Tuntilege Kilasa vs Bupe Ambokile (Misc. Civil Appeal No. 1 of 1998) [1999] TZHC 339 (16 July 1999)

IN THE HIGH COURI' OF TANZANIA AT MBEYA MISC. CIVIL APPEAL NOf 1 OF 1998 (Frm Mbeya District Court Civil Revision No. 1 of 1998 Before: P.A. Lyimo ,. - Resident Magistrat) TUNTILEGE KILASA APPELLANT VERSUS BUPE AMBOKILE 0 0 0 o. 0 • 0 • • (I O O O e O o .. RESPONDENT t.• JUDG1ENT ~ I · · MOS.HI 2 J. .. This appel arisesj from 'an order made iri• :revision :by th~ ,dist'.rict court ,.: of Mbeya in Civil Revision No. 1 of 1998. It was· preferred and argued before ,. me by Mr. Mbise, learned advocate for the appellant, Tuntilege d/o Kilasa, ' . . . . ... and resisted by the respondent, Bupe d/o Ambokile, herelf. The central point of controversy between the parties was ownership of Hous No. SB/080 situate in an unsurveyed area at Mwanjelwa within the Municipality of Mbeya. I shall hereinafter call it the house•in dispute. The respondent claimed that the house in dispute belonged to her·deceased . father, Ambokile., whereas the appellant claimed that. it was the property of her deceased mother, Elizabeth Sakapawa. The matter,·as I shall demonstrate, had a twisting legal history. The parties are blood relatives,. .I, The respondent is the daughter of appellant's brot~er called Ambokile. The appellant, therefore, is the respondent's aunt. Ambokile died and the respondent preferred Probate and Administration Cause Nq. 75 of 1996 before the Urban primary court of Mbeya asking to be appointed the administrator of the estate of her father, Ambokile. The application was unresisted, so she was duly appointed the administratrix of her father's estate. The respondent included the house in dispute in the 0 0 0. 0 /2

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• 2 - estates of Ambokile. The appellant took exception to the inclusion claiming that the house belonged to her deceased mother who had died in 1989. She challenged the inclusion by preferring Civil Appeal No. 84 of 1996 before the district court of Mbeya. She lost the appeal. The district court took the Stand that the issue whether or not the house in dispute is part of the estate of Ambokile ought to have been raised at the primary court and referred the parties to the ,pnfrnary court to add_uce evidence upon which to ruH on that issue. The appellant, in consequen:e, preferred Urban primary court Civil case No. 6 of 1997 against the respondent in which she reinterated her.claim that the house in dispute belongd to her dec·ased mother. She lost the suit and • '.' I preferred Mbeya district court Civil Appeal No. 35 of 1997 again.st that . . . decision. The district court (s.v.G. Karua, S) dtsmissed the appeal holding, rightly, "that the appellant was not a cqmpetent party in . the proceedings ~ . . . ' . . involving her mother's estate, and thus lacked locus standi on account of that she as not the administratrix of the estate of her mother. Ipliedly, th_erefore, the dist_rict court urged her to seek appointment as administrator of" her inotheir•s estate for her to competently have a say in the estate. The appellant, in consequene, preferred Proqate Bf-d Administration Cause No. 2 of 1998 before the primary court of Mwanjelwa in town on 19.1.98 applying for appointment as administrator of the estate of her deceased mother, Elizabeth Sakapawa. The clan council had in its meeting of 2.1.98 unanimously appointed.her the administrator. Her application befcire t;he primary court was unresis.t,ed, so she was duly appointed the administrator of the estate of her mother on 22.4098. The estate essentially comprised of the house in disputeo The appointment, however, did not last for long. On 25.5.98 the district court of Mbeya (P.A. Lyimo, RM) issued a revisional .order in Civil Revision Noo 1 of 1998 in which the appellant was faulted for having included the house in dispute in the estate of her deceased mother in Probate and Administration Cause No. 2 of 1998 on account of that 0 0 0 0 0 •• 0 /3 • f

J 3 - the same house had been included by the respondent in the estate of her deceased father in the earlier Probate and Administration Cause No. 75 of 1996. The appellant, went on the.order, ought to have lodged an objection before the Urban primary court in its Cause No. 75 of 1996, and she was thl\S advised to do so if she wished. The appellant, quite expectedly, felt aggrieved, hence this appeal. ,·,· Mre-Mbise preferred.three gro:unds of.appeal, which were: . .-. .- .. ··l,

1. There was no error at all on the face of the record of . . . . . the trial court to warrant interfere'nce of the District Court. by way of Revisions · ·2.· · The learned Resident l'-\agistrate erre~ or1:; quashing the .de.cision of the trial primary court that appointed the appellant to be the administratrix of the Estate 6f the late Elizabeth Sakapawa which was not obje·.ct~d and for · · no justified reasons.
2. The learned Resident Magistrate confuses Administration of the Estate of deceased Elizabeth Sakapawa, and a disput~ over ownership of house No. SB/080, which was not a matter in Mwanjelwa Primary Court Probate and Adminis:tration·. Cause No. 2 of 1998. I would, with respect, agree with Mr. Mbise that the interference by Lyimo, RVl was, in the; circumstances of this matter, unjustified and unfair. The revisional orderJw.d the effect of depriving the appellant of the legal authority or the requisite locus standi to administer~ and to ·speak on, ·the

• ~····" .: :.... · .. :·.:: house in dispute she believed belonged to her deceased mother. Karua, SilM had seen the matter in its proper perspective, and the appellant had acted accordingly. Central in the controversy was the ownership of the house in dispute. In the somewhat perculiar ·~ircumstances of this matter it was not of any adverse material consequence that the house in dispute had featured in both Probate and Administration Causes. It had to do so. Neither the appellant nor the respondent was claiming its ownership. The matter, therefore, could not have been solved by lodging an objection as advised. Each had to be 0 0 0 •• 0. 0 /4

. If 4 clothed with. legal authority to speak on behaif of, and for, their respective .deceased on the ownership of the house in disputeo Their appointment~ a&qinistratrixes; therefore, was proper and could not be faulted in the circumstances o l accordingly allow the appeal, quash the district court's revisional order, and h~reby restore the decision of the primary ·court of Mwanjelwa in . · · appointed which the appellant fas __ the administratrix of• the Estate of her deceased motlier to administer, amo:1g other properties, th.e house in disputeo In the circums;tances of this matter, I make no order as to the costs of this appeal. AT MBEYA. ··16 Jμly 1999,:· For Appellant:· Mr. Mbise, advocate. ... For Resppndent: . Absent. B·.P. MOSHI JlJDGE. J