Wellington

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA (PC) CIVIL APPEAL NO.10107 OF 2024 (Arising from Civil Appeal No.08 of 2023, Ngara District Court, Original Probate Cause No. 01 of 2023 Shanga Primary Court) WELLINGTON MUDOGO MARTON NTAMUBANO............... APPELLANT VERSUS VERONICA CLEMENT NTAMUBANO....................................RESPONDENT JUDGMENT 6th and 20th September 2024 KIWONDE, J. This is the second appeal. The appellant, Wellington Mudogo Ntamubano, being aggrieved by the decision of the first appellate court has preferred an appeal to this court based on three (3) grounds of appeal namely: 1. Both the learned Resident Magistrate and Primary Court Magistrate for unknown reasons ignored the fact that full inter i/7Vas,distribution of his estate, Marton Buzoya Ntamubano wholly eliminated the need for post mortem administration or Will (sic). 2. Both the learned Resident Magistrate and Primary Court Magistrate for unknown reasons ignored the evidence contained in exhibit 'A', thus, in effect condoning perjury. i 3. The dissatisfaction with the inter vivos cum assurance (sic) distribution was time barred. The appellant prayed the appeal be allowed, the decision of the first appellate court be set aside (sic) and the respondent and Ahia Ntamubano be condemned to cost. The background of the case is that the respondent applied before Shanga primary court to be appointed administratrix of the estate of the late Marton Buzoya Ntamubano. The appellant lodged a caveat on reasons that the meeting proposing to an administratrix was did not involve some the deceased relatives including the caveator himself and that the deceased distributed his properties during his lifetime. Upon hearing the caveat, the trial court overruled the same on reason that there was no valid will and so it refused to revoke the appointment of the respondent. Dissatisfied with such findings, the appellant unsuccessfully appealed to the District court (the first appellate court) which affirmed the decision of the trial court. Hence, this second appeal. This appeal was, by leave of the court argued by way of filing the written submissions and both parties complied with the schedules. I have endeavoured to go through the submissions, case laws referred thereto 2 and the records of the lower courts. I now turn to deliberate them in relation to the grounds of appeal. From the pleadings, lower courts' records and written submissions, the main issue for determination is whether the appeal-is meritorious or otherwise. I perhaps, should state at the outset that for the second appeal the appellant should not challenge the trial court's findings since the same has been determined by the first appellate court. The appellant has to state the grounds of appeal referring to matters he is dissatisfied with the decision of the first appellate court. Also, the grounds of appeal have to be precise and concise. However, since the appeal touches the interests of the heirs, I will determine the appeal on merits. I opt to start with the third ground of appeal which is to the effect that the petition for grant of the letters of administration was time barred. The appellant said the deceased distributed his estates and passed away in the year 2000 but the petition was filed in 2023 almost 24 years later. The appellant cited the provision of the Law of Limitation Act, Cap 89 (R. E 2019). However, this law does not apply in matters originating from the primary courts. This was a position which I subscribe to, in Jackson Asteria Versus Faustine Mwemezi, Civil Appeal No. 11 of 2021 [2022] TZHC 11828 (5th August 2022) and Asha Said Versus Manyanga and 3 anther, Miscellaneous Civil Application No.28 of 2003 [2007] TZHC 21 (5th December 2007). The law applicable in primary courts especially in probate causes is the fifth schedule to the Magistrates' Courts Act, Cap 11 (R. E 2019) and its rules. There is no specific time limit to apply for appointment to administer the deceased estates stipulated by law. In Miraji Salimu Nyangasa Versus Ramadhani Omary Sewando (Administrator of the Estate of the late Hussein Omary Sewando), Civil Appeal No.686 of 2023 [2024] TZCA 41(17th September 2024) TanzLII, it was held inter alia that the rules are silent on when the petition for grant of letters of administration should be filed in primary courts. Thus, reasonability test will apply and the petitioner will state the reasons for delay. In the appeal at hand, the evidence on records shows that right from the demise of the late Marton Buzoya Ntamubano, the appellant was in­ charge over the deceased estates, as ahead of family, but there have been long outstanding misunderstandings between the appellant and the other clan members until when they decided to convene a meeting to propose the respondent to administer the estates. The said meeting was held on 13th December 2022 and the respondent petitioned for letters of administration on 9th February 2023. Therefore, there was a reasonable ground for such delay to lodge the petition. For that matter, the law cited 4 is inapplicable. The third ground of appeal is without merits and it is dismissed. Reverting to the second ground of appeal, it is also devoid of merits. Both the trial court and the first appellate court considered the evidence in exhibit'A', the alleged will and distribution of the estate by the deceased person during his lifetime. Indeed, there is no will in the eyes of the law. The stated exhibit contains minutes of the clan meetings and the distribution and the sketch map of the said farms. In law, the will can be written or oral. But both should meet the criteria to be valid wills. In this appeal, the evidence does not indicate that there existed valid wills. The deceased is said to have uttered the distribution of his assets to the children. In so far, there is no piece of evidence to prove that there was valid oral will. The appellant, in his rejoinder submissions expressly said the deceased left no will, but the properties were given to children as gifts. For that matter, the second ground of appeal too crumbles. Finally, as to the first ground of appeal, the appellant said there was no need to appoint the administratrix of the deceased estates since the same were distributed i/7i/a vos. The available evidence indicates that the deceased gave his properties to his children during his life time, but not all assets were divided. This shows that there are remaining properties undistributed. 5 The evidence of defence witnesses (SU1) and (SUII) Veronica Ntamubano and Clement Marton said immediately after the demise of Marton Buzoya Ntamubano, the appellant was in-charge of those properties but he did not distribute them to the heirs, he changed boundaries and maps and owned to himself some properties like houses, divided the tree farms to his four children and they added that the appellant did not give any property to the female heirs. The appellant did not dispute the fact that he is the head of the family. He could do justice by dividing the estates to all lawful heirs if it was to be distributed according to the customs of the clan in question. But this does not mean that the respondent could not be appointed administratrix of the deceased estates because it is shown that the appellant did not divide the estates to all lawful heirs, he discriminated the female heirs, he took some properties for his won advantage and that there are remaining unadministered deceased estates. The appellant, at page 24 of the trial court's proceedings admitted that he has ever mortgaged part of the deceased land but he did not sell. This is good evidence to attract the need for having a faithful administrator of the deceased estates. The appellant complained that the meeting to propose the respondent as administratrix of the deceased estates was not participatory. But the evidence shows that he was invited, yet he refused to attend. 6 Furthermore, the evidence shows that some of the clan members were far away that is why they did not attend the meeting. So, the first ground of appeal lacks merits. As a result, the entire appeal lacks merits and it is hereby dismissed with cost. Dated at Bukoba this 20th September 2024. F. H. KI^ONDE JUDGE 20/09/2024 Court: Judgment is delivered in chamber in the presence of the respondent and Grace Mutoka (RMA) but in the absence of the appellant this 20th September 2024 and the right of further appeal is explained. 1 H. KIWONDE JUDGE 20/09/2024 7