)
IN THE HIGH COURT OF TANZANIA
A'r ARUSHA
hISCELLANEOUS CIVIL i\PPEAL NO. 1 OF 1989
(From the decision of the esident Magistrate's Court
Arusha t Arusha in Probate and Administration Cause
No., 1 of 1987, Before: 'J. B MLIGO, Esq., R/MAGI.::iTRATE
ROZI LO.SHILl,RE hDJDIYA •••••••••••••••••••••• APPELLANT
versus ..
ALFRSD hii:SIAKI filEh.:.:H:. ~ ••••• ~ ••••••••••••••• RESPONDENT
JUDGMENT
The"respondent Alfred Mesiaki Meagie petitioned the
District Court of l,rusha under Rule 85 of the Probate and
Admin:1.td:ration Rules to be. appointed administrator of a small
estte (vlued t Shs. 9,375/=) of one Ester indiya, deceased,
who died on 10th February 1981 at Sanawari in Arusha. A
Probate a.hd Administration Cause No. 1 of 19.87 was opened in
the Court of Rsident Magistrate at Arusha (and not at the
District Court). An order for the usual citation was made
on 21st i1.;_)ril, 1987. Before the grant was made the appellant
Rozi O Rose Loshilare Mindiya filed in the Court of Resident
Magi.s ·l:rGt.! a Chamber application praying f o::- -
1
:( 1) An order that the respondent be stopped
in petitioning as an administrator in the
Probate and Administration Miscellaneous
Cause No. 1 of 1988 (sic) in the Resident
Magistrate's Court, Arusha.
(2) An. order for the costs of this
application".
The applicatio was supported by the affidavit of the
applicant. Following this Chamber _pplication a hearing
term ... ,d
0
ob j ,iction proceedings
II
was held and a ruling, the
subjuct m □ ttcr .of this appeal, was made on 27th January, 1989.
The leal provision under which. the application was made
was not disclosed but I believe the objection proceedings
wen: ·ch(; equivalent of proceedings which follow from a caveat.
Be that as it •••••• /2
2
Ge that os t may, the Court of Resident Magistrate
heard the evidence of the appellant and that of the respondent
and, in the end, g-ave a ruling in which it dismissed the
objection with costs Disiatisfied with that ruling the
appellant has come to this court~'
·'
In the:: first of her five grounds of appeal the appellant
says -hi.-d:. she is "the actual daughter of deceased" Esther
Mindiyu. She had mad a somewhat similar claim before the lower
court whcr<:: she said "I am the sole daughter (child) of the
late Es ·ch-r _ I 1 1indiyJ n·.
low, this claim is false. The appellant is in fact the
daughter of a brother of deceased o She was therefore a niece,
not a daughter, of Esther Mindiya. She should, but did not do so,
have a<..klUC<:!d convincing evidence that as a niece she was
entitled under Customary Law to inherit her paternal aunt.
That first ground of appeal has no merit and is dismissed.
Sh repeats in th~ second, ground of appeal her false
claim that she was the only child of the deceasedo But she
adds, corr2ctly with respect, that the respondent is not a
membe:r.of the clan of 1ate Esther Mindiya. However, when she
said that thi..:: respondent -hc:d no right to inherit her late
aunt she:! was in effect making a weak and ineffective protest
to the f-.1ct that by an unchallenged will deceased left all her
movubh: ancl immovable property to- the respondent. It follows
too, that the appellant
1
s second ground of appeal is baseless o
The: third ground •of appeal r·eads as follows:-
113. That, strictly Pm against the application
made by the applicant, Alfred Mesiaki Meagie
<?n the- grounds , tpat, the supporting documents
presented before the trial court Magistrate
were artificially made so that could draw
evidence (sic) in order to grab my rights
from my late mother. Those, were the
documents prepared trickly by the applicant
and by the aid of soma trible (sic) elders
who intensionally (sic) did so in order to
take away my legal rights
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• , :
Although it is ••••••• /3
3 ' ...
Al though ;i. t is n0t wholly clear what the. appellant is saying
yet I u~l~rstand her ·probably t; ~ean that the will as well
as th•:~ ncci1s1:::nt by persons named as· Execut:ors in the Will".,
that· is Vio.ry GC?orge and Lengooya Sademuaki, were forger.ii?s
,
perpetri..,'C1.~cl by her ill-w"i.sners" in order to defraud hero out
those all0gc,tions wer_e never substantiated by the appellant
befor2 ·c.h2 lower court.· They were and remain. as Wild and loose
' . .
' • ;. J
all2gations -~which, with a'l l : due res pee t :to her, do not deserve
ani s~riuus attention •
. · In th~- fourth ground of appeal she appears to be
~
chall~nging a.submission bY Mr ■ D
1
Souza, learned Counsel for
. '!-
the r,~sponJcn"t; both in• this. court :and in ·the lower court,
·tha.t" if: th2 appellant genuinely be1ieved she was entitled to
. , ..
ei·thcr inh-.:rit the dee.eased or to administor her estate she
l.l . .
would not have remained quiet: f,nom -1981 when Esther Mindiya
cJi<:!d up tG the· time she filed her "ob }ection 'proceedings". She
·gave th;., (~xpli:!nation that She had been away in Musoma with her
husband. Jut really the mere delay in applyin~ to be
appoint~c.l administrator would .not suffice to deprive her of
..
to fnherit late Esther Mindiya, if
she c0ulJ 2itctblish her entitlement. For one thlng,even the
r0spunc1.2n-t delayed for over six years to make ni,s application
to b0 c\p:Juint2d administrator and to be granted :probate of the
. '
will 0f c2c0ased. The important point however t$ that the
a.pp.:::11 c:tn t was unable to p,;:-ove she was ttnti tled to inherit
'
dece:;o.s ,::cl.
.,
Fincilly, appellant claims she has elders Qf .. her clan
who IJGUld act uS witnesses "to disclose i;he whole mission (sic)
don(;: by -th;;; applicant (now respondent.) into hi~ attempt of
'
grabbing my rights from the deceased"o
hyc1in, the meaning is not fully clea):' but cit the hearing
I '
of the appeul the appellant claimed that sha never gave
eviclenc~ on oath during the hea.ring of the "obji~ctiontl
. I '
proceedings and that al thc,ugh she expressed he:: ·wish to call
I
witness~s, th~ magistrate refused to heed her ~e~uest.
The :L"ower.,o •••••• /4
4
ThL! ·lower court· record shows that the appellant was
sworn :Je:fun~ she testified and at the end of her evidence
( after cross .. ex,l'mination )" She is recurded as having said -
''I clos-., my cese
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• ·' Is the. lower court record unfqithful,
th(::refore'i I gave directions that both. the presiding
resid0nt magistrate and ~r~ D'Souza, learned advocate,
. . . f
sh ul~ fil~ affid~vits on·what transpired during ·the ·
heilrin'j.
ltffL16vi ts were· duly filed. In his affidavit Mr. D'Souza
I
depos2(l -thot the appellan't had be.en ·sworn, gave her evidence
and v,/i'.\S cross-examinedo After that she ii;1formed the court
that sh2 was closing her case. Mr. ·Mligo, the presiding
.. I
rE:.!sidcnt m;:1gistrate also'deposed that the appellant had given
evidenc0 on oath.
I have no duubt the lower court record is faithful on what
was saic1 · c.mc1 · transpired during· the· hearing of "objection"
proCl!s.::<.Ll.ngs. The appellant was sworn before she gave her
evic.hmci2. -:md 'after her ev~dence she intimated to court that
shG wa~ closing her case. :~dam satisfied the appellant is
untruthful and is merely making desperate at.tempts·
11
by hook or
by cro:;)c ii tc:, get the ·lower court ruling ove1rturned:
: I •
I have
not :J0en p-::!rsuaded; --and .my conc·lusion is that the appeal fails
and is Gismissed with costs.
ht Arushu.:
30/11/90.
h.ppclli:u;i:i:.
Respon:c:mt
(J. A. Mroso)
J:UDGE
Present in perso~.
'.