Victor Leopord vs Leticia

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA PC CIVIL APPEAL NO. 8942 OF 2024 (Arising from Civil Appeal No. 13 of2023 District Court ofMuleba and Originating from Nshamba Primary Court Probate andAdministration Cause No. 11 of2022) VICTOR LEOPORD................................................................ APPELLANT VERSUS LETICIA KATEMBA................................................................ RESPONDENT JUDGMENT 28th August and 20th September, 2024 BANZI, J.: This this appeal emanates from Nshamba Primary Court (the trial court) where the appellant unsuccessfully applied for revocation of appointment of the respondent as an administrator of the estate of the late Wenceslaus Milego Katemba (the deceased). From the records of the trial court, the respondent successfully applied and was appointed to administer the estate of his late brother who died intestate without being survived by any child or wife. Upon being appointed on 18/05/2022, she performed her duties by collecting the estate of the / deceased including cash money TZS 4,500,000.00, one furnished house, a banana farm, three tree farms situated at Ruzinga Kilimbe, Kyameino Juu and Kyameino Chini. In her report dated 25/08/2022, she disclosed how she Page 1 of 10 distributed those properties and cash money to the deceased's relatives and those who participated to assist the deceased when he was sick. After performing her duties and having prepared the report on how she distributed the estate, the appellant who is the son of Leopord Katemba, a relative of the deceased but died before the deceased, filed a complaint before the trial court contending that, there are properties that were not included in the list of the estate subject to be distributed. He also complained that, there was no receipt showing the amount of money that was withdrawn from bank account of the deceased. He prayed for the respondent to be revoked as the administratrix of estate and proposed one Ediphonce Nicolaus Katemba to be appointed instead. His application was supported by Ediphonce Nicolaus Katemba who prayed for revocation of the respondent because she was not faithful for hiding some of the deceased's properties. Responding to the objection, the respondent stated that, she performed her duties and distributed the properties accordingly. She added that, the two houses that were not included in the list are not the deceased's properties, they are properties of their parents. In its findings, the trial court dismissed the objection reasoning that, there was no fault that was committed by the administrator. It also found that, the appellant had no locus standi to apply for revocation because he is not among the beneficiaries of the estate of the deceased. The trial court ordered the Page 2 of 10 respondent to fill in Form No. V and VI by indicating the properties she collected and how they were distributed according to the minutes of distribution of those properties. The appellant was aggrieved by the decision of the trial court, he unsuccessfully appealed to the District Court of Muleba (the first appellate court) which upheld the findings of the trial court hence, this appeal comprising four grounds thus: 1. That, the first appellant court erred in law and facts without analyzing well the evidences adduced that some part of the properties which form party of the estate of the late Winchsiaus Kato were not included by the Respondent on distribution hence occurrence of injustice. 2. That, the first Appellate court and (sic) erred in law and facts for failure to revoke the Respondent as administratrix of the estate of the /ate Winchsiaus Kato Katemba who acted contrary with the interest of the beneficiaries on distribution of estates. 3. That, the first Appellate court erred in law and facts without considering that the Appellant has interest on the deceased properties. 4. That, the first Appellate court erred in law and facts without considering that the distribution done by the Respondent is contrary to the law. Page 3 of 10 At the hearing, Mr. Derick Zephurine, learned counsel represented the appellant whereas, the respondent was represented by Mr. Al-Muswadiku Chamani, learned counsel. Submitting on the first ground, Mr. Zephurine contended that, the first appellate court failed to analyse the evidence as the appellant proved that, some of the deceased properties were not included in the distribution and he produced the list of those properties. Also, there was no proof of exact amount which was in the account of the deceased. According to him, there was an agreement on what should be included in the estate of the deceased but the respondent distributed without considering the agreement. Concerning the second and fourth grounds, it was his argument that, the lower courts erred in law for failure to revoke the appointment of the respondent who distributed the estate contrary to the law. Citing the case of Mwanaheri Mrisho vs Saad Khamisi and Another (Civil Appeal No. 576 of 2021) [2023] TZCA 1748 and rule 9(l)(e) of GN No. 49 of 1971, Mr. Zephurine contended that, the respondent distributed the estate unequally contrary to the interest of beneficiaries. Furthermore, he argued that, the respondent withdrew the money from the deceased account without following the procedure, hence, she was not faithful. Concluding with the third ground, Mr. Zephurine submitted that, the lower courts erred to hold that, the appellant had no interest on the deceased Page 4 of 10 estate. In his view, as Leopord who is the father of the appellant is among the heirs, and considering that Leopord is also dead, his interest is passed to his son, the appellant. On that basis, the appellant being part of family of Leopord, has interest. They were also entitled to be distributed with the landed property. Therefore, he prayed for this appeal to be allowed by quashing and setting aside the judgments of the lower courts; declaring the appellant as beneficiary to the estate of the deceased; the respondent be revoked and Ediphonce Nicolaus Katemba be appointed as her replacement and an order for the estate to be divided equally among the beneficiaries. In reply, Mr. Chamani argued that, this being the second appeal, it ought to have been based on point of law, but the learned counsel for the appellant concentrated on issues of facts. Responding to the first ground, Mr. Chamani contended that, the first appellate court evaluated the evidence properly as reflected at page 5 of the judgment. In respect of the second ground, he contended that, the respondent has never acted against the interest of the beneficiaries. Also, the proposed administrator, Ediphonce Nicolaus is not qualified to be appointed because he is not a close relative to the deceased compared with the respondent. Also, he had no interest to the deceased estate compared to the respondent who is the young sister of the deceased. Concerning the third ground, Mr. Chamani contended that, the appellant has no interest on the deceased estate. Apart from him, even the Page 5 of 10 family of Leopord has no interest too. In his view, according to rule 44 of the Local Customary Law (Declaration) (No. 4) Order 1963, the only heir is the respondent because the deceased left no wife or children and the respondent is the only surviving sibling of the deceased. In that regard, the appellant and the family of Leopord Katemba were not heirs according to the law. Besides, the family of Leopord Katemba are not legal entity to claim the interest over the deceased estate. Reverting to the fourth ground, Mr. Chamani argued that, as the deceased was not survived by any children, the respondent was the only heir and it was improper to distribute the estate to other persons as she did, therefore, if there is any property that was not included or distributed, that property should be inherited by the respondent. In respect of equal distribution, Mr. Chamani argued that, there is no customary law which provides for equal distribution of deceased estate and learned counsel for the appellant did not indicate existence of such law. Therefore, he prayed for this court to reject the prayer for revoking the respondent as administrator of estate because she never acted unfaithfully. He also prayed for judgments of the lower courts to be upheld and the appeal be dismissed without costs as parties are relatives. In his brief rejoinder, Mr. Zephurine insisted that, the appellant has interest in the deceased estate. According to him, as the respondent Page 6 of 10 mentioned the family of the appellant being among the heirs, thus the appellant has locus standi. Having considered the submission of the learned counsel for both sides and the record of two courts below, the main issue for determination is whether the appeal has merit. From the objection presented by the appellant before the trial court, the appellant is complaining that, there are properties that were not included and there was unfair distribution of the deceased estate. The trial court found that, the appellant had no locus standi to object the administration because he has no interest in that estate. That finding was upheld by the first appellate court. Thus, in determining the grounds of appeal which will be discussed jointly, the focus will be on one issue that, whether the appellant has interest on deceased estate. There is no dispute that, though the deceased left various properties, he was not survived by any child or wife. Considering that the estate of the deceased was dealt with by the Primary Court, obviously, it is the customary law that governed administration of that estate. The Customary Law (Declaration) (No. 4) Order 1963 ("the Order") shades light on how the estate of the deceased should be administered where the deceased is survived with issues and a spouse or spouses and where he dies childless with no wife. As the deceased died childless and with no wife, distribution of Page 7 of 10 his estate was supposed to be governed by rule 44 of the Order which provides that; "Ikiwa marehemu hakuacha watoto wala wajukuu, watarithi kaka na dada zake waiiochangia baba na mama- kaka wa kwanza atakuwa na cheo cha kwanza, kaka mwingine na cheo cha piii na dada cheo cha tatu." According to the position of the law cited above, the lawful heirs for a person who died without child or wife are his blood brothers and sisters. In our case, there is no dispute that, the respondent is the blood sister of the deceased, and from the records of the trial court, it is clear that, the appellant is the nephew of the deceased, as the deceased was the brother of Leopord who died before the deceased. Now the next question to be answered is whether the appellant is the lawful heir to the estate of his paternal uncle in place of his demised father. The answer to this question is definitely NO! According to rule 46 of the Order, the appellant would be eligible to inherit, if there would be no blood brothers and sister of the deceased. The rule provides that: "Ikiwa hakuna kaka au dada wowote, watarithi watoto wao. Before this court, Mr. Chamani contended that, the respondent is the only surviving sibling of the deceased. On the other side, Mr. Zephurine Page 8 of 10 learned counsel for the appellant, did not dispute that contention. In that regard, it goes without saying that, according to rule 44 of the Order, the respondent is the only person who has interest over deceased estate and is entitled to inherit all properties of the deceased. Therefore, the money and properties that were distributed to any person who is not the blood sister or brother of the deceased, was illegally distributed. They had no colour of right to get any share from that estate because according to the law, the only surviving heirs is the respondent. However, as the respondent was wise and generous enough to split her share to other people, her generosity cannot be used as a sword against her. Nevertheless, if there are other properties yet to be distributed as contended by the appellant, they are legal properties of the respondent. Thus, the cited case of Mwanaheri Mrisho vs Saad Khamisi and Another which did not deal with inheritance governed by customary law is distinguishable. In the light of the above explanation, and as rightly concluded by the two courts below, the appellant had no locus standi to object the appointment of the respondent as he is not among the lawful heirs or beneficiaries of the deceased estates. Apart from that, it was illegal for him to propose another person to be appointed as the administrator after revocation of the respondent. Page 9 of 10 Consequently, I find no speck of merit on this appeal hence, it is accordingly dismissed. Considering the nature of relationship between parties, I make no order as to costs. It is so ordered. I. K. BANZI JUDGE 20/09/2024 Delivered this 20th day of September, 2024 in the presence of Mr. Derick Zephurine, learned counsel for the appellant who is also holding brief of Mr. Al-Muswadiku Chamani, learned counsel for respondent, the appellant and the respondent both in person and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 20/09/2024 Page 10 of 10