Twalibu Lubengula vs Aisha Hussein (PC Civil App No 154 of 1995) [2000] TZHC 114 (26 July 2000)

i,; ' r ... ' i I ~ J, 1 IIC/rj'l-;t_ lf!c- (!}t . IN THE HIGH COURT OF TANANIA fl 'J,:_j)~~ JS~~~~ ft crvr1..ttl'No. 154 OF' 1995 'J.,JALIBTJ LUB:CNGUL.i'1. o 011'100(>00 .\I-'PELL\NT versus AISH:. IDJS&'EIN 0 • • 0 0 0 0 • 0 • REtiPOlIDENT JUDGMENT &,ubeshi, 1.• The appellant wa.s tmrried to the decea.sed Za.haria d/o Hussein on 26/3/1988 under Islamic rites. Za.haria died in December, 1993 at her parents home~ One child, Fatuma., was born out of the Union. After the death the a.})pellant petitioned for letters of administra.t:i.on but the tria.l court a.warded the grant to ne li.isha d/o Hussein, the sister of the deceasedo The trial court further distributed the estate to the beneficiaries, includin;s the appellant who was a.warded 1 f8of the estate. The trial court disrega.ided the will of. the deceased, contending tha.t distribution thereof did not follow Islamic law, that the will was prepared under doubtful circumsbnces as t1e deceased wa.s then sick, a.r:;ong other reasons. Both :parties ,,:.:;re dissatisfied and the respondent then appealed while the present appellont cross appealed. The District Court heard the appe:;il and decided to go by the requirement of the will pu-rportedly left by thG decea.sedo The 1st apr,ellate court opined that the will was pror:,crly ettestGd. The appellant ( then respondent)· .-,as a. 6 ,.Tieved ht=nce this 2nd appeal. Hr. Cha.mriho appear,:d for the appelbnto Four e;rour1ds have been rnised to challq3go the decision of the 1st appellate court. Before c01ning to the merits of the a.pp<:.al it is to be noted that the Respondent Aisha. Hussein was serv<ad Ul!'ough publication,, in one: issue of M.ajira dated 10/11/1999. She has not responded to th(.:: notice nor appeared in court. I therefore allowed. the appellant to proceed exparteo ••••• /2 ,-; . ·r; :~ ' .....

\ : 2 1st ground was ba:;;cd 011. tho plots designated a.s Lubengulo Farm - Block E as belonging to .the •arpellc:lnt long before he even m2.r1·ied the decea.sed .haria. 'l'he 1st appell.3te court had decided that these farms formed part of the deccd:i sed sta.te. What v1a.s before the trial court was who to bo a1J1Jointed the administrator of the deceased est.:ib:Jo That court came to the conclu- sion tlv.,t the distribution of the dcccc1s0d esta.te follow Islamic lo.w. Regarding the farm, the trial f.nm held. tru:it a_s forming pdrt of the deceased estate. TtJ.e ar,pellnnt dicl not testify regarding that farm as belonging to him. The trial court could not hD.ire rrade a finding on it as it 'Jas not in issno. 'l'he evidence was tendered regarding these plots ,md who Wc;s the owner thGreof. The issut) of ownership of the plots cropped of during the hearing of the 1st appc.l. I cannot hold that there was sufficient evidence to rrclre one conclude that these p4otf:; belong to the ::ippcllc.int. I ,·10uld dismiss this first ground. On grou..."'l.d No. 2 I entirely a.gree Hith th a.ppellants cou...'1sel -tr..at . ,' it was errcnous on the part of the first appellate ccurt to re-open the a.ppea.l by calling ;:1ddi tion,J.l evidence when the matter was olreody set of for judgment o No ,re.c1.sons were given e.nd those o.ddi tionnl witnesses were not cross exo.mined by the :}_ppell::mt. It 1 ,1as inde0d c ndsdirection for the Dppelloto court to bose its findinBs on thee evidence given by these two additiom.l witnesses .:'.lnd in the absence of the other P<,1.rty. I ollow this ground. As to ground No. 3 that the oppell-:rnt wns not n.ccorded c.. fair tren.trnent during tho triaJ..o I hove hod time to study the proce·ectings of the triol court. It is on record th-:i.t the o-r;pell!'J.nt hJd petitioned for the letters of adr.ri.nistrotion in respect of the deceo..sed estate. Then out of no where in the middle of p.:-:1ge 3 of the proceedings tho record goes on like this: T:1reje 24/8/94 t 1 ibele yc.. M.J. Ivutenyenge, Ibkirnu Vbshauri -· wopo Mwomba.ji - Twa:lib Lubnngulo - yupo Ndugu wa. rrorehemu waliopo ~

1. Mzee Hussein Mbilu ... b::i.ba
2. Paulina Paulo - mo.rro
3. Aisha Hussein - d.G.da.
4. Halim.1. Hussein - Dd ••o••o/~ t j

• -:'•--· 3 5. Jama.dh.,ni Hussein ,~ kaka 6; Mohamed Rashid - mtoto .l::E2...<?...19le.P.£; 1., Abdul Husnein 2. Bahati Re.shid 3. Fatuma Twalib !:-Ia.kin!U: ~~· J.r.aka mtoto t:itoto Mwor1baji '.PwaJ_ib Hussein anaJ..r.Bbidhi ,r..a.daraka Yet usimarnizi wa mirothi kwa ndugu A.i,:.;h:i Hussein ambaye barazD la llkoo lirnekubaliana nr:,ye. Hivyo mwomba.ji wa mirathi ni Afr;h .. , Hussein. Sa hihi ya Twa.li b • • • • ••• ,, 'I'he appellant bas stated that he ,·1as forced to consent to J.isha Hussein being nomin:.ited to poti tion for the letters of administrntion nnd when he refused. to .Si[;ll he wa::; chareecl with contemption of Court. Clearly this ,,as 'most unfortunate and it is .surprising that the trial ll19.gistrate fell into this serious flaw. What the trial mgistrate ought to have done was to hear objection from those who opposed the appellants petition and rule on merits whom he thought was fit to be appointed the adminishator. This he did not do a.nd instead forced the n:,pellant to accept the respondent --.,.... ........ _. - as the 2dministrator without following the prescribed procech,re. To that extent th0 appointt11ent of Aisha. Hussein as th2 .5dministratrix was unproper and I so hold• It ir::; accoi'dingly Get a.siclu. The appellant i.s horeby appointod to act as tLe administrator of the estate of the do'ceased Za.karia d/o Russe.in,. '.i:10 4th e;rcund is hov, i.s tho csbt to b(~ di.stribut0d', It is to be diBtributed according to cus;tom1ry or Islamic 18.w~ 'J.1.1e answer to this is not :far to find. The de(;ea.sed t-nG a 1",oslcm a!ld in 8.bGencc of evid.:mce to the contr:·.ry her esfat0 is to bee; distributed according to Isl.;1rnic law. Like the trial rrl9gistra~:e I am not perGUaded that the ,·rill was authentic, and even if it were, the deceD.sccl could oh;ty bequeth /} of her lJroporty while leavin 6 th,i rest to cc distributed accor.ding to Islamic lcn1. ~

II • 4 In sum I all0v1 th2 a},pcal in thv following: jppcllant to b8 ;:)ppointcd the ;.1dministrat6:f of the e.stnte Disfribution of the: ost::Jte t0 follow Islamic lw I rrrik:; no order as to costs. Dolivered. ' n:. l / .. f / / ·; (• )K' /'•,!,, ·1. - • '. :i.G. Bubeshi JUuGE 26/7/2000 /:: f l.:<,L'\