Iddi Mdoe vs Seleman Mdoe (PC Civil Appeal No. 84 of 1990) [1991] TZHC 2419 (4 September 1991)

(j~•f~!,·:; . , , :i ! ""''·, - ... {11 >· /_- ,,._ ..... .. . ._~~ 0':'J";>' ,-~~, ... _d.)• - . . ·.·1 "-+ ,' . • - IN TID HIGH COURT OF TANZANIA AT AHU3HA. (PC) CIVIL APPZAL N0.84/90 (Fron the decision of the District C6urt of . Arusha at Arusha in Civil Appeal BNo,31/1990 IDD MOOE ••••••••••••••••••••••••••••••••••• APP:J.:LLI: JT VERSUS STI:100'.J.U 1•.rooE •••••••••••••••••••••••••••••• R iiSPONDJ:NT JUDOEMENT Iit,N e MONUO 1 J This ia a seco~d appeal froo Arusha vistrict Court Civil Appeal N0.31 of 1990 originally i\ru.sha Urban Pri1.1ary Court Probate and l1dministration Cause no,56 of 1988, In the Prir..iary Court one Iddi.Athnani Mdoe• the youngest son of the late Athurnm IIassan applied for let et'S of adrainistration of his late father's estate. In his evidence the applicant stated that the 2 houses in dispute and 4. sewing L1achin,2s \vere b.1qeathel to hir.1 by his late fatber per the will exhibit A. lle s id that he has al.so been paying Municipality rates for the two houses I as evidenced by :rthe papers Jlxhibit B. Ile also tendered paj_Jers Zxlu.i)i t C which he said gave hin ownership of the five vehicles. Caveat was entered by SUI Sitlo.:1tn Mdoe, the eldest son of the late Athur1an Hassan.· According to the ca.veator their lae father •died without a. will so his property was divided interstate by their clan elders a.nd that the appellant declined to attend the clan lders neetin 0 for distributing the property of the dece?,Sed to the heirs ,,hereafter the applicant filed the application for lat.texa of adninistration in the prir..1ary court,n The prinary court granted the letters of adoinistration to Iddi Jl'lcloe on tge ground that unlike the caveator he had docur.iants Exhi.bi t ; to C to sup::;ort his application, ,, . . ·. Dissatisfied wi tq. · tl1e clecisiori of the prinary court the· ca.veator succe- ssfully appealed .to the District court. The appellate District Court ,. . I'. ' reversed the decision of the prina:ry· court fot the reason that the trial court

• • •• l ,• • erroneously appoited the ap)licant, the heir of his late father's :.,:;roper-ty instead 9f appointing an adr.uni.strator .of the ests-tte of. the late i1.thunan IIassan. ••••••.•••••••••• /2

.. 2 - The appellate District Court also held that the prinary court erred i~ granting the letters of probate to the applicant~ the youngest son insteau of gra~. \ nting the sc1id letters to the caioeator, the elclest son of the clece.ased:, The appellate District Court reversed the decision of the trial court end granted the letters of adninistration to Selnan Mdoe, the eldest son cf deceasede \ 1ggrieved by the clccision of the appellatG :District Court, Iddi l·L'.oe preferred "~-is sec )rel appeal. The a:i:Jj,)ellant cri ticizGd the first a:ppc}.la.te ' court for upsetting the unanir.1ous decision of the pri:Jary court and f,,r appointints the respondent the adninistrator of the estate without coru.:id- ering the e,vidence on record. The appellant fur ~her cor.1plainec1 that ·;;be first a.:.,l,)ellate court failed to consider the will of the.deceased as :::hown on Exhibit .. ~ thereby occasioninB DiscarringQ of juotice to the appelLmt. In this appeal the res:;?OTIL1ent asked the court to so:i::utinize the lower court records and decide the uatter on ue:cit. The issue is whether the appellate District Court was justified :rn quashing the decision of the prinary court.i red It is the -consiJ.e,L :viGw of the court that the ap?ella.te District Court properly reversed the wrong decision of the prinary:oourt which erroneously decL.crecl the -.1.pplic: . .mt tho heir of th8 dece ~sod I s ?ropGrtJ where1s the a.pplic: :tion '\ms for lette.rs of :dr.rinistcrin(.s th\ci estate of the deceased. Furtherr.1ore tho prinaxy court erroneously o.ppointed thG you·1E,est son of the deceo.sed the a.dninistrn.tor of the estate so the first a.ppell:.te . •, District Court reversed the decision thereby appointing tho respondent

• , 3eleuan Alb.humm M{:.oe, the eldemt son of - the deceased the a,d.r.1inistra.tor of the lc1te Seler.1a,n Athur.1an r-1doe, ti1G eldest sob of the deceased the o.dr.1Ll.i- strator of the la.te Selcua.n .AthUI.1an Mdoe 's est:.:t9. 'Ihe purj,)ortecl wilL, Exhibit '.l1. is neither dated, signed nor attested by witnesses so ·in law it is null and void and of no lei:;al effect. It r.mst be noted here that wr:2rea.s the respective heirs of the. deruased attended the clan elc1ers neetin~ fol' distributinG the properties of the decea.sed,·the appellant ::leclincd to attend the said meeting after which he. filed the a.pplic-:ition in the pri'.'1D.I'Y have court. If the appellant was Genuine he should i,1.ttencled the cl:in eldere meeting along with his co-heirs of the deceased. • ............ .0 ,.,./3 i I

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• 3 - Under the. circur.1stn.nces the second n.11peol is lacl<:in0 in oeri t• Tho appeal is hereby disoissed with oosta. It is So Ordered• Appellant:- in arson Resondent:- in ~orson, E.N. MUNUO JUDGE 4/9/1991 (1

J:- Q-- .. r) . . 8.N. MUNUO JU.JGE 4/9/1991~