JONESTER TRASEUS NGAIZA VS ELIZABETH NELSON NGAIZA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB - REGISTRY AT SUMBAWANGA CIVIL APPEAL NO. 4292 OF 2024 (Originating from Probate and Administration Cause No. 21 of 2022 of Mpanda District Delegate Court) JONESTERTRASEAS RWABIGENDELA@ JONESTER JONES..... APPELLANT VERSUS ELIZABETH NELSON NGAIZA................................................... RESPONDENT JUDGMENT MWENEMPAZI, J When this matter was scheduled for hearing, the aggrieved party in which it is the appellant was virtually appearing, while on the other hand, the respondent enjoyed the legal services of Mr. John Lawrence learned advocate. It was the decision of the trial court (Court of District Delegate of Mpanda at Mpanda) that aggrieved the appellant and made her file this appeal to this court. At the trial court, the respondent filed a Probate Cause to be granted letters of administrator of the estate of the late Jones Josiah Bagwelwa. After the matter was heard exparte, the respondent was then granted the letters of administration as she petitioned for. 1 The appellant then quickly ran to this court holding a memorandum of appeal which consisted of three (3) grounds of appeal which are reconstructed as herein; 1.That,thetrialcourterredinlawandfacttotryanddetermine Probate and Administration Cause No. 21 of 2022 without requisite jurisdiction. 2. That, the trial court erred in law and fact to try and determinedProbate and Administration Cause No. 21 of2022 which was filed in defiance of the ruling and order of the High Court of Tanzania at Temeke dated 10/06/2022 in Civil Appeal No. 08 of 2021 which ordered a trial de novo of the Probate and Administration Cause No. 134 of 2020 before another Magistrate of a competentjurisdiction at Temeke District Court. 3. That the trial court erred in law and fact to try and determine Probate and Administration Cause No. 21 od 2022 without seeking and obtaining consent ofthe beneficiaries. As this matter was heard by way of written submissions in which the appellant had submissions prepared and submitted by Mr. Mushumba, learned advocate, and he filed first in support of the grounds of appeal. He started off by stating that the first ground of appeal has two limbs in 2 it, the first being pecuniary and the second is territorial jurisdictions. Submitting on the first limb, he stated that the respondent submitted to the court that the gross value of the estates of the deceased is Tshs. 296,300,000/=, Mr. Mushumba then cited and reproduced Section 5 (2) (b) of the Probate and Administration of Estate act, Cap 352 R. E. 2019 as hereunder; (2) A District Delegate shall have jurisdiction in ail matters relating to probate and administration of estates if the deceased, at the time of his death has his fixed place of abode within the area for which the Delegate is appointed- (a)N/A (b)In contentious cases, if the Delegate is satisfied that the gross value of the estates does not exceed fifteen thousand shillings or the High Court authorizes the Delegate to exercise jurisdiction in such circumstances as specified in subsection (3). He added that under subsection (3), the District Delegate if it becomes aware that the value is above fifteen shillings must inform the High Court which shall either transfer the proceedings to itself or authorize the Delegate to exercise jurisdiction therein. 3 He added that, in this present matter, the value of the estates is more than fifteen thousand shillings, and the trial Delegate Court neither informed the High Court of the fact that the value of the estates was above its jurisdiction nor did the High Court authorize the Delegate Court to exercise jurisdiction in this matter as it is required by the law. Therefore, under the circumstances the District Delegate Court tried the matter without requisite jurisdiction and as a consequence all the proceedings and the judgment that ensued therefrom are vitiated by the said anomaly. Submitting on the second limb of the first ground of appeal, Mr. Mushumba stated that under ^Section^5 (2) of the Probate and Administration of Estates Act, Cap 352 R.E 2019 quoted above, the Court of District Delegate shall have jurisdiction if the deceased at the time of his death had his fixed of abode within the area for which the Delegate is appointed. In this matter, the respondent attached the Death Certificate which clearly states on the 5th column that the deceased had his fixed abode at Buza, Temeke Dar es Salaam. It follows, therefore, that the only court which had jurisdiction to hear and determine the matter was the District Delegate at Temeke and not at Mpanda. This fact was also found by this 4 court while granting an extension of time to the appellant to appeal to this court in Misc.LandApplicationNo.01of2023JonesterTreases Rwabigendala@JonesterJonesvsElizabethNelsonNgaiza at page 20­ 21 of the typed judgment. And upon his submission he prayed for this Honourable court to allow this ground of appeal. Coming to the second ground of appeal, Mr. Mushumba submitted that, in its ruling dated 10/06/2022, the High Court of Tanzania at Temeke Sub- Registry ordered a trial de novo of the Probate and Administration Cause No. 134 o f 2020 before another Magistrate of competent jurisdiction. That, the said Probate and Administration Cause No. 134 of 2020 was filed and determined at Temeke District Court and not at Mpanda, hence any trial de novo was to be at Temeke District Court and not any other court, including the Court of District Delegate at Mpanda. He insisted further that, at the last paragraph of the ruling in Civil Appeal No. 8 of 2021 Hon. I. C. Mugeta, J held and he quoted the holding as follows: - “I set aside the proceedings and quash the judgment emanatingtherefrom.Iorderatrialdenovobeforeanother Magistrateofcompetentjurisdiction” 5 The learned counsel then stated that, nowhere in the said ruling, did the High Court order a trial de novo before any other court of competent jurisdiction, but only did set aside, quash the proceedings, judgment and ordered the matter to be trial de novo before another Magistrate of competent jurisdiction. Legally, when the matter is ordered to be tried de novo means the matter reverts to the same trial court before another Magistrate on the basis of the previous filed pleadings. What are quashed are merely proceedings and the judgment emanating therefrom. That, even the word de novo itself does not support the appellant to open a new petition at Mpanda. Mr. Mushumba clarified further that, the Osborn’s Concise Law Dictionary 7th edition at page 110 defines the word de novo as "a new” and “de novo hearing” to mean a hearing after a decision as if no decision had previously been made. Again, he used the Longman Dictionary of Law in clarifying more, at pages 178 and 606 which defined de novo as an order directing a new trial after a mistrial involving a fundamental irregularity, where the first trial is regarded as a nullity. 6 For those circumstances, the learned counsel insisted that, whatever that transpired at the Court of District Delegate of Mpanda is a nullity and he prayed that this ground of appeal be allowed. Mr. Mushumba then submitted on the third ground that, one of the requirements in appointing the administrator of the estates of the deceased is seeking and obtaining the consent of the beneficiaries. That, under Rule 71(1) of the Probate Rules, it is provided that; “Where an application for grant of letters of administration is made on an intestacy, the petition shall, except where the court otherwise orders, be supported by the written consent of al those persons who, according to the rules for the distribution ofthe estate ofan intestate applicable in the case of the deceased, would be entitled the whole or part of his estate.” He added that, in the impugned ex - parte judgment, it is stated at page 2 of the typed judgment that, the Respondent sought and obtained order of the trial court to dispense with the requirement of attaching the heirs’ consent as well as sureties. The reasons stated when dispensing without consent in Misc. Application No. 12 of 2022 was that the 7 applicant (respondent herein) couldn't get consent of heirs due to impracticability of sitting together to convene a meeting. The learned counsel insisted that, the Court can only dispense with the consent of heirs under the circumstances provided under Rule 72(1) of the Probate Rules which provides as follows: - “Where a persons' whose consent is required under these Rules refuses to give such consent if such consent cannot be obtained without undue delay or expense, the petitioner shall, together with his petition for grant fie an affidavit giving the full name and address of the person whose consent is not available (where such name and address are known) and giving the reasons why such consent has not been produced." Under the said Rules, consent may be dispensed with the consent either there is evidence that the persons whose consent is required has refused to give such consent or it must be established to the satisfaction of the court that such consent cannot be obtained without undue delay or expenses. The trial court dispensed with requirement of consent without adhering to clear provisions of Rule 72 (1) of the Probate Rules in that: - 8 (1) The reason advanced of impracticability of sitting together to convene a meeting is not among the reasons provided by the law. (2) There was no proof that the beneficiaries or heirs refused to grant consent. (3) There was no proof that their consent could not be obtained without undue delay or expenses. (4) The respondent did not provide the full name and address of the heirs who refused to give consent which would have enabled the Court to call or summons them to ascertain why they are refusing to give such consent. Mr. Mushumba then winded up by stressing, it follows, therefore, that the trial District Delegate grossly erred to hear, determine and appoint the respondent as the administrator of the estates of the deceased without adhering to the clear provision of the law, and he prayed for this ground of appeal to be allowed and regard to the submissions he had just made, this appeal be 2allowed, the judgment and decree of the District Delegate at Mpanda be quashed and set aside with costs In response to the submission made by the counsel for the appellant, Mr. Lawrence filed his written submissions in which he stated that the trial 9 court had jurisdiction to determine the petition, since the deceased was domiciled at Mpanda and was working at Mpanda Municipal the whole time up to his death. That, the respondent managed to tender as evidence (which is available at the trial court file) the evidence which shows the deceased was domiciled at Mpanda, and the argument that in the death certificate it was written Buza, Dar es salaam, we pray your Honourable court to dismiss the argument because what was reflected in the death certificate is the place of death, whereby it is clear and visible that, after some problems the deceased travelled to Dar es salaam for medical attention unfortunately he died there (See referral letter admitted as Exhibit P2 at page 8 and 9 of the trial court proceedings) and that, in the same Exhibit P2 there was transfer of luggage which proves that the deceased’s domicile was at Mpanda. Mr. Lawrence the argued that regarding the argument fronted by the appellant that the gross value of the estate is Tshs.296,300,000/= that, this argument is not tenable, the appellant has used the inventory that has been filed by the appellant to calculate the same, while during opening of the matter there was no such calculations, that the only thing which was used by the respondent to file her application before the trial court was the value of the properties listed in the petition which in any 10 how the same did not exceed 100M (which is within the jurisdiction of the court). The learned proceeded that, the respondent being the petitioner at the trial court, was the one who was better placed to know the jurisdiction of the court to apply for the grant, he insisted that it was in accordance with academic scholar NNN Nditi (Jr) in his book titled SUCCESSION AND TRUSTS IN TANZANIA at page 179 where it was observed that: - “Original jurisdiction enables a personal representative or any interested person of the deceased estate to know appropriate court to apply for grant” He added that, it is also the position of the law that appointment of administrator/adminstratix cannot be invalidated even if later on it will be discovered the gross value of the estate in question exceeds the amount of jurisdiction of District Delegate, as per Section 86(1) of the Probate and Administration of Estates Act Cap 352 and he quoted the cited Section as hereunder that: - "NoappointmentoftheadministratorunderthisPartsha lbe invalidbyreasononlythatitisafterwardsdiscoveredthatthe value of the gross estate of the deceased exceeded ten thousandshilings,butwhereitbecomesawareofsuchcase, 11 theDistrictCourtshalreportthemattertotheHighCourt which may, if it thinks fit, grant probate or letters of administration.” Mr. Lawrence did not end there, he submitted that on the strength of the above section, and since he had stated that, the deceased was domiciled at Mpanda, it is his strong view that the trial Delegate court had jurisdiction to hear and determine the matter before it in line with Section 5(2)(b) ofthe Probate and Administration of Estates Act Cap 352 which was also cited by the appellant herein. Submitting against the second ground of appeal, Mr. Lawrence argued that, in order to be precise to know whether the trial de novo order stated in Civil Appeal No. 08 of 2021 at the High Court of Tanzania at Temeke dated 10/06/2022 is analogous to the Probate Cause which was also filed at Mpanda as Probate and Administration Cause No. 21/2022 there are following things which ought co be similar; 1. Name of Parties, i.e litigants 2. Subject matter (properties) subject of the probate cause He added that, in this scenario, these things are completely different between the two cases, that, if one looks at Civil Appeal No.8 of 2021 at the High Court of Tanzania at Temeke parties were 1. Jonester Jones 2. 12 Ezekia Josiah Bagwelwa (Appellants) versus Elizabeth Ngaiza (Respondent) and in the Probate Cause No. 21/2022 parties were Elizabeth Ngaiza, other parties are not reflected in the ex-parte judgment. The learned counsel clarified further that, the issue of names of parties has been resolved by the Court of Appeal of Tanzania in the case of Catherine Honorati vs CRDB Bank (Civil Appeal No. 314 OF 2019) [2023] TZCA 17985 (15 DECEMBER 2023) (Tanzlii.org) at page 19 and 20 which held that: - “In the present appeal, marriage certificate which is the basis of the relation between the appellant and the third respondent has the names of Honorati Biashara John Lyombe, whereas, the mortgage deed has the names of Honorati John Kiiawe. Obviously, these are two different names. These two names appearing in two different documents, cannot be overridden by the oral account of PW1, PW2 and PW3. We therefore find -thatthetrialcourtcorrectlyheldthatHonoratiJohnKilaweis notthesameasHonoratiBiasharaJohnLyombe.” From the cited decision above, Mr. Lawrence added that the usage of two names interchangeably was held to be fatal and the same could not 13 award the Respondent a decree as it was unknown to whom between the two had the cause of action with. Again, the learned counsel referred this court to the case of Anatolia J. Mgeni vs Njocoba & Others (Civil Appeal No.291 of 2021) [2023] TZCA 17987 (15 December 2023) (tanzlii.org) at page 12 where it was held that; "As hinted earlier on, in the title of the Judgment it refers Bruno Sanga as the 2nd defendant and throughout the Judgment it refers him as the 2n defendant However the 2d defendant who allegedly purchased the suit property was referred to as Clarence Bruno Sanga who as well testified as Clarence Bruno Sanga in court although in the Judgment the 2nd respondent continued to appear as Bruno Sanga. This anomaly led to the use of the same reference which referred to the improper party in the succeeding documents such as the decree which referred him as Bruno Sanga meaning he is adecreeholderbeingthepurchaserofthesuitproperty.The same applies in the notice of appeal and the certificate of delayasshownatpages127and131oftherecordofappeal. ” 14 By virtue of authorities above, Mr. Lawrence maintains that the parties were, not the same. That, if that is not enough, also the appellant in her submission in this ground has not stated that if the properties which were in contest at the High Court of Tanzania at Temeke were the same properties the respondent herein was appointed to administer at Mpanda District Court. That, it is his strong view that, the cases were different and the trial court was right in law to appoint the respondent to administer the properties of the deceased. Arguing against the 3rd ground of appeal, the learned counsel submitted that this ground should not detain this court as the respondent submits that, there is avenue for one who ^cannot procure consent of beneficiaries to apply in court for it to waive the requirement, this was what was done by the respondent, due to impracticability of staying together and there were some immediate matters needed to be taken care of, the respondent filed Misc. Application No. 12/2022 (Exhibit P1) to waive the requirement, the trial court waived the requirement of consent by court order (as acknowledged in ex-parte judgment) and also this fact has been also noted by appellant in her submissions. The learned counsel added that, he has also noted that the appellant in her submissions was trying to question validity of order of dispensing the 15 consent of heirs which was granted by the District Court of Mpanda in Misc. Application No.12 of 2022 (received as exhibit P1 at page 7 and 8 of trial court proceedings), in his view such order cannot be challenged through this appeal, because that was a separate application and it was registered differently, the appellant if was not satisfied with that order, she ought to challenge the same through separate process, she can not be allowed (at least in law) to file one appeal which complains about two separate applications. In the light of his submission, Mr. Lawrence insisted that this appeal has no legs to stand on and that it should be dismissed with costs. In his rejoinder, Mr. Mushumba stated that the respondent in her submission against the appeal has raised several issues against the first ground of appeal in which he submitted on the same as herein; Firstly, the respondent has submitted that the domicile of the deceased was at Mpanda because he worked at Mpanda Municipal. He exclaimed, perhaps it is imperative to define what is domicile. Under its ordinary meaning, the word domicile means the residence at a place accompanied with an intention to remain there for an unlimited time, the residence accepted as a final abode. In Osborn’s Concise Law Dictionary, 7th Edition, at page 124, the word is defined to mean the 16 country in which a person is or is presumed to be permanently resident, the place of a person’s permanent home. That, it is clear the respondent is admitting that Mpanda was only a place of work but not permanent residence hence her admission that even the deceased belongings were to be transported to his permanent residence in Dar es Salaam after illness. Secondly, he argued that, the only evidence that was visible in the trial court records was the death certificate which shows Dar es Salaam at Buza where there is his permanent residence. That, the respondent apart from stating that the deceased was working at Mpanda Municipal Council she did not mention whether the deceased had a permanent residence at Mpanda. On this ground alone the appeal must succeed. Thirdly, the respondent has further submitted that the respondent did not state the value of the estates and the figure of 296,300,000/= came at the time of filing an inventory. In oiler words, the respondent is admitting that the trial court determined the matter without ascertaining whether it had jurisdiction or not! That, his side maintains that what was filed in inventory is the same as what was listed at the time of lodging the petition hence the court had no jurisdiction. The cited passage from 17 Dr. Nditi's book is irrelevant to this matter and does not resolve the issue of jurisdiction at hand. Fourthly, the respondent has further cited section 68 (1) of Cap 352 as her authority that the trial court had jurisdiction despite the anomaly aforesaid. He argued that, the cited section provides that, once it is discovered that the trial court has no jurisdiction, the matter has to be transferred to the High court which has discretion to grant or refuse it. That, in this matter the trial District Delegate had obligation to transfer the matter the moment the estate value came into its knowledge. Much as this was not done, the whole proceedings and the judgment that ensued there under cannot stand and is liable to be quashed. The learned counsel added further that, it seems the respondent had not grasped the second ground of appeal. That, the said ground is about disobeying the court order of trial de novo in the same court and instead rushed to a different jurisdiction and instituted a new matter over the same deceased person. That, at any rate, it is the respondent who decided to omit other parties but the gist of the matter remained the same the administration of the estates of same deceased person. The Counsel humbly prayed for this court to dismiss the respondent’s arguments and allow the second ground of appeal. 18 As to the third ground of appeal, the learned counsel argued that the respondent has not challenged the reasons advanced thereto but merely stated that the appellant is challenging Misc. Application No. 12 of 2022 hence not tenable. Mr. Mushumba added that, Misc. Application No.12 of 2022 was an interlocutory one hence not appealable. Secondly, the same was from original Probate and Administration Cause No. 21 of 2022 the subject of this appeal hence any anomaly in both application and probate cause must be challenged in this appeal. Conclusively, Mr. Mushumba reiterated what he had earlier submitted in chief and prayers made thereon. After reading between the lines the grounds of appeal filed to this court and the submissions filed by both sides plus the records of appeal before me, the only determinant issue in disposing of this appeal is whether the Court of District Delegate of Mpanda had jurisdiction to entertain the Probate andAdministration Cause No. 21 of2022. As I start off, I will deal with the 1st and 2nd grounds of appeal together in which these two grounds suffice fully in disposing of this appeal. 19 Briefly, it is in the records that the appellant and two others (who are not parties in this case) filed a Probate and Administration Cause No. 134 0f 2020 at the District Court of Temeke at Temeke. Nevertheless, before its determination, the same had a caveat filed by the respondent herein and among the reasons put forthwith by the respondent is that the appellant is not the legal wife of the deceased, and the other two applicants (who are not parties herein), the 2nd applicant is a student and not conversant with the deceased’s properties and the 3rd applicant was not trustful as he is believed to misuse the monies turned 7,000,000/= and withdrew the monies from the deceased NMB account. Despite of the caveat, the Temeke District Court proceeded to appoint the 2nd applicant and another person to be the administrators of the deceased’s estate, a decision which made the appellant herein to appeal to this Court at Temeke Sub-Registry in Civil Appeal No.08 of 2021 in which the presiding learned Judge summoned counsel for the parties to address him on the propriety of the proceeding where a caveat has been decided without framing issues for determination. As per Order XIV Rule 5 of the Civil Procedure Code, in probate matters when a Caveat is entered, the trial turns into a suit as required by Section 52 (b) of the 20 Probate and Administration Act [Cap. 352 R. E. 2002] and in such cases, the rules for trial under the Civil Procedure Code applies. Consequently, the learned Judge held that the trial without framing issues occasioned failure of justice, and proceeded to declare the trial as a nullity, and he set aside the proceedings and quashed the judgment, and ordered a trial de novo before another magistrate of competent jurisdiction. As earlier hinted, that, this appeal emanates from a Probate Cause filed by the respondent at the Court of District Delegate at Mpanda. It is a completely new case contrary to what was ordered by this Court at Temeke that the matter should be heard de novo before another Magistrate of competent jurisdiction. A trial de novo, which means "new trial" in Latin, refers to a completely new trial conducted as if the original trial had never taken place. This type of trial is ordered when the original trial was found to have significant errors or procedural issues that could have affected the outcome. In a trial de novo, all evidence and testimonies are presented again, and the case is heard afresh by a new judge or Magistrate. Nevertheless, a Probate Cause is to be filed at the place of domicile of the deceased person, in which, in this case, the records before me reveals that the deceased person was domiciled in Dar es Salaam at 21 Buza and not in Mpanda. It is in my holding that the proper avenue for the Probate Cause was the District Delegate of Temeke as rightly ordered by this court to be tried de novo after noticing some significant error. The act of the respondent filing a Probate Cause in a different registry renders the whole proceedings and the judgment thereto a nullity since the said court had no jurisdiction. As rightly submitted by the counsel of the appellant, I hold the two grounds of appeal to have merits and proceed to allow them, and I find no reason to deal with the third ground. In turn, I find this appeal to be meritious and proceed to allow it. Consequently, the proceedings of the District Delegate Court of Mpanda are hereby nullified and the decision thereto is quashed. As ordered, this matter should be tried de novo before a competent court equipped with the required jurisdiction. Costs to follow the event. It is so ordered. Dated and delivered this 17th day of December, 2024 T. M. MWENEMPAZI JUDGE 22 23