Misc No 17023 of 2024 Melewa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE MISCELLANEOUS CIVIL APPLICATION NO. 17023 OF 2024 (Arising from Probate and Administration Cause No. 65 of2021) CRYUS JONAS MELEWA (LESERIAN JONAS)......................... 1st APPLICANT SIA JONAS MELEWAS (NENGLILANGET JONAS)................. 2nd APPLICANT IRINE NGOWI....................................................................... 3rd APPLICANT VERSUS ILLUMINATA JONAS MELEWAS (Executrix of the Estate of the Late Jonas Nafta! Melewas)................................ RESPONDENT RULING 27th September & 01st November 2024 BARTHY, J.: The applicants named above, under a certificate of urgency accompanied by a chamber summons, prayed to this court to revoke Illuminata Jonas Melewas as executrix of the estate of the late Jonas Naftal Melewas, to invalidate the will made on 16th March 2018, which granted probate in Probate and Administration Cause No. 65 of 2021, to provide for the costs of this application, and to award any other relief this Honourable court deems fit to grant. fa 1 This application was made under section 49 of the Probate and Administration of Estates Act, Cap 352 of 2002 (the Probate and Administration of Estates Act), and is supported by the joint affidavit of the applicants. However, this application was strongly opposed by the respondent, who filed a preliminary objection based on the following grounds; 1. The application for revocation is incompetent and bad in law for moving the court to determine the same matters that were determined by this court in the previous application for revocation in Probate Cause No. 65 of2021, contrary to the law hence the court is fanctus officio as established in the case of Mohamed Enterprises (T) Limited vs Masoud Mohamed Nasser, Civil Application No. 33 of 2012, the (sic) Court ofAppeal of Tanzania at Dar es Salaam (unreported). 2. The amended plaint is bad in law for moving the court to determine the matters that were conclusively determined by the court in the previous application for revocation in Probate Cause No. 65 of 2021 contrary to section 9 of the Civil Procedure Code Cap 33 R.E of 2019 hence res-judicata. At the hearing, the applicants were represented by Mr. Ibrahim Malekela, while the respondent was represented by Mr. Luka Elingaya, 2 learned counsel. By mutual agreement of the parties, the preliminary objections were disposed of by way of written submissions. I thank the parties for their constructive and well-prepared submissions. The matter before this court concerns a preliminary objection raised by the respondent, represented by Mr. Elingaya, who presented two objections on points of law. During submissions, the respondent abandoned the second objection and proceeded with the first, which claims that the applicants' application for revocation is incompetent and violates the functus officio and res judicata principles, as the court had . conclusively determined the same issues in Probate Cause No. 65 of 2021. In his submission, Mr. Elingaya argued that the applicants previously filed an application seeking revocation of the respondent's appointment as executor on similar grounds, including alleged forgery of the will, irregularities in distribution, and exclusion of heirs. That application was dismissed for lack of merit by Hon. Rwizile J., with findings addressing the allegations conclusively. Mr. Elingaya contended that the current application is about the same claim, thus asking the court to revisit matters already settled. He cited Mohamed Enterprises (T) Limited vs. Masoud Mohamed Nasser, Civil Application No. 33 of 2012, where the Court of Appeal 3 cautioned against allowing courts to re-adjudicate matters already decided, as doing so would undermine judicial finality and constitute an abuse of process. Additionally, Mr. Elingaya submitted that the present application contravenes section 9 of the Civil Procedure Code, Cap 33 R.E 2019 (the Civil Procedure Code), as it involves the same parties, subject matter, and issues previously determined, thus making the application res judicata. In response, Mr. Ambroce Menance Nkwera, representing the , applicants, acknowledged the prior application for revocation but argued that the current application also includes a prayer for the invalidation of the deceased's will, which was not previously adjudicated. Mr. Nkwera pointed out that in the previous decision, Hon. Rwizile J. indicated that if the applicants wished to remove the executor, they should file an application to invalidate the deceased's will. He stated, the applicants, in compliance with this guidance, included a prayer for invalidation in the present application. Mr. Nkwera argued that since no decision has been rendered regarding the will's validity, the court cannot be considered functus officio. He further argued that the prayers for invalidation and revocation are inseparable since invalidating the will would automatically disqualify 4 the executor from office. Mr. Nkwera requested the court to invoke the "oxygen principle" under sections 3A and 3B of the Civil Procedure Code, emphasizing that procedural technicalities should not prevent the court from addressing the substance of the application. He cited Yakobo Magoiga Gichere vs. Penina Yusuph, Civil Appeal No. 55 of 2017 in support. The respondent's counsel did not file his rejoinder submission. This court was therefore left to determine the preliminary objection raised. Upon considering the submissions of the learned counsel from both . parties, the primary issue for this court to determine is whether it is functus officio to entertain this application. The applicants, in paragraph 7 of their joint affidavit, admit they filed a similar application previously heard and determined by Hon. Rwizile, J. The record shows that, on 5th July 2023, the court issued its decision on that matter, as evidenced in Annexure OM-5. A review of the trial court's records further indicates that the applicants filed for revocation on 11th August 2022, alleging the respondent had obtained the grant based on false information; the court rendered its decision on 5th July 2023. The principle of res judicata is pertinent in this context. According to case law, specifically George Shambwe vs Tanzania Italian Petroleum Co. LTD, and Civil Case No. 74 of 1992 Paniel Lotta vs Gabriel Tanaki and Others [2003] T.L.R 312 (CAT), a matter is barred by res judicata if it has already been determined between the same parties and on the same issues. In those circumstances, the court is rendered functus officio—lacking further jurisdiction to re-adjudicate the matter. In Yusuf Saleh @ Shehe @ Mpemba vs. Republic, Criminal Appeal No. 81 of 2019, Court of Appeal of Tanzania, at Dar es Salaam, the Court of Appeal elaborated: "...the purpose of the principle of functus officio is to provide finality, that, once a matter is finally concluded by the court, that court cannot re-open or alter its decision; challenges to its decision must be taken to a higher court by way of appeal or revision." The previous application in Probate Cause No. 65 of 2021 indeed sought revocation of the respondent's grant. However, the ruling explicitly addressed the inadequacy of evidence to invalidate the will and cited non-fulfillment of requirements under section 49 of the Probate and Administration of Estate Act. Notably, the ruling provided directives on the necessary legal actions for parties to consider moving forward, specifically around invalidation of the will. — 6 In the present application, the applicants have complied with the directions provided by the court in the earlier ruling, broadening their prayer to include both revocation and invalidation of the will. This nuanced distinction between the current application and the previous one indicates that the subject matter has evolved and is not strictly identical to the prior application. Consequently, this court retains jurisdiction to entertain the current application, as it is not functus officio in this instance. In light of the above, I find the preliminary objection raised by the .respondent to be without merit, and it is therefore dismissed. There shall be no order as to costs, considering the relationship between the parties. The application shall proceed to its final determination. It is so ordered. Temeke this 1st of November, 2024. JUDGE Delivered in the in person, Ms. Saudia Kabora learned advocate for the respondent, Ms. Bernadina Tayari, RMA and in the absence of the applicants. 7