MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE MISCELLENEOUS CIVIL APPLICATION No. 18746 OF 2024 (Originating from Probate and Administration Cause No. 90 of 2024) In the Matter of Estate of the Late SYLVESTER JOSEPH SAWAKI And In the Matter Of Application for Revocation of Grant of Probate by JOVIN SYLVESTER SAWAKI...................................................... 1st APPLICANT NATALIA SYLVESTER SAWAKI.................................................. 2nd APPLICANT GASPER SYLVESTER SAWAKI.................................................... 3rd APPLICANT GRACE SYLVESTER SAWAKI...................................................... 4th APPLICANT VS FRED MATULA JOHN ASSENGA (Executrix of the Estate Of Sylvester Joseph Sawaki)............................... RESPONDENT RULING 10th July & 27th September, 2024 BARTHY, J.: The respondent was appointed by this court as the executor of the will of the late Sylvester Joseph Sawaki through Probate and Administration Cause No. 90 of 2024. Before discharging his duties as the executor of deceased estate, the applicants named above being the children and heirs of the decease estate, filed this application seeking revocation of the probate granted to the respondent. The application for revocation was made under section 49(l)(a) (b) and (c) of the Probate and Administration of Estate Act, Cap 352 R.E. 2019. The application is supported by an affidavit of Nickson Ludovick, the learned advocate. The respondent challenged the application by raising three limbs of preliminary points of objection as follows; 1. That, the application is time barred before this honourable court. 2. That, the application is defective for having not supported by applicants' affida vit. 3. That, the application is untenable for being supported by incompetent and unreliable affidavit which tells He. 4. That the application is defective as it contain legal arguments, reasoning and speculations and untrue allegations. 5. That the application is defective having been preferred by wrong provision of law. At the hearing, both parties were duly represented. The applicants were represented by Mr. Ambrose Menance Nkwera, learned advocate, while the respondent was represented by Mr. Fabian Sefu, learned advocate. 2 Before addressing the grounds of appeal, Mr. Nkwera, counsel for the respondent, abandoned the first limb of his objection and proceeded to address the remaining two grounds. In his submission on the second ground, Mr. Nkwera argued that an affidavit must be based on facts within the deponent's personal knowledge. When an advocate swears an affidavit on behalf of a client, it should only include facts known to the advocate, as stated in Tanzania Breweries Ltd. vs. Harman Bildad Minja (Civil Application No. 11 of 2019) [2020] TZCA 63. He contended that the facts deposed by advocate Ludovick were hearsay since Ludovick did not attend the family meeting and was not a family member, making it impossible for him to verify certain facts, such as whether the applicants are heirs. Addressing the third and fourth grounds together, Nkwera argued that an affidavit must be limited to facts, not fabrications, speculation, or legal arguments, in accordance with Order XIX, Rule 3(1) of the Civil Procedure Code. Since an affidavit is equivalent to oral testimony, it must contain direct evidence, not hearsay. He emphasized that the affidavit referred to facts from a family meeting Ludovick did not attend, further rendering the averments hearsay. 3 He pointed out that paragraphs 12-17 of the applicants' affidavit contained speculation and falsehoods, while the respondent had acted lawfully. He cited Jacqueline Ntuyabaliwe Mengi vs. Abdiel Reginald Mengi & Others (Civil Application No. 332 of 2021) [2021] TZCA 583 to support his argument. Regarding the fifth ground, Nkwera noted that the applicants sought to revoke the respondent's probate grant. However, as the respondent was named as the executor in the deceased's will, the grant cannot be revoked unless the will is invalidated. He cited Cyrus Jonas Melewas (Leserian Jonas) & 3 Others vs. Illuminata Jonas Melewas (Probate & Administration No. 65 of 2021) [2023] TZHC 18739 to support this argument, insisting that Section 49 of the Probate and Administration of Estates Act does not provide for the revocation of an executor. In conclusion, he maintained that the affidavit supporting the application was fatally defective and prayed for the dismissal of the application with costs. 4 Refuting the preliminary objection raised and the arguments made in favour, Mr. Sefu contended that all are without merit and should be dismissed. He argued that the court lacks jurisdiction to entertain the preliminary objections, as they have already been determined by the same court in Miscellaneous Civil Application No. 6143 of 2024. He insisted the principle of functus officio prevents the court from re-opening a case it has already decided. The claims that the affidavit was sworn by a person without knowledge of the facts, but Mr. Sefu disagreed, citing that Mr. Nickson Ludovick, the deponent, has been involved in the case for a long time and is knowledgeable about the facts. Regarding the argument that the affidavit contains hearsay evidence, he maintained that such allegations cannot be determined at the preliminary stage without examining evidence, making it inappropriate for a point of law. Addressing the ground related to incorrect citation of the law, he Applicant resisted that the cited provisions correctly empower the court to revoke the appointment of the Respondent as executor. 5 It was also stated by Mr. Sefu that, the court has already rejected the will that allegedly appointed the Respondent as executor in a previous probate case. He went further to emphasize that the court should focus on substantive justice rather than technicalities, to reinforce his argument he referred to the case of Willps Limited vs. Quality Centre Limited, Misc. Land Application No.437 of 2018 (unreported). It was the prayer of Mr. Sefu to have the respondent's preliminary objections be dismissed for lacking of merit, or alternatively, that any technical defects be corrected to avoid unnecessary delays. In his rejoinder, Mr. Nkwera argued that the applicants' counsel misunderstood his submission regarding the court's jurisdiction, clarifying that the objection was not based on the court's prior determination of the matter. He emphasized that, although some objections were raised in the previous case, the current objections, including the second limb, are distinct. He further stated that even if the same objection was raised, the respondent is not barred from doing so, as this is a different case. He also asserted that the court is not functus officio, as it has not yet issued a judgment or decree, 6 distinguishing this case from Mohamed Enterprises (T) Ltd. vs. Masoud Mohamed Nasser. Regarding the issue of the affidavit, Mr. Nkwera noted that the applicants did not dispute the fact that Mr. Nickson Ludovick is not a family member, and reiterated that while the law allows an advocate to swear an affidavit on behalf of a client, it must be based on facts within the advocate's knowledge. Additionally, any facts not personally known must be verified. He clarified that the court does not appoint executors, as it does with administrators of estates, but merely authorizes the executor to assume office. Therefore, the application for revocation is misplaced, and the applicants should have sought the removal of the executor instead. Addressing the applicants' request for the court to invoke the oxygen principle, Mr. Nkwera argued that it cannot be applied when there is a violation of mandatory legal provisions. He cited Hamis Pascal vs. Sisi kwa Sisi Panel Beating and Enterprises Ltd., Civil Appeal No. 165 of 2018, where the Court of Appeal stressed that the principle should not be applied in a way that contravenes the law. — 7 In conclusion, Mr. Nkwera reiterated his prayer that the application be dismissed, as the affidavit supporting it is fatally defective. Having heard the competing arguments from both sides, the issue for determination is whether the preliminary objections raised have merit. Before delving into the merits of the preliminary objections, it is essential to address the jurisdictional issue raised by Mr. Sefu on his reply to the submission. He contended that this court lacks jurisdiction to entertain the objections since they were previously determined in Miscellaneous Civil Application No. 6143 of 2024, invoking the principle of functus officio. In response, Mr. Nkwera clarified that the objections raised in the current case are distinct from those addressed in the prior case. He further argued that even if similar objections were raised previously, the respondent is not barred from raising them again, as this is a separate case. Additionally, the court is not functus officio because no final judgment or decree has been issued. Upon review, I agree with Mr. Nkwera's submission. The principle of functus officio does not apply here as the previous case was resolved at the preliminary stage, and the court has not issued a final judgment. This position aligns with the decision in Petrolux Service Stations Limited vs. NMB Bank Limited and Adili Auction Mart Limited (Misc. Land Application No. 86 of 2020) [2020] TZHC 4430, where the principle of functus officio was discussed and clarified. Turning now to the preliminary objections, it is a well-established legal principle that preliminary objections must be based purely on points of law, as emphasized in Charles Chama & Others vs. Regional Manager (TRA) & Others (Civil Appeal No. 224 of 2018), Court of Appeal at Bukoba [2019] TZCA 548. Having the first ground being dropped, I will now turn to address the second, third, and fourth objections, which challenge the competence of the affidavit supporting the application, can be addressed together. The key issue here is whether the affidavit is incurably defective. Mr. Nkwera argued that affidavits must be based on facts within the deponent's personal knowledge. He cited Tanzania Breweries Ltd. vs. Harman Bildad Minja (Civil Application No. 11 of 2019) [2020] TZCA 63, to emphasize that an advocate's affidavit should only include facts personally known to the advocate. Since Advocate Ludovick, who swore the affidavit, did not attend the family meeting and was not a family member, Nkwera contended that his affidavit contained hearsay and speculation, violating the requirements of Order XIX, Rule 3(1) of the Civil Procedure Code, Cap 33 R.E. 2019. In contrast, Mr. Sefu maintained that Mr. Ludovick, having been involved in the case for an extended period, was familiar with the facts and therefore competent to depose the affidavit. He also argued that allegations of hearsay cannot be conclusively determined at the preliminary stage without examining the evidence. Nevertheless, the law is clear that an affidavit must be verified by the deponent who has personal knowledge of the facts. In Lisa E. Peter vs. Al- hushoom Investment (Civil Application No. 147 of 2016), the Court of Appeal emphasized that a deponent must verify the facts within their knowledge to affirm the authenticity and truthfulness of the affidavit. Similarly, in Sanyou Service Station Ltd vs. B.P. Tanzania Ltd (Now Puma Energy (T) Ltd, Civil Application No. 185/17 of 2018), the court reiterated the importance of verification, stressing that without proper verification, an affidavit cannot be admitted as evidence. Going through the affidavit in support of the application, as deposed by Mr. Ludovick, he made his verification of the facts as follows; io I, Nickson Ludovick, the advocate for the applicants herein do hereby verify that all what is stated in paragraphs 1, 2Z 5Z 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 are true to the best of my knowledge. [Emphasis is supplied]. Going through the affidavit sworn by Advocate Ludovick, it is apparent that his verification was based solely on "his best knowledge." However, the affidavit contains statements that required specific verification of their source, particularly regarding facts about the applicants being heirs of the deceased, discussions in a family meeting which he did not attend, and the deceased's intentions for his estate (as mentioned in paragraphs 3, 4, 5, 6, and 7 of the affidavit). The affidavit fails to clarify how Advocate Ludovick came to know these details, making the verification wanting and insufficient. Furthermore, the allegations in paragraphs 15 and 16, which claim that the respondent and his counsel relied on manipulated information to obtain the grant and have a personal interest in the deceased's estate, contain argumentative content. This contravenes the legal requirements for affidavits under Order XIX of the Civil Procedure Code, which mandates that affidavits should only contain facts, not arguments or speculation. li This constitutes a serious procedural defect, rendering the affidavit defective. As held in Anatory Peter Rwechungura vs Principal Secretary Ministry of Defence and Another (Civil Application No. 548/4 of 2018), a defective affidavit cannot support an application. While Mr. Sefu urged the court to allow correction of the affidavit to avoid delays, I wish to decline his argument that the principle of overriding objectives cannot override mandatory procedural rules. This position was upheld in Filon Felician Kwesiga vs. Board of Trustees of NSSF (Civil Appeal 136 of 2020), Court of Appeal at Bukoba [2021] TZCA 424, where the court cautioned against invoking the overriding objective principle to bypass mandatory procedural laws. In conclusion, I find that the second, third, and fourth preliminary objections have merit, and they are sufficient to dispose of the entire application without the need to address the remaining issues, as doing so would be a mere academic exercise. The affidavit in support of the application is incurably defective due to the lack of proper verification. As a result, without a valid affidavit to support the chamber summons, the application cannot stand. 12 In light of the foregoing, the application is struck out for being incompetent. Given the nature of this matter, I make no order as to costs. It is so ordered. Dated at Temeke this 2nd day of October, 2024. 13