Happy Geoffrey vs Gladys Ndile (Misc Civil Application No. 3 of 1999) [1999] TZHC 248 (22 October 1999)

IN THE HI}L COURT-OF TANZAL AT IBEYA II3C. CIVIL APPLICATION NO. 3 OF 1999 (From the decision of the District Court of Surnbawanga at Sumbawanga in Inspection No 1 of 1999 - Original Probate No. 47 of 1998 of Sumbawanga Urban Primary Court BEFORE: B HMTISI - RJ'L) HAPPY GEOFREYosHI. .. . .. ...• APPLICANT VERSUS GLADYSNDILEO...........W.. RESPONDENT RULING . IwIpOPO..J. This application invo1ves two wive of the late Geofrey @ Rumishael sf0 Yohana 1'oshi who died on 16/3/1997 and was. buried on 19/3/1997 at Iarangu 1oshi 3 Bo h widows who are the applicant one Happy w/o Geofrey I"oshi .mnd the respondent one Gladys d/o Ndile have already petition. .d in different courts of I4amba Primary Court Ioshi and Sur , aianga Urban Primary Court to be appointed administrator: of the same estate of their same late husband and both.(;f them have already each been appointed adrhinistrators o the same estate. . The first one to petition for letters r administra- tion was the junior wife termed the 3rd wife :;he present applicant Happy w/o Geofrey in Namba Primary Court Mirathi. No. 6/1997, 1'oshi, filed on 1/7/97 and judgexnnt was delivered on 11/11/1997 by the learned P. Msa1c,;L.(P,C.?,) and the two gentlemen Assessors €itaramo and Elia appointing her as administrator of the estatef their late husband,

4 .. 'I -2- But one !guatha s/o 1oshi the only survi:ving . real young brother of the deceased opposed the appointment of Happy w/o Geofrey as the administrator, and appealed to the Ioshi District Court in Civil Appeal No.40/1997 in which the learned Nr, A. D. Ifunya (D,r,) delivered Judgment on 25/5j1998 upholding the decision of the Mamba, Primary Court confirming • and f the appointment of the same Happy w/o Geofrey Moahi as an administrator. The objector/appellant Nurigatosha IVoshi filed her of the High Court complaint with the District Registrarfoshi against the decision of the District Court but the District Registrar ref erred this complaint back to the District Court and no further action of appeal or revision by the High Court. Ihi was, ever pursued. The crecision of the District Court of 1oshi by, the learned Mr, Ifunya (DM,) theref ore is the decision this only '1st appellate court,which dealt with 1 Nohi Probate L Cause& On the other hand, the present respondent Gladys d/ô on 20/7/1998 Ndile termed the first wife,also filedLher own probate Cause .'in Sumbawanga Urban Primary Court Mirathi No.47/1998 on the same estate of their late husband Geofrey Rumishael John ?oshi filed, . . . The Judgement of the Urban Primary Court was delivered on 28/9/1998 by the learned Mr. itanjI the two Gentlemen 'AssessorsB, Kisaya and I. Ulaya appointing the said Gladys d/o 'Ndile as the administrator of the same estate of their late 'husbnd.- The file was called up for Insection 'in Civil Inspection' No. 1/1998 by, the learned Mr. Hamisi M.J.B. (Dm4) who made a ruling on 26/1/99 pinpointing that since there was above cited the already. the probate cause of Iviamba Primary' Court andLdecision L.

thereof of the Moshi District Court by the learned Ifunya (D) above cited Probate Cause the. later 1 Sumbawanga Urbaii Primary Court,was duplicate to Probate Cause and its L the IViamba Primary Court Ioshi District Court Civil Appeal and he recommended that the Tóshi High Court should Consolidate these two probate Causes into one on revision presuab1y and come up withLdecision incorporating both two lower courts decisions. He ordered that both records be sent to Ioshi High Court for its final order. as directed by the Sumbawanga District Court Instead of going to Ioshi High CourtLthe applicant Happy w/o Geofrey filed this application on 4/3/1999 under Certificate of Urgency with the othe' co-wife Gladys d/o Ndile as a respondent praying for the following reliefs inter alia that the Sumbawanga Urban Primary Court I'irathi No 47/1998 and Sumbawanga District Court Inspection No 1 of 1998 be quashed.. At the hearing of this application this court called for the Iviamba Primary Court record arid the Noshi District record Court Civil Appeal No 6 of 1997 P Andthey have been supplied (certified proceedings)to this cou± 4 t This application could have been heard at Noshi High Court as envisaged by the learned Nr. Hamisi (DRN) as well as by this court as preferred by the applicant because there are to probate causes opened up in both High Court Centres. registry at Nbèya and Yoshi under which each A has jurisdiction to deal with the probate cause. It was certainly wrong to open up another probate cause in Sumbawanga after the one in Namba had been opened up. Thequestion is whether Gladys Ndile knew of the I'5oshi Probate Cause or not. None of the parties in the Noshi Probte Cause featured in the Sumbawanga Probate Cause such as the petitioner herself Happy w/o Geofrey who testified

-4- as PW.l, the other two witnesses PW.2 Matayo s/o KLekio oshi and PW.3 Jonathan s/o Andrea 1"oshi and the objector/- Appellant 1&inguatosha John oshi at the 1'oshi District Court lvel None of these participants in the Ioshi Probate Cause featured at all in the Sumbawanga Probate Cause. Alternatively the Sumbawanga Probate Cause partici- pants: did not feature at all in the Toshi Probate Cause. are These Lthe petitioner who testified as PW.l Gladys d/o Ndile, the other witnesses PW.2 Fredrick s/o Andrea 1'oshi and PW.3 Danstan s/oJaleko. From the Sumbawanga Urban Primary Court Probate proceedings there is no hint anywhere about the existence of the '1amba Probate arid its appeal in the 1'oshi District Court. The petitionerlives in Tukuyu and hertwo wirsse are both businessmen in Sumbawanga. Although he present applicant Happy w/o Geofrey covered in her affidavit the allegation in the 9gh paragraph that Gladys cl/o Ndile knew about the Mamba Probate Cause. as repeated again.5th para in the graph that Gladys d/o Ndile Was present in theLMamba 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 Iunguatosha Moshi objected to the probate and were overruled by the Primary Court. This is not true for the record of the Namba Primary Court doesnt reflect so. Actually, both Gladys s/o Ndile and Munguatosha s/o Ioshi were not in court and unaware of this cause because they certainly would have opposed it. lYiunguatosha s/o 1'ioshi came to know about it after the appointment of Happy w/o Geofrey had already been done. That

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At Cauâeçshows;clearly'all what transpired in the clan meeting involving, all the three wives of the deceased The pther problem with the Namba Primary Court probate estate is that it was opened up there although the realLpr'.Perties in contention is not within the Ivoshi District and Kilimanjaro Region. The house is in Sumbawanga and the farm is in Maji in ya'Chai Area of Arumeru Districtusha High Court Registry, The only estate in Marangu is the clan land inherited by the is not a late Geofrey J. Moshi from his lat e father and mother which beneficiaries subject of distribution to the ,-.'--'-', of this estate of the late Geofrey John Ioshi.... It. was also erroncus for the District Court to have dismissed the objections raised' by the brother of the deceased 1unguatosha s/o John Ioshi 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 IIoshi deliberations were not taken into account by theistrict Court.. The basis of the decision of the District Court in allowing the same Happy w/o Geofrey to remain the adrninistra-. tor was that the other senior wife who was nominated as administrator by the clan meeting had not yet filed the probate cause s . The court should have given her a chance to the alleged ' 'be heard before QQndeiing her for failure to open the probate. She should have been summoned to appear in the Mamba Primary Court probate cause. Failure to do so the fatal District Courtexposed itself to thejerror ofcondening Gladys d/o Ndile without being heard. /7

-7- flurin.g this appLi.cetior ether matters have cropped tip. The two disputanb widows are not ready to have any, one of them coifirmed by this court as the administrator readily of the estate of the deceased, They both would J,' allow the court to administer the estate rather than any one of them. That is each one opposed the appointment of the other done respectively by the Namba Primary Court or Sumbawanga 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 the estate of the. deceased and ear.h. one 1 s marriage legality to the decased. At the meeting of the clan the marriage legality of the 3 wives was dealt with in detail. Proof was shown both at the clan meeting and in the Sumbawanga Urban Primary Court trial. Gladys d/o Nclile was the first wife married under customary law and that she stayed matrimonially with the deceased and 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 1 before the deöeased died as per testimony of Harold 14aleko in the clan meeting he went to the parents of Gladys Ndile to reinstate his customary marriage relationship with Gladys Ndile 7 months before he was transferred to Ioshi for treatment and that he paid dowry of Shs.20,000/=. In the minutes it is in'c.icated that Happy w/o Geofrey agreed to this renewal of the marriage r1ationship 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 rusha/I'ioshi 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 . .18

-8- in Sumbawanga as early as in 1972. She stayed with him and bore three children in 1974, 1976 and 1979. In 1981/82 the bore deceasedL another child with Rogatha Happiness Nguma. The applicant Happy w/o Geofrey married the deceased in 1987 and bore 5 children with him. i1l the 3 were lawful wives of the deceased. During the hearing of this application it is the view of this ccurt that both Happy w/o Geofrey and Gladys d/o Ndjle cant remain administrator of the estate of the deceased because' they are wives of:the deceased who hate each other and doh'twant the otherto administer, the estate for the other..'Thi•s.court takes for granted the clan posture that the Thréë wives were customarily married to the deceased. The 9 children of the d,ece.ased.-ther.e'ore are legal childre inherit who are entitled to from the estate of the deceased. were The 3 wives too, L' lawfully married customarily and are entitled to inherit from the estate. The properties' o± the estate of the deceased are known to be only three: th house at Surnbawanga at Jangwani Plot J.16, farm at Njokuu Village aji ya CI'iai, Arumeru and District Arusha which is about\5 acres the other farm which' is at' Kimang&ra Namba I:oshi is clan form with 3 parti- tions one for the deceased Geofrey IVoshi, another fort 1Tnnguatosha I'oshi and another for late Ezekeah Moshi the other brother. There are niovable'properties at Sumbawanga such as furniture which belonged to the deceased, Gladys Ndile and Happy Ioshi, known 'Since the properties are this court holds thãt the same properties shall be distributed to the beneficiaries as follows : - IQ

-9- i The Sumbawanga House Jangwani Plot J. 60 shall be sold by the Sumbawanga Urban Primary Court to the highest bidder by public auction and the same court shall distribute the proceeds thereof at equal portions to the 12 beneficiaries who are as follows:- Gladys d/o Ndile (1st wife) Happy w/o Geofrey (2nd wife) ..(III) Rogatha alias Happiness d/o Ngurna (3rd wife) (Iv) The three children of Gladys d/o Ndile who are:- Shoshe d/o1oshi ]sanyeje d/o IVoshi.. Dorothy d/o 1'oshi (v) The child of Rogatha who is:- • (a) Tito s/o 1"oshi (VI) The .5 children of Happy w/o Geofrey who are: Emmanuel s/o Hoshi Betty d/o 1oshi Eliameni d/o1oshi • (d) .Imbilisia d/o Ioshi (e) Gadis/o 1"oshi • 2 • The farm in Arumeru District at Njekuu Village Maji ya Chai shall be divided equally - between Rogatha d/o Nguma 2 acres and Happy w/o Geofrey 2 acres as suggested by the clan meeting.. 5 The clanfarm at Kimangara Village Mamba, Ioshi is hereby distributed to the first wife Gladys Ndile as.was done by the clan meeting. That is the portion which was bequeathed to the late Geofrey Moshi from his father only. The other par- tions bequeathed to nguatosha Moshi and the late 0 0 0.110 I 4

• .10 - Ezekiel Iosh±. are not part of this estate.

4. The movable properties of the 1st wife Gladys Ndi].e shall be collected by herself from Sumbawanga house if they are still usable. The Rest of the movable properties in that house shall be taken up by Happy w/o Geofrey including all the bar and restaurant movable properties which she used when operating the bar business with the de4eased. The idea of : the le.arned Ir, Haniisi (DRN) of Sumbawanga to have'he two files consolidated is quite good. But, rather than having :one of the applications (the Sumbawanga same one) quashed tha .' Sumbawanga Urban Primary Court shall meanwhile deal with the sle of the house as ordered above I and distribute the proceeds thereof to the beneficiaries. Thereafter, the same file shall be consolidated with the Iviamba Prirary Court Pirathi No. 6 of 1997 by having copies of the. proceedings or the file itself of the Sumbawanga Mirathi No. 47 of 1.998 transferred to the Iviamba Primary Court record. :Jt means that the record of the Sumbawanga Urban Ccut't and exhibits including the minutes of the clan meeting shall all be transferred to the Iamba Primary Court file. Moreover, the same Sumbawanga Urban Primary Court shall distribute the proceeds of the sold house by paying directly to the adult beneficiaries (18 years and above) the.ir due equal share of the estate. For the children who are ninors their share of money shall be given to them through their respective mothers who shall hold and keep it for them and for their benefit. The appointment of Gladys d/c.? Ndile as administrator is hereby quashed. /11

record The I.amba Primary CourtLand the 1oshi District Court record are herby sustained with the following variations the appointment of Happy w/o Geofrey is hereby quashedr In her place the only remaining brother of the deceased Munguatcsha J.. Ioshi is hereby appointed to be the guardian/care father and overseer and administrator of any remainder (undistributed) estate of the deceased and all the children and especially the minor children of the becomes deceased& Whefl Emmanuel sb I'oshi grows older andLof majority ago he shall take over the leadership position of the deceased's house from Iunguatosha s/o John Yoshi. This apiilicatinn is therefore partly allowed and partly dismissed as explainedabove. Each party shall bear her own costs.. .: / < ••;•' _\ -3t- •;:; - 22/10/99 I'Jwipopo, J. E.L.K. MWIPOPO JUDGE 22/10/1999 Applicant: Happy w/o Ioshi - Present Respondent: Gladys d/o Ndile - Present B/C. Mathias COURT: Ruling delivered in the presence of both parties. Right of Appeal explained. 0-1 / E./L. K. Y 1 4-'1IPO0 JUDGE 22/10/1999 ELKI/JJN