Hassan Chausiku judgment

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA PC. CIVIL APPEAL NO. 25763 OF 2024 (Arising from Civil Appeal No. 16/2023 Ukerewe District Court before Hon. VL.A. Nyahega SRM and original Probate Cause No. 27/2023 at Nansio Primary Court) HASSAN CHAUSI KUDEBYA ………………………………………… APPELLANT VERSUS VUMILIA CHAUSI MSILIMU ……………………………….……. RESPONDENT JUDGEMENT 25th & 29thNovember, 2024 CHUMA, J. Troubled by the decision of the District Court of Ukerewe in Civil Appeal No. 16 of 2023 the Appellant decided to lodge this appeal fronting two grounds as here under; 1. That the first appellate court erred in law and in fact in evaluation of and analysing the evidence in which the statement of delay was adduced at the trial court by the appellant. 2. That the first appellate court erred in law and in fact by entertaining the Petition of Appeal in which the matter was determined ex-parte against the respondent. 1 During the hearing of this appeal, the appellant was unrepresented while the respondent was represented by Mr. Ilanga advocate. At the hearing, the appellant dropped the second ground of appeal and remained with only the first ground of appeal. In his submission, Mr. Hassan argued that the alleged statement of delay was explained on page 7 of the trial court proceedings. His submission was supported by the oxygen principle or overriding principle from two decided cases namely Gasper Peter Vs. Mtwara Urban Water Supply of 2019, and the second one is that of Jacob Magoiga Gichele Vs. Penina Yusuph of 2018. In the above-cited cases, the court insisted on substantive justice by doing away with technicalities. He prayed this appeal be allowed with cost. The first appellate court decision be quashed and set aside and upheld the decision of the trial court and any other orders this court deems fit. In reply, Mr. Ilanga advocate for the respondent strongly challenged this appeal arguing that there is no evidence adduced to justify his delay in lodging the probate before the trial court. On pages 6 to 7 last paragraph of the trial court proceedings his evidence is so clear. He prayed for an appointment without assigning reasons for his delay. What he did was to testify and not statement of his delay which ought to be attached with in the course of lodging his matter in court. Probate Rules 31 (1) and (2) of 2 GN No. 369 of 1963 require the petitioner to attach a statement stating the reasons for the delay. This position was stated in the case of The Matter of the Estate of the late Noela Songo Nyekaji and The Matter for application for letters of administration by Majura Songo Nyekaji Probate and Administration Cause No. 03 of 2019 HC Musoma on pages 1 and 2. In this case, it was emphasized to assign reasons for the delay to lodge such a matter in court. In this case, the appellant failed to attach a statement of delay or explain his delay of 36 years in his application. Therefore, this appeal lacks merit, and the oxygen principle submitted by the appellant together with the cited cases is not applicable here. He urged this appeal to be dismissed with cost. In his brief rejoinder, Mr. Hassani Chausi, the Appellant stated that Mr. Ilanga insisted on the issue of delay to lodge the matter without reasons for delay. But that is not his fault, the fault was done by the trial court. He retaliated his submission in chief for this court to use the oxygen principle in this appeal. Having heard the parties' competing submissions and my careful perusal of the record, the main issue that calls for determination is whether the instant appeal has merit. 3 In the course of determining this appeal, I feel apposite to highlight the laws applicable in Primary Court in probate matters. The jurisdiction of Primary Courts in probate and administration of estates is provided by section 19 (1) of the Magistrates' Courts Act, (Cap 11 R.E. 2019) (the MCA) which provides that: 19. (1) The practice and procedure of primary courts shall be regulated and, subject to the provisions of any law for the time being in force, their powers are limited to (a) N/A (b) N/A (c) in the exercise of their jurisdiction, in the administration of the estate, by the provisions of the Fifth Schedule to the Act; and, in matters of practice and procedure, by rules of court for primary courts which are not inconsistent therewith; and the said code and schedules shall apply thereto and for regulation of such other matters as are provided for therein." From the foregoing provision of law, it is evident that the jurisdiction of Primary Courts in probate and administration of estates is exercised under the Fifth Schedule to the MCA and rules of court for Primary Courts which are not inconsistent with the Fifth Schedule including The Primary Courts (Administration of Estates) Rules, GN 49 of 1971 (the Administration 4 of Estates Rules). The rules of the Primary Court referred to under this section are those which were made under the Magistrates' Courts Act 1963 and served by section 72 (3) of the MCA. In the instant appeal, the appellant asserted to have explained the reasons for his late filing the instant matter at the trial court, on page 7 of the proceedings. This argument was contested by Mr. Ilanga's advocate in his submission by stating that on the referred page the appellant only prayed for an appointment to administer the estate without assigning reasons for his delay. Mr. Ilanga invited this court to Probate Rules 31 (1) and (2) of GN No. 369 of 1963 which requires the petitioner to attach a statement stating the reasons for the delay. To fortify his position, he cited the case of Majura Songo Nyekaji (supra). On one hand, I side with Mr. Ilanga’s submission that the appellant advanced no reasons for the late filing of the probate in dispute as the record is quite clear on it. However, on the other hand, I distance myself from his reasoning based on the cited GN No. 369 of 1963 because the cited rules do not apply before the Primary Court. The applicable Rules are what cited above that is The Primary Courts (Administration of Estates) Rules, GN No. 49 of 1971. Even the cited case of Majura Songo Nyekaji (supra) is distinguishable here unless the import of GN No. 363 of 1963 is 5 qualified or borrowed and made applicable before the trial court because the position as it stands now the same is inapplicable there. Therefore, one may hardly say that the appellant was right for not advancing such reasons because it is not a law requirement for him to do so. I however understand that the above-cited rules governing probate matters before the primary court are silent on a time limit to file a petition in court. This implies a lacuna in this aspect which has led to an abuse of evil-minded people by filing petitions after several years without reason resulting to un unnecessary disputes within the families. I therefore found it important to have these criteria in operation in the Primary Court to avoid unnecessary dispute, especially on the properties attached to the estate which might have changed hands leading to a complex handling of the same. My position is fortified by the decision of the Court of Appeal in the case of Miraji Salimu Nyangasa Vs. Ramadhani Omary Sewando (As Administrator of Estate of the Late Hussein Omary Sewando) Civil Appeal No. 686 of 2023 where it was held that; “We think we should borrow a leaf from section 31 (1) of the Probate and Administration of Estates Act, Cap 445 R.E. 2002 to fill in the gap. In that section, it is provided that, in any case where probate or 6 administration is for the first time applied after the expiration of three years from the date of the death of the deceased, the petition shall contain a statement explaining the delay. We think that, where the statement is found to have no sound reasons, the court, at its discretion, can decline to entertain the petition. See the decision of this Court in Mwaka Musa vs Simon Obeid Simchimba, (Civil Appeal No. 45 of 1994) [1995] TZCA 56 (6 November, 1995) TanzLII”. Guided by the wisdom of the Court of Appeal in the cited case, since in the instant case the petition was lodged 36 years later after the demise of the late Kundebya Lukanga who died in 1985, the reasons to lodge the petition in circumstance is important because the delay amounts to unwarranted delay which raises doubt or suspicious on the part of the applicant until when the same is cleared. The intending applicant who fails to establish good reasons as held by the Court of Appeal in Musa’s case(supra) the court may decline it, equally the petitioner who succeeds in assigning reasons for delay would certainly be allowed to petition for a grant of letters of administration regardless the extent of the delay. This follows the reality that, the issue of delay is a question of fact depending on the circumstance of each case. 7 In the light of the foregoing reasons, the trial court and the first appellate court's proceedings are hereby quashed and the resulting decisions are all set aside. The appellant is at liberty to re-institute the petition subject to the directives of assigning reasons for the delay before the trial court for its determination as herein above explained. The appeal is then dismissed. Owing to the nature of this matter I make no order as to cost. DATED at MWANZA this 29th day of November, 2024. W.M. CHUMA JUDGE 8 This Judgment delivered virtually in attendance of Mr. Hassan Chausi the appellant and Vumilia Chausi respondent this 29th day of November, 2024. C. KISONGO DEPUTY REGISTRAR 9 10