Burugu Jagadi 2891

The Judiciary of Tanzania

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CIVIL APPEAL CASE REFERENCE NO. 000002891/2025 BURUGU JAGADI TOLA……..………………............................................ APPELLANT Versus METHEW TOLA JAGADI…………………………………………………...… RESPONDENT (Originating from the Decision of the District Court of Kishapu at Kishapu) (Hon. M.Turuka - SRM) Dated the 9th January, 2025 in Civil Appeal Case No. 19586/2024 -----------------------------

JUDGMENT 5th & 21st March, 2025. F.H. MAHIMBALI, J. This is the second appeal after the first appellate court had quashed the trial court’s findings which appointed the appellant as administrator of the estate of the late Steven Jagadi Tola who died intestate more than 30 years ago. This appeal now, originates from the decision of Kishapu district Court in Civil Appeal No. 19586 of 2024 against the decision of Probate Cause No. 17 of 2024 which is about the administration of the estate of the late Steven Jagadi Tola who died intestate in 1994. The parties are siblings. Whereas one claims to be first administrator, the other does not recognize it and challenged it as per law. The first appellate court after had fully digested the parties’ issues and evidence adduced at the trial court, made a finding that for the deceased who died intestate in 1993 (more than 30 years ago), while making reference to the case of Majuto Juma Nshahuzi Vs Issa Juma Nshahuzi, P. C. Civil Appeal No.9 of 2014 (HC), at Tabora, the first appellate court held that though there is no specific time limit for petitioning for letters of administration for the interests of justice and making while making reference in Probate and Administration Cause No.03 of 2019 before the High Court of Tanzania at Musoma District Registry, in the Matter of the Estate of the Late Noela Songo Nyekaji in which Majura Songo

Nyekaji was the petitioner, the court held that “Although no specific period of limitation is laid down, there should be no unwarranted delay in bringing such proceedings. The court held further that, supporting a petition with a statement explaining the delay is mandatory if the petition is filed more than three years after the deceased's death” He also cited Rule 31(1) & (2) of the Probate Rules, that a delay beyond three (3) years after the deceased's death would arouse suspicion, as the more the delay the greater would be the suspicion. He concluded that, the intending applicant who succeeds in assigning reasons for delay would certainly be allowed to petition for grant of letters of administration regardless of the extent of delay. As there was no such justification in delay of filing the probate cause in 2024, the first appellate court quashed the appellant’s appointment as administrator and blessed the parties to proceed with their affairs as customarily done. The appellant is aggrieved, thus the basis of the current appeal.

1. That, the learned magistrate erred in law and facts for failing to evaluate properly the evidence which was adduced by the parties to the trial court.

2. That, the learned magistrate erred in law for ruling that the Probate Cause no.18 of 2024 was Res judicata to the Civil Appeal No.23522/2024. During the hearing of the appeal, the parties were self-represented. Arguing in support of his appeal, the appellant on the first ground of appeal, submitted that the first appellate magistrate court had erred in failing to evaluate the evidence in record at the trial court. Therefore, erroneously overturned the decision of the trial court. In the second ground of appeal, he submitted that the name of the respondent in that decision seemed to be Steven Jagadi Tola instead of him - Burugu Jagadi Tola. Thus, this name was wrongly inserted. As regards the issue of res judicata, he submitted that the first appellate court had erred in invoking Civil Appeal No. 23522 of 2024 of High Court Tabora which is irrelevant to the present case. He thus prayed that, this appeal be allowed, the decision of the trial court be restored. The respondent on the other hand, he submitted that he does not see the relevancy of this current appeal. He elaborated that their father Steven Jagadi Tola had died intestate in 1994. He left some properties in which they had distributed each other customarily for all the heirs (siblings of the late Steven). So by this Appellant applying for letters of his administration in 2024 (30 years later) was for achieving what

goal, he queried? The appellant had sold all the properties distributed to him. Thus, applying now for letters of administration is not proper in his considered view. It might bring more chaos than peace. Let things remain settled as they are. He prayed that, this appeal as well be dismissed for want of merits. Having heard the parties’ submissions, it is undisputed that the appellant had successfully applied for appointment as administrator of the estate of the late Steven Jagadi Tola. I am mindful that the deceased had died long ago in 1994. All the known properties were dully distributed to all the heirs immediately after the burial. What then triggered the appellant resurrecting the said estate in 2024? In my considered view, the first appellate court rightly quashed the said commenced proceedings for want of merits. As guided by the Court of Appeal in the case of Miraji Salimu Nyangasa vs Ramadhani Omary Sewando (As Administrator of Estate of the Late Hussein Omary Sewando) (Civil Appeal No. 686 of 2023) [2024] TZCA 895 (17 September 2024), I plan to start with the jurisdiction of Primary Courts in probate and administration of estates as provided by section 19 (1) of the Magistrates' Courts Act, (Cap 11 R.E. 2019) (the MCA) which states thus: 19.(l) The practice and procedure of primary courts shall be regulated and, subject to the provisions of any law for the time being

in force, their powers limited (a) N/A (b) N/A (c) in the exercise of their jurisdiction, in the administration of estate, by the provisions of the Fifth Schedule to the Act; and, in matters of practice and procedure, by rules of court for primary courts which are not inconsistent therewith; and the said code and schedules shall apply thereto and for regulation of such other matters as are provided for therein." (Emphasis added) The import of the above provision is that, the jurisdiction of Primary Courts in probate and administration of estates is exercised under the Fifth Schedule to the MCA and rules of court for Primary Courts which are not inconsistent with the Fifth Schedule. The rules of Primary Court referred to under this section are those which were made under the Magistrates' Courts Act 1963 and served by section 72 (3) of the MCA which reads; "Any applicable regulations made under the Magistrates' Courts Act, 1963, and in force to the date upon which this Act comes into operation, shall remain in force as if they have been made under this Act until such time as they are amended or revoked by rules made under this Act" The rules/regulations referred to in section 72 (3) of the MCA are; (i) The Primary Courts (Administration of Estates) Rules, GN 49 of 1971 (the Administration of Estates Rules), (ii) The Magistrates' Court (Civil Procedure in Primary Courts) Rules, GN

310 of 1964, (iii) The Primary Court Evidence Rules, GN 22 of 1964, and (iv) The Customary Law (Limitation of Proceedings) Rules 1964, GN 311 of 1964. The Primary Court may also apply rules made under the Second Schedule (Sheria za Urithi) to the Local Customary Law (Declaration) No.4 Order 1964, GN No. 436 1964, (made under section 11 of the Judicature and Application of Laws Act, Cap 1 R.E. 2019). These laws apply to the Primary Court in the exercise of its jurisdiction in probate and administration of estates but 12 subject to the Fifth Schedule. It means that, in case of conflict, the Fifth Schedule takes precedence. Rule 1 (1) of the Fifth Schedule gives the Primary Court power to administer the estate of the deceased where the law applicable is Customary or Islamic law and where the deceased, at the time of his death, had a fixed place of abode within the local limits of the court's jurisdiction. The local limits of the jurisdiction of the Primary Court is not the ward or division it serves, but the area of the district within which the court is established. See section 3 of the MCA. So the deceased must have had a place of abode within the district in which the court is established. Rule 1 (2) (a) of the Fifth Schedule restricts the application of the Probate and Administration of Estates Act, [Cap. 352 R.E.2002] in Primary Courts. The Primary Court has power under rule

2 of the Fifth schedule to appoint and revoke appointments of administrators. It has power to control the process, but is not expected to interfere with the functions of the administrator who must work independently. See the decision of the High Court made in Ibrahim Kusaga vs Emanuel Mweta [1984] TZHC 8 (16 April 1984) as subscribed by the Court of Appeal in Miraji Salimu Nyangasa (supra). Apart from the primary function of appointing administrators, revoking the appointments and controlling the process, other functions of the Primary Court are contained under rule 8 of the Administration of Estates Rules. They read thus: "8. Other matters to be decided by the court Subject to the provisions of any other law for the time being applicable, the court may, in the exercise of the jurisdiction conferred on it by the provisions of the Fifth Schedule to the Act, but not in derogation thereof, hear and decide any of the following matters, namely (a) whether a person died testate or intestate; (b) whether any document alleged to be a will was or was not a valid or subsisting will; (c) any question as to the identity of persons named as heirs, executors or beneficiaries in the will; (d) any question as to the property, assets or /labilities which vested in or lay on the deceased person at the time of his death; (e) any question relating to the payment of debts of the deceased person out

of his estate; (f) any question relating to the sale, partition, division or other disposal of the property and other assets comprised in the estate of the deceased person for the purpose of paying off the creditors or distributing the property and assets among the heirs or beneficiaries; (g) any question relating to investment of money forming part of the estate; or (h) any question relating to expenses to be incurred on the administration of the estate." (Emphasis added) Issues coming under rule 8 must be entertained as interlocutory matters. They must be raised and decided before the probate or administration is closed. The rules are silent on when should the petition be filed in court. This gap in this area has been a subject of abuse with some people filing petitions after years with an evil mind thereby disturbing harmonious relations in the society. The Court of Appeal in Miraji Salimu Nyangasa (supra) wisely, I think borrowed a leaf from section 31 (1) of the Probate and Administration of Estates Act, Cap 445 R.E. 2002 to fill in the gap. In that section it is provided that, in any case where probate or administration is for the first time applied for after expiration of three years from the date of the death of the deceased, the petition shall contain a statement explaining the delay. I think that, where the statement is found to have no sound reasons, the court, in

its discretion, can decline to entertain the petition. See the decision of the Court Appeal in Mwaka Musa vs Simon Obeid Simchimba, (Civil Appeal No. 45 of 1994) [1995] TZCA 56 (6 November, 1995) TanzLII. That said and done, I will now revert to the case at hand to see if there was compliance to the law before the commencement of the said probate matter. It is obvious that there was laxity in the conduct of the proceedings leading to a violation of the law and procedure which has an effect in this appeal. Allowing a filing of a probate cause for the deceased who died intestate in 30 years ago, and whose estates’ whereabouts is unknown, is obviously to bring chaos in the society. It is dangerous in my considered view, and that courts of law can be used by evil minded persons in entertaining probate petitions after years and thereby disturbing harmonious relations in the society. That we should restrict from appearance. With the available facts, proceeding with the merit of this appeal, is a ridicule to our judicial process. With all the above discussion and the analysis made, I find this appeal to have been brought without any sufficient cause; and thus, it is accordingly dismissed. The first appellate court’s decision is upheld. As the matter involves siblings, I order no costs as each party shall bear their own costs. Right of further appeal is hereby explained. DATED at SHINYANGA this 21st March 2025. F.H. Mahimbali Judge