Elizabeth Hosea Opio

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO PC. CIVIL APPEAL NO. 20918 OF 2024 {Arising from the decision ofProbate Appeal No. 16 of2022 in the District Court of Morogoro at Morogoro which originates from the decision of Morogoro Urban Primary Court in Probate Cause No. 360 of2020 dated 02"^^ day August2022 before Hon. John - RM) ELIZABETH HOSEAOPIO I^t APPELLANT JANETH HOSEA OPIO 2^° APPELLANT VERSUS IBRAHIMM HOSEA OPIO(as an administrator of the estate of the late Hosea Opio) RESPONDENT Date of Last Order: 12.02.2025 Date of Judgment: 28.02.2025 JUDGMENT MAGOIGA. J. The appellants, ELIZABETH HOSEA OPIO and JANETH HOSEA OPIO were aggrieved by the decision of the Morogoro District Court (first appellate court) in Probate appeal No. 16 of 2022, where by the court found their appeal had no merits and accordingiy dismissed it. The appellants appealed to this court with four grounds of appeal couched in the ianguage: - 1. That the appellate Court misdirected itselffor not considering the appellant appeal for the reason that the same has been determined. 2. That the appellate Court failed to analyse the evidence as produced in the trial court during hearing. 3. That the trial Court misdirect itseif for entertaining the matter withoutjurisdiction. 4. That the respondent's produced a death certificate which,was obtained fraudulently or based on the misrepresentation of the deceased information. This appeal presents an intriguing background, the respondent herein successfuiiy appiied for letters of administration of the estates of one, late Hosea Opio who died in 1987, and according to the copy of the death certificate, the deceased died of cerebral malaria at Dodoma, before the Morogoro Urban Primary Court vide Probate and Administration No. 360 of 2020. The first appellant being a daughter of the late Hosea Opio upon discovery of the appointment approached the trial court for praying for the annulment of the respondent's appointment for reasons that he is not a family member known to them and that the administration of the estate of the iate Hosea Opio was concluded through Probate Cause No 184 of 2004 granted to Job Hosea, which according to the copy of the death certificate the deceased died of accident in 1987 at Dodoma. According to Job Hosea, the said house's ownership was transferred from name of the iate Hosea Opio to her mother's name, one, Miriam Opio and the matter was ciosed. After hearing the objection, the triai court dismissed the objection and upheld the appointment of the respondent on 2022 on the reasons that no traces of the record for Probate Administration No.184 of 2004, despite tendering Form No.VI arid other evidence. Aggrieved with the triai court decision, the appeiiants herein preferred PC Probate Appeai Nb: 08 of 2021 in which the appeai was dismissed for none existence of Probate Cause No. 184 of 2004 and absence of citation. The record is not ciear as to what happened but another Probate Appeal No. 16 of 2022 was preferred by the appellants herein in which among others the iearned Senior District Magistrate, among others, recognized the existence of Probate Cause No 184 of 2004 in one hand and later in another hand denied to have powers to determine a matter that has already been determined in Probate Appeal No.08 of 2021 and went on to dismiss the said appeal. Still aggrieved, the appellant preferred an PC Probate Appeal No. 05 of 2023 which was assigned to extended jurisdiction and heard by Lyakinana PRM (with extended jurisdiction) but which appeal was found incompetent for being wrongly filed in wrong registry for matter originating from Primary court. The appeal as such was struck and parties were advised to refile a fresh appeal after complying with the laid down legal procedures. In the circumstances, the appellants successfully sought an extension which was granted by this court Vide Misc. Application No. 5755 of 2024 hence, the instant appeal. . a ;; When the matter was scheduled for hearing the appellants were enjoying the legal service of one learned attorney, Gabriel Kitungutu and the respondent appeared in person and without legal representation. The respondent prayed the matter be heard by way of written submission.^The learned advocate for the appellants had no; objection. I granted the prayer. Mr. Kitungutu presented before'this court the facts of the appeal, which originated from a ruling of the Urban Primary Court. The decision was subsequently contested before the District Court, where the matter was dismissed on the grounds that it had already been adjudicated. Mr. Kitungutu, in addressing the first ground of appeal, argued that Administration Cause No. 360 of 2020 was determined in the absence of other reiatives, including the appellants, who are also relatives of the deceased. He further contended that the appellants and the deceased's relatives were not acquainted with the respondent, who claims to be the son of the deceased. This, Mr. Kitungutu submitted, was the reason the appeilants appealed to the appointing court, citing the case of Lukas Samike @ Mponeja vs Ndalahwa Amani @ Mange (PC Probate Appeal No. 16 of 2021)[2023] TZHC 15803(1 March 2023) to support their argument. He further submitted that the ruling of the Urban Primary Court was subsequently challenged before the District Court. However; the District Magistrate erred in dismissing the matter on the basis that it had already been determined. Therefore, MniKitungutu prayed for the appeal to be heard and determined on its merits. ; - i v;; i In arguing the second ground, Mr. Kitungutu submitted that Appeai No. 08 of 2021 was brought by oniy one party, the first appellant was the sole party heard prior to the appointment in question. In contrast, Appeal No. 16 of 2022 was filed after the appointment and involved two parties. Consequently, the District Court Magistrate erred by disregarding this fact,- when the proper course of action would have been to assess the substantive issues by re-evaluating the evidence as the first appellate court. To reinforce his argument, Mr. Kitungutu cited the case of Holy Spirit Sisters Tanzania vs January Kamali Shayo & Others (Civil Appeal No. 193 of 2016)[2018] TZCA 498 (21 August 2018), emphasizing the duty of the appellate court to thoroughly reviqvv the evidence. Addressing the third ground, Mr: Kitungutu argued that jurisdiction is a fundamental issue that can be raised at any stage of the proceedings, including at the appellate levelsTn support of this, he cited the case of Nurdini Hassan Hozza vs Patrick Kilihdi(Administrator of the late Deo Mohamed Kilindo) & Another (Land Appeal No. 1885 of 2024)[2024]TZHC Land 237(30 April 2023), p. 08. He further contended that the Primary Court lacked jurisdiction to entertain the matter, as it involved the estate of a deceased Christian. According to section 19(l)(c) of the Magistrates' Courts Act[Cap 11 R.E. 2019], the Primary Court should have been guided by the 5th Schedule of the Act, which confers jurisdiction In estate administration matters only in cases governed by customary or Islamic law. He referred to Rule 1(1) of the 5th Schedule and reinforced his position by citing the case of Ibrahimu Kusaga vs Emmanuel Mweta [1986]TLR 26. Mr. Kitungutu asserted that the Primary Court has the duty to ascertain a deceased person's way of life to determine whether it was customary or Islamic, which was not donetin this case. He emphasized that the deceased was Christian, and thus the court misdirected itself in adjudicating the matter that had no jurisdiction. He referenced the cases of Hadija Said Matika vs Awesa Said Matika, PG Clvii Appeal No. 02 of 2016 HC Mtwara and George Kamwenda ys Fides Nyirenda [1981]TLR 211 to support this point. Lastly, in addressing the final ground of appeal, Mr. Kitungutu submitted that the respondent had submitted a falsified death certificate, obtained either fraudulently or through Ihe misreipresentation of the-deceased's information. He argued that, according to the appellants, the deceased had died as a result of an accident, contrary td what was stated in the death certificate submitted by the respondent, which indicated cerebral malaria as the cause of death. Mr. Katungutu farther asserted that the death certificate produced by the respondent was not thd same as the one issued to the family at the time of the deceased's passing. He contended that the trial court erred in entertaining the matter on the basis of a fraudulently obtained death certificate. In conclusion, Mr. Katungutu respectfully prayed that this court grant the reliefs sought by the appellants. In response to the submission, the respondent addressed the first ground by asserting that the decision of the first appellate court was justified. The respondent argued that the magistrate was correct in dismissing the appeal on the basis of res judicata, as provided under section 9 of the Civil Procedure Code [Cap 33 R.E. 2019]. The respondent further cited the case of Peniel Lotta vs Gabriel TanakI & Others (2003) 2 EA, which establishes that a matter is considered res judicata if it has been adjudicated upon between the same parties and involves issues that are directly or substantially the same. The respondent contended that the magistrate acted within the proper legal framework in reaching the decision. On the second ground the respbndentsargued that, the district court reviewed the evidence meticulously and found norerror or oversight on the part of the appellate court. The available evidence supported the respondent's appointment as the administrator of the deceased's estate Furthermore, the respondent submitted proper documentation, inciuding a death certificate and reiated evidence, to vaiidate his appointment. Gonsequentiy, the appeilant's daim of a miscarriage of justice- is unfounded, and the appeilate court's decision stands as reasonabie and just. The respondent responded to the third ground averring that, the matter was determined by the primary court to which had appropriate jurisdiction, as stipulated under section 19(l)(c) of the Magistrate's Court Act[CAP 11 R.E. 2019], particularly in cases where estates are governed by customary law. The court's-judgment adhered to the deceased's lifestyle, which was primarily customary, and there was no valid will overriding this determination, cited the case of Ibrahim Kusaga vs Emmanuel Mweta 1986 TLR 26 HC. On the last fourth ground, the respondent cbntended that,rthe appellant had challenged the authenticity of the death certificate, claiming that it was fraudulently obtained or based on misrepresented facts. However; no evidence was produced to support this assertion. Further submitted that, the death certificate had been duly issued by the relevant authority, and there were no credible grounds for alleging fraud. The variations concerning the cause of death on the certificate were deemed irrelevant. 9 as they did not invalidate the legal validity of the respondent's appointment as the administrator. Both the trial and appellate courts found the submitted documents credible and rightly relied on them in their decision making. This marked the end of hearing of this appeal. The noble duty of this court is to determine the merits or otherwise of this probate appeal. Having dutifully considered the rivalling arguments for and against this appeal, I wish to determine the issue of jurisdiction as raised in this appeal, with diverging view by the parties. The reason for me taking this approach is the essence of the point and the same being a pure point of law. In the first place, I wish to makeThe fewTemarks that the jurisdiction of any court in this country must be derived from a statute^ The court cannot assume jurisdiction, and where it has assumed jurisdiction renders the proceedings a nullity. More sb/ it; should be noted that the -issue of jurisdiction being a pure point of law can be raised at any stage even on appeal see the case of Ibrahim Kusaga Vs Emmanuele Mweta [1986] TLR 26, where the high court emphasized jurisdiction is so fundamental to the legal proceedings that it can be raised at any time. 10 even on appeal.; also see the case of Kenya Ports Authority Vs Modern Holdings(EA) Limited [2017]eKLR and the renown case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] EA 696. Another remark I may point out is that, the issue of jurisdiction of Primary Court on matters relating to grant of administration of estate is not new in our jurisidction. In the case of Ibrahim Kusaga Vs. Emanuel Mweta [1986] TLR 26 it was held and emphasized that primary court may hear matter relating to grantof administration of estate where it has jurisdiction, i.e where the law applicable is customary law or Islamic law. Other cases which dealt with jurisdiction of the Primary Court are; the case of Jane Francisca Mwambene Vs. Tumaini John and 2 others, PC Civil Appeal No. 9 of 2022 (by rriy learned brother Mugeta, J at Temeke)(HC)and Matilda Zeia vs. Benjamin Chaiamiia;PC Probate Appeal No. 16 of 2022(HC)(by my learned brother Nduguru, J at Mbeya) where they were in one conclusion that where deceased did not profess customary nor Islamic law, the. primary court would not have jurisdiction to entertain a probate administration, My learned brother judges in the above cited cases, discussed the import of Form No.1 and concluded that it had a very useful purpose to serve, in particular. paragraph 7 which establishes the life style of the deceased and jurisdiction. I have carefully followed the reasoning of my learned three brothers judges as quoted above on the issue, I have no reasons to differ with their stance and as such I wholly subscribe the legal stance articulated by them on jurisdiction of Primary court in Probate matters. Now back to the instant appeal, the jurisdiction of primary court as correctly argued by the learned advocate for the appellant is as provided for under section 19(1) (c) of the Magistrates'Courts Act, [Cap 11 R.E.2019] read together with Rule 1(1) to the Schedule to the Act. For easy of reference, the said provision provides as follows:^ ''Section 19(1) (c)- The practice and procedure of primary courts shall be regulated and/ subject to the provisions any law applicable to the time being in force, their powers limited- (c) in the exercise of their jurisdiction in administration of estates by the provisions of the Schedule to this Act." ''THE FIFTH SCHEDULE PARTI ^ .■•vykv;;- POWERS OFPRIMARY COURTSINADMINISTRA TION CASE. K 12 1(1) Thejurisdiction ofa primary courtin administration of deceased estates where the iaw appiicabie to the administration or distribution of, or the succession to, the estate is customaryiaw orlsiamiciaw, maybe exercised in case where the deceased at the time of death has fixed piaced of abode within the iocai limits of the court's jurisdiction That noted, the probate proceedings before Primary court are instituted by fiiing Form No.l. Ahd in that Form No.l; and at paragraph 7 mandatoriiy require the petitioner to state the tribe of the deceased and the reiigion he/she professes. In this appe^i, the petitioner one/IBRAHIM HOSEA OPIO stated that the^ deceased \Nas mjaruo by tribe and CHRISTIAN. Paragraph 7 was meant by its drafters to estabiish from the very eariier stages of its admission if the primary court has jurisdiction as provided for under section 19(1)(c) read together with Ruie 1(1) of the 5^^ Scheduie to the Act. Prudentiy, once paragraph 7 states that the deceased was a Christian, definiteiy the primary court wouid haye no jurisdiction over the matter and same is to be rejected for admission and the petitioner be advised to open the said probate in proper court. That was not done in this appeal. Despite the petitioner stating that the 13 V ■; / deceased professed Christianity still the primary court went on entertaining the matter. The trial court, in the circumstances, had no jurisdiction to entertain the matter. It is trite law in our country, therefore, even without citing an authority that any proceedings entertained without jurisdiction is a nullity. The arguments, thus by the respondent that the trial court was clothed with the jurisdiction to entertain the matter because.the deceased style of life is custoniary is rejected because is incdnsistent-with his Form No. 1 filed by the respondent in which he stated that the deceased,was mjaruo and Christian. The respondent cannot be allowed to change the stdry at this stage. He is bound by what he stated on his own will in Form No.7. On the foregoing much as the trial court had no jurisdiction, then, all that was done was a nullity both before trial dourt and first appellate court.:- Consequently, using by revisional powers under section 44(1) (b), I hereby quash and set aside all proceedings, judgement and orders entertained by the primary court in Probate and Administration No. 360 of 2020 and Probate Appeal No. 08 of 2021 and 16 of 2022 of district court relating to the appointment of the respondent as were stemming from a nullity. 14 I, therefore allow the appeal on the issue of jurisdiction. This being a point of law suffices to dispose of this appeal without discussing other grounds of appeal. This appeal is ailowed without costs. Parties if wish to pursue the matter may do so before competent court to administer the matter. Dated at Morogoro this 28^^ day of February, 2025 S. GA JUDGE 28.02.2025 COURT: Judgement delivered in chambers at Morogoro in the presence of Mr. Gabriel Katungutu for the appellants and respondent in person today on 28^,day of February 2 25 //:■■ S. dlGA JUDGE \ 28.02.2025 COURT: Right of appeal fully exp //' • ; />> • —^ S.M. MA lid^ JUDGE 28.02.2025 15