yotam ntezikiba vs haidan lazaro administratrix of the estate of the late majori kaloza yimbugwa 2022 tzhc 14361 28 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA PC PROBATE APPEAL NO. 04 OF 2022 (Arising from Probate Appeal No. 09/2019 at Kasulu District Court before I.D. Batenzi, RM. Original Probate Cause No. 17/2021 at Manyovu Primary Court before W.T. Kalyanga - RM) I YOTAM NTEZIKIBA APPELLANT VERSUS HAIDAN LAZARO (Administratrix of the estate of the late Mjori Kaloza Yimbugwa) ... RESPONDENT I JUDGMENT I ! 12/9/2022 & 28/10/2022 I L.M. MalchaJ The respondent, Haidan Lazaro (48) filed a petition at the Primary court of I Buhigwe District at Manyovu seeking to be appointed the administratrix of the estate of the late Mjori Kazula Yimbugwa. The appellant, Yotam Ntezikiba objected the appointment on several grounds which are contained in his letter dated 11/11/2021. The primary court heard the objection and dismissed it. It proceeded to appoint the respondent as administratrix of the Page 1 of 9 estate. An appeal to the district court could not be successful. Aggrieved by the decision of the district court, the appellant came to this court by way of appeal. He presented 4 grounds of appeal which read thus:- 1. That, the first appellate Court erred in law and fact by failure to resolve its own first issue. 2. That, first appellate Court erred in law and fact by failure to consider points of law and facts in consolidating the objection proceedings and the application for appointment of the administrator of the estate of the deceased Mjori Kaloza Yimbugwa. 3. That, the first appellate Court erred in law and facts by failure to nullify Kasulu Urban Primary Court decision to appoint respondent as administrator of the late Mjori Kaloza Yimbugwa. 4. That, the first appellate Court erred in law and fact, when failed to I consider procedure for appointment of administrator of estate was illegal. Grounds 3 and 4 were dropped in the course of hearing. This appeal rests on grounds 1 and 2. Hearing was done by oral submissions. Submitting for the appellant on ground No. 1, Mr. Michael Mwangati told the court that all the members of the family were not involved in appointing the respondent Page 2 of 9 making the appointment illegal. The appellant is one of those who were not called despite the fact that he was a grandson of the deceased. He is also the one who stayed with the deceased up to his death. He was the overseer of all the assets of the deceased during his life etc. He went on to say that the court failed to see that some assets had already been given to the appellant and therefore not part of the estate. In ground No. 2 counsel submitted that the procedure of hearing objection proceedings was not observed by the primary court. That the magistrate joined the objection together with the petition contrary to the law. He had the view that the magistrate was supposed to hear the objection first. Based on the foregoing counsel argued the court to vacate the decision of the district court and order the matter to start afresh at the family. He prayed the appeal to be allowed with costs. It was the submission of Mr. Silvester Damas Sogomba that the appellant and the respondent are relatives. They call each other cousins (binamu). The appellant is a grandson of the deceased, Mjoli Kaloza Yimbugwa, who is the father of Ntezikiba Mjori Kaloza, who is the father of the appellant. The Page 3 of 9 respondent call Ntezikiba Mjori Kaloza uncle (mjomba). She is a child of his sister. I Submitting in reply to ground No.l, counsel told the court that Mr. Ntezikiba Mjori Kazora was a key witness at the trial. He testified for the respondent. The evidence shows that the appellant was called to attend the meeting but refused. He went on to say that the respondent was found to be the fit person to administer the estate and appointed by the family. He added that the clan meeting is not a legal requirement. Submitting in ground No. 2, counsel said that we hear the objection first only where there is a preliminary objection. He said that the 5 points which were raised needed evidence. They were not legal points. It was thus proper to resolve them together in the course of hearing, he said. The approach of the primary court was correct, he submitted. He added that the allegation that some of the assets had already been given to the deceased is not backed by the record. They are just words from the counsel. Counsel argued the court to dismiss the appeal with costs. Mr. Michael Mwangati made a rejoinder submission and reiterated his earlier position. He Page 4 of 9 stressed that the appellant was left aside so that they could take what had been given to him by the deceased. I will start with the family meeting. This court have said repeatedly that the clan meeting is not a statutory requirement. See Hadija Said Matika v. Awesa Saidi Matika PC Civil Appeal No. 2 of 2016 (High Court Mtwara- unreported) and Beatrice Brighton Kamanga and another v. Ziada William Kamanga Civil Revision No. 13 of 2020 (High Court Dar es Salaam). It is a procedure developed by the court through precedents. It seeks to create a forum to filter issues before coming to court. The clan/family is directed to sit so that they can have a chance to discuss and resolve some issues friendly at home. Key to among them is who should be the administrator of the estate. The clan/family meeting will make a proposal of a fit person to administer the estate. It may also identify the heirs, the list I of assets, debts and credits, and the applicable Law. Issues of what is the I I applicable law becomes important where the deceased is a Muslim for Islamic Law is applicable in our legal system among members of the Islamic I region. The clan/family may sit and make a proposal to the court where there i is no Will or statement of the deceased on the point. The court will then Page 5 of 9 receive the proposals and decide the case based on the evidence before it as it may deem fit. A person may ask, what do we mean when we say the clan or the family meeting? This refers to a meeting of close relatives of the deceased which sits after the death of the deceased to discuss issues of the deceased. They include the father, mother, wife, children, brothers, sisters, uncles and aunts of the deceased where available.They may include the children of any of these people depending on the age of the deceased. They don't include members of the village or street government. They don't include friends of the deceased though they may be invited to assist. There is usually a chairman who lead the meeting and a secretary who keeps the minutes. It is an inner meeting not meant for the public. The names of people in attendance must be well written. Each member of the meeting must sign the minutes. Where there is an agreement, a person so appointed will proceed to the primary court with the minutes and file the probate. But circumstances may arise where, the clan/family cannot sit or one of the family members may not sit or people may sit but due to conflicts fail to agree on anything. Where there is no agreement, people have failed to agree and come out with some Page 6 of 9 minutes or one or two people could not sit for whatever reason, a person interested in the estate may seek an endorsement by way a letter from the government and come to court to file a probate. The village or street secretary will write the court that the person so named have failed to get the minutes due to some conflicts in the family and ask the court to receive him. The magistrate will then weigh the situation and if so satisfied, may allow him to open the probate without the minutes. And where there is I person who was not involved In the meeting for whatever reason, he can I I still go to court with or without the endorsement of the local government, to access the matter by way of objection. The court will hear both of them. If the objection is on the appointment of the administrator, it may appoint the petitioner or the objector or any other person as the case may be given the circumstance before it. It is important to remember that objections In probate at the primary court are not normal objections. They are wider and, in most cases, they call for evidence. For example, objections which were lodged at the primary court in this court questioned the following things; i) that the petitioner had no mandate of the family meeting, ii) that, the family meeting did not involve all the family members, ill) that, the deceased distributed his assets before Page 7 of 9 death, iv) that the deceased appointed an executor of his wili, v) that the citation did not reach famiiy members living in Dar es salaam, Sumbawanga and Kasulu town. All these are issues of facts calling for evidence. It is this understanding that this court held in Hadija Matika (supra) that where there is an objection in the primary court, the court may deal with it separately or at its discretion, combine the objection with the petition and give a judgment combing the petition and the objection. Consolidating the objection and the petition is allowed and serves the time of the court and the parties because the nature of the evidence is always the same. I advocate for consolidation. The trial court was thus correct to consolidate the petition and the objection. Based on what has been said above, with respect to the magistrate and the counsel for the appellant, I have the view that there was no fault of procedure in this case. The appeal is found to be devoid of merits and dismissed with costs. It is ordered so. L.M. Mlacha Judge 28/10/2022 Page 8 of 9