IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (TEMEKE HIGH COURT SUB — REGISTRY) (ONE STOP JUDICIAL CENTRE) ATTEMEKE CIVIL APPEAL NO. 16 OF 2023 (Originating from the Judgment of the District Court of Temeke at One Stop Judicial Centre in Civil Revision No 22 of 2022 before Hon. Swai 5.0 — SRM) FARAJI MIRAJI SEIFU... .-APPELLANT VERSUS ABRAHAM CHRISTIAN TARIMO... RESPONDENT JUDGMENT 03/7/2023 & 28/7/2023 M.MNYUKWA, J. The appellant, Faraji Miraji Seifu is a son of the deceased while the respondent is the grandson of the deceased who died intestate. It is on record that the deceased was blessed with two issues during his lifetime but one of the issue who is the daughter, passed away before his father to whom his estate is in question. That is to say, when the deceased died, he was survived by two heirs, his wife, that is the mother of the appellant who is still alive and his son who is the appellant. The battle on this probate started some years back and reached up to High Court where the issue of which law is to be applicable to administer /ITE ?~S~=C oh the estate of the deceased was resolved. It is on record that at some point the appellant was appointed as the administrator of the deceased estate and his appointment was revoked for failure to fulfil his responsibility as the administrator of the deceased estate including dividing the estate to the legal heirs. Ultimately, the respondent was appointed as the administrator of the deceased's estate. Parties in this appeal are in agreement that the law that is supposed to be used to administer the estate of the deceased is Islamic law. In fulfilling his duty as the administrator of the deceased's estate, he wished to divide the estate of the deceased to legal heirs who are the wife of the deceased and his son who is the appellant. The division ought to be done by the administrator of the deceased was in accordance to the decision of Kariakoo Primary Court in Probate No 102 of 2019. In that decision, among other things, the Primary Court ordered the wife of the deceased to be given her share first which she had contributed in the acquisition of the house situated at Kariakoo before the distribution of the estate to the legal heirs. That is, the wife will be entitled to 1/8 after getting her share as part of her contribution, in the acquisition of the property in question. The above decision aggrieved the appellant who filed Revision Application before the District Court of Temeke One Stop Judicial Centre.His main complaint being that the Honourable Magistrate erred to hold that, the share of the widow to be deducted first as part of her contribution as a co-owner on the property of the deceased and the remaining part should then be distributed to legal heirs including the widow. According to him, that was contrary to Islamic law which categorically states that the share of the widow is 1/8 from the estate left by the deceased, who is her husband. After hearing both parties, the District Court upheld the decision of the primary court by stating that, wisdom requires the widow of the deceased to get an extra share as part of her contribution in the acquisition of the property. That is to say, the widow should get more than 1/8 of the deceased's estate since the wife also contributed in the acquisition of the property in dispute. The appellant did not see justice on the decision of the District Court and opted to file the present appeal with six grounds of appeal as reproduced hereunder; L That the honourable Magistrate erred in law for failing to properly interpret the right of a widow to inherit under Islamic law ji. That the honourable Magistrate erred in law an in fact to state that the Islamic law of inheritance can only apply to the widow Aff) Mt]iil. vi. when the property subject to inheritance was acquired before marriage. That the honourable Magistrate erred in law and in fact by stating that an Islamic widow has the right to exclusion of share she acquired in matrimonial life with the deceased since the property was acquired jointly between the deceased and the widow. That the honourable Magistrate erred in law for treating inheritance matter as matrimonial matter. That the honourable Magistrate erred in law for failure to properly analyse and interpret the case of Shabani Mussa Mhando v Ester Msafiri Mhando (Probate and. Administration Cause No 75 of 2020) [2021] TZHC 6077 (16 July 2021) That the honourable Magistrate erred in law for failing to upheld precedent established by the Court of. ‘Appeal of Tanzania. During the hearing of the appeal, both parties enjoyed legal representation. The appellant was represented by Jenipher Sinkao while the respondent enjoyed the legal services of Emmanuel Nkoma, both learned counsel. The appeal was argued orally.It was the appellant’s counsel who started to take the floor. She argued jointly the 1%, 2"4 and 3° grounds of appeal believing that they are interrelated, and argued separately the 4", 5th and 6 grounds. The same style was adopted by the learned counsel for respondent. Submitting on the joint grounds of appeal, Ms. Sinkao referred to page 5 of the impugned Judgment by statig that, the Honourable Magistrate cited Chapter 4:12 of the Qur-an which prescribed the procedure of dividing the deceased property. She went on that, in his Judgment the Honourable Magistrate stated that the above verse applied only when the property which is subject to distribution solely owned by the deceased. She refuted that interpretation by stating that, the Islamic law does not state if the wife contributed to the acquisition of the property how does the above verse applies. She went on to analyse the evidence on record and submitted that, the evidence shows that the house situated at Kariakoo, Pemba Street is the property of the deceased. And that, the wife of the deceased found the deceased with that house as shown on page 2 of the Judgment of Primary Court in Probate Cause No 02 of 2009. She retires by submitting that the house in question was the property of the deceased and the share of the widow according to Islamic law is 1/8. She added that, Islamic lawdoes not require widow to be given share of the matrimonial contribution. To support her argument, she referred to the case of Amina Taratibu Mbonde v Selemani Ahmed [2000] TLR 61 and the case of Tatu Mohamed v Maua Mohamed, Civil Appeal No 31 of 2000 whereby the court held that the wife was entitled to 1/8. She therefore prayed the Court to allow the 1%, 2™ and 3 grounds of appeal. On the 4t* ground, she challenged the decision of the District Court which regarded the dispute as a matrimonial dispute instead of probate case. She remarked that, when the deceased died, the issue of contribution is a matter of evidence which is not applicable in probate case. She averred that, if the property in dispute was wrongly listed in the property of the deceased, it was the duty of the administrator to step into the shoes of the deceased to file an application that will determine the fate of the said property. She insisted that, the duty of the probate court is to appoint the administrator and ensure the properties of the deceased are distributed to the legal heirs and not to exclude part of the property as a matrimonial shares. She referred to the decision of this Court in the case of Nuru Salum (Administratix of the estate of the late Ally Masoud v Mussa Ally Masoud Juma, PC Probate Appeal No 10 of 2019. }}Arguing on the 5" ground of appeal, the counsel for appellant submitted that, the case of Shabani Mussa Mhando v Ester Msafiri Mhando cited by the Honourable Magistrate was wrongly applied since it is distinguishable with the circumstances of our case at hand because it does not deal with Islamic law. She further submitted that, the jurisdiction to apply Islamic law if the deceased is a Muslim is provided for under 5% Schedule of the Magistrate’s Courts Act, [Cap 16 R.E 2019]. She maintained that, the case of Shabani Mussa Mhando v Ester Msafiri Mhando does not state the shares of the wife to be removed first before distributing the deceased’s estate. And that, the Court states that the wisdom requires the wife to inherit more because she had contributed in the acquisition of the deceased's property. In respect to the 6" grou nd, the counsel averred that, the District Court failed to uphold the precedent in the probate case involving Islamic law as stated by the superior court. She therefore prayed the appeal to be allowed. Opposing the grounds of appeal and the submissions of the learned counsel for appellant, Mr. Emmanuel Nkoma argued jointly the 1%, 24 and 3" grounds of appeal. He stated that, the property in dispute was acquired jointly by the deceased and the widow and therefore there should be a Ani /consideration of the share of the widow. In his submissions he agreed that the deceased was a Muslim and his property had to be distributed according to Islamic law. Further to that, he did not dispute if the property in question was registered in the name of the deceased. However, he strongly argued that, any person who have any interest on the deceased's property, it is the duty of the administrator to take note on that at the time of distributing the deceased's property. He went on that, the case of Amina Taratibu Mbonde v Selemani Ahmed (supra) and the case of Tatu Mohamed v Maua Mohamed, (supra) is distinguishable with our case at hand. He retires his submissions by averring that, since the widow contributed in the acquisition of the property in question, it was correct for the District Court to rule out that, the widow of the deceased had to get an extra from her share of 1/8 left out in the deceased’s property. On the 4 ground of appeal, the learned counsel for respondent submitted that, the District Court entertained the case as a probate matter and not the matrimonial dispute as argued by the counsel of the appellant. He said that the case of Nuru Salum v Husna Ally Masoud (supra) is distinguishable with the circumstances of our case at hand. Contesting on the 5% ground of appeal he submitted that, the Honourable Magistrate presided over the matter in the District Court by /properly analysed and applied the case of Shabani Mussa Mhando and Esther Msafiri Mhando (supra) though the law applicable was not Islamic law in the cited case, but he borrowed the wisdom because the widow contributed to the acquisition of property. Arguing in respect to the 6" ground of appeal he submitted that, it is wrong for a widow to be given only 1/8 of the deceased's estate. On the failure of the Honourable Magistrate to follow the precedent of the Court of Appeal, he remarked that, the same are distinguishable with the case at hand. He therefore prayed the appeal to be dismissed. Re-joining, the counsel for appellant mainly reiterates what she had submitted in chief and elaborate more on the cases cited in the submissions in chief which praise Islamic law of inheritance. After hearing the submissions of both parties, the main issue for consideration and determination is whether the appeal is merited. In determining the above issue, I will mainly resolve the inner part of the dispute on whether the widow is entitled to more than 1/8 of the deceased's property. And whether, the circumstances of our case at hand suggests the widow of the deceased to get more than 1/8 of the deceased's property.To begin with, it has to be noted that, parties are in agreement that the deceased was a Muslim and for that case, it is the Islamic law that will be used to administer the deceased property. It is settled that if the deceased was a Musulim and lived according to Islamic way of life during his lifetime, the law that will be applicable is Islamic law as it is provided for under section 88 of the Probate and Administration of Estate Act, [Cap 352 R.E 2002], section 18 of the Magistrate Court Act, [Cap 11 R.E 2019] reads together with the 5% Schedule of the same Act and in the Re Estate of Salum Omari Mkeremi [1973] LRT 80. That being the case, the guidance and the rules set out in holy text for Muslim, that is the Qur-an are the ones that will be used to administer the deceased's estate. If the Qur-an is silent, resort has to be given to the Prophetic Tradition. It has to be further noted that, if the Prophetic tradition is silent, resort has to be made to the other sources of Islamic law to which I will not mention them for the purpose of the determination of the present case. Therefore, for purpose of Islamic inheritance the Qur-anic verse which are applicable is Chapter 4 which is famously known as Suratul Nisai. Thus it is Chapter 4:11, 4:12 and 4:176. The circumstances of our case at hand will compel us to use Chapter 4:12 of the Qur-an. y/ 10Starting with the joint grounds of appeal, that is the 1*, 2° and on grounds, it is the submissions of the appellant’s counsel that the share of the widow is 1/8 of the deceased’s property and the issue of the contribution cannot arise since this is not a matrimonial dispute. That argument was strongly opposed by the respondent's counsel who sides with the decision of the District Court that the widow is entitled to more than her share prescribed under the Qur-an, that is 1/8 because she contributed in the acquisition of the property in question. ‘As earlier on indicated, it is the Qur-anic rules which are used to distribute the deceased's estate. The rules are universal, strict as the fixed share as prescribed to every heir and applicable to all Muslim. As it was correctly stated by the District Court, the share of the widow if the deceased left out a child is 1/8 as it is provided for under Chapter 4:12 of the Qur-an which states that: “In what your wife leave, your share is half, if they leave no child; But if they leave a child, you get 2 fourth; after payment of legacies and debts. In what you leave, their share is a fourth. If you leave no child, if you leave a child they get an eighth: after payment of legacies and debts.” [Emphasis is added] n MlThe above verse provides the shares of the spouse. If the husband dies, and left a widow with a child, the share of the widow share is 1/8. The above verse does not state the issue of contribution of the share of the wife as it was rightly stated by the learned counsel of the appellant. Again, the above verse does not state about the widow to be given an extra share for what is termed as the widow had contributed in the acquisition of the property in question as it was stated by the Primary Court and supported by the District Court. Further to that, the above verse deals with the distribution of the property left out by the deceased. It is the contention of the respondent's counsel that, the widow had contributed to the acquisition of the property in question though he admitted that, the property is in the name of the deceased alone. With no doubt, it is settled position of law that if the property is registered in the name of a particular person, it is presumed that the property belonged to him with exclusion to others. Unless, the evidence on record proves otherwise. I take trouble to revisit the available record to see whether the widow contributed to the acquisition of the said property. Regrettably, I wish to openly state that I did not find that evidence as it was claimed by the respondent and the lower courts. The part of the evidence of the widowas reflected on page 7 of the Proceedings in Probate Cause No 102 of 2019 is reproduced hereunder for easy of reference: "Marehemu ni mume wangu Miraji Seif. Tumezaa watoto 2 mmoja kafa mmoja yuko hai. Marehemu ameacha nyumba (1) Kariakoo..... » Further to that, when she was giving clarification to the Court on her testimony as it is shown on page 8 of the Proceedings, the widow of the deceased said that: "Wyumba ya Kariakoo mimi nilipanga humo na wazazi wangu nilivyokuwa mkubwa nilienda kuchezwa ndipo nilipata. mchumba nikaolewa na kurudi humo kuishi.” The above piece of evidence does not show if the house at Kariakoo was jointly bought by the parties to entitle a widow an extra share apart from the 1/8 prescribed under the Qur-an. The situation might have been different if there could be a cogent evidence in writing to show that the property were jointly owned, refer to Suratul Baqra, Chapter 2: 282. Now, considering the provision of Chapter 4:12 of the Qur-an, the wife is entitled to only 1/8 of the deceased’s property as her share of inheritance. Thus, it was wrong for both lower courts to hold the view that the wife was entitled an extra share on the so called she contributed tothe acquisition of the property in question which is contrary to the principle of Islamic law. I don’t see any need to re-emphasize on the cases cited by the appellant like the case of Amina Taratibu Mbonde v Selemani Ahmed (supra) and the case of Tatu Mohamed v Maua Mohamed, (supra) as they are self-explanatory on the Islamic inheritance. For that reason, I hereby allow the joint grounds of appeal as they are merited. On the 4% ground of appeal, it is the submissions of the appellant’s counsel that the District Court erred to treat the dispute as a matrimonial distribute which requires proof of contribution. It was the respondent's contention that the District Court entertained the dispute as a probate case and not a matrimonial case. Thad time to go through the judgment of the District Court especially ‘on page 6 of the Judgment which is quoted as hereunder: "_, Najiona vilivyo kwenye eneo Aili. kwa kuwa baada ya kifo cha mwanandoa mmoja, sharia ya ndoa hukoma kutumika. Hii ndio sababu nimejielekeza kwenye maandiko matakatifu yanayotoa haki ya kurithi kwenye mirathi ya marehemu. fe It is now wondering how come the District Court used the wisdom to rule out that the widow of the deceased entitled to an extra share apart from her share of 1/8 prescribed under the holy text if at all he based his “ WL)decision on the Qur-an. Therefore, it is my view that the District Court wrongly interpreted the above verse of the Qur-an, Chapter 4 Verse 12 based on the evidence on record. That being said, I find this ground is merited and I hereby allow it. In regards to the 5" ground of appeal, it is the submissions of the appellant that the case of Shabani Mussa Mhando and Esther Msafiri Mhando (supra) is distinguishable with our case at hand and the District Court wrongly applied the principle stated in the above case. On his part, the respondent's counsel stated that, the District Court properly applied the principle stated in the above case. With due respect from the learned counsel of the respondent, it is clear that the case of Shabani Mussa Mhando and Esther Msafiri Mhando (supra) is distinguishable with our case at hand in which the law applicable is Islamic law and the shares of the heirs are clearly prescribed in the Qur-an. For that basis, I find this ground is merited and I allow it. On the 6 ground of appeal, it is the submissions of the learned counsel for appellant that the Honourable Magistrate failed to uphold the precedent on probate cases that involved Islamic law as stated by the superior court. This argument was strongly contested by the counsel for 15 oNrespondent who averred that the District Court did not error since the circumstances of this case is distinguishable with our case at hand. In the above ground of appeal which is the last ground, I don’t think if the same need to detain me much. It is the duty of the lower courts to follow the decision of the superior court if they are not distinguishable with a case which is before them. The rules of Islamic law on inheritance are well articulated in a number of cases including the case of Amina Taratibu Mbonde v Selemani Ahmed (supra) and the case of Tatu Mohamed v Maua Mohamed, (supra). For example in the case of Amina Taratibu Mbonde v Selemani Ahmed (supra), The Court of Appeal states the shares of the heirs as they are stated in the Qur-an while the case of Tatu Mohamed v Maua Mohamed, (supra) ruled out that the share of the widow to be 1/8 of the estate of the deceased property. For that reason I agree with the learned counsel for the appellant that the District Court did not distinguish the above case in its Judgment if they are relevant with the case that was before him. Consequently, I find this ground of appeal to be merited and T allow it. In the event, the appeal is hereby allowed, the decision of the District Court and Primary court is hereby quashed and set aside. The widow,‘Asha Abdallah is entitled to only 1/8 as her share on the house situated at Kariakoo, Pemba Street. No orders as to costs. It is so ordered. ae NL 2 >) supGE 28/07/2023 Court: Judgment delivered in the presence of the appellant in person and his counsel, and the respondent's “i M.MNY' A JUDGE 28/07/2023