executed his powers to appoint the appellant as an administrator of the deceased's estates, he involved himself to issue some orders to the appellant or administrator directing him to distribute the deceased's estates. Honestly speaking, the trial magistrate acted beyond his powers and capacity as well. He ought not to distribute the estates of the deceased. The court of law has a duty to supervise and not to make orders in respect of the deceased's estates. I am aware that the conduct of the trial court renders the entire proceedings and the decision thereof and all subsequent orders nullity, hence the invocation of Section 44 (1)(b) of the Magistrates Courts Act [Cap. 11 R.E. 2019] in inevitable. However, with all the administration and distribution of the estates of the deceased, oniy the landed property namely, vijana guest house Is still unresolved. Upon keenly considered the surrounding circumstance of the instant appeai, and upon taking into account the steps that the administration of the matter has been reached at the

moment, I am of the firm view that, opting to technicalities that wiil be a wastage of time and it won't help anymore. In the circumstance of this case, I think in my opinion that invocation of Article 107A (2)(e) of the Constitution of the United Republic of Tanzania, 1977 (as amended from time to time) is vital. In the same vein. Sections 3A and 3B of the Civil Procedure Code [Cap. 33 R.E. 2019] are useful in the circumstance of this case as the overriding objective of this Act are meant to facilitate the just, expeditious, proportionate and affordabie resolution of civil disputes. The iaw provides that the Courts shall, in the exercise of its powers Page 16 of 17 under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective of which, I hereby do. Since the appellant did not raise any complaint against the spotted anomaly, I would like to remind all resident magistrates stationed at the level of primary courts to desist involving themselves in the distribution of the deceased's estates as by so doing, magistrates will be acting in defiance to the law regulating their discharge of their respective functions. Not only such an act may usurp powers of the appointed administrators, but also staining their impartiality which is the basic value in adjudication of different matters. This court through various decisions has insisted the

importance of adhering to the legal limits. Some of the decisions are Magreth Reuben Mmary and two Others V. Mary Reuben Mmary, PC Civil Appeal No. 06 of 2020, HCT (DSM), Ibrahim Kusaga v. Emanuel Mweta [1986] TLR. 26 and John Mmari v. Olive Edes Macha and Another, Civil Revision No. 2 of 2020; to mention a few. For these reasons, and to the extent of my findings, I am satisfied that the present appeal is non-meritorious. Save for the first ground and the comments on what the magistrates are required to observe, the proceedings and decisions of both lower courts are upheld. The appeal is dismissed with no orders as to costs. Order accordingly. DATED at MOROGORO this^3^^d^y of November, 2021. ^ M.J. CHABA

JUDGE r * 30/11/2022 Page 17 of 17