esta isaya msaki vs regina elias mosha 2006 tzhc 259 24 july 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI DC CIVIL APPEAL NO. 10 OF 2005 (C/F CIVIL CASE NO. 16/2003 DC HAI) ESTA ISAYA M SAKI..................APPELLANT VERSUS REGINA ELIAS M OSHA....... RESPONDENT JUDGMENT HON. JUNDU. J. In the trial court, the Appellant had been sued by the Respondent for a sum of shs. 2,652,000, 50% devaluation and inflation from 1999 till full payment, interest at court rate, costs any other relief(s) the said court deemed fit. The said sum of shs. 2,652,000/= was alleged to be the value of properties which the Appellant is alleged to hold unlawfully. The dispute centered on the estate of the late Hurbert John Siyonde who died in a motor accident on 28th November, 1998. In the said trial court, the evidence of the Respondent (PW.l)was that she was the legal wife of the late Hubert John Siyonde having married on 5/2/1991. The deceased had taken the Respondent to his home place in Nzega District, Tabora Region where she introduced her to his parents and stayed there for three months. Upon their return to Bomang’ombe, the Respondent took the deceased to her parents where he paid a goat and local brew and they returned and continued to cohabit at Bomang’ombe in a rented house from 1991 and were blessed with one issue, a daughter, namely Julieth Hubert Siyoride in 1992. In 1992 they commenced construction of their house at St. Dorcas and in 1995 the said building reached the window stage and a squabble developed in their marriage and seeing that there was no peace in the matrimonial home, the Respondent left. The deceased was a policeman and he retired in 1997. He got his retirement benefits and completed the house. On 28th November, 1998, the deceased was involved in a motor accident which caused her death. The Respondent neither received the news of the death of the deceased nor did she attend his burial. A week or so after the burial, the deceased’s relatives including his sister one Mary Siyonde and his uncle one Henry Kasiga received the news and went to Bomang’ombe. They found the Appellant in the deceased’s house and questioned her and she claimed to be the wife of the deceased. They questioned her about the deceased’s children but the Appellant got puzzled and said she had no children with the deceased. The said relatives knew that there were three children of the deceased namely Julieth Hurbert Siyonde, Rogathe Hubert Siyonde and John Hurbert Siyonde. They further discovered that the deceased’s properties were not in the house hence they questioned the Appellant about them and required her to return them. She brought them back from her sister’s place where she had hidden them. They made a list of the properties and left them in the care of the Appellant. The news of the death of the deceased reached the Respondent and she went to Bomang’ombe and witnessed the said properties. The Respondent had to go to the deceased home in Nzega to mourn him but she found the parents of the deceased had died. So she was requested to take care of their home. The clan of the deceased nominated one John Kayage to administer the estate of the deceased but he fell sick and died. Thereafter, the said clan members appointed the Respondent to do so but when she came to Bomang’ombe to pursue the matter she found the Appellant had already filed an administration cause in the primary court and had been appointed the Administrix of the estate of the deceased. The contention of the Respondent in the trial court was that the appointment o f the Appellant as the administrix of the estate of the deceased was fraudulently done because the deceased’s clan members had not seen or involved or contacted by the Appellant. On the other hand, the Appellant in her evidence at the trial court contended that she started to live with the deceased as a husband and wife in 1991 and lived in a house belonging to John Joseph @ Mbwa Mkali and that she was working at Fibre Board and lived at Kambi ya Raha. In her evidence at the trial court, she contended that they rented Mwanga’s house and started construction of their house with the deceased in 1991. However, she later changed that position and stated that they began construction of the house in 1998 after the retirement of the deceased in 1997. She stated that they shifted to their house in April, 1998 and the deceased died in a motor accident on 28th November, 1998 and the police tried to trace the deceased relatives for three days but failed. Therefore, the deceased was buried before the arrived of his relatives three days thereafter. The Appellant in her evidence at the trial court admitted that together with the said relatives they prepared the list of the deceased’s properties but did not list his children, wife or wives. The Appellant also admitted that she was requested to keep the properties listed pending the appointment of the would be administrator of the estate of the deceased. However, the Appellant in her evidence contended that after waiting for four (4) months without hearing from the relatives of the deceased,, she filed an administration cause at Bomang’ombe and she was appointed the Administrix of the estate of the deceased. She contended that the said administration cause was announced in ‘Uhuru’ and one PC Alphonce raised objection that he knew the deceased relatives but he failed to bring them to the court when he was required to do so. In cross - examination, the Appellant disassociated herself with Annex P.3 (Exhibit C) in which she had listed the deceased children as Loveness Samwel and Hevenlaiti Gadiel and herself as the wife of the deceased but she admitted to have signed it. Having considered the evidence of both parties, the trial court entered judgment in favour of the Respondent. The Appellant having been aggrieved by the judgment and decree of the trial court, she has appealed to this court against them listing ten (10) grounds of appeal in her Memorandum of Appeal. The Respondent on her part has filed her written Reply to the Memorandum of Appeal and in turn the Appellant has filed her Rejoinder to the said Reply of the Respondent. Be as it may, if the properties which the Respondent claimed from the Appellant in the District Court of Hai as stated in Para 14 had the value of T.shs.2,652,000/= which the said Respondent in the Plaint prayed to the said court to enter Judgment and Decree in her favour which it did, the crucial question is whether the said court had pecuniary jurisdiction to entertain and adjucate the said claim. The items listed by the Respondent in para 14 of her plaint filed in the said court having the said value of T.shs.2,652,000/= are all movables. The law on pecuniary \ tI It jurisdiction of the courts is such that movables (properties) up the value of shs. 3,000,000/= is within the pecuniary jurisdiction of the primary courts. It follows like night follows day that the District Court of Hai had no pecuniary jurisdiction to entertain the Respondent’s claim or suit which was based on movables valued T.shs. 2,652,000/= only as stated in para 14 of the Respondent’s Plaint. Having held that the District Court of Hai which tried the suit had no pecuniary jurisdiction to entertain the same, I hereby nullify the proceedings and the decision of the said court in respect of the Respondent’s suit (Civil Case No. 16 of 2003) which is the subject of the present appeal before this court filed by the Appellant. The Respondent subject to the law of limitation is free to institute her claim against the'Appellant in a court of competent jurisdiction to try her suit. As this point of pecuniary jurisdiction has been raised suomotu by this court, I make no order as to costs. It is so ordered. A ■\ F.A.R. JUNDU, n ■ \ • / '■ JUDGE, \ \ 24.7.2006 Right o f Appeal Explained F.A.R. JUNDU, JUDGE, 24/7/2006 24.7.2006 Coram:- F.A.R. Jundu, J. For the Appellant: Absent For the Respondent: present C/C:- Matiku Court: Judgment delivered in the presence of the Respondent and in the absence of the Appellant who is aware of the date of delivery of this judgment as it was fixed in her presence on 22/5/2006. V “\ F.A.R. JUNDU, JUDGE, 24/7/2006 AT MOSHI.