Happy Geoffrey Moshi vs Gladys Ndile (Misc Civil Application No. 3 of 1999) [1999] TZHC 434 (22 October 1999)

L"l THE -HIGH .COURT--OF-TANZAl!IA AT MBEYA " MISC. CIVIL APPLICATION NO. 3 OF 1999 (From the decisio_n,.o!--the Distr::ct Court of Sumbawanga at Stimbawang& 1n Inspection No. 1 of 1999 -•· Original Probate No. -47 of 1998 of Sumbawanga Urban Primary Court ! . .. BEFORE: M· •. J.. B.,· ·HAflr:rsI - R .. M .. ) HAPPY GEOFREY ¥.OSHI · ••• .- •• ~ • .,· APPLICA.'I\TT VERSUS· GLADYS NDILE . . • • • • • • • • • • • • • • ~ 0 Rt:SPONDENT . RUL.ING MWIPOPO, J. This application involves two -wive., of the late Geofrey @ Rurnishael s/o Yohana ·r-i:oshi who died en l6/3/1997 and was buried on 19/3/1997 at Marangu. T-~oshi., Bo h widows who are the applicant one Happy w/o Geofrey }':oshi .=md the respondont ' one Gladys d/o Ndile have already petitj_on-d ll: different courts of . Mamba Primary Court. Mo shi and Sur 'Ja-wang;a Urban Primary Court to be appointed administrator, of the same estate of their same late husband anq both(: them have already each been appointed administrators o:E the same estate. The first one to petition for letters rf administra- tion was the junior wife termed the· 3rd wife -;he present applicant Happy w/o Geofrey in Mamba Primary lourt Mirathi No. 6/.1997, }'loshi, filed on 1/7 /97 and judgem;_nt was delivered on 11/11/1997 by the learned P. Msaki ( P.C,M.) and the two gentlemen .Assessors Ndetar.amo and Elia appointing her as administrator of the estate of their late husband. 0 •• /2

• 2 - But one, Munguatosha s/o Mos.hi the only surviving real young brother of the dece~sed opposed the appointment of Happy w/o Geofrey as the administrator and appealed to the Moshi District Court in Civil Appeal No, 40/1997 in which , the learned Nr. A. D. Ifunya (D.1v.) delivered Judgment on 25/5./1998 upholding the decision of the Mamba.Primary Court confirw.ing and , the appointment of the same Happy w/o Geofrey L ..... ~oshi as an administrator. The obj-ectorJappellant 1'11ungu.atosha T'!:oshi .filed her · · · ·_of· the 'HJ_gh Court complaint with the District RegistrarLMoshi against the decision of the District Court but the ~istrict Registrar referred this complaint back to the District Court.and n9 further action of appeal or revision by the High Court foshi was ever pursued. The decision of the District Court of ~oshi by the learned Mr. Ifunya decision only 1st appellate courtLwhich (D.M.) therefore is the this dealt withL~~shi Probate Caus.e. Ndile Cause On the other hand, the· -present respondent Gladys d/o on 20/7/1998 termed the first wife, also filedLher own probate "· · . in Sumbawanga Urban Primary Court lVJirathi No. 47 /1998 on the same estate of their late husband Geofrey Rumishael. John Moshi filed. fhe Judgement of the Urban Primary Court was delivered on 28/9/1998 by the learned M Mp ·t · .<PCM) t·h t G tl A B K r. i anJiaLana · e. wo en emen ssessors • usaya and·I. Ulaya appointing· the said Gladys d/o Ndile as the administrator of the same estate of their late husband., The f.ile, was· called up for Inspection in.Civil· Inspection No. 1/1998 by the iearned Mr. Hamisi M.J.B. (Dffi/I) who made a ruling on 26/1/99 pinpointing that since · there· was _, above cited . the already the probate cause of Mamba Primary Court andLdecision L

• 3 - thereof of the Noshi District Cnurt by the learned Ifunya (D.1''-.) · above cited . Probate Cause L the aterz'Sumbawanga Urban Primary C9urtzwas duplicate to . .. Probate Cause and its the Mamba Primary Court j_ · l''-oshi District Court Civil Appeal and he recommended that the JV,oshi High Ccurt should Consolidate these two probate Causes into one on revision a presumably and come up withLdecision incorp·orating both two ' lower.courts decisions He ordered that both records be sent to Moshi High Court for its final order. as directed by the Sumbawanga District Court !nstead of going o·Moshi High CourtLthe applicant Happy w/b Geofrey fiied this application on 4/3/1999 urider Certificate·. of Urgency with the other co-wife Gladys d/o Ndile as a respondent praying for the following reliefs inter alia that the Sumbawanga Urban· Primary Court l'<irathi No. 47/1998 and Sumbawanga District Court Inspection No. l of 1998 be quashed. At the hearing of this application this\court calied: for the Mamba Primary Court record arid the :r--'ioshi District record Court Civil Appeal No 6 of 1997Land they have been supplied (certified proceedings)to this court. This application could have been heard at Moshi High Court as envisaged by the l~arned Mr, Hamisi (DRM) as well as by this court as preferred by the applicant because there are two probate causes opened up in both High Court Centres. registry at Jvlbeya and Moshi under which each L .fias jurisdiction to deal with the probate cause. It was certainly wrong to open up·anuther probate cause in Sumbawanga after the one in IV1amba had been'- opened up. The question is whether Gladys Ndile knew o·f the Moshi Probate Cause or not •. None of the parties in the Moshi . . Probate Cause featured in the Sumbawanga Probate· Cause such as the petitioner herself Happy w/o Geofrey who testified ••• /4 a

4 - as PW.l,.the other two witnesses PW.2 Matayo s/o M:lekio Moshi and .PW.3 Jonathan s/o lmdrea l''oshi and the objector/- Appellant l'i'unguatosha John r,-'.oshi at the Eoshi District ,, Court level~ None of these participants in the l'ioshi Probate Cause featured at all in the Sumbawanga Probate Cause. Alternatively, the Sumbawanga Probate Cause partici- pants did n0t feature at all in the IVoshi Probate Cause. are These·Lthe petitioner who testified as PW .. i Gladys d/o Ndile, the other witnesses PW.2 Fredrick s/o Andrea J.voshi and PW.3 Danstan s/o Yaleko. From the Sumbawanga Urban Primary Court Probate proceedings·there is no hint anywhere about the existence of the Mamba Probate and its appeal in the l\oshi District Court. The petitioner lives in Tukuyu and her two witnesses ··\ are both businessmen in Sumbawanga • .Although the present applicant Happy w/o Geofrey covered in her affidavit the allegation in the 9gh paragraph that Gladys d/o Ndile knew about the Mamba Probate Cause as repeated again 5th para- ' \ in the graph that Gladys d/o Ndile was present in theLNamba Primary Court during the proceedings~ these are mere allegations and not proved by concrete evidencE:• In the fourth para of her affidavit Happy w/o Geofrey added that actually both Gladys Ndile and J.vunguatosha Moshi objected to the probate and were overruled by the Primary Court •. This is not true for the record of the .Mamba Primary Court doesn't refleet so. ActuallY, both Gladys s/o Ndile and ~~nguatosha s/o Moshi were not in court and unaware of this cause because they certainly would have opposed it. Munguatosha s/o V~shi came to know about it after the appointment of Happy w/o Geofrey had already been done. That ••• /5

... 5 ;.. is why he remained with the only alternative of appealing to the ¥bshi District Court which he did unsuccessfully~ Since sooh after funeral and clan meeting the resp0.ndent Gladys Ndile came to live in Rungwe District and later on went to Sumbawanga to follow up the estate of the deceased she can't have known the Mamba Prirr-ary Court Probate Cause. later on The one who Lnew about was J.v:unguatosha s/o iv'Joshi who didn't feature at in the Sumbawanga Urban Court Probate. The other ground raised is that the Sumbawanga Probate .. was not advertized for 3 months. This is quite true for the probate was filed on 20/7/98 and it was granted on 28/9/98 when she was appointed the administrator. But the publication in the newspaper was done in the daily newspaper of 3/8/98 of 11 Majira 11 and the objectors or caveators were given 1 month and 18 days to raise their objections until the 21/9/98 during which period no objection was brought to The court. Lappointment of an administrator can be done even without the expiry of the 3 months. Here the applicant did not come out to oppose the Sumbawanga Probate until around 0anuary 1999 when she complained to the D.R.M. about the Sumbawanga probate cause who called for it and inspected it on 21/1/99. By the time the 3 months of a normal advertisement period elapsed in around October/November, i998 the same Happy w/o Geofrey was not as yet aware of the Sumbawanga Probate Cause. The error of non-compliance with the· 3 months notice is hereby remedied unqer s.37(2) of the M.C.A As for the Mamba Probate Cause it has its own problems. The petitioner filed the petition without the backing of the clan members and actually she did not tell the court to that the clan meeting had already nominated Gladys NdileLstand as administrator of the estate.. The clan meeting, the minut_es of which were produced in the Sumbawanga Urban Court Probate 1/ ■ 0-•

Cause,shows clearly all what transpired in the clan meeting involving all the three wives of the deceased. The other problem with the Mamba Primary Court probate estate is that it was opened up there although the realLpr,perties in contention is not within the lVoshi District and Kilimanjaro Regi·on. The house is in Sumbawanga and the farm is in Maji in ya Chai Area of Arumeru DistrictLArusha High Court Registry. 'rhe only estate in Marangu is the clan land inherited is his late father and mother beneficiaries by the not a whichL late Geofrey J. Moshi frorr. subject cf distribution to the _ 2 1 :1 ., - of this estate of the late Geofrey John :t!oshi. It was also erronous for the District Court to have dismissed the objections raised by the brother of the deceased Munguatosha s/o J-ohn roshi who . revealed to the District Court by way of the appeal the minutes of the clan which meeting was very fairly conducted and solved all the problems which cropped up during the funeral and deliberated on how the properties should 'be distributed to the three wives and their children all of which Yioshi deliberations were.not taken into.accoun~ by thefistrict Court. The basis of the decision of the District Court in allowing the same Happy w/o Geofrey to remain the administra- tor was that the other senior wife who was nominated as administrator by the clan meeting had not yet filed the •".·pr'obate cause. The court should have given her a chance to the alleged be heard before condemning her for,failure to open the . l probate. She should have been surrmoned to appear in the Mamba Primary Cr)urt probate cause •. Failure to do so the fatal District Court exposed itsel~ to theLerror of condemning d/o Ndile without being heard. . .. /7 Gladys

Dur iP..g this application other matters have croppt"Cl up. The two disputant widows are not ready to have any one of them cortfq~.oed by this court as the administrator readily of the estate of the deceased. They both would 1 · L -l.f allow the court to administer the estate r8ther than any one of them. That is each one opposed the appointment of the other done respectively by the f/iamba Prir;1ary Court or Sumbawariga Urban Primary Court~ They don't see eye to eye and even don't even greet each other, They are at logger heads.because of rivalry over tb.e estate of the deceased and ea.r..h orie ts marriage legality to the deceased • . .At the meeting of the clan the marriage legality of the 3 wives was dealt with in detail. Prof was shown both at the clan meeting and in the Sumbawanga Urban Primary Court trial. Gladys d/o Ndile was the first wife m9rried under custoary law and that she stayed matrimonially with < the deceased artcl•bore three children. When she took Happy w/o Geofrey as his wife the 1st wife had separated and she . 'lived elsewhere in Tukuyu. But, before the deceased died as per testimony of Harold aleko in the clan meeting he went to the parents of.Gladys Ndile to reinstnte his customary raarriage relationship with Gladys Ndile 7 months before he was transferred to IV·oshi fer treatment and that he paid dowry of Shs.-20,000/=.. In the minutes it is indicated that Happy w/o Geofrey agreed to this renewal of the marriage relationship between Gladys d/o Ndile and the deceased for she said she was the one who arranged the deceased to admit back his first wife.- The other 3rd wife who doesn't feature much in,the court proceedings but was covered in the clan meeting is one Rogatha Hapiness d/o Nguma who is the 2nd wife who lives in .Arusha/Fshi and doesn't appear to have ever lived with the deceased in Sumbawanga where the deceased had his residence for many years for he married the first wife while ••. /8 ..

8 in Sun:bawanga as early as in 1972. She stayed. v,ri th him and bore three children in 1974, 1976 and 1979 .. ·rn 1981/82 the bore deceasedL another child with Rgatha Happiness Nguma. 'Ihe applicant Happy w/o Geofrey married the deceased in 1987 and bore 5 children with him. All the 3were lawful wives .of the deceased. During the hearing cf .this application it is the view of this court th2t both Happy;·w/o,, Geofr,Y and Gladys d/o Ndile cah t t re,baii1 ·administrator of,, th_e estatf2 of the deceased . . ·-· -~ \ . . . ..; . l.; becau$·e \they sre wives of the deceased who hate each other and don: 1 t · iirnnt the other to adrrinister the estate for the other. This court takes for granted the clan posture that the three wives were customarily married to the deceased. . . . - . \ The 9 children of the deceased therefore are legal children inherit who are entitled to. L were frore the estate of the deceas~d. 'Ihe 3 wives t00, L lawfully married customarily ::md are entitled to inherit from the estate. The properties of the estate of the deceased are known to be cnly three: the house at Sumbawanga at J ang',·rnni Plot J.16, farm at Njokuu Village• r. aji ya Chai, Arumeru · aud District Arusha ·which is about 5 acres Lthe ot;:1er farm which is at KirnMg.sro. Tv}amba IV:oshi is clan fr.rm v;i th 3 parti- tions one for the deceased Geofrey }'oshi 1 another for Nunguatosha l".'.)shi and another for late Ezekeah Eoshi the other brother. There are movable· properties at Sumbawanga such as furniture which belonged to the deceased, Gladys Ndile and knc)vm Since the properti.es are Lthis same propcrtio;::; shall be distributed follows:- court holds tha-t the to the beneficiaries as

.. . ,. ) - 9 -, I l. The Sumbawanga House Jarigwani Plot J. 60 shall I be sol~ by the Sumbawanga Urban Prieary Court to the highest bidder by public auction and the sai:-te court shall distribute the proceeds thereof at equal portions to the 12 beneficinries who i are as follows:- (I) Gladys d/o Ndile,(lst wife) (II) Happy w/o Geofre1 (2nd wife) ; (III) Rogath~ alias Happiness d/o Nguma (3rd wile) (IV) The three children of Gladys d/o Ndile who are:- (V) (VI) (a) Shoshe d/o l'oshi (b) fusanyeje d/o Moshi (c) Dorothy d/o oshi The child of Rog?tha who ( a) Tito s/o Tv'oshi ' is:- The 5 ch1ldren of Happy w/o Geofrey -w:ho are:- ( a) Emmanuel s/o !V'.oshi (b) Betty d/o i<oshi . (c) Eliar:.eni d/o Moshi (d) kbilisia d/o l''oshi (e) Gadi s/o JVJoshi 2. The f arrn in Arurneru District •at Njekuu Village f'.\aj i ya Chai shall be di vi'ded equally - between Rogatha d/o Ngurna 2½ acres and Happy w/o Geofrey 2½ acres as suggested by the clan □ eeting • . 3. 'Ehe clon f arrr at Kimangara Village Mamba, Moshi is hereby distributed to the first wife Gladys Ndile as was done by the clan mceti~g. That is the portion yvhich wa's bequeathed to the late ·., Geofrey T'foshi from his father only. The other por- tions bequeathed to l'fiunguatosha Moshi and the late .. •.• • /10

10_ Ezekiel Yoshi-are not part of this estate. 4. The movable properties of the 1st wife Gladys Ndile shall be collected by herself from Su □ bawanga house if they are still usable. The Rest of the IT.ovable properties in that house shall be taken up by Happy w/o Geofrey including all the bar and restaurant n:ovable properties which she used when .)~ operating the bar business with the d.e ♦ eased., .,._ . . ...,. The idea of· the learned :r,,;r •. Harnisi (DRM) of Sumbawanga to have the two files consolidated is quite.good. But, I. ,· : . ,: . . : \ .' .; . ' ; .! . rather than having one, oft~~ applications (the Sumbawanga '··same ·· · ·' · one) quashed the . i Surpbawanga Urban Prir:mry Court shall meanwhile .d~al with .:the sale of the house 8$ ordered above and distribute the proceeds-thereof to the beneficiaries,. Thereafter, the same file shall be consolidated with the Mamba Prir:c.ary Court ! 1 .irathi No·-. 6 of 1997 by having copies of the proceedings or the file itself of the Sumbawanga JJ,irathi No. 47 of 1998 transferred to the Mamba Primary C(•urt record. · It means that the record of the Sumbawanga Urban Court and exhibits including the rr:inutes of the clan meeting _shall all be transferred to.the :Mamba Primary Cnurt file. · Moreover, the sarre Sumbawanga Urban Primary Court shall distribute the proceeds of the sold house by paying directly to the adult beneficiaries (18 years and above) their due equal share of the estate. ~For the children who are· nbv)rs their share of money shall be given to them through their respective mothers who·shall hold and keep it for thc:"m and for their benefit. The appointment of Gladys cl/o Ndile as administrator is hereby quashed • • • • /11 • • ' •

• 11 - record . The !!amba Prirrary CourtLand the l\1oshi District Court record are hereby sustained with the following variations the appointment of Happy w/o Geofrey is hereby quashed . ., In her place the only remaining brother of the deceased Fu..nguatcsha J. Moshi is hereby appointed to be I the guardian/care father and overseer and administrator of any rerrainder (u..distributed) estate of the deceased and all the children and especially the rr;inor children of the becomes deceased. "!hen Emmanuel s/o Tv'oshi grows older andLof majority age he shall take over the leadership position of the deceased ts house from Iv\mguatosha s/o John Moshi. This applicati0n is therefore partly allowed and partly dismissed as explained above. Each party shall bear her own ccsts. 22/10/99 :t-'Jwipopo' J. JUDGE 22/10/1999 Applicant Hc1ppy w/o t'oshi ·_ Present Respondent: Gladys d/o Ndile - Present B/c. Mathias COURT: Ruling delivered in the presence of both parties. Right of Appeal explained. ELKM/JJM