tanzlii oc 2 SAIMON MARINGO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TEMEKE SUB - REGISTRY) ONE STOP JUDICIAL CENTER MISC. CIVIL APPLICATION NO 29119 OF 2024 IN THE MATTER OF PRESUMPTION OF DEATH OF SIMON NAHUM MARINGO.............................. PRESUMED DEAD VERSUS SHEDDEN SIMON MARINGO..................................... APPLICANT RULING Date of last order: 26/02/2025 Date of Ruling: 27/02/2025 S.D MWAIPOPO J, The Applicant has preferred an Application under section 2(1) and (3) of the Judicature and Application of Laws Act Cap 358 RE 2019 and section 95 of the CPC Cap 33 RE 2017, praying for the following orders: a. That this hon court be pleased to make an order declaring that Simon Nahum Maringo is presumed dead after disappearing and his whereabouts have never been heard by any person for more than 5 years. b. Costs be provided for c. Any other orders as this honorable court deems fit to grant The Chamber summons is supported by an Affidavit and supplementary Affidavit of Shedden Simon Maringo, the Applicant herein, containing the grounds in support of the Application. Throughout the proceedings the Applicant appeared in court in person. Briefly stated the grounds contained in the Affidavit are that; the Applicant is the son of Simon Nahum Maringo who was living at Tegeta, Nyuki area, within Kinondoni District in Dar es salaam. That the said Simon Nahum Maringo was last seen on the 3rd of January 2019 around Tegeta Nyuki area and since then his whereabouts have never been heard or known till to date. That it is now more than five consecutive years, since the persons who have expected to have heard from him, have not heard of him. The family meeting was conducted on 15/4/ 2024 whereby Shedden Simon Maringo was appointed to petition for the administration of his estate. As per the record contained in the Affidavit, the incident of disappearance of Simon Nahum Maringo was reported to the Police and all efforts of tracing him were done but proved futile. The Applicant has also stated in his Affidavit that there are assets which need to be administered since they have already been misused by other relatives. Thus, the Applicant prayed for all the prayers contained in the chamber summons to be granted. The hearing of the Application proceeded by way of written submissions pursuant to the timetable drawn by the court. Submitting in support of the Application, the Applicant prayed for the contents of his Affidavit to be adopted in support of his written submissions. He went on reiterating his submissions on the issue of disappearance of Simon Nahum Maringo since 3rd January 2019, which was also reported to the Police station and efforts to trace him have proved futile. The Applicant amplified further that since his disappearance, Simon Nahum Maringo left behind an estate comprising of the House at Wazo with Reference No. TRA/KND/000/000/1032918, Two Plots with No. 591 and No. 593, cars and cattle. That his family conducted a meeting on 15th April 2024 and Shedden Simon Maringo was appointed to petition for the administration of the estate of his late father. The Applicant has contended further that since, there is no certificate of death, the procedures for Application for letters of administration cannot be initiated. Therefore, the Applicant prays for this Honourable court to declare that Simon Nahum Maringo, is presumed dead and the Applicant herein to be allowed to petition for letters of administration for the purposes of protecting the estate his father, in the event Simon Nahum Maringo is declared presumed dead. In support of his Application, the Applicant further cited Section 117 of the Evidence Act Cap 6, R.E 2022 to bolster his position that five years are enough for a person to be declared dead if he has not been heard by those who would naturally have heard of him if he had been alive and that , the burden of proving that said person is alive is on the person who asserts it. The Applicant also cited section 122 of the Evidence Act Cap 6, RE 2022 to drive point home that the court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, public and private business, in their relation to the facts of the particular case. To cement his position, he also referred the court to the case of Mohamed Salehe Kaombwe (presumed dead) and Hamis Mohamed Salehe (Applicant); HC Misc Civ Application No. 59 of 2022 (unreported) where the High Court of Tanzania declared a person presumed dead due to his disappearance, for five years. Having digested the submissions of the Applicant the central issue to be resolved is whether this Application has merit. In dealing with this matter, I am alive to fact that, unlike other jurisdictions like England, where they have the Presumption of Death Act, which is a specific law governing issues of presumption of death, in Tanzania there is still no such a specific law detailing the procedure on how to declare a person dead. Under section 1 (a) of the United Kingdom, Presumption of Death Act, 2013, a person is presumed dead if he has not been known to be alive for 7 years period. Despite the fact that there is no a specific law in Tanzania, there are various pieces of legislation which import the concept of presumption of death in Tanzania; such as the Judicature and Application of Laws Act, Cap,358 RE 2019, The Law of Marriage Act, Cap 29, the Law of Evidence Act Cap 6 RE 2019 and the Registration of Births and Deaths Act Cap 108 RE 2019. Further, courts have also been able to borrow through the Judicature and Application of Laws Act, the application of the law applicable in the United Kingdom in various cases, where appropriate and also apply the laws available in Tanzania in other instances. For instance; this court has determined the like Applications under its inherent powers in the following cases; Re Dotto Omary Hassan, Misc. Civil Application No. 45 of 2022, Chrispine Kajuna (Presumed dead) v. Lucia Msua, Misc. Civil Application No. 71 of 2021; Salum Omary Hamad (Presumed dead) v. Fatma Kitwana Ally Misc. Civil Application No. 36, Mohamed Salehe Kaombwe (Presumed dead) vs Hamis Mohamed Salehe Misc. Civ. Application no 59/2024 and Re Kepha Peter Mwiti (presumed dead v Grace Mfinanga, Misc Civil Application no 22157 of 2024. In the case of Re Lucia Msua @ Lucia Kajuna and Re Fatuma Kitwana Ally cases (supra), the High court relied on 5 years' absence provided by section 161 (1) of the Law of Marriage Act, Cap 29 R.E. 2019 to declare death of a respective person. I now revert to the law applicable and its application to case at hand as follows; The Applicant has preferred his Application under, section 2(1) and (3) of the Judicature and Application of Laws Act Cap 358 RE 2019 and section 95 of the Civil Procedure Code Cap 33 and any other enabling provisions of the law. Section 2(1) and (3) of JALA provides for the jurisdiction of the High Court in the following manner: (1) Save as provided hereinafter or in any other written law, expressed, the High Court shall have full jurisdiction in civil and criminal matters. (3)Subject to the provisions of this Act, the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanzania on the date on which this Act comes into operation (including the laws applied by this Act) or which may hereafter be applied or enacted and, subject thereto and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the twenty-second day of July, 1920, and with the powers vested in and according to the procedure and practice observed by and before Courts of Justice and justices of the Peace in England according to their respective jurisdictions and authorities at that date, save in so far as the said common law, doctrines of equity and statutes of general application and the said powers, (J procedure and practice may, at any time before the date on which this Act comes into operation, have been modified, amended or replaced by other provisions in lieu thereof by or under the authority of any Order of Her Majesty in Council, or by any Proclamation issued, or any Act or Acts passed in and for Tanzania, or may hereafter be modified, amended or replaced by other provisions in lieu thereof by or under any such Act or Acts of the Parliament of Tanzania: Provided always that, they said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary. From the above provisions it is clear that, although there is no a specific law governing matters of presumption of death in Tanzania, the High court is still empowered under its inherent powers to determine all civil and criminal cases and also apply the common law, doctrines of equity and statutes of general application as long as long as the circumstances of 9 r Tanzania permit. Through this provision the courts in Tanzania have been able to apply the applicable law in the United Kingdom as stated above, as long as circumstances in Tanzania permit. The Applicant in his Application has also cited section 95 of the CPC which grants the High court with inherent powers to issue orders in order to meet the ends of justice. Similarly, in support of his submissions above, he cited the provisions of Section 117 and 122 of the Evidence Act, Cap 6 RE 2019, which place the burden of proof to the person who asserts that someone has gone missing or has not been heard of for five years and at the same time empowers the court to make an inference of any act in relation to the facts of the particular case. The said section 117 of the Evidence Act reads as follows: When the question is whether a man is alive or dead and it is proved that he has not been heard of within the preceding five years by those who would naturally have heard of him if he had been alive; the burden of proving io / that he is alive is on the person who asserts it' (emphasis supplied) Further, section 122 of the same Act provides as follows; A court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Having set out the relevant provisions of the law, I now move to consider their application in relation to the evidence on record. The present Application has been brought by Shedden Simon Maringo who is the son of Simon Nahum Maringo, alleged to be presumably dead. Based on the evidence on record, (para 5 of the Affidavit), Simon Nahum Maringo is alleged to have been missing since 3rd January 2019 and his family has since then not heard from him. His son, the present Applicant, has not heard of Simon Nahum Maringo since that time. This according to my own analysis, is a period of more than seven years, which is beyond the period stated under the England's Presumption of Death Act applicable in Tanzania vide the JALA cited by the Applicant and also section 117 of the Evidence Act, which provides for only five years. The evidence on record contained in para 3 of the Affidavit and supplementary counter Affidavit respectively shows that the Applicant is the biological son of Simon Nahum Maringo, and that as para 8 of the supplementary affidavit he was among the relatives nominated by the Family members to petition in court and follow up on other matters related to the disappearance of Simon Nahum Maringo as per the minutes dated 15/4/2024 SSM1 filed in court. This means that the Applicant being the son fulfils the requirement in Section 117 of the Evidence Act to present this Application in court, since he falls under the category of the persons who might have been expected to have heard of Simon Nahum Maringo, if he were alive. However, he has not heard of him for more than seven years now. Furthermore, the evidence on court record in paragraph 7 of the Affidavit in support of the Application shows that; when his family members became aware of his disappearance, they immediately reported the matter to the Police vide RB no. KWCID/PE.56.2019, (SSM 1) who launched their investigation since they are entrusted with the duty of protection of life under the Police Force and Services Auxiliary Act Cap 322. However, based on the letter written by the Ministry of Home Affairs, Police Force, Head- Zonal Crimes Office, Dar es salaam dated 18/10/2024, with Ref No. BE.476. 379/476/759/01/ 5/, they informed one Caroline A. Kissinza, the daughter of the deceased person that; investigation efforts have proved futile since Simon Nahum Maringo has not been found alive to date and the Police force continues with search efforts to trace him. The Police further advised the family to proceed with other legal procedures applicable in the situation at hand. Part of the said letter reads; Mpaka sasa ni miaka 5 na miezi 9 imepita bila mafanikio ya kumpata bwana Simon Nahumu Maringo, Ofisi hii haina pingamizi lolote kwa familia kuendelea na taratibu za kisheria zinazohusiana na tukio kama hili kwa maslahi ya familia It is trite law that, the burden of proving someone is dead or has not been heard from or seen for a period of more than five years is on the person who affirms it as per section 117 of the Evidence Act, Cap 6 RE 2019. Therefore, any person who may be having contrary information must be given an opportunity to rebut the Applicants assertion. In dealing with this aspect, before the hearing commenced, I ordered the Applicant to publish a Notice of citation in the local newspaper with a wide circulation. The order was complied with. The publication was made through Mwananchi dated 28/09/2024. In response to the newspaper citation, no person filed or appeared in court to object the orders sought therein. This court ordered for the citation to be issued in order to ensure that; no one is denied the opportunity to object to the matter, and that the public is made aware of the Application and be able to point to the possibility of Simon Nahum Maringo being alive, however none came out, including Simon Nahum Maringo himself. Therefore, pursuant to section 117 and 122 of the Evidence Act and based on the evidential analysis above, and in the absence of any other evidence to the contrary, the only conclusion that can be drawn is that, the Applicant Shedden Maringo has managed to prove that the said Simon Nahum Maringo, indeed disappeared since 3rd Day of January 2025 and it is now more than seven years since he went missing, therefore, the said Simon Nahum Maringo might actually be dead. In support of this position, 1 refer to the following cases in which this very court declared persons presumed dead after missing for more than five years and beyond; Re Dotto Omary Hassan, Misc. Civil Application No. 45 of 2022, Chrispine Kajuna (Presumed dead) v. Lucia Msua, Misc. Civil Application No. 71 of 2021; Salum Omary Hamad (Presumed dead) v. Fatma Kitwana Ally Misc. Civil Application No. 36, Mohamed Salehe Kaombwe (Presumed dead) vs Hamis Mohamed Salehe Misc. Civ. Application no 59/2024 and Re Kepha Peter Mwiti (presumed dead v Grace Mfinanga, Misc Civil Application no 22157 of 2024. That in view of the cited law and cases above and the submissions of the Applicant pointing out that, Simon Nahum Maringo has been missing for over seven years and that no one has seen him alive since 2019, the evidence and facts presented in court are all compelling for this court to infer from the facts and declare him presumed dead and that his presumption of death must be registered under section 26A of the Births and Deaths Registration Act, Cap 108. Reverting back to the prayers set out in the Chamber Application, the Applicant has prayed for this court to declare Simon Nahum Maringo presumed dead, having been missing since the 3rd Day of January 2019, despite efforts by responsible authorities to trace his whereabouts. That, Upon the declaration of presumption of his death, the Applicant who is the son of Simon Nahum Maringo be allowed to commence and institute probate and administration cause for the purpose of obtaining letters of administration to administer his estate and lastly any other orders that this honourable court may deem fit and just to grant. On that account, and in the upshot, I proceed: 1. To allow the Application and declare that Simon Nahum Maringo, a former resident of Tegeta Nyuki, Kinondoni District, Dar es salaam is presumed dead since 3rd day of January 2019. 2. Pursuant to the provisions of section 26A of the Births and Deaths Registration Act, Cap 108, this order shall be served on the Registrar General/Administrator General, Registration Insolvency Trusteeship Agency (RITA) for registration of presumption of his death and issuance of the relevant certificate thereof. 3. Then the procedures for petitioning for the administration of estate can be initiated in accordance with the laws of the land governing the subject matter. 4. The Applicant shall bear the costs of this Application. I so order Dated at Dar es salaam this 27th day of February 2025 SARAH D MWAIPOPO JUDGE 27/02/2025