final judgment WAIDA ABDALAH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB – REGISTRY OF MOSHI AT MOSHI CIVIL APPEAL NO. 9086 OF 2024 (Appeal from the decision of the District Court of Moshi at Moshi dated …. in Misc. Civil Application No.26/2023 and originating from Probate and Administration of Estate Cause no. 13 of 2023) WAIDA ABDALLAH HASSAN…………………………………. APPELLANT VERSUS SIFAT AFIFA YAHYA (Administratix of the estate of the late Said Abdallah Hassan) …………… RESPONDENT JUDGMENT 04TH Oct. & 11th Dec. 2024 A.P. KILIMI, J.: The matter has a chequered history. It commenced upon one Abdulrahaman Said Abdallah Hassan filed a Probate and Administration cause at the District Court of Moshi ‘trial court’ seeking to be appointed as administrator of the estate of his father namely Said Abdallah Hassan (deceased) who died intestate on 24/03/1993, at Nakuru Kenya. The matter was filed in Moshi after the trial court was acquainted that the deceased had fixed place of abode in Moshi township, within the District of Moshi Kilimanjaro Region. 1 Following general citation made for his petition, one Khalid Said Abdallah filed a caveat at the trial court against him, however later the caveator entered mutual agreement with the petitioner to be appointed as co-administrators of the estate of their deceased father. Consequently, their deed of settlement was filed at the trial court and hence on 21/06/2023 the trial court affirmed the said deed and appointed both to be co-administrators of the deceased estate. Few days later, on 13/07/2023 the appointed administrators jointly filed a letter at the trial court renouncing their grant and informed the trial court that themselves and whole family have consented one Sifat Afif Yahya to be appointed as administrator in lieu thereof. It was on 19/07/2023 when Sifat Afif Yahya filed an application ex parte vide Misc. Civil Application no. 21 of 2023 which was supported with consent form of all deceased children and deceased wife seeking to be appointed as administrator of the deceased estate. Then the trial court reasoned that since both administrators consented to be revoked, thus their grant became useless and inoperative. Subsequently the trial court proceeded to revoke the two earlier appointed administrators and substituted them with one Sifat Afif Yahaya ‘respondent herein’ 2 Subsequent the appointment, the administratrix started to discharge her duties and with the consent of heirs she sold the sole property of the deceased on 24th July, 2024 at the price value of TZS. 200,000,000. There after the respondent distributed the proceeds of sale to heirs as follows; Abdulrahman Said Abdallah Hassan TZS. TZS. 47,500,000, Khalid Said Abdallah TZS. 47,500,000, Ghazal Said Abdallah Hassan TZS. 47,500,000, the appellant Wahida Said Abdallah Hassan TZS. 50,000,000 and Jamila Salim 7,500,000. The proceed of sale was deposited to each beneficiary account respectively but appellant despite of being allocated a large amount refused to issue her account. Thus, on 28/7/2023 the appellant herein filed a case Misc. Application no. 26 of 2023 praying this court to revoke the grant of letters of administration to the respondent because it was obtained by false and fraudulent means. The trial court having heard the appellant and appointed administrator observed that the appellant failed to prove the alleged fraud therefore since she signed the minutes and consented to the sale therefore her allegations remained an afterthought. Furthermore, the trial court was of the view that since sole estate had been sold and the proceeds had been distributed to 3 three beneficiaries save for the applicant who refused to cooperate, the same would have nothing to serve for the sole property already distributed to other heirs. The applicant was aggrieved by the order of the district court hence preferred the present appeal based on nine (9) grounds as indicated in the memorandum of appeal. Later in the proceedings before this court the appellant sought for leave to file an additional ground of appeal which for the interest of justice was allowed. The grounds are as follows; One, that the trial Court erred in law and in facts in entertained and determined the matter in raising a new issue which was not among the issues framed in the Court to be determined. Two, that, the trial Court erred in law and facts in failed to put proper records as adduced by the parties to the suit. Three, that, the trial Court erred in law and fact in delivering its decision which is not in harmony with the evidence on record. Four, that the trial Court erred in law and facts by entertained and determined the matter and decide in the favour of the Respondent while the matter was proved as per the standard by the law. Five, that, the trial Court erred in law and facts in determined and heard the matter and deliver the judgment which is contradictory its self and contrary to the pleadings. Six, that, the trial Court 4 erred in law and facts in deciding the matter in the favour of the Respondent by using its biasness, emotional, attitudes and views of the Respondent without considering that there is contradictory evidence on the Respondent side. Seven, that, the trial Court erred in law and in facts without considering that the matter was time barred. Eight, that, the trial Court erred in law and fact in failed to revoke the appointment of the Respondent from administering the Estates of the late of Said Abdallah Hassan who is not one among the heirs of the deceased and Nine, that, the trial Court erred in law and facts in deciding the matter without consider that there is investigation carried on by Moshi Central Police and PCCB which can be a good evidence on the said forgery. Further in respect to additional ground the appellant claimed that the trial court erred in law and facts in entertained, heard and blessed the disposition of the estate of the deceased one Said Abdallah Hassan transaction and disposition was done contrary to the law. At the hearing of the appeal the appellant was represented by Mr. Lecktony Ngeseyan, learned advocate while the respondent was unrepresented. It was agreed that the appeal be disposed by way of written submission following prayer by the counsel of the appellant who was by then 5 attending court of appeal session. This court issued a filling schedule which parties complied and the effort is accordingly appreciated. I have gone through the record of appeal and also the submissions from both parties of which I will not reproduce in verbatim but I will be referring to the same in due course in determining this appeal whenever necessary. In his submission supporting the appeal Mr. Ngeseyan abandoned the 2nd and 6th grounds and decided to argue the 1st, 2nd, 3rd, 4th and 5th grounds collectively. He then proceeded that the trial court decided the matter in favour of the respondent while the same was not proved on the required standard by the law. Explaining further he said the trial court had decided the matter based on new issues that it raised when composing the ruling. He submitted that on pages 10 and 11 of the ruling of the trial court the court raised issues of caveat and citation and also the issue of expecting the appellant to complain about not being given her share of inheritance. He argued that it was wrong for the trial court to raise new issues while composing its decision because those issues were not pleaded. The learned counsel supported his submission with the case of Blay vs. Pollard & Morris 1930 1KB 311. 6 Mr. Ngeseyan further submitted that the trial court had raised another new issue that the respondent was an interested person while it was not amongst the issues for determination. He argued that by saying that the law prioritizes the petitioner’s interest in the estate without showing which interest the petitioner had over the said estate, the trial court had departed from what was submitted by the Respondent hence the ruling was also a nullity. Submitting on the 7th ground of appeal Mr. Ngeseyan stated that the matter was time barred based on the provision of Rule 31(1) of the Probate and Administration Rules, Cap 352 R.E. 2002. He argued that this provision of the law was violated because 30 years had passed since the deceased Said Abdallah Hassan died. He substantiated his argument with the case of Fortunatus Lwanyantika Masha vs. John Woshi Obongo, Civil Appeal No.144 of 2019 CAT at Mwanza which was cited in the case of Anastazius Willium vs. Cleophace Petro, PC. Civil Appeal No. 41 of 2023. Submitting on the 8th ground of appeal which challenged the trial court for failure to revoke the appointment of the respondent, Mr. Ngeseyan argued that the record does not show what interest the respondent had over 7 the estate of the deceased. He further contended that the allegation that there was friction between the beneficiaries is not true at all as there was no evidence adduced to justify the allegation. She was of the view that if the Appellant’s two brothers are no longer citizens of Tanzania, then the solution is to appoint her and not the respondent who is not a relative or interested party. Concluding his submission the learned counsel submitted that the trial court should have waited for the investigation carried on by Moshi Central Police and PCCB as the said estate had stayed for more than 30 years without an administrator thus, he argued there was no need for the trial court to rush into its decision before the said investigation was complete. Based on his submission he prayed for the appeal to be allowed. Responding to the submission the Respondent while giving a brief background of the matter submitted that all children of the deceased including the Appellant had requested the Respondent who is their distant relative to help them administer the estate of their late father. She submitted further that at all times the Appellant had been present in all family meetings and even gave copies of her recent passport sized photo to support the appointment of the Respondent. It was the Respondent’s submission that 8 for over 20 years the Appellant had been selfishly benefitting from the deceased estate by collecting annual rent from tenants who leased the deceased house something which made her not be trusted by her brothers. She argued that a revocation order would halt her ill and selfish interests against the other heirs of the deceased. She further submitted that the trial court ruled in her favour after discovering that all legal and necessary procedures for appointment of the respondent were followed as per the law. Addressing the claims by the Appellant that the trial court raised new issue of caveat, citation and complaint of share by the appellant, it was her submission that the trial court never raised new issues rather it heard the application on a proper standard of proof and delivered a harmonious decision as per the arguments of the parties. She was of the view therefore that the Appellant’s complaint was baseless as the court only dealt with the matters brought before it. Regarding the appellant’s share, she submitted that the issue was raised by the Respondent as the appellant had refused to receive her share of inheritance after the deceased property was sold while others received theirs. Rebutting the issue of allegations of forgery on Appellant’s signature by the respondent, the respondent contended that was a mere allegation 9 that is subject to proof. She argued that the fact that there was a pending investigation by PCCB and Police could not have made the court to stop hearing of the matter. She further contended that the business of the court is to deal with all matter that is brought before it and nothing else. Thus, the trial court was not bound to wait for investigation from Police and PCCB to proceed with the case as no law demands that. She stated further that it was a duty of the Appellant to submit evidence in court to support her case but she never did. She then concluded that this was an afterthought meant to deprive the rest of the heirs their right of inheritance. Citing the cases of Twahizira Abrahaman Mgema vs. James Christian Basis, Civil Appeal No. 229 of 2018, the Respondent said the allegations of fraud must be strictly proved. She added that the decision of the trial court delivered a harmonious decision that was fair to all heirs. Concerning the issue of time limitation raised by the appellant’s counsel, it was the respondent’s submission that this was a new issue raised by the appellant as it was not pleaded before the trial court. Insisting on the principle of parties being bound by the pleadings and issues framed the Respondent cited the case of Naigishu Soikan Mollel vs. Energy and 10 Water Utility Regulation Authority (EWURA) Revision No. 712 of 2019 and prayed for this court to adopt the principle established in that case. Finally responding to the 8th ground of appeal, the Respondent submitted that based on Section 5(2) of the Probate and Administration of Estate Act the respondent is not limited from applying for letters of administration as long as she met the legal requirement provided by the law. She then prayed for this ground to be dismissed for lacking merit. In the end she submitted that there is no proof of any criminal investigation by either PCCB or the Police station of Moshi to support the allegations by the Appellant. She insisted that the appellant has been selfishly benefiting from the estate of the deceased without considering the other heirs. She also submitted that Applicant’s application for revocation shows her interest have been affected by the appointed administrator whose intentions are not to deprive anyone but to equally distribute the deceased estate amongst the beneficiaries. She contended that the Appellant is only wasting the time of the court by making sure that the respondent does not complete her duty within the prescribed time. I the end the respondent submitted that since part of the estate has already been legally distributed to the other beneficiaries, the Appellant should just receive the remaining part of her 11 share of inheritance and end the unjustifiable litigations. Finaly, she prayed for the appeal to be dismissed with costs. As alluded above, by the leave of this court the appellant filed an additional ground of appeal in which it was stated that the trial court had erred in law and in facts by entertaining, hearing and blessing the disposition of the estate of the deceased while the disposition transaction was done contrary to law. Submitting in support of this additional ground the Mr. Ngeseyan stated that there was violation of section 67 of the Land Registration Act [ Cap 334 R.E. 2019]. Based on this provision he submitted that the Respondent who was the appointed administratix of the estate of the deceased disposed the suit property which was owned by the late Said Abdallah Hassan to one Christian Kimati before changing the ownership to her name as the law requires. Therefore, it was his prayer to this court that the disposition was unlawful since the respondent could not dispose what she didn’t own. Therefore, he was of the view that the administrator of the estate of the deceased cannot pass a title which is not in his name. To bolster his stance cited the case of Philemon Vanai Saiteru Mollel vs. Willium Titus Mollel (as administrator of the late Titus Aron Mollel) and Peter 12 Fridolin Temu (as administrator of the late Titus Aron Mollel) Civil Appeal No. 407 of 2012. Further the learned counsel submitted that the Respondent was supposed to issue a third-party notice to the buyer to be joined in the Misc. Application No. 26 of 2023 as the decision of the court would affect him, he said this was according to Order 1 Rule 14(1) (a) and (b) of the Civil Procedure Code, Cap 33 R.E 2022]. He also supported his submission with the case of Sunlon General Enterprises & Building Contractors vs. Hosein Dhawabu, Civil Appeal No. 234 of 2020. The learned counsel then prayed on the strength of his submission the appeal be allowed with costs. The respondent on the other hand objected the additional ground filed by the appellant contending that it was surprisingly presented after scheduling orders have been complied. She further argued that the additional ground was an afterthought and raising new issues which were not part of the appeal since they were not originally presented before this court. And without prejudice to the above objection the respondent replied to the additional ground of appeal by submitting that the appellant was the one who filled the original dispute praying inter alia for the respondent to be revoked but the same was not granted for lack of merit. She argued that the 13 appellant has been introducing new issues aimed at misleading the court. She urged this court not to entertain the additional ground of appeal because it is aimed at delaying justice to other beneficiaries. Substantiating his submission on the point of raising new issues the respondent made reference to the case of Hassan Bundala @ Swaga vs. Republic Criminal Appeal No. 386 of 2015 and submitted that the third- party notice for the buyer is a new issue which was not discussed at the lower court. She further contended that the issue that the administrator had no power to sell the property before the property being transferred to her name needs evidence to prove it. She submitted further that in selling the property as the administrator she did exercise her power according to the law and all other beneficiaries received their share of inheritance except the Appellant. Finally, the respondent submitted that the appeal should be dismissed with cost for being devoid of merits. In the brief rejoinder the learned counsel reiterated his submission in chief and added that since the respondent did not dispute violating the provision of section 67 of the Land Registration Act (supra) then he maintained that the appeal has merit and should be allowed with cost. 14 Having gone through the rival submissions from both sides and the record of appeal the main issue for determination is whether the appeal has merit. In determining the merit of this appeal, I will determine the grounds of appeal in a way argued above which are premised into three limbs. On the first limb the learned counsel of the appellant challenged the trial court decision on the ground that it was based on new issues which were raised by the court while composing its decision which is against the law. I have keenly read the ruling of the trial court on the relevant parts where the appellant counsel referred and complained that new issues of caveat, citation and the issue of expecting the appellant to complain that she was not given her shares were raised. In my review of the decision I am of the opinion that these were not issues for determination. In determining the application, the trial court raised one issue as seen on page 8 of the ruling that is, “whether the applicant has advanced sufficient reasons for the court to revoke the letters of administration granted to the respondent.” In determining this issue, the trial court went on examining whether the appellant had advanced good cause and explained that according to the appellant her signature appearing in the minutes of the family meeting was not hers but forged. The appellant alleged this fact as the means to prove 15 that the grant of letters of administration was obtained through fraudulent means. This is why when discussing the matter, the trial court explained that she examined the record based on the procedure provided by the law and discovered that the same had been complied with. When explaining the required procedure, is when the trial court mentioned issues of citation and caveat. Therefore, it is my finding that these were not new issues to determine on the merit of the case. The trial court did confine itself on the pleadings as can be clearly seen on record that the appellant did claim in her affidavit under paragraph 5 and 9 that she had no information that the respondent who is a distant relative had initiated the probate proceedings before the court and that the procedure for seeking letters of administration was secretly done. Therefore, I am certain that when the trial court determined the application it had in mind all these facts as pleaded by the appellant that is why the trial magistrate said in her ruling that the procedures were followed including issuance of citation whereon the appellant would have applied caveat. Thus, in doing so the trial court did not raise new issue rather determined the matter based on the pleadings. Therefore, based on what I have endeavoured to explain above I find all the cited cases explaining the 16 issue of parties and the court being bound by the pleadings are irrelevant in the circumstance at hand since the trial court did confine itself on the pleadings when determining the application. On the second limb, the appellant is faulting the trial court decision that the trial magistrate failed to consider the fact as alleged under paragraph 7 of her affidavit that she reported the issue of forgery to the police and PCCB as the annexture was not disputed. As the first appellate court I also I had a chance to re-evaluate the evidence on record and I am in all fours with the view as the trial court that the alleged fact was not proved by evidence. The evidence that the appellant alleges that was annexed in the affidavit under paragraph 7 was a summons from the police station. I had a chance to look at the annexed summons and the same did not establish the stated fact that the appellant reported to the police about the forgery. The annexture being a summons from police station only shows that it was addressed to Abrahaman Said Abdalah and the contents show that he was summoned following a complaint filed by Waida Said Abdalah. This annexture does not prove anything because first of all it was not addressed to the respondent, secondly it did not indicate the issue that was 17 complained about. Therefore, it is difficult to prove whether this was really related to the issue alleged by the appellant. Moreover, I am in agreement by the trial court that the issues of fraud need to be strictly proved for the one who alleging it. See City Coffee Limited v. Registered Trustees of Ilolo Coffee Growers Group, Civil Appeal No. 94 of 2018 and Ratilal Gordhanbhai Patel vs. Lalji Mkanji (1957) EA 314 at 316. Ratilal Gordhanbhai Patel (supra), the Court of Appeal for East Africa observed that; "Allegation of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required". See also Omary Yusuph v. Rahma Ahmed Abdulkadr [1987] TRL 169 and City Coffee Ltd v. The Registered Trustee of Holo Coffee Group Civil Appeal No. 94 of 2018 (CAT) Unreported). 18 For instance, in her rebuttal that the appellant did not participate and consented to the sale administered by the respondent I wish to reproduce paragraph 3. of the respondent’s counter affidavit filed at the trial court; “3. That, the contents of paragraph 4 of the applicant affidavit are strongly disputed and the applicant is put to strict proof thereof. The Respondent avers that all beneficiaries of the estate of the late SAID ABDALLAH HASSAN including the applicant consented for the respondent to sale the property and the property was sold to one Christian Sebastian Kimati and part of payment have already received by other beneficiary expect the applicant who has not furnished the bank details for her money to be deposited. (Annex ed hereto as SI -1 collectively are the copies of Sales agreem ent and m em orandum of understanding betw een the respondent and all beneficiary of the estate of the late SAI D ABDALLA HASSAN and I crave leave of the Honourable Court to adopt their full term s, m eaning and true effect as form ing part of this counter affidavit.) 4. That, the contents of paragraph 5 of the applicant affidavit are strongly disputed and the applicant is put to strict proof as to the allegation of not having information of the 19 proceedings which led the appointment of the respondent. The respondent avers that, the applicant was aware of all proceedings which led the appointment of the first administrators, their revocation and appointment the respondent herein. The respondent avers further that, the applicant attended all the fam ily m eetings and even before the sale of the property the applicant dem anded to be given a lion's share of Tshs. 50,000,000/ = (fifty m illion) from the proceed of sales w hich is m ore than another beneficiary and it w as accepted. [ Emphasis added] In view of the above and guided by the principle that affidavit is a substitute of evidence as it was stated in the case of Uganda vs. Commissioner of Prisons, Ex-parte Matove, [1966] EA 514, the appellant ought to have traversed the above assertion by evidence that she was not the one who consented and agreed on the said transaction, thus the mere facts that she reported the said transaction at PCCB office at Moshi does not suffice to hold that she has proved the alleged fraud . In circumstance the absence of evidence that the minutes and said contract 20 where forged, in my view it remains an afterthought and a speculation which the court cannot act upon it. Hence, I find this claim on this ground devoid of merit thus dismissed forthwith. Nevertheless, according to the evidence in the said respondent counter affidavit, already the other heirs who are children of the deceased residing in Kenya as citizens, the proceeds of sale of the said estate was deposited in their accounts, thus in my view in real sense under this circumstance, prudently there is nothing to administer other than creating chaos and unnecessary claims in respect of the estate of the deceased which is already distributed. Another limb as envisaged on the 7th ground; the appellant challenged the trial court decision on the point that the matter was time bared. Submitting on this ground the counsel for the Appellant argued that 30 years had passed since the death of the deceased therefore the institution of proceedings at the trial court was in violation of rule 31 (1) of the Probate Rules (supra). In determining this ground let me start by making it clear that there is no statutory time limitation regulating probate and administration of estates originating from the primary court however for matters originating 21 in district court the law provides for three (3) years. Rule 31(1) of the probate Rules provides; “(1) In any case where probate or administration is for the first time applied for after expiration of three years from the death of the deceased, the petition shall contain a statement explaining the delay”. The import of the above provision is that a probate or administration matter should be instituted within three years from the death of the deceased, however where a matter is filed after more than 3 years, the law requires for a petitioner to explain the reason for delay. When responding to this issue the respondent contended that the appellant was raising a new issue which was not discussed at the lower court. It must be noted however that the issue of time limitation is a legal matter that touches on the jurisdiction of the trial court to try the matter before it. Therefore, I find that the respondent misconceived the application of the legal principle. The law prohibits matters of fact to be raised at the appellate stage if the same was not raised at the trial stage. However, with respect to a legal matter especially one that touches the jurisdiction of the court the law is firmly settled that such issue can be raised at any stage. See the case of Malmo 22 Montagekonsult AB Tanzania Branch vs. Margareth Gama, Civil Appeal No. 86 of 2007 (CAT at DSM) and another case of Isaya Linus Chengula vs Frank Nyika (Civil Application No. 487 of 2020) [2022] TZCA 167 (31 March 2022). Now back home to the present appeal although the appellant contends that the matter was time barred, aside from alleging that fact he has failed to establish the same with evidence to that effect. It is not disputed that the matter was instituted after so many years since the death of the deceased, what has not been proved is whether the Respondent did not include in her petition an explanation for the delay. The law is clear that the burden of proof lies on the person who alleges. Thus, the principle, he who alleges must proof. See section 110(1) of the Evidence Act, Cap 6 R.E. 2022. The provision reads; “Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Therefore, based on the above legal principle, I expected the appellant in this matter to provide some sort of evidence like the petition by the 23 Respondent which initiated the matter at the trial court. In absence of such evidence, I am not hesitant to say his claims is misplaced. Be that as it may, according to the circumstance of this matter is enough to explain why the probate matter was delay, I am saying the above because where there is a procedural irregularity or an omission to observe a particular procedure in seeking to determine substantive rights of parties the crucial question to ask, before impeaching or nullifying the impugned decision, is whether the irregularity or lapse occasioned a failure of justice on the party complaining of the omission. If the omission occasioned no injustice, the Court would gloss over the omission and treat it as inconsequential. The second principle is that each case must be decided based on its unique set of circumstances as to the facts surrounding the dispute in question. See Stanley Murithi Mwaura vs Republic (Criminal Appeal No. 144 of 2019) [2021] TZCA 688 (TANZLII). According to the circumstances of this matter stated by initiator of earlier filed probate and the respondent both avers that their father died at Nakuru Kenya and the time of his death no one collected the deceased death certificate. Also the facts reveals that the other children including those earlier appointed shifted to Kenya and attained the citizenship in that 24 country, thus they merely came in Tanzania and applied petition under certificate of urgency which later their grant was seen to be futile, hence their relative who is the respondent cheeped in, the appellant who remain monitoring in Tanzania the deceased estate did not file any probate, thus it was until those sons of the deceased rushed from Kenya to do so. In view of the above circumstances I am of settled opinion that are enough to explain the delay to file the said probate thus deceased heirs cannot be ousted their substantive rights from the deceased properties and the above law the appellant endeavoured to invoke. Consequently, I hold that this ground lacks merit hence dismissed forthwith. Another ground on this limb was 8th ground wherein the appellant is faulting the trial court decision for not considering the fact that the Respondent was not amongst the heirs of the deceased. Explaining the ground the learned counsel argued that the record does not show what interest the Respondent had over the estate of the deceased. This ground shall not detain me much since the law has clearly provided under section 33 of the Probate and Administration of Estates Act, Cap 352 all circumstances under which the court can grant letters of administration on intestacy. Under subsection 4 of this section the law states; 25 “(4) Where it appears to the court to be necessary or convenient to appoint som e person to adm inister the estate or any part thereof other than the person w ho under ordinary circum stances w ould be entitled to a grant of adm inistration, the court may, in its discretion, having regard to consanguinity, am ount of interest, the safety of the estate and probability that it w ill be properly adm inistered, appoint such person as it thinks fit to be administrator; and in every such case letters of administration may be limited or not as the court thinks fit”. [Emphasis is mine] In the circumstances of this matter in lieu of the above provision of the law above, after going through the records it was revealed that the Respondent was a distant relative a fact which was also established by the appellant in her affidavit accompanying the application at the trial court where under paragraph 5 the appellant introduced the respondent as a distant relative. This being the case it is true that there is a degree of consanguinity between the appellant and the respondent therefore it is baseless for the appellant to complain that the respondent had no interest 26 in the decease estate. Furthermore, the respondent averred in her affidavit under paragraph 8 that she was chosen by the family members including the appellant herself to administer the estate as the trust worthy person who could act fairly to both beneficiaries. Considering all these facts in relation to the above provision of the law I am of the considered opinion that the court did not error as alleged by the appellant on that part, thus I find this ground unmerited thus dismissed forthwith. Finally, the third limb covered the additional ground of appeal in which the appellant is challenging the trial court decision for blessing the disposition of the estate of the deceased arguing that the transaction was done contrary to the law. The contravened provision of the law stated by the learned counsel is section 67 of the Land Registration Act, [Cap 334 R.E 2019]. For the purpose of clarity let be reproduced as hereunder; “On the death of the owner of any estate or interest, his legal personal representative, on application to the Registrar in the prescribed form and on delivering to him an office copy of the probate of the will or letters of administration to the estate of the owner, or of his appointment under Part VIII of the Probate and Administration of Estates Act Cap. 352 or the Fourth Schedule to the Magistrates' Courts 27 Act Cap. 11 shall be entitled to be registered as owner in the place of the deceased”. Relying on the above provision, the learned counsel argued that the law requires for an administrator of the deceased estate before disposing the estate of the decease to change the ownership into his/her name as he cannot dispose what he doesn’t own. He contended therefore that the disposition done by the Respondent of the suit plot which belonged to the deceased on 24th July 2024 without changing the ownership was contrary to the law hence made all the transaction including the trial court decision to be null and void. The respondent resisted by stating that this ground is an afterthought and it needs evidence to prove the allegation of non-compliance of the law during the sale and that it ought to have been raised before the trial court. I do agree with the respondent based on the following; first of all, as already explained earlier when determining the former grounds of appeal, the appellant herein has alleged a matter which requires proof and has not provided any proof in that respect. The fact that the respondent disposed the deceased property before changing ownership to her name is subject to proof by evidence, in fact I may 28 say these are administrative procedures by the land registry in order to change the title and name from the deceased to the Bonafide purchaser, therefore the fact that the respondent evidenced the contract of sale to the Bonafide purchaser does not relinquish this procedure in land registry to continue, thus I subscribe to the respondent submission that the same need to be proved by evidence. The allegations by the appellant are from the bar, taking regard at the trial court the matter was an application which was proved by affidavits, appellant’s affidavit at the trial did not substantiate on the same by evidence. Jongo Mwikola vs Geita Gold Mining Limited, Civil Appeal No. 344 of 2020 [2024] TZCA 125 (TANZLII); Imani Omari Madega vs Yusuf Mehboob Manji and 3 Others, Civil Appeal No 135 of 2019; Guff Concrete & Cement Products Co. Ltd vs D. B. Shaprya & Co. Ltd, Civil Appeal No 88 of 2019; Shadrack Balinago vs Fikiri Mohamed @ Hamza and 2 Others, Civil Application No. 25/8 of 2019 and Trade Union Congress o f Tanzania (TUCTA) vs Engineering Systems Consultants Ltd and 2 Others, Civil Appeal No. 51 of 2016 (all unreported), to mention few. 29 Having said the above, I am of considered view the said additional ground devoid of merit and consequently is hereby dismissed. All said and done, I find and hold that there are no reasons to fault the findings of the trial court. Consequently, I find no merit in this appeal and I accordingly dismiss in its entirety. In the circumstances I grant no order as to costs. It is so ordered. DATED at MOSHI this 11th day of December, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 11th day of November, 2024 in the presence of Mr. Lecktony Ngeseyan learned advocate for the appellant. Respondent also presents in person. Sgd; A. P. KILIMI JUDGE 11/12/2024 30 Court: Right of appeal duly explained. Sgd; A. P. KILIMI JUDGE 11/12/2024 31