A judgment ULRICKY STAMBULI MOSHY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MOSHI

AT MOSHI PC. PROBATE APPEAL NO. 18 OF 2023 (Arising from decision of District Court of Rombo at Rombo dated 20th July, 2023 in Probate Appeal No.7 of 2022 which Originated from the Decision of Usseri Primary Court dated 23rd November, 2022 in Probate and Administration Cause No. 15 of 2022) ULRICKY STAMBULI MOSHY…………………………………………….. APPELLANT

VERSUS YUSTINA ANTONY NG’OJA….………….………………..……....…1ST RESPONDENT MARGARETA GABRIEL MOSHY……..…..…………………………2ND RESPONDENT GENES PETER SILAYO..……………………………………………...3RD RESPONDENT

JUDGMENT 18th & 30th April 2024. A.P. KILIMI, J.: This is the second appeal, it emanates from the decision of Usseri Primary Court in Probate and Administration Cause No 15 of 2022, wherein the respondents hereinabove objected the appellant to be appointed as an administrator of estate of the late Sengure Markanda Moshy who died intestate on 1973. The trial court proceeded to appoint the appellant despite of the said objection. The respondents successfully appealed to the 1 District court wherein the trial court proceeding and decision was nullified and quashed. Being dissatisfied with the decision of the District Court of Rombo in Probate Appeal No. 07 of 2022, the appellant has knocked the door of this court armed with the following grounds; 1. That, the learned Magistrate of the first appellate Court erred in law and fact as misdirected himself on the fact that deceased estate was already been distributed in absence of ample evidence to that effect.

2. That, the first appellate court erred in law for revoking the appellant’s appointment as the Administrator of estate of the late Sengure Markanda Moshy whereas his appointment was lawful obtained.

3. That, the first appellate Court erred in Law and fact for declaring the appointment and endorsement of the appellant as administrator a nullity on the basis among others that legal heirs were not involved in the clan meeting and that the appellant had no interest in the estate of the deceased.

4. That, the learned Magistrate of the first appellate Court legally strained into an error for declaring that the deceased named SENGURE MARKANDA MOSHY whose estate was to be administered by the Appellant bares also the names of Sengure Maleto Moshi and Gabriel Sengure Maleto while no evidence on record.

5. That, the learned Magistrate of the first appellate Court erred in law and fact for failure to observe that reason for delay to petition for letters of administration was assigned during the trial.

6. That, the learned Magistrate of the first appellate Court erred in law and fact by revoking the Appellant's letters of administration while the deceased estate is left un-administered. 2 Before embarking on the raised grounds of this appeal, I find for easy appreciation of the sequence of events leading to this matter, it is desirable to outline briefly the historical background of the case. The appellant herein applied to above mentioned court to be appointed as the administrator of the estate of late Sengure Markanda Moshy who died intestate as mentioned above. The respondents herein filed objection objecting the appointment of the appellant to be appointed for the reasons that, first; he was not a member of the deceased family, second; deceased estate was already distributed by the deceased himself before his death to his rightful heirs and third; they were not involved in a clan meeting which appointed the appellant to be the administrator. After a full trial, the trial Court dismissed the respondent objection and proceeded to appoint the appellant as an administrator. Being dissatisfied with the trial court decision, the respondents herein appealed to the District Court of Rombo praying for revocation of the appellant. The District Court upon heard them on merit proceeded to quash the decision of the trial court and nullified the proceedings of appointment of the

appellant as administrator by reasoning that it did not make sense for the appellant to come into court after four decades to be appointed as 3 administrator of the deceased estate which was already been customarily distributed to heirs and that perhaps some could have been disposed and transferred to other various hands. The appellant was not satisfied by the District Court decision hence, this appeal. At the hearing of this matter both parties were unrepresented, however I noted the respondents in their reply to the petition of appeal did raise what they termed as preliminary point of objection in alternative to their reply to the said grounds. I considered that both parties were lay persons and since they prayed for written submission, I think they were also at better position to argue the said objection through written submission they filed, but the same was not argued by the respondents. Since are ones triggered them, in that regard, it is my settled view respondent have abandoned them. Thus, I proceed with what were contested by the parties in this matter through grounds of appeal. Starting with the first and sixth grounds of appeal together, the appellant herein submitted that the first appellate court misdirected itself in declaring that the deceased estate was already distributed as no administrator was ever appointed to administer the estate of late Sengure 4 Markanda

Moshy save for the estates which were distributed by the deceased himself during his lifetime. In regard to the second ground of appeal, the appellant submitted that the District court erred in law and fact by revoking his appointment as an administrator of the deceased estate while he fulfilled the requisite to be appointed as an administrator. He submitted that the District court had no reasonable grounds to revoke his appointment and that he never failed to administer his duties as an administrator. For the third, fourth and fifth grounds which the appellant opted to submit all them together, he submitted that the District Court erred in holding that the legal heirs were not involved in a clan meeting. He stated that it was not a legal requirement on whether their attendance was a must, thus it did not affect or invalidate his appointment as an administrator. The appellant further submitted that the District court erred in revoking him as an administrator by holding that the names Sengure Markanda Moshy was the same as Sengure Maleto Moshi and Gabriel Sengure Maleto names which were never proved to be the same as the three mentioned names were a different person. 5 The appellant further stated that the deceased estate to be administered were different from those mentioned by the respondents and that if he ever listed the estate which were not of the deceased, then

the interested parties ought to bring an objection to a trial court against the attachment of the said property. The appellant then prayed for her appeal to be found in merits and the decision and orders of the trial court be restored. In their joint reply, the respondents Yustina Antony Ng’oja, Margareta Gabriel Moshy and Genes Peter Silayo replied that the appellant did not submit legal reasons to prove that his revocation was erred by the District Court. The respondent stated that the appellant was confusing himself legally as the District Court did not revoke his appointment rather it nullified the decision and proceedings of the trial Court and that in the appellant submissions nowhere he showed that he challenged the decision of the District court. On the ground that the deceased estate was not yet to be distributed, the respondents submitted that such aversion lacked factual and legal reasoning as the trial Magistrate on his judgment on page 22 6 and 23 stated the reasons as to how the deceased estate were already distributed. In reply concerning the involvement of legal heirs in the clan meeting and that clan meetings were not a legal requirement, the respondents reply was that excluding a legal heirs in the clan meeting was one of the element of untrustworthy. They further stated that Boniface Gabriel Moshi and Margareta Gabriel Moshi were unreasonably excluded to the

clan meeting which was chaired by the appellant and there were no strong and sufficient reasons to exclude them. To support their point the respondentsreferred to a decision of Kokwijuka Felix Kamugisha vs Deusdedith Kamugisha, Probate Appeal No 04/2018, Bukoba HC (Unreported) at page 12 and 13. In reply concerning different names of the deceased the respondent submitted that, this court should ask itself on whether the estate ought to be administered and if the deceased children were the same. In the end the respondents prayed for the District Court decision to be upheld and the appeal be dismissed with costs. In a brief rejoinder the appellant stated that the District court decision to revoke him as administrator of the deceased estate were not 7 justifiable and that it lacked jurisdiction to revoke him as an administrator as the court which was coated with jurisdiction to revoke his administration was the trial Court, Usseri Primary Court. To back up his point the appellant referred to rule 9 of the Primary Courts (Administration of Estates) Rules G.N No. 49 of 1971. The appellant went on submitting that it was upon the application of the parties to the trial court which could have revoked him upon reasonable grounds. He added that the deceased in his life time distributed part of his estates and other estate he left it in the hand of clan leaders as custodian only for the

purpose of handing them to the original owner who were children of his young brother who moved to the area called Mengwe. In regard to the cited decision of Kokwijuka Felix Kamugisha(supra) the appellant added that the case was distinguishable with a case at hand. I have keenly considered the arguments submitted by both sides on the grounds raised and before going any further into determination of the grounds of appeal, I have noted that the appellant in her rejoinder raised the issue of jurisdiction that the District Court lacked jurisdiction to revoke him as an administrator of the deceased estate as the trial court was the 8 court clothed with the jurisdiction to do so. The appellant referred to rule 9 of the Primary Courts (Administration of Estates) Rules (supra). Perusing the records of the lower courts in this case, I have noted that the issue of jurisdiction was not raised during the hearing of the first appellate court or in the appellate District Court. I’m also aware that the issue not raised and discussed during the trial court ought not to be discussed in the appellate court, but the issue concerning jurisdiction has an exception as it can be raised at any stage even during an appeal like in the case at hand. So many decision has directed the same including the decision of Tanzania Revenue Authority vs. Tango Transport Company Ltd, Civil Appeal No.84 of 2009, Mwisi

Lyimo and 4others vs. NBC Holding Corporation, Civil case No. 112 of 1998 (HCD) Mwananchi Communication Ltd Vs. Joshua K.Kajula and Two others, Civil Appeal No.126/01 of 2016(both unreported). In answering the raised issue concerning jurisdiction, the appellant stated that his appointment as an administrator of the deceased estate ought to have been revoked by the trial Court and not the District Court in its appellate jurisdiction. I have scanned the District court decision and I am in agreement with the respondents that the District Court in its 9 appellate jurisdiction nullified the trial court proceedings and quashed its decision, hence the submission that the District Court revoked the appellant appointment fails short. For ease reference I hereby reproduce what the District Court stated; “Having observed herein above, I hereby quash the decision of the lower court and nullify the proceedings of appoint respondent as the administrator of the deceased’s estate.” From the holding above, the District Court upon quashing the trial Court decision, proceeded to nullify the proceedings of the lower court including the appointment of the appellant as administrator which in my view did not amount to revocation. Thus, in my opinion the District court exercised its power over the trial court in quashing its decision which its impact is like there never been a decision concerning

appointment of the appellant at the trial Court. Therefore, I am settled the District court was exercising its appellate jurisdiction and powers over the trial court by quashing the decision and nullifying the proceedings of the trial Court, therefore I am settled it had jurisdiction to do so. 10 Now back to the grounds of appeal and by starting with the first and sixth grounds as argued above due to correlation, I have perused the District court decision and at page 22 and 23 of its judgment and as also submitted by the respondents, the first appellate court adduced his reasoning on how the deceased estate were already distributed. To be precise, herein are the quoted parts of the District court reasoning. “…it does not make sense and it is not expected for one member of the clan to come in court after 49 years to open the matter seeking an order to administer the deceased estate which has already been in the hands of heirs as owners for such long period and perhaps some have been disposed and transferred to various hands..” From the above, the District court was of the view that since the heirs were already enjoying the distribution of estate of the deceased estate who distributed them during his lifetime, then there were no need to disturb the way they were already living as in doing so may led to opening of other cases with no ends and that it took the appellant almost

four decades to file his appointment as an administrator. 11 I had time to revisit also the trial court records which showed that the deceased died intestate on the year 1973 and the appellant successfully applied for administration of the deceased estate on 02/05/2022. The evidence of the appellant (SU1) at a trial Court when cross examined stated that back then that everyone was living peaceful with its share which was distributed to him by the deceased himself and that the dispute arose over the two acres of land at Kingachi which was a clan land and which was supposed to be distributed to clan members. From that and as per the trial court records, I have noted that it was undisputed by the appellant, the respondents herein and their witnesses that the deceased distributed his estates to his heirs during his lifetime. Such evidence proves that the distribution of the estate was done before the deceased death and hence in my view there were no need for appointment of the administrator who will have nothing to administer. Thus, these grounds lack merit and dismissed. As to the second and third grounds which I see also link in them, the appellant stated that the District Court erred in revoking the appellant appointment as an administrator of the deceased estate basing on the reason that legal heirs were not involved in a clan meeting. The appellant 12 submitted that it was not

a legal requirement for the clan meeting while in reply the respondents submitted that it was untrustworthy not involve legal heirs in a clan meeting. As already discussed above that the District court did not revoke the appointment of the appellant at the trial Court rather it quashed the trial court decision and nullified its proceedings as it was exercising its appellate jurisdiction to do so. Further an in my view the District court could have not only quash the decision and nullified the trial court proceeding living the appointment standing as the decision was pronounced as a whole. Further a clan meeting are not necessarily legal requirement as correctly submitted by the appellant himself see the decision of Obeth Wange vs. Anyangenye Mwasubila , DC Probate Appeal No 1 of 2007 where it was held that; “A clan however powerful cannot appoint an administrator. It merely nominate the candidate. Actually, the clan meeting aimed at nominating a suitable candidate for administration of the deceased estate is a matter of practice, the clan is under no obligation to do so “ 13 I have revisited the District Court decision on issue concerning clan meeting and on page 16 of its decision, the District magistrate stated that non conduction or absence of the said meeting does not invalidate trial court proceedings or be the reason for revocation of the party’s appointment to administer

the estate. Thus, in view thereof, it shows that the District Court did not base its decision of quashing the decision of the lower court basing on the reason that legal heirs were not involved rather explained about the non-legal requirement of the clan meeting in appointing the administrator. In view thereof I find these grounds unmerited hence fail. The fourth and fifth grounds that concerning names of the deceased to be Sengure Markanda Moshy, Sengure Maleto Moshi and Gabriel Maleto. I think this cannot labour me much as the trial court records speaks louder as they show that the names mentioned above were referred to one person by both of the parties, the appellant and the respondent herein. They both referred to a person who died in 1973, who had the disputed land and who had two children. I’m also in agreement with the district court decision as to the page 24 of the District Court decision when the Magistrate stated that there were no reasons or explanation adduced as to 14 why the appellant was late in filing for the appointment to be administrator, his reasons which I totally agree as there are no reasons recorded as to why the appellant was late in filing for administration of the deceased estate. The reason advanced by the appellant as stated by the trial court, that the grandson of the deceased Alfred Salema Mushi (SUIII) approached the clan and told that has been

confiscated with his farm left by the deceased in my opinion cannot be the reason substantiating for the delay to file probate cause, while SUIII knew heirs of the deceased are two children of the deceased and himself as grandchild inherit from his father. Nonetheless, this being the appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial court should stand, thus cannot hesitate to decide if it has gone otherwise. (see Peters v. Sunday Post Ltd (1958) E.A. 424.) According to the evidence tendered at the trial court at page 9 of the proceeding, the appellant admitted that the first respondent was duly appointed by the trial court via Probate Cause no. 9 of 2022 to be the administrator of the estate of her deceased husband who was the son of the deceased the appellant claims to make administration. Moreover, there is no dispute that the said Probate was closed by the same court on 15 21/04/2022 before Hon. B.M. Macha Primary Court Magistrate after she filed an inventory. According to The Primary Courts (Administration of Estates) Rules, 1971 - GN No. 49 of 1971, a time frame has been provided within which an administrator is mandatorily supposed to submit to the Primary Court a statement in a prescribed form on how the estate has been administered. To let rule 10 speak for itself provides that; "10. Statement of assets and

liabilities and Accounts of the estate (1) Within four months of the grant of administration or within such further time as the liabilities court may allow, the administrator shall submit to the court a true and complete statement, in Form V, all the assets and liabilities of the deceased persons' estate and, at such intervals thereafter as the court may fix, he shall submit to the court a periodical account of the estate in Form VI showing therein all the moneys received, payments made, and property or other assets sold or otherwise transferred by him. (2) The statement and accounts referred to in subrule (1) may, on application to the court, be inspected by any creditor, 16 executor, heir or beneficiary of the estate." [Emphasis supplied] The above provision allows any interested party to inspect, and if at any how is aggrieved with the said accounts should have lodge his/her grievances to the said appointed court. Thus, it is my considered opinion the fact that the first respondent performed her duty and nobody showed up to object her on what she accounted, I am of considered view the aggrieved interested part cannot seek to revive the probate of deceased estate already bequeathed to heirs known and for one demised had administrator of his estate. Be as it may, the appellant in my view have lost his credibility in administering this estate when in his testimony showed

vividly elements of discrimination against women in the administration of the deceased estate; For instance at page 32 of the typed proceeding, when he was cross examined by the second respondent who is the daughter of the deceased, said and I quote’ 17 “ -Huyu SMII ameolewa na k/f 52 kinasema ndugu wa kiume ndiyo wanaosimamia mirathi ya marehemu. -wapo Watoto wa kiume wa kusimamia sio wewe. Salema ana Watoto wa kiume” The above literally translates in English that, “This SMII is married and as per k/f 52 states that male relatives are the one responsible to administer the deceased estate. There are male childrens who are able to administer and not you. Salema has male childrens.” According to Article 12 and 13 of the Constitution of the United Republic of Tanzania provides all human beings are born free and are all equal, thus no law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or its effect. From the above law of the land any customary law as the appellant tried to venture above cannot override the constitution of the Country, every law must abide to the constitution otherwise it is a nullity. Another point at this juncture to be considered is whether the appellant has interest to the deceased estate. According to section 2 (b) of 18 part I of the fifth Schedule of the Magistrate Court Act Cap. 11

provides that; “A primary court upon which jurisdiction in the administration of deceased's estates has been conferred may- either of its own motion or on application by any person interested in the administration of the estate, where it considers that it is desirable so to do for the protection of the estate and the proper administration thereof, appoint an officer of the court or some reputable and im partial person able and w illing to administer the estate to be administrator…” In view of the above law, I find persuaded to adopt the holding of my brother Mruma, J. in Hamis Wendo vs. Hamida Mohammed and 2 others, PC Administration Cause Appeal No. 13 of 2019 after considered the law above, observed that; “Issues regarding interest are critical issues which must be dealt with and settled in all administration causes before dwelling into other substantive issues. For a person to be clothed with locus standi to apply for Letters of Administration of the estate of a 19 deceased person he must satisfy the court that he has dual interests in the matter; first he must show that he has a desire ( or interest) to administer the estate of the deceased and secondly he must satisfy the court that he has interest or shares or legal claims in the estate of the deceased that is to say he is interested in the estate. Finally, the law requires that the person interested in the administration

of the estate for purposes of protecting it being an im partial person. Impartiality entails being unbiased or disinterested. In his evidence before the trial primary court” In this matter at hand, the appellant at page 33 of the typed proceeding acknowledged that the deceased left two children, but insisted heirs must be male children of male son of the deceased, and as clan have decided to interfere the situation after seeing deceased estate is squandered. In my considered view on that page, first the appellant acknowledged that the deceased left two heirs, second shows how he was biased for those supposed to inherit, and third he was less interested than the grand child of the deceased SUIII who reported confiscation of his land to the clan meeting, despite the fact he acknowledging that grandchildren should have claimed estate from their father and not the deceased (grandfather). 20 According to the evidence of the appellant at the trial court, he said he was nominated by the clan meeting to petition for letters of administration because there was a dispute of the deceased estate, however, in my view, since one of the children is present (the second respondent) and for the other, there is administrator of his estate, who is the wife of the son of the deceased (first respondent). In my settled view, there is no need to appoint administrator of the deceased while there

are existing heirs who acquired after deceased estate by inheritance for over four decades. This means also there is nothing to administer after the two heirs inherited deceased estate for such period of time. Therefore, I am of considered opinion any interested party has to lodge his or her grievances against the surviving heirs above, and not rising probate of the deceased who passed away more than four decades ago. In the circumstances, I am the settled view that, since there was nothing to be administered, then the appointment of the appellant by the trial court was a nullity from the beginning as it was held by the first appellate court. Hence the fourth and fifth grounds also lack merits. Having discussed above, I find this appeal lacking merits, The District Court 21 decision is hereby confirmed forthwith. In the circumstances no order as to costs granted. It is so ordered. DATED at MOSHI this 30th day of April 2024. A. P. KILIMI

JUDGE Court: Right of Appeal duly explained. Sgd; A. P. KILIMI

JUDGE 30/04/2024 22