Silas Zephania Machange vs Christine Machange (Civil Appeal No. 39 of 1997) [2000] TZHC 149 (23 August 2000)

IN THE HIGH COURT OF TANZANIA· DAR ES SALAAI'-i DISTRICT REGISTRY AT JMt E3 SALAAr 1 1 CIVIL APF EAL NO •. 39 OF :!-997 SILAS ZBFHANIA f--'iACHANGE ••••••••••• · • .- .AH ELLANT VEii.SUS CHRISTINE 1v1ACI-L4.NGE • • • • • • • • • • • • • • • • • • RESI-ONDENT JUDGMENT BUBESHIJ.!L .• This is an appeal f il,2?d. by the appellant wh::, was the applicant for the grant of letters of acln,inL 5 tration to the estate of the deceased Obed Zephani.2. r 1 1a.cher,ge. In course of hearing that 3pplicationf the objectors whq a.r~ wife an1 daught2r of the deceased obj2cted to t i;, ., • t· . · he aPPJ.ica ,1,.;n on ground thnt they wer0 not in good terms with the applicant and secondly -hey objected to the trust deed created by the deceased in favour of the beneficiaries Juli2,na ",tenga and her children. After h.02.ring the objectors the trial court ruled in f3.vour of th2 objectors and disallowed the applicaticn. Hence this appeal. Mr. Rwabutaza for the appellant filed t,,.,o grounds · of appeal r12,n1e ly: - l. ' that the learned ntfli,trate erred in law _., and facts by· declaring t!:".10 trust deed deJios·L t2d by th2 deceased in th2 Natioal Bank. of Corrn,,2rce void. the le?arr,2d trial wagistr,.,te err2d in law and on facts on refusing u--2 app2llc1nt' s application wi th·'.)Ut justification. Both learn2d. counsel Rwabutaza for appellant and Mrs, Kato for the resfondents filed written submissions as ordered by court. . ,r Mr, Rwabutg,za, for the appellant htfs submitted. that the trust de2J. was drawn by the d2ceased and ' .. . deposited at_ the National Bank of Comm2rce in 1989. That the drai.-ver of the de,2d was of soued mind and kr..ew that he ha( t·:·, ':r.l.. 0 •• .. ,s ol:1(: bc,j_ng the respo11dent .•... /2

2 and the oth 1 .::'r the beneficiary ·)f the Deed. He stated furth0r. that the resp,;:r.der.1t had al.ready be,rn given her sh:lre - the original inherited property where she is settled with her children. He seellied to suggest that the- deceasr:::d knevv what ba w2s doing anct by drawiri.g up the trust deed he wanted to safegard th:::, interests of the benefici3ries. He contended that th:? second wife was nr.;t a cor...cubine o.nd she was recognized by the clan mGmbcrs., 'I'hat the Trust d=:E.\d gave right title or interest. accorclir.g to ti),:? wishes of the deceased and by the lower court declaration that the trust deed was void it i nterfr.:red 011 the deceased. wishes and intentions. On the issue of the 2.ppellant application to administer the deceased estate counsel~ .Rwabutaza submitted that th,e proposal was endc)rsed by all clan members. He rejected .the fear raised by the respom.ents that the appellant will not act fairly as b,:?ing J;,urely co.ajecture and premature. Mrs. Kato on her part suppo.rted th2 trial courts ruling. She subrni tted that it would be a.gai i1.St the prir.cir.,le of eqw-it2.ble distribution of pro1-erty between spo.nses if one of the sponse decides tc bequathe matrimonial assets/properties third parties such as concubines. She emphasized the fact that the respondent and deceased ilad been rn.aPFied for 20 years, that the : ' ,,. ,. responient is a retired prilnary school teacher and who could therefore prove her contri buti-Jn to tc12- assets of the family. Mrs. Kato was of the view that the deceased acted WI'ongly to create a trust deed in favour of the ben2ficL1ry Julic.1na. She a::1.ded that the beneficiary Juliana had contributed nothing towards the acq 1 .1isi tion of the prop2rtL=s, l"1rs. Kato insisted that JulL.1.na. could not be called the wife of the deceased. since the deceased had no capacity to i:1a:rry her th::t it vfas also improper for J'uliana to wi tne.ss the trust deed. in th::1t she was ' ,, the wole beneficiary. . ... /3

/ 3 Mrs. Kato subrni tted that the resJ:ion:ent found the aPPf)l.lant to be biased as he favoured th<:: trust deed and its cr)ntents to the detriment of the responJ.ent. The trial court rejec_te:l the trust deed basically b1.':Causc=: the deceased who was professed christian could c,2lebrate another ir1arriag2 to .Ju1im while -he first marriage to christina 11.'iamori subsisted. The issue her-2 is whether th2 d.eceased was precluded by law from cr0ating a trust deed in favour of the beneficiaries, was he.- I think not. It is ,3. fact that the deceased ebed left behind two .. issues apart fror; Juliana. How are th_ese childre.n going to be cared for ~ illegi tiH,ate ci otherwise,• We can safely assume that there was no marriage between the decased although he admitted one himself~ The deceased chose to grant though will certain properties to the bernficiary Juliana and her children. It is also on rE:Cord that the respondent was granted the land inherited under cusomary law. The respondent has submitted that she contributed towards those properties granted.to the beneficiaries and th2,t the latter contributed nothing. There is however no E1videncc: to· suprort this C•Jntention and mark you, this 1 • is not a case of division of a1atrin1onial prc:,perti2s, rather it is a cas0 of inh2ri tance. 1 ather it is 'a case of inheritance. Counsel Mrs. KE1to invited the court to the provisions of Section 114 of the law of marriage Act. I think this was not in issue here and th2re is nothing in the ruling appetled against to sllow v,rho contributed what. The trust deed was created specifically for properties at Mwika Kiruweni a two acre fs.rn, and Kawe Ukwamani three banda type of houses only these properties are net to be interfered ,,vi th except th1t the prorerties are under the Trustee. It is also sp2cificaJ.ly stated in para 2(a) of the·trust deed thf:tt the 'respon:l2nts •lhave been well provided for in the orig:iml ·inhertied property of which th2 beneficiarit~s ur.der this deed have no right, title or interest 11 • • ... /4

• 4 On evidence or record therefore this court cannot hold the trust void. The respon:Lents will have to produce mor2 facts tc substanti3.te their clai1-r1, particul3.rly on ·the acquisition of joint propertiGs that ar2 .sub.j ect matter of th:: trust de1,,-t ~ It is inipor .. ·tnt to ren;err:hr th3.t the other properties forming part of the estate of the deceased have not been bequathed to the beneficiries. In ny 2vent, if th12 respondents wish to chalh:inge the trust deed their complaints have to be levell2d at the trustee of the s2.rne. 'rhe appellant is not concern2d '.-vi th those prop2rties,·. lfow on the second ground of appe::tl. The trial magis--Crate found the appellant to be fraudulent on the equities of the estate. The appellant· has not challenged this 2.spect in his appeal. The respondents :Ln their affi.;:lnvi tS' have depo ned that they s.re not har;py to see the appellant administer. the estate. The respon:ient are the bcn::ficiarie·s to the properties of the estate apart. from those under the trust deed. The ad1ninistrator of any estate has to be acceptable to the intGrested parties if he has to do his job well. If the beneficiaries are unha:,·py about the appoint11Jent their grievances have to be locked into an::l a solution found time :1ni again this court has ob:-:,2rved widows b2irig f'.)rced by clan n,er:ibers to accept an ad1:U_nistrator who end up being a li:1bility rather than someon:: to work together. On this I 2.m inclined to oppo.se the application and upheld the trial C()urts finding. In the fin3.l ev(~nt the appeal is allowed in part as h:.=:rr:?in abov9 explained 8.nd it fails in part. Delivered before Mrs. Kato for Respon:i(?nt Rt.<r,-1butcza for Appellant JUDGE 5/3/98

IN THE HIGH COURT OF TANZJJH,:~ DAR ES SALAAM DISTRICT REGISTRY ~~:AR EAfO o2s cw 9r H/-iJI NKUHI ................... ·APPELLJ1NT VERSUS KAMWA ENTERPRISES ~~ •••• ~ •••• frtESPONDENT J. U D GEM ENT - ..,._ ___ . J?Jm..If L_: This is an avpeal filed by Mr~ Rutabingwa, learned counsel on behalf of the aprellant against the decision of the Housing Appeals Tribunal dated 14/2/1997. There are three grounds filed~ ihese are · . that the learned Chairman erred in law and on evidence when he,held that the Housing Appeals Tribunal was not a r,roper forum to raise the question of jurisdiction of the R. FL Tribunal after having found that the application No.455/1996 was not between landlord and tenant the learned chairman misdirected hirr.se.lf ancl erreC:. in law and infact when he failed to · _ rule out that upon lodging a notice of appeal tc the Housing Appeals Tribunal, the Regional Housing Tribunal ceased to have jurisdiction to hear and determine.the application to set ~side the expart judgment. As such no decision was made in respect to second ground of appeal 9 the learned ·chairman erred in law and infact to a1.ply double standard by considering letters which were only against the appellant whereas there was no submission on the issue of allocation.of the suit premises and documents infavour of the fafpellant were not considered - - - - - ••• 0 • /2

... .. 2 I allcwed the appellants counsel to proceed exparte after the respondent defaulted to appear. He argued his appeal by way of written submission. The first issue is that of jurisdiction; simrlY stated, did the Regional Housing Tribunal h3ve jurisdicti0n to entertain Apr,lication No.455 of 1~)~;6 when the parties before it were not tenant/landlord but erely tenant and licencee? The Housing Appals Tribunal while concendina; that the matter ~jefore it as V.'cl:i as the R.egj_c\nal Hcusing Tribunal, went furth2r to rule that the HiJusing Ai.,peal Tribunal wa:s not the proper forum to deterrr.ine the issue. ·I am indeed " ' taken a back by this-statement. I think t.hgt was and indeed the duty cf the Appeals Tribunal to determine whether the i-Iousing Triljunal was proy.:erly seized of the matter. That issues tetween land.lord and tenant 3re tc, Le qecided by the Hegional Housing Tribunal is settle by the Rent ' . Restriction Act; 1984. The application No.455/1996 concerned tenant and an invitee - licencee ~ Such a relationship· does not come within the ambit. of the Rent Restriction Act 19G4. Therefore the Regi?nal ·Housing TrfLunal had nc jurisdiction to hear the a-;)plication 2nd th2 Chairman of l-!r,peal Housing Tribunal was the proper forum to put the record s_traight. Mr. RutabingwcJ has submitted that the issue of jurisdiction could not be raised at the earliest hearing, before the Regional Housing Tribunal as the matter prcc-eeded exparte. Indeed, as a mattar of procedure issues of jurisdiction have tc be raised at earliest possible mcment, but in this case the obj_ection could not be raised where the matter proceeded exparte. I agree with counsel Mr. Rutabingwa' s s'ubm;i.:ssion. !\gain I would join hands with Mr. Ruta"bingwa on his submission that once a notice of appeal had been filed with the Housing Appeals· Tribunal, the_qegional Housing Tribunal ceased to have jurisdiction to hear and determine the arplication to set aside the exparte judgment entered on 16/7/1996. Suffice to say same position holds for the notice 'of appeal filed on 13/11/96.

\ \ 3 Mr. Rutabingwa has also complained_ on the misdirections apparent in the judgment of the Housing Appeals Triburtel~ Last put not least, this court was referred to the deciiion in the case of JUJEVY IMPORT and EXPORT LTD vs Fl.JMMO - HAT NO .• Dl/1994 where Deputy Chairman had_ dismissed an appeal for not being properly filed before the Tribuhal, on the basis that the application did not concern landlord and tenant.~ It is surprising therefore that in the matter at hand th~ same Chairman came to a defferent tonclusion, I am satified therefore that the appeal has merits and I allow it The .. decision of the Housing Appeals Tribunal is hereby quashed and set aside. Costs are to be awarded to the appellGnt as prayed. Delivered befcre Mr. Rutabingwa;for Appe1lant and in presence of Respondent. ' ·. /) ( . • ,11 1 I ' , 'I- 1 : .f)) t. k'<' \A, S ,~ G. BUD ES HI JUDGE 23/G/2000