godfrey moses ngongi vs elizabeth m ngongi 2016 tzhc 2217 25 february 2016

IN THE HIGH COURT OF TANZANIA AT SONGEA DC CIVIL APPEAL NO. 9 OF 2015 (Originating from the decision of Resident Magistrate Court of Ruvuma at Songea in Probate and Administration Cause No. 3 of 2014) GODFREY MOSES NGONGI........... ................................... APPELLANT Versus * ELIZABETH M. NGONGI................................................RESPONDENT JUDGMENT Last Order: 3 February, 2016 Date of Judgment: 25thFebruary, 2016 CHIKOYO, J. At the Resident Magistrate Court of Ruvuma at Songea, the respondent filed an application for appointment to be an administrator of the estates of the late‘ Moses Kanisius Ngongi who died on 18/8/1990. However, the appellant being first born of the late owner of the estates through the power of attorney of Edmund Aloyce Nditi filed a caveat against the said application, but at the end of the trial, the District Court upon hearing both parties decided against the appellant's favour in which his caveat was found with no merit and consequently the respondent was appointed as a sole administrator of the said estates. Following the said decision, the appellant was dissatisfied; hence he has preferred to appeal in this court hence this is his appeal. The appellant had raised three grounds of appeal, however at the hearing of this appeal, the i •« appellant through the legal services of Mr. E. Ndunguru decided to abandon the third ground of appeal, and hence remained with two grounds of appeal which in their totality I find them to fall in one fold that is the trial court erred in law and fact by entertaining the matter while it had no jurisdiction. • « Basically the basic reasons for the appellant to object the appointment of the respondent as an administrator was that, at first there was no family meeting* which appointed the respondent as an 'administrator, however later on 9/3/2014 the clan meeting was convened in which Frank Moses « « Ngongi and the respondent (the wife of the deceased) were appointed as administrators of the estates of the deceased, but it was alleged that, there was a problem/ conflicts between the clan members regarding to the. appointment of the respondent, and while they were still in resolving those issues, the appellant and Frank Moses Ngongi came to be aware that, the respondent had already filed an application in the district court to be appointed as an administrator, that is when the appellant filed the said caveat against the appointment of the respondent. On the other side of the story, the respondent alleged that the appellant was not a clan member, and even the clan members are not in conflict with her, which again the clan reached into the resolution by appointing the respondent as an * administrator of estates. At the end of the trial, the trial court, the matter was determined in the respondent's favour as stated earlier in the above. At the hearing of this appeal, Mr. E. Ndunguru and Ngilangwa Advocates § ♦ t appeared for the appellant and respondent respectively, where Mr. E. Ndunguru submitted that the trial court had no jurisdiction sinte it was determined by the district delegate whose jurisdiction is on the value of estates not exceeding Tshs. 15,000/= as per section 5 (2) (<b) of the Probate and Administration of Estates Act [Cap. 352 R.E 2002] since among the listed estates includes houses in plot No. 123; 160 situated at Bombambili in Songea as well as Plot No. 102 situated at Mfaranyaki and Plot No. 23 and 24 situated at Songea Township despite the fact that, the actual value of the said houses was not stated, but according to Mr. E. Ndunguru the value of those houses exceeds Tshs. 15,000/=, thus he prayed this appeal to be allowed and the judgment and proceedings of the trial court to be nullified. In response, Mr. Ngilangwa submitted that the trial court had jurisdiction to < entertain the matter as per the Chief Justice's Circular No. 1 of 2008 issued on 19/8/2008, that the trial magistrate was competent to try the matter. » i Regdrding to the value of the alleged houses,,Mr. Ngilangwa argued that, since their value was uncertain, then at this juncture it is not appropriate to make an assumption over their value, and also even in the caveat which had been raised by the appellant, that issue was not raised at all. In the i « event, Mr. Ngilangwa opposed this appeal. A 4 4 Mr. E. Ndunguru in his rejoinder insisted that, the value of the said houses affected the jurisdiction of the trial court to determine the matter and since this issue of jurisdiction is a matter of law, then it can be raised at any stage, thus according to Mr. E. Ndunguru this irregularity requires the matter to be retried. At this juncture the issue is whether this appeal has merit or not. Upon my perusal of the entire court records and the submissions from both parties, I have found that there is no dispute that, at the trial court the respondent in her application to be appointed as an administrator specifically under paragraph 3 indicated the estates which were supposed to be administered by her, which are one house located at Plot No. 623 and Plot No. 160 situated at Bombambili area; house located at Plot No. 102 situated at Mfaranyaki area within Songea as well as Plots No.23 and 24 in Songea Town and Plot No. 99 located at Ruhuwiko Industrial 'Area, all these are i i located within Songea Municipal. As argued by Mr. E. Ndunguru that the value of those estates was not stated, and in my view from the face of it, their value must be beyond i ♦ i ^ Tshs. 15,000/= as required by law to be determined by a district delegate as far as section 5 (2) (b) of the Probate and Administration of Estates Act (supra) is concerned, and I am also alive with the legal position that, since the issue of jurisdiction is a matter of law, then it can be raised at any stage. However, under the circumstances of the instant i appeal, I do not agree with Mr. E. Ndunguru that the appropriate remedy herein is to order a retrial since, section 5 (3) of the Probate* and Administration of Estates Act (supra) provides as follows; 5 (3)- No act of a District Delegate exercising jurisdiction in probate or administration of estates shall be invalid by reason only that is afterwards discovered that the gross value of the estates exceeded fifteen thousand shillingsf but where the District Delegate becomes aware of such circumstances in any H * a contentious casef he shall report the matter to the High Court which shall either direct the transfer of the proceedings to itself or authorize the Delegate to exercise jurisdiction therein . The above legal position is very clear that, since the said fault on the value « of the subject matter was not detected by the trial magistrate sitting as a District Delegate therein, and as correctly submitted by Mr. Ngilangwa that, this issue was even not raised therein, then in my view, at'this juncture as the above cited law requires, that issue of whether the District Delegate had jurisdiction therein becomes irrelevant or it has been overtaken by the events, since had it been that the appellant notified the trial magistrate therein or the district magistrate noticed that aspect in the course of hearing of the instant matter therein, then obviously the district delegate could have eventually reported the matter to the High Court* for an appropriate action to be taken as illustrated in that provision. Otherwise, in my view what Mr. E. Ndunguru has raised herein that the district delegate had no jurisdiction becomes an afterthought and consequently lacks merit, and I hereby proceed to dismiss that allegation. In the event, I find this appeal lacks merit, consequently the decision of i 4 •« the Resident Magistrate Court of Ruvuma at Songea in Probate and Administration Cause No. 3 of 2014 is hereby upheld. This appeal is dismissed with no order as to costs since the parties involved herein are closely related. It is so ordered. JUDGE 25/02/2016 Judgment delivered in chambers in the presence of the Mr. B. Mapunda Advocate for the appellant who also present in person, Mr. Ngilangwa Advocate for the respondent and Mr. Chris Court Clerk, this 25th day of February, 2016. JUDGE 25/02/2016 COURT: Right of appeal explained. f W / S.M. CHII*OYO JUDGE 25/02/2016 8