Leo Martin vs Valerian Peter Martin (PC. Probate Appeal No. 19183 of 2025) [2025] TZHC 8855 (19 December 2025)

1 IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI PC. PROBATE APPEAL NO. 19183 OF 2025 ( Arising from PC. Probate Appeal No. 17554 of 2025 in the District Court of Babati, Originating from Probate Cause No. 3 of 2024 in the Primary Court of Dareda ) LEO MARTIN ………………………… …….. …………………….…….. APPELLANT VERSUS VALERIAN PETER MARTIN …………… …….. ….………..………. RESPONDENT JUDGMENT 21 st October & 19 th December 2025 MWIHAMBI, J. This appeal originates from Dareda Primary Court in Babati (the Trial Court ) whereby the respondent, Valerian Peter Martin filed for an application to be appointed the administrator of the estate of the deceased Theresia Neay Bura. The proceedings commenced on 13 th November 2024, his application was heard and fully determined by the Trial Court whereby he was appointed as the administrator of the estate of the deceased Theresia Neay Bura on 29 th November 2024.

2 On 18 th December 2024, a caveat was entered by Leo Martin Valerian, the appellant , against the appointment of the respondent . The learned advocate Mr. Simon Hilonga appeared for the appellant on 7 th January , 2025 and submitted the following objections as recorded in the proceedings of the Trial Court, in verbatim:

1. Marehemu hakuwa na mali yoyote inayohamishika na isyohamishika na marehemu alikuwa ni mzee sana na alikuwa akiishi kwa mleta pingamizi na amezikwa hapo. Marehemu alikuwa na Watoto wanne na mmojawapo ni mleta pingamizi na kwamba tangu amefariki hakuna kikao kilichowahi kuketi.
2. Hakuna tangazo lolote lililobandikwa kwenye mabo za matangazo kwani kisheria matangazo ya mirathi yanapaswa kubandikwa kwa siku zisizopungua 21.
3. Mjibu maombi alieleza kuwa marehemu alikuwa na mali isiyohamishika yenye hati mbili za kimila lakini hati hizo ni batili kwa sababu inaonekana imesainiwa tarehe 08/07/2021 na tarehe nyingine ni tarehe 20/10/2023. That is to say, the respondent through his advocate, objected on the absence of the family/clan meeting in appointing the appellant, the contravention of the procedure of issuing notice and the forged customary right of occupancy. On 30 th January 2025, the Trial Court overruled the objections of the respondent for want of merit.

3 The respondent was aggrieved by that decision and he appealed to Babati District Court (the first a ppellate c ourt) on five grounds of appeal . Upon full hearing of the appeal and while composing the judgment, the first appellate magistrate raised an issue on whether the appellant herein had locus standi to appeal. He called upon the parties to address him on the issue and thereafter he dismissed the appeal for having no limbs to stand. He further stated that the appellant appeared before the court challengin g the appointment of the respondent in which he was not a party to the case. This was his reasoning: “It is true and correct that he had been granted leave to appeal out of time and he did actually complied [sic] with the court order. But he did make a very big mistake to bring to this court five grounds of appeal to challenge the appointment of the respondent. This was a very big mistake because he was not a party of the case at the time of appointment. The room o f the appellant is to challenge such decision of the trial primary court which given [sic] January, 2025 …” That decision irked the appellant and is before this Court for an appeal. He has appealed on six grounds of appeal which reads, in verbatim:

1. That, the first Appellate both erred in law and fact by creating his own issues especially to award costs and failed to regards, consider and to discuss the Appellant grounds of appeal hence reached unfair decision.

4 2. That, the first Appellate erred in law and fact by appointing the Respondent being an Administrator of the Estate of the late Theresia Neay Bura basing on fabricated, forged and unfounded document, hence reached into wrong verdict. 3. That, the first appellate Court Magistrate misdirected himself by appointing the Respondent being an Administrator of the Estate of the late Theresia Neay Bura while the deceased has no property as she has distributed all her properties during her lifetime hence reached into unfair decision. 4. That, the first appellate Court erred in law and fact by appointing the Respondent being an Administrator of the deceased Estate the late Theresia Neay Bura while the trial Court has no jurisdiction as the late Theresia Neay Bura was confessing Christianit y during her life time. rendered the whole proceedings and Judgment thereto of the trial court being null and void abinitio. 5. That, the first appellate court erred in law and fact by appointing the Respondent to be an administrator of the estate of the late Theresia Neay Bura basing on invalid, fake and illegal WILL and relied upon Respondent evidence in his testimonies in Primar y Court he said the late Therešia Neay Bura leave a WILL of 2018 hence reached erroneous judgment. 6. That, the first appellate court erred in law and fact in delivering decision without justifiable reasons failed to accord the Appellant with the right of fair hearing during the trial and hence reached into preferential decision deliberately.

5 When the appeal was scheduled for hearing, the learned advocate Mr. Simon Hilonga represented the appellant while the respondent appeared in person. The appeal was argued orally . In supporting the appeal, Mr. Hilonga prayed to consolidate grounds 5 and 2 and argued the rest separately. On the first ground, Mr. Hilonga argued that, in writing judgment, the first appellate magistrate misdirected himself by raising issues suo mottu and decided on them as can be seen at page 2 of the judgment. He did not deliberate on other appeal grounds. On t he second and fifth grounds , Mr. Hilonga submitted that the M inutes and the W ill were fabricated as the appellant was not involved. The late mother of the appellant at all times was living in house of the appellant until her death and was cared for by the wife of the appellant. That, she died at 108 years hence, she was unsound. That, t he meeting on appointing an administrator of the estate was held on 29 th September, 2024 while the death occurred on 25 th August, 2024, that means after burial the family did not convene a family meeting. If there was a meeting it was supposed to be held at the house of the appellant as

6 it was where the deceased lived and died. That, surprisingly the respondent filed a probate cause at the Trial Court attaching M inutes of 29 th September, 2024 claiming that it was the meeting that approved him to be the administrator of the deceased’s estate. That, the exhibit was objected at the Trial Court to oppose the administrator but at the end of the day it was admitted. Mr. Hilonga further prayed for it not to be considered as it did not involve the appellant. He further disputed the W ill that in 2018 the deceased had already lost her memory but the W ill was tendered as exhibit. He wondered how could she write a W ill. The deceased had grandchildren and grand - grandchildren to whom she had already distributed her properties hence; she had no property in which she could write a W ill. Moreover, a W ill is supposed to be written by a person of sound mind, must have witnesses and legal beneficiaries. He cemented that the W ill is forged and they challenged it before the Trial Court . On the third ground, Mr. Hilonga submitted that the deceased had already distributed her prop erties so she had no property left.

7 On the fourth ground, Mr. Hilonga submitted that, the Trial Court and the first appellate court had no jurisdiction because the deceased lived and died as a Christian because she got married in a Christian marriage on 17 th July, 1950, also she got holy confirmation at the R oman Catholic C hurch in 1935, and also her burial in 2024 involved a special Roman Catholic Mass at Dareda Mission . That, if the deceased is a Christian, a probate case has to be filed at the District Court or the High Court depending on the value of the property. Therefore, the decision of the Trial Court and the first appellate court had shortcomings from the beginning to the end. He cited the case of Re ESTATE of the late Joseph Mkonda [1983] TLR 103 to support his arguments. On the sixth ground, Mr. Hilonga submitted that the appellant in the Trial Court and the first appellate court was denied the right to be heard , to present witnesses and exhibits which were rejected with no sufficient reason. This is against the constitutional right under Article 13 (6) (a) of the Constitution . Therefore, t he appellant pray ed for the a ppeal to be allowed, judgment and order of the Trial Court and first appellate court to be quashed and set aside . The appellant also prayed for this Court to invalidate the appointment of th e respondent as the administrator of the late Theresia

8 Bura’s estate because he is a grandson and has no right to the deceased estate . Prayed also for costs and any other relief that this Court will deem fit. On his part, the respondent argued that the appellant was heard and he had no exhibits to submit. T h at, there are exhibits that the deceased had properties ¾ acre of land from her deceased husband and the property has a customary title. That, the W ill was certified in 2018 by Dareda Primary Court and was kept by Maria Martin who is the deceased’s daughter and sister of the appellant. That, the family meeting was attended by all family members, the appellant refused to sign the M inutes for reasons known to himself. That, it is not true that the d eceased was living with the appellant and it is not true that the decease d was taken care of by the wife of the appellant. The deceased was a second wife and she was not attending C hurch. The respondent further stated that he is not the beneficiary of the W ill and after being appointed, he complied with the W ill and handled the properties to those mentioned in the W ill. That, he is no longer the administrator as he has already distributed the deceased’s properties. He prayed for this Court to dismiss the appeal with costs.

9 On his rejoinder, Mr. Hilonga stated that it is not true that the respondent is no longer an administrator because the file has not been closed by the court. He is still recognized as the administrator of the deceased’s estate. He reiterated the submission in chief and the prayer that the appeal be allowed. It is trite law that the second appellate c ourt will not disturb the findings of the lower courts unless there is misapprehension of evidence, injustice or violation of law. This being the second appellate Court, I will put that in mind. Before going further into the determination of whether the appeal has merit, I will first highlight what happened in the T rial C ourt and the first appellate court : On 13 th November 2024, the respondent appeared before the T rial C ourt and his application on being appointed as an administrator of the estate of the deceased Theresia Neay Bura was heard and determined and there was no caveat that was entered. The respondent was appointed by the T rial C ourt as he sought.

10 One month later, Mr. Hilonga representing the appellant entered a caveat before the T rial C ourt against the respondent. The T rial Court magistrate gave both parties audience and after hearing them, he overruled the objections. In relation to the reasoning of the first appellate magistrate that the appellant had no locus standi to file an appeal , and after the observations which have been made by this Court by going through the proceedings of the lower courts, this Court before pondering further on the grounds of appeal deem ed it fit to call upon the parties so that they could address the Court on the following issues:

1. When should a caveat be entered by a caveator in probate proceedings?
2. What is the procedure of entering a caveat in probate cases before the primary court?
3. Was the procedure of entering a caveat followed by the appellant on 18 th December 2024 proper? Mr. Hilonga for the appellant responded that Caveat is entered from day 1 to 21 or to 30 th day. The notice must be placed in various areas; notice

11 board, village and ward office and in GN or highly circulated newspaper. In relation to the procedure, interested party after seeing the notice may enter caveat at the primary court; may enter appearance before trial magistrate and state reasons as to why he/she objects. If the administrator has been appointed and there was no caveat, while in stage of collecting and distributing deceased properties (Form no. 5 and 6) if the administrator mentions property of another person, then the owner of property may p ut caveat. This as per Rule 9 (1) (a) to (e) Primary Courts (Administration of Estate) Rules GN No. 49 of 1971. He was of the view that t h e procedure was complied with. The appellant entered a caveat at the Primary Court because the respondent included properties which were not owned by the deceased. On his part, the respondent responded that, Caveat may be entered after notice has been placed on notice boards and before the administrator has been appointed. The procedure is by filling a form or writing a letter to the Primary Court while the case is ongoing so that the one putting caveat to be joined as party of the case. He was of the view that the procedure was not complied with up to when he was appointed as the administrator of the

12 deceased’s estate. That, he started getting disturbance when he was already appointed and proceeding with other procedures. The procedure of entering a caveat has been well and rightly explained by both parties. However, the issue is whether the said procedure was followed by Mr. Hilonga for the appellant before the T rial Court. I disagree with Mr. Hilonga that he followed the said procedure. The caveat is purposefully entered regarding the appointment of a person who wants to administer the estate of the deceased person and as rightly submitted by the respondent, the person who has entered caveat becomes a party to the case. Th e records of the T rial Court show that Mr. Hilonga entered a caveat after the appointment of the respondent. When his objections were dismissed by the T rial C ourt, he went on to appeal to the first appellate c ourt on “the appoint ment of the respondent as an administrator of the deceased’s estate.” This inappropriate procedure is what birthed the reasoning of the first appellate c ourt, in verbatim, that: “If that could be the case, I can conclude that the appellant in this appeal does not allowed to challenge the appointment of the respondent because he was not a party of the said probate. The record of the said case file from the trial court show that the re was an objection which filled by him sometimes January, 2025,

13 there was an objection by the appellant at the said trial primary court. The same was overruled by the reasons that it had been taken over by the event. It is at this time, when the appellant become to be a party of the case. It is true and correct that he had been granted leave to appeal out of time and he did actually complied with the court order. But he did make a very big mistake to bring to this court five grounds of appeal to challenge the appointment of the respondent. This was a very big mistake be cause he was not a party of the case at the time of appointment. The room of the appellant is to challenge such decision of the trial primary court which given January, 2025. The same thing was happen to this court from the submissions from the parties. Du ring the hearing of this appeal, the respondent told the court that he did comply with such court order and such deceased properties had been distributed to all lawful heirs according to the deceased Will. In his party, the appellant told the court that th e deceased who was his mother had northing at the time of her death. So, there was nothing distributed by the respondent. If that true story from them, I can conclude that there is nothing to decide between the parties. ” In his grounds of appeal, the appellant has complained, among many things, that the first appellate magistrate failed to consider and regard the grounds of appeal and that the appellant was not afforded fair hearing. In addition to that, there are complain ts on the appointment of the respondent (by the T rial Court) as the administrator of the deceased’s estate.

14 It is the firm view of this Court that t he first appellate magistrate was right to question the presence of the appellant before the c ourt as the records are clear that he was not a party to the case. Before ruling on that issue, the first appellate magistrate called upon the parties to address him on the same hence, the claims that the appellant was not afforded fair hearing cannot stand. However, I agree that the first appellate magistrate erred to grant the specific costs of TZS 360,000/=. Coming to appeal grounds 2, 3, 4 and 5, the appellant still challenges the appointment of the respondent as the administrator of the deceased’s estate. As this Court h as held that the caveat entered before the trial Court took a wrong path, the appellant had no locus standi to file an appeal against a case he was not a party to. In the event, I dismiss this appeal with costs. I uphold the decision of Babati District Court save for the order of costs which I hereby set aside. The decision of Dareda Primary Court is also upheld. It is so ordered. DATED at BABATI this 19 th day of December, 2025.

15 N. J. MWIHAMBI JUDGE Right of appeal explained to the parties. COURT: Judgment delivered today in presence of th e appellant and his advocate; Mr. Simon Hilonga and the respondent. B/C: Ms. Anna Mathayo (RMA) is present. N. J. MWIHAMBI JUDGE