Judgement PC Civil Appeal No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI PC CIVIL APPEAL NO. 91353 OF 2023 (C/F Probate Appeal No. 14 of 2022 in the District Court of Moshi at Moshi. Originating from Probate Cause 146 of 2022 Moshi Urban Primary Court) ZUBERI BAKARI MWACHIKITU.................................................APPELLANT VERSUS SELEMANI BAKARI MWACHIKITU.………….….…………… RESPONDENT JUDGEMENT Date of Last Order : 28.05.2024 Date of Judgement: 19.06.2024 MONGELLA, J. The appellant and the respondent are siblings from the same biological father, the late Bakari Salim Mwachikitu. The late Bakari Salim Mwachikitu had two wives. On 03.08.2022, the respondent petitioned for letters of administration of the estate of the late Bakari Salim Mwachikitu vide Probate Cause No. 146 of 2022 in Moshi Urban primary court (hereinafter, the trial court). The appellant objected the application. Upon determining the objection, the trial court appointed one, Salim Bakari Mwachikitu and one, Haji Bakari Mwachikitu as administrators of the deceased’s estate. Page 1 of 12 Aggrieved by said decision, the respondent appealed to the district court of Moshi at Moshi vide Probate Appeal No. 14 of 2022 (hereinafter, the appellate court) on the following grounds: 1. That, the primary court erred in law and fact in allowing the objection filed by the respondent without sufficient reasons. 2. That, the honourable trial court erred in fact in holding that the appellant herein had sold the deceased's property without permission. 3. That, the honourable primary court failed to properly evaluate the evidence placed before it and hence arrived at erroneous decision. 4. That, the honourable primary court erred in law and fact in appointing administrators without seeking their consent, and without knowing their competence and or ability to administer the estate of the deceased. 5. That the district court decision lacks clear legal reasoning. Upon hearing the appeal, the appellate court appointed the respondent as the sole administrator of the estate. Aggrieved by the said decision, the appellant has preferred this appeal on the following grounds: 1. That, appellate court grossly erred in Law and facts when revoked the appointment of the appellant to be administrator Page 2 of 12 of his late father without strong reasons as require by the law. (sic) 2. That, the appellate court erred in law and fact when revoked the appointment of the appellant to be the administrator of estate by relying on weak evidence on records adduced by the respondent herein. (sic) 3. That, the appellate court erred both in law and in fact when failed to make critical evaluation of the evidence on records adduced during the hearing of the Probate Cause No. 146/2022 and arrived at a wrong decision. (sic) 4. That, the appellate court erred both in law and in fact by stating that the only reason for objection is based on pictures affixed in the application for appointment of administrator without consideration that there was neither the picture affixed or names of the other beneficiaries mentioned in the application. The appeal proceeded by written submissions whereby both parties enjoyed legal services from learned counsels. The appellant was represented by Mr. Emmanuel Karia while Mr. Willence Shayo stood for the respondent. Mr. Karia opted to submit on 3rd and 4th grounds alone. With respect to the 3rd ground, he challenged the 1st appellate court for failure to evaluate the evidence on record. He contended that the Page 3 of 12 evidence on record shows that the deceased had two wives and that there exists strife between beneficiaries of the deceased’s estate. He argued that such strife is caused by the fact that the beneficiaries are born of different mothers. In that respect, he had the view that the trial court was correct to appoint two administrators, children of the said two mothers. The learned counsel further alleged that the trial court had sufficient reason to reach the said decision because there was evidence adduced to the effect that the respondent had neglected the deceased and he lacked consent from the beneficiaries to administer the deceased’s estate. He added that the equity of clean hands principle is applicable in the appointment of an administrator of the deceased’s estate. In that respect, he contended that the respondent’s failure to maintain the deceased during his lifetime and the failure to arrange, participate and attend a burial ceremony meant the respondent did not have clean hands, thus could not shelter on equity. Addressing the 4th ground, Mr. Karia faulted the 1st appellate court for stating that the only reason for objection was the pictures affixed on the application for appointment of administrator without considering that there were neither pictures nor names of other beneficiaries mentioned in the application. He argued further that the respondent filed the application without names of other beneficiaries, born of the 2nd wife of the deceased. This, he said, is the reason why the appellant objected the application as the Page 4 of 12 respondent was not being honest and truthful rendering him incapable of administering the deceased’s estate. In the circumstances, he held the view that the trial court was correct to appoint as administrators the children from both wives. He contended that the 1st appellate court was therefore duty bound to properly evaluate the evidence on record and uphold the trial court judgement. Speaking of the legal position, he alleged that the law requires consent for appointment of an administrator to be given by every beneficiary and in that respect, their names ought to have been reflected in Form No. 1. He added that the respondent failed to justify his act of omitting other beneficiaries from the list. He concluded by praying for the appeal to be allowed with costs. In reply to the 3rd ground, Mr. Shayo supported the 1st appellate court in its decision. He averred that the court did not err in evaluating the evidence on record before it. He contended that the 1st appellate court considered the grounds before it and found there were no sufficient grounds to warrant the refusal by the trial court to appoint the respondent as the administrator of the deceased estate. In his view, the presence of strife between family members has never been a ground or reason for refusal of appointment of an administrator of the deceased’s estate. Mr. Shayo further challenged the appellant for failure to cite any law or decision in which there was established the principle that where there are children from different mothers then one from Page 5 of 12 each would be appointed an administrator. He had the stance that that was not a legal requirement. He challenged further that the two appointed administrators had not filed any Form rendering their ability to administer the estate was unknown. Replying to the 4th ground, Mr. Shayo averred that the names of the beneficiaries were all included in the probate Form. In the circumstances, he had the view that the contention lied on the fact that their photographs were never annexed. On the other hand, however, he found this point an insufficient ground to object the grant of letters of administration as correctly found by the 1st appellate court. The learned counsel further argued that objection proceedings in probate should not be based on mere speculations or suspicions. To buttress his argument, he referred the case of Sekunda Mbwambo vs. Rose Ramadhani [2004] TLR 439. I have considered the submissions by both parties, the grounds of appeal, as well as, the record of both lower courts. As pointed out earlier, the appellant abandoned the 1st and 2nd grounds of appeal and opted to resolve the 3rd and 4th grounds only, a path also taken by the respondent. The contention between the parties in the argued two grounds of appeal lie in two matters, being: one, whether the 1st appellate court erred in finding that the only reason for objection was based on pictures of the beneficiaries as affixed in the application for appointment for letters of administration; and two, whether the Page 6 of 12 appellate court failed to critically evaluate the evidence before it causing it to reach to a wrong conclusion. Upon observing the 1st appellate court’s decision, I found that the Hon. appellate Magistrate expressly stated, at page 6 of her judgement, that the objection raised by the respondent at the trial court was only based on pictures affixed to the application for grant of probate/letters of administration. She specifically stated: “I have gone through the records of the proceedings and the submissions made carefully. I would from the outset state that this appeal has merit. These are my reasons for doing so; the objection raised by the respondent before the trial court is only based on the pictures affixed to the application for grant of probate and administration of the estates, which in my view does not amount to a good and sufficient cause.” The Hon. Magistrate proceeded to state that the objection was not tenable as the failure by the now respondent to affix photographs of other beneficiaries was not sufficient reason for the trial court to allow the objection. She thus held that the objection was without merit and was otherwise prematurely made. Specifically, she stated: “In the instant matter after filling Form No. 1 which is the legal requirement, the citation was issued and the respondent appeared to object the appellant's appointment. Despite his allegations that the pictures of the heirs were not affixed on the application form, the record clearly shows that the respondent and other children were also included Page 7 of 12 in the list of the heirs of the deceased's estates. Since the law doesn't require the pictures to be affixed in the application but rather filling Form No. 1, it is my view that the objection by the respondent had no merit or otherwise was prematurely made.” After such finding, the Hon. Magistrate had the opinion that the 1st ground sufficed to dispose the appeal. She thus proceeded to quash the primary court decision and orders made thereof and further appointed the respondent as the administrator of the estate of the late Bakari Salim Mwachikitu. As I have shown above, it is apparent that the 1st appellate Magistrate placed most of her focus on the failure by the respondent to annex the pictures of the other beneficiaries. The trial court record shows that there were other reasons advanced by the appellant and other beneficiaries that testified as SM2 and SM3 as to why the respondent did not qualify to be the administrator of the estate. These included him not caring for their deceased’s father during his lifetime; their non-involvement on administration issues and process; the hostility between the beneficiaries; and the respondent’s character. In the premises, I find the appellate court acted erroneously in relying on the said argument alone to declare the objection was without merit. It is trite that a court of law has the duty to address issues raised before it. This position was settled in Malmo Montagekonsult AB Tanzania Branch vs. Margret Gama, Civil Appeal No. 86 of 2001 (unreported); Simon Edson @ Makundi vs. Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020) TANZLII; Page 8 of 12 Nyakwama s/o Ondare @ Okware vs. Republic (Criminal Appeal No. 507 of 2019) [2021] TZCA 592 (21 October 2021) TANZLII and; Revocatus Mugisha vs. Republic (Criminal Appeal No 200 of 2020) 2022 TZCA 63 (22 February 2022) TANZLII. An appellate court however, is not bound to determine all grounds of appeal. It can determine a ground that disposes the matter alone. It can also determine the grounds jointly or generally or in seriatim. This stance was well explained by the Court of Appeal in Malmo Montagekonsult AB Tanzania Branch vs. Margret Gama, (supra) whereby the Court stated: “In the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role of the trial court. It is, however, expected to address the grounds of appeal before it. Even then, it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately". In Nyakwama s/o Ondare @ Okware vs. Republic (supra)the Court of also stated: “We therefore, agree with Mr. Byamungu that failure to consider appellant's grounds of appeal was a fatal irregularity rendering the first appellate court's judgment a nullity. In this regard, we wish to emphasize that though it is not the duty of the first appellate court to resolve the issues as framed by the trial court, yet it is expected and bound to address and resolve the complaints of the Page 9 of 12 appellant in the grounds of appeal either separately or jointly depending on the circumstances of each appeal. Since there stands questions that were never formerly resolved and such task can only be achieved by the evaluation of evidence by both parties.” In the case at hand, the 1st appellate court took upon itself to determine the 1st ground alone believing that it sufficed to dispose the matter. I however, find such act lacking. This is because, as I have stated before, the Hon. Magistrate never paid attention to relevant details on why the trial court came about upholding the objection filed by the appellant. This manifests that the 1st ground was also not properly resolved. Further, the 1st ground appears to be a tip of the iceberg on the entire matter. Putting the objection against the administrator aside, there were other questions as to the legality of the appointment of one Salim and Haji as administrators of the estate; and as to whether the respondent was a fit person for the task as he had also sought to be appointed as administrator. The question of legality of the appointment of persons that had not petitioned was a point of law which meant the appellate court was required to determine. The rest of the questions could only be determined by evaluation of evidence, which was not done. It is well settled that the 1st appellate court has the duty and discretion to re-evaluate the evidence of the trial court and make its findings. In Siza Patrice vs. Republic, Criminal Appeal No. 19 of 2010 CAT (unreported) the Court of Appeal held: Page 10 of 12 'We understand that it is settled law that a first appeal is in the form of a rehearing. The first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings of fact, if necessary." See also, Registered Trustees of Joy in the Harvest vs. Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 TANZLII. It is evident from the record that the 1st appellate court abdicated its duty to re-evaluate the trial court evidence on record as well as its duty to determine all issues before it seriously. Even if there is an option for me to step into the shoes of the 1st appellate court to re-evaluate the evidence of the trial court (See, Hassan Mzee Mfaume vs. The Republic [1981] TLR 167 and Firmon Mlowe vs. Republic (Criminal Appeal No. 504 of 2020) [2022] TZCA 694 (9th November 2022) TANZLII), it stands unquestioned that this is a second appeal and there stands undetermined grounds of appeal at the 1st appellate court, which were important to be deliberated upon. This being a 2nd appellate court, it is confined to determine matters only determined by the 1st appellate court, unless they are purely legal matters which can be raised at any stage, including second appeal. Considering the observation hereinabove, I quash the entire judgement and decree of the 1st appellate court and order the matter to be remitted to the 1st appellate court for full determination of all grounds of appeal. Page 11 of 12 Considering the outcome, each party shall bear its own costs of this appeal. Dated and delivered at Moshi on this 19th day of June, 2024 X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 12 of 12