Theodory vs Theodory

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA PC CIVIL APPEAL NO. 19294 OF 2024 (Arising from Civil Appeal No. 28 of2024 of Muleba District Court; Originating from Probate and Administration Cause No. 7 of2024 Nshamba Primary Court) GODWIN THEODORY MWESIGWA........................................ 1st APPELLANT BENITHA THEODORY BAGAYA.............................................. 2nd APPELLANT VERSUS PROJESTUS THEODORY RWECHUNGURA (As the Administrator of the estate of the late THEODORY BAGAYA BERNARDO)....... RESPONDENT JUDGMENT 12th and 24th February, 2025 BANZI, J.: This is the second appeal on the jurisdictional issue against the findings of Nshamba Primary Court (the trial court) and Muleba District Court (the first appellate court) which determined that the trial court had jurisdiction to determine the probate of a Christian deceased person. Before going further, I find it apposite to give albeit briefly the factual background leading to this appeal. At the trial court, one Erasmus Rutagumilwa, petitioned to be appointed administrator of the estate of his friend Theodory Bagaya Bernardo (the deceased) who died intestate and survived by a wife and five children. After the publication of the probate and Page 1 of 18 administration cause in question, the appellants appeared before the trial court with an objection challenging its jurisdiction to adjudicate the probate cause of the deceased who was Christian. In his submission, Mr. Henerico Nkungu, learned counsel who by then represented the first objector/first appellant, argued that, according to section 18(l)(a) of the Magistrates' Courts Act [Cap. 11 R.E. 2019] ("the MCA"), the primary court has jurisdiction to try probate matters of a Moslem deceased or the one professing Haya customary law. He added that, the deceased was Christian with one wife (the second objector/second appellant) whom he married under Christian rites after the demise of his first wife. He further submitted that, Form No. I indicates that, the deceased lived a Christian life and thus, the trial court lacked jurisdiction to adjudicate that matter. On the other hand, although the second objector challenged the eligibility of the petitioner in the administration of the estate of the deceased, at the hearing, she withdrew herself as she lost interest. After hearing the objection, on 15th April, 2024, the trial court delivered its ruling with the finding that, it had jurisdiction to adjudicate that matter, because, basing on the "mode of life test", the deceased was living customary life after marrying two wives. Thus, the applicable law is Page 2 of 18 customary law and hence it dismissed the objection and continued with the hearing of the case. At the end, the trial court found that, the petitioner Erasmus Rutagumilwa had no interest over the estate of the deceased thus appointed the respondent, the deceased's son who testified as SM2, to be administrator of the estate of his father. Dissatisfied with that decision, the appellants unsuccessfully appealed to the first appellate court challenging the jurisdiction of the trial court. Still aggrieved, the appellants lodged this appeal with six grounds which in the main, boil down on one complaint that, the trial court had no jurisdiction to entertain the matter where the deceased professed Christianity and indeed lived a Christian life. When the matter was called for hearing, the appellants were represented by Mr. Henerico Nkungu, learned counsel whereas the respondent appeared in person. Submitting on the main complaint concerning jurisdiction of the court, Mr. Nkungu contended that, jurisdiction is the creature of statute and courts cannot rely on evidence of parties to determine if it has jurisdiction or not. In probate matters, the jurisdiction of the primary court is provided under section 18(l)(a)(i) and 19(l)(c) of the MCA read together with its Fifth Schedule which stipulate that, the primary court has jurisdiction on probate Page 3 of 18 and administration matters where the applicable law is customary law or Islamic law. He added that in primary courts, probate and administration matters are initiated by Form Number I which is created under GN. No. 49 of 1971 and it is Form No. I which determines whether the primary court has jurisdiction or not. In the matter at hand, in filling Form No. I, the petitioner stated that, the deceased was professing Christianity. According to him, after the petitioner had stated that the deceased was a Christian, the trial court ought to reject the petition and order the same to be filed in the proper court. Referring to the cases of Jane Francisca Mwambene v. Tumain John Mwambene and 2 Others (PC Civil Appeal 9 of 2022) [2022] TZHC 10818 (14 July 2022) and Matilda Zela v. Benjamini Chalamila (PC Probate Appeal 16 of 2022) [2023] TZHC 17635 (2 June 2023), Mr. Nkungu contended that, these cases have similar circumstances to the case at hand and the parties have no dispute about the deceased being Christian, hence, the estate should be administered according to probate governing Christians. He further insisted that, the question of lifestyle of the deceased is a matter of evidence and after being informed that the deceased was Christian, the court cannot go further to find evidence about the mode of life of the deceased. Therefore, the trial court erred to rely on the evidence in order to establish its jurisdiction. In establishing that the deceased was a Christian, Page 4 of 18 Mr. Nkungu stated that, the deceased lived Christian life as he had one wife who after death, he married another wife (the second appellant). In that regard, the deceased had never abandoned his Christian life and the same was revealed in Form No. I. With such anomaly, he prayed for the proceedings of the trial court to be nullified, ruling and orders of appointment of the respondent be quashed and set aside. In his brief reply, the respondent prayed for the court to uphold the decision of the trial court because it had jurisdiction over the matter at hand. In rejoinder, Mr. Nkungu reiterated his submission in chief. Having heard the submissions from both parties and considered the records of both courts below, the issue for determination is whether the primary court had jurisdiction to entertain the matter in question. It is settled law that, jurisdiction of any court is creature of statute. In Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda and Two Others [1995] TLR 155 it was stated that: "The question ofjurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature. In our considered view, the question ofjurisdiction is so fundamental that the courts must as a matter of practice on the face of it be certain Page 5 of 18 and assured of their jurisdictional position at the commencement of the trial. This should be done from the pleadings. The reason for this is that it is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case. For the court to proceed to try a case on the basis of assuming jurisdiction has the obvious disadvantage that the trial may well end up in futility as null and void on grounds of lack ofjurisdiction when it is proved later as matter of evidence that the court was not properly vested with jurisdiction." What I gather from the excerpt above is that, at the inception of the case, in cases of this nature, the first issue the court has to determine is whether it has jurisdiction to adjudicate the matter presented before it. The court should never adjudicate any matter on assumption of jurisdiction. Where the court adjudicate on a matter which it has no jurisdiction, the proceedings and the resulting decision would be nothing but a nullity. In probate matters, the jurisdiction of the primary court is vested to the court by section 18(l)(a)(i) of the MCA and paragraph 1(1) of the Fifth Schedule to the MCA. Section of the MCA provides that: "(1) A primary court shall have and exercise jurisdiction Page 6 of 18 (a) in all proceedings of a civil nature- (i) where the law applicable is customary law or Islamic law: Provided that no primary court shall have jurisdiction in any proceedings of a civil nature relating to land;"(Emphasis supplied). Likewise, paragraph 1(1) of the Fifth Schedule to the MCA stipulates that: "The jurisdiction of a primary court in the administration ofdeceased's estates, where the law applicable to the administration or distribution or the succession to, the estate is customary law or Islamic law, may be exercised in cases where the deceased at the time of his death, had a fixed place of abode within the local limits of the court's jurisdiction." (Emphasis is added). Pursuant to the extracts above, so far as jurisdiction of primary court in probate and administration cases is concerned, the determinant factor is the applicable law i.e., Islamic law or customary law. It is undisputed that, probate matter before the primary court is initiated by filling Form No. I which serves as pleadings initiating probate matters in primary courts. The contents in Form No. I, enables the primary court to satisfy itself on two Page 7 of 18 things, first, whether the matter was filed within the local jurisdiction of the court and second, whether the matter falls under customary or Islamic law. Form No. I which the learned counsel relied on in objecting the matter, contains details about the deceased including his full name, age at the time of death, his occupation, the place where he lived before his death, the date of death, whether the deceased left a will or not, children who survived him, the properties he left behind that would be eligible to be distributed to the heirs, whether he had properties within the jurisdiction of the court and the religion he professed before death. Apparently, in the matter at hand, there was no objection concerning all other items, except item 9 on the religion the deceased professed. Normally, where the deceased left a valid will, his estate has to be administered according to his wishes. However, where there is no will left, the applicable law whether customary or Islamic will be a determining factor on how his estate should be administered. That is theoretically simple. However, over time, there has been two schools of thought of this Court in determining what would be the law applicable in the administration of the estate of the deceased who left no will and who is alleged to have professed Christianity before his demise. On one hand, it has been held that, once Page 8 of 18 Form No. I indicate that the deceased professed Christianity, the primary court ceases to have jurisdiction to adjudicate the matter; whilst on the other hand, it is held that, the primary court may still have jurisdiction even where the deceased was a Christian or of any other denomination upon determination of two legal tests, that is, intention of test and or mode of life test. Starting with the first school of thought, this Court in Jane Francisca Mwambene v. Tumain John Mwambene and 2 Others (supra); Matlida Zela v. Benjamini Chalamila (supra); George Abdon Killings & Another v. Anna Joseph Riwa (administratrix of the estate of late Abdon Aloyce Kilinga) & Another (PC Civil Appeal No. 6 of 2023) [2023] TZHC 19093 (30 June 2023) just to mention a few, held that, where the deceased professed Christianity, the Primary court will have no jurisdiction to adjudicate his probate. In the first two cases, this Court insisted that, once the petitioner has filled in Form No. I stating the religion the deceased professed, that is a determinant factor whether the court has jurisdiction or not. It was also emphasised that, once the deceased was Christian, the Primary Court has to reject the petition and order the same to be filed in the proper court. It was further stated that no evidence is required in order to Page 9 of 18 determine the lifestyle of the deceased, rather, that should be determined in accordance with the information supplied in the petition before the hearing of the matter commences. Clearly, from this school, where the deceased was Christian, his estate cannot be administered under customary law. On the other hand, through numerous decisions, this Court has held that, even where the deceased professed Christianity, the Primary Court would have jurisdiction to determine his probate unless it is proved through evidence that the deceased lived Christian life or abandoned customary life. According to these decisions, the mode of life can be determined by evidence not mere facts filled in Form No. I just stating that the deceased professed Christianity. In the cases of Benson Benjamin Mengi and Others v. Abdiel Reginald Mengi and Another (Probate and Administration Cause 39 of 2019) [2021] TZHC 3202 (19 May 2021) and Herbert Godfrey Mwanache & Another v. Rose Costa Mwanache (PC Civil Appeal 34 of 2022) [2022] TZHC 13279 (30 September 2022), this Court held and emphasised that, the mode of life of the deceased who died intestate should be a determining factor when it comes to the issue of applicable law in administration of his estate. In another case of Yohana Mgema Escobar Page 10 of 18 v. Richard Francis Mgema (Civil Revision 4 of 2020) [2021] TZHC 10749 (26 October 2021), it was stated that: "The law under paragraph 1(1) of part 1 of the fifth schedule under the heading Powers of Primary Courts in Administration does not exclude Christian or any other denomination from administration of their estates by Primary Courts." Moreover, in the case of Gibson Kabumbire v. Rose Nestory Kabumbire (Probate Appeal 12 of 2020) [2021] TZHC 6009 (13 August 2021), this Court was confronted with akin situation where the counsel for the appellant contended that, the primary court lacked jurisdiction because the deceased died while professing Christianity. It was stated that: "It is trite law that Primary Courts have jurisdiction in probate matters concerning Christians where it is proved that they lived customary mode or manner of life in which situation the question of professing Christianity does not interfere with the administration of his or her estate. The reason is that by merely being a Christian does not mean one has been detached from his or her customary life, there must be evidence to support the same. There is a distinction between Christians who live and practice norma! customary life and those who have Page 11 of 18 professed Christian religion and either by declaration or by his acts or manner of life is evident that they have professed as such and intended that their estate will be administered under the applicable law to Christians." (Emphasis is mine). The position of the law from the second school, which I choose to subscribe is that, the mode of life test is a determining factor of applicable law. Likewise, in determining the mode of life the deceased lived, there must be evidence proving the same. In my considered view, it is improbable to determine the mode of life of the deceased by only looking at the fact filled in Form No. I, but there must evidence to prove that, the deceased had never followed customary lifestyle or abandoned the customary life. It is from evidence that the court can determine whether the deceased lived purely under Christian life or had abandoned customary life. For instance, in Re Innocent Mbilinyi [1969] HCD 283, this Court arrived at the decision that, the deceased estate should be administered under Christianity taking into consideration facts that, he had alienated from his family and had no connection with them. In my point of view, the position should be that, once Form No. I is received, the court should not stop at looking on the Form, but go further to test the mode of life of the deceased. All in all, so long as both Page 12 of 18 schools of thought are still valid, each case should be decided basing on its own circumstances. Reverting to the matter at hand, it is undisputed that, item 9 on Form No. I shows that, the deceased was Christian. After citation, each appellant filed objection. While the first appellant was challenging the jurisdiction of the trial court as the deceased was Christian, the second appellant being the wife of the deceased, challenged eligibility of the petitioner to be administrator of deceased estate claiming to be unfaithful as he petitioned without her knowledge. In reply, the petitioner claimed that, the trial court had jurisdiction to entertain the case. As for second part, he claimed to be faithful as the whole clan was involved before filing the case. However, he admitted that, the second appellant was the legal wife of the deceased because the deceased married her in 2022 after the death of his first wife. After hearing both sides, in his findings, the trial magistrate found that, though in Form No. I it was stated that the deceased professed Christianity, the deceased lived a customary life because he was living at Muzinga village and his properties are in that village. Apart from that, the deceased had two wives which shows that, he abandoned Christian life and lived customary life. The findings of the trial court were blessed by the first appellant court Page 13 of 18 on the reason that, there was no proof that the deceased abandoned his customary lifestyle. Upon passing through the records and decisions of the lower courts, it is my finding that both lower courts dived into great error to reach into their conclusions that, the deceased lived under customary life on the reason that he was living a village life. Living a village life is not a proof of mode of life the person is living or lived. There must be other indicators showing that the deceased lived a village life and he lived a customary life of that place. In my view, filling the place where the deceased abode before death, is for the purpose of determining whether the deceased's place of abode before death is within the jurisdiction where the probate is filed. It has nothing to do with the mode of life the deceased lived. The person may live at a certain place but he does not follow the mode of life of that place. Therefore, a place where the deceased lived, is not a determining factor that the deceased lived under a certain mode of life. It is provided under Paragraph 1(1) of Part 1 of the Fifth Schedule to the MCA that: "The jurisdiction of a primary court in the administration of deceased's estates, where the law applicable to the administration or distribution or the succession to, the estate is customary law or Islamic law, Page 14 of 18 may be exercised in cases where the deceased at the time of his death, had a fixed place of abode within the local limits of the court's jurisdiction." (Emphasis supplied). Basing on the cited provisions, it is my finding that filling in Form No. I of the place the deceased abode before his death, is purposely for determining the place of filing the probate cause. That being said, the lower courts erred to use the place the deceased lived as a determining factor of the mode of life he lived for purpose of determining the applicable law. Moreover, the trial court overruled the objection basing on the fact that, the deceased had two wives and thus, he abandoned Christian life and lived customary life. The fact about the deceased being Christian was not disputed by either party. Apart from that, in the first paragraph of the second appellant's objection, she claimed to be lawful wife of the deceased as per attached marriage certificate marked BT-1. Unfortunately, I have perused the record of the trial court but I did not manage to find the attached marriage certificate. Nonetheless, in his reply to the objection by the second appellant, the petitioner said: "Kwamba aya namba moja ya pingamizi haipingwi kwani baada ya kifo cha mke wa kwanza wa marehemu Page 15 of 18 YUSTINA THEODORY ndipo marehemu atimuoa mpingaji wa mirathi mwaka 2022 na ndoa Hikaa mwaka mmoja kabla ya kifo cha marehemu."(Emphasis supplied). It is obvious from the passage above that, the fact about the deceased's marriage to the second appellant is undisputed as the petitioner admitted the same and went further explaining that, the marriage took place after the demise of the first wife of the deceased. As stated above, though there was no marriage certificate in the file to prove the marriage in question, each case should be decided on its own circumstances. In this case where the petitioner and objector agreed that, the second marriage was contracted after the death of the first wife, it goes without saying that, the deceased was professing Christian life and not customary life. Had the deceased professed customary life, he would not have waited for his first wife to die in order to get married to the second appellant. Thus, it was wrong for both courts below to conclude that, the deceased had two wives and thus, he had abandoned Christian life. It was also wrong for both courts below to require evidence from the appellants to prove kind of marriage between the deceased and the second appellant where through the pleadings, there was Page 16 of 18 admission from the petitioner about existence of the second marriage which was contracted after the demise of the first wife. For those reasons, it is my findings that, through his mode of life, the deceased was professing Christianity. That is to say, in the particular circumstance of this case, the Nshamba Primary Court had no jurisdiction to entertain the probate and administration cause of the deceased. That being said, I allow the appeal by nullifying the proceedings, quashing the judgment and the ruling and setting aside all orders of the trial court for being nullity. Equally, the proceedings, judgment and decree of the first appellate court are hereby nullified, quashed and set aside for being premised on nullity. Parties are at liberty to file the fresh probate and administration cause before a court with competent jurisdiction. Owing to the nature of the case, each party shall bear its own costs. It is so ordered. I. K. BANZI JUDGE 24/02/2025 Page 17 of 18 Delivered this 24th day of February, 2025 in the presence of Mr. Henerico Nkungu, learned counsel for appellants who are both present, the respondent in person, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 24/02/2025 Page 18 of 18