LIDYA HILONGA 222 Edited

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI PC CIVIL APPEAL NO. 19437 OF 2024 (Arising from Revision No. 15974 of 2024 before Hanang District Court at Katesh, Originating from Probate and administration Cause No. 19 of 2023 Katesh primary court) LIDYA HILONGA........................................................................... APPELLANT VERSUS JEREMIAH MTAGWA (Administrator of the estate of the late MARIAM JOSEPH GIYE)........................................... RESPONDENT JUDGMENT 8lh October & 12th December, 2024 KAMUZORA, J. The appellant petitioned and was appointed by the primary court of Katesh (the trial court) as administratrix of the estate of the late Mariam Joseph Giye. There was a complaint from the deceased's heirs that the appellant failed to perform her administration duties as she failed to collect the deceased's properties and deliberately refused to distribute the deceased's properties to the heirs. Further, the appellant claimed to be the lawful owner of the properties which were ruled out as deceased's properties. Based on that complaint, the trial court revoked the appellant's Page 1 of 11 appointment and in lieu thereof, appointed the respondent to administer the deceased's estate. The appellant was irked by the trial court's decision and preferred an application for revision before the district court of Hanang. She claimed that, the trial court erred in revoking her appointment as administratrix of the deceased's estate. She also raised a complaint that, the trial court lacked jurisdiction to entertain the matter since, the deceased professed Christianity. The district court dismissed the appellant's application for lack of merits and the appellant was displeased with the decision by the district court and preferred the instant appeal with three grounds as follows; 1. That, the district court erred in law by not nullifying the whole proceedings of the trial court on the sole ground of lack ofjurisdiction. 2. That, the district court erred in law and fact by failing to analyze properly the evidence adduced by the appellant hence, arriving at wrong decision. 3. That, the district court erred in law and fact by deciding in favour of the respondent basing on new facts which were not adduced by the parties. The appellant appeared in person while the respondent was represented by Mr. Stephano James, learned advocate. By the parties' consensus, the appeal was disposed of by way of written submissions. Page 2 of 11 On the 1st ground of appeal, the appellant submitted that the trial court lacked jurisdiction to entertain the matter because the deceased was a Christian by faith. That, this fact was supported by the witnesses who testified before the trial court. She referred the case of Re Innocent Mbilinyi (1969) HCD 283 and Re estate of the late Suleiman Kusundwa in which it was held that in determining the applicable law to administer the deceased's estate, the court has to consider the mode of life test. She also referred section 18(l)(a)(i) of the Magistrates' Courts Act [Cap 11 R.E 2019], (hereinafter referred to as the MCA) and item 1(1) of the fifth schedule to the MCA and insisted that, the trial court lacked jurisdiction to entertain the matter and the district court was enjoined to nullify the trial court's proceedings and decision. On the 2nd ground, the appellant faulted the trial court for failure to analyze properly the evidence adduced by the appellant. She argued that from the record, it was the appellant who was living with the deceased and she was the one who was in the position to know all the deceased's properties. That, her evidence was heavier than that of the respondent thus, she invited this court to re-evaluate the evidence on record subject to the decision in the case Price vs Kesall (1958) E.A 752, at page. 753. On the 3rd ground, the appellant claimed that the district court based its decision on extraneous matters. She particularly referred page 7 and Page 3 of 11 8 of the judgment and argued that the district court considered the issue of affidavit containing false information while none of the parties raised that issue. She added that, the conclusion of the district court that the affidavit contained false information without giving the appellant a right to be heard was in contravention of the principle of natural justice on the right to be heard. Reference was made to the case of John v Rees & another [1969]2 ALL ER 274 and Hamisi Rajabu Dibagula vs Republic [2004] TLR 181. In concluding, the appellant prayed for the appeal to be allowed by quashing and setting aside the proceedings and judgment of the two courts below. In reply to the 1st ground of appeal, the learned advocate for the respondent submitted that, section 18(1) of the MCA refers to the jurisdiction of the primary court in probate matter where the applicable law is Islamic or customary law and argued that the same does not bar the primary court from entertaining probate matter where the deceased is a Christian. He argued that, Rule 1(1) part 1 to the fifth schedule to the MCA, refers to the powers of the primary courts in administration generally and does not exclude Christians from filing the probate matter before the primary. He referred the case of Mgema Escobar @ Yohana Johna Mgema vs Richard Francis Mgema Mise. Civil Revision No. 4 of 2020 which was referred by the learned district court magistrate. Page 4 of 11 The respondent's counsel further submitted that, after being appointed, the respondent who is a neutral party, collected and distributed all deceased's estate for the beneficiaries including the appellant and sold other properties to pay the deceased's debt and the remaining proceeds were distributed to the heirs. He contended that, if at all the trial court lacked jurisdiction, the appellant was to blame because she was the one who filed the case at the trial court and was appointed as administratrix of the deceased's estate before being revoked. He was of the view that, if this court find that the trial court lacked jurisdiction to entertain the probate matter, it should consider that there is no remaining estate which was not distributed. That, the appellant should be ordered to pay costs for there is no estate which is remained to cover the deceased's estate. He referred the decision of the court of appeal in Dativa Nanga Vs. Jubu Group Company Limited and Emmanuel Kombe, Civil Appeal No 324 of 2020 where the court held that revocation of letters of administration does not reverse any act done by the Administrator. He insisted that, upon being appointed, he executed his duties by distributing all the properties and there is nothing left to be administered. In reply to the 2nd ground the learned advocate for the respondent submitted that, the appellant did not point out any piece of evidence Page 5 of 11 which was not considered by the lower courts. He added that, the appellant's arguments that she was living with the deceased does not mean that she is fit to administer the deceased's estate. He maintained that, the appellant was the administratrix of the deceased's estate and she misused the deceased's estate leading to the revocation of her appointment. As to the 3rd ground, the learned advocate for the respondent submitted that, the district court accorded all the parties right to be heard and its decision was based on what was deposed by the appellant in her affidavit. He argued that, the cases of John v Rees & another (supra) and Hamisi Rajabu Dibagula vs Republic (supra) cited by the appellant are not applicable to the instant matter since parties in this case were accorded right to be heard. He therefore urged this court to dismiss the appeal with costs. In rejoinder the appellant's counsel essentially reiterated the submission in chief that the trial court lacked jurisdiction thus, the district court ought to have nullified the proceedings. He added that issue of jurisdiction can be raised at any stage of the case thus, the question on who is to blame for filing the case cannot stand for the jurisdiction is matter of law. Page 6 of 11 Having gone through the parties' rival submissions and the record of the two courts below, I will begin my discussion with the 1st ground of appeal which raises the question of jurisdiction of the trial court. According to the appellant, the trial court lacked jurisdiction to entertain the matter since the deceased professed Christianity. In rejecting the appellant's complaint, the learned magistrate of the district court referred the decision of this court in the case of Mgema Escobar @ Yohana John Mgema vs Richard Francis Mgema (supra) with the argument that, despite the deceased being a Christian, the trial court had jurisdiction for there was no evidence suggesting that the deceased detached herself from customary way of life. I agree with the reasoning by the district court. A party may be a Christian and still his/her estate administered customarily depending on the mode of life or deceased's intention before death. The deceased's intention is determined if he/she has left a will and in the instant matter, there was no evidence regarding the will thus, the only test was the deceased's mode of life. I have carefully gone through the trial court's record and discovered that while applying for administration the appellant herein filled the application form No. 1 indicating that the deceased was Iraqw by tribe and a Christian. While the application form shows both the tribe and religion, there was no further explanation as to whether the deceased's Page 7 of 11 mode of life followed customary or religious mode of life. The contents of the application form shows that the appellant knew from the beginning that the deceased was a Christian and still opted to file the case before the primary court. The assumption is, although a Christian, the deceased mode of life was customary and that is why the appellant opted to file administration cause before the primary court. The appellant is therefore barred from complaining that the primary court had no jurisdiction while she was the one who filed the case in first place. I therefore find no merit on the first ground of appeal. On the second ground that there was no analysis of evidence, for the trial court failed to consider that the appellant was living with the deceased thus, the only person in a position to know all the deceased's properties. In my view, living with the deceased could not be determinant factor of the administration capacity. The appellant was revoked for failure to perform her administration duties thus, her knowledge to the deceased's properties could not be a reason not to be revoked. I however accepted to the appellant's invitation to re-evaluate the evidence on record. The records show that the appellant was at first appointed the administratrix of the deceased's estate but latter revoked for failure to perform her duties in administering the deceased's estate. After Page 8 of 11 revocation of the appellant, the trial court in its ruling dated 24/04/2024 appointed the respondent to administer the estate. On 20/05/2024, the new appointed administrator ventured into executing his duties by calling for family meetings which were also attended by the appellant. The minutes for family meeting show that, all family members agreed on the distribution of the deceased's estate. The appellant herein also attended the meeting thus, she was aware of the sale of some of the properties to cover the deceased's debt and the distribution of the residues by the administrator to all heirs. Based on what was agreed in the meeting the administrator prepared and presented the inventory form to the trial court. The matter was adjourned to 03/06/2024 with the direction that the inventory be affixed on the notice boards and the administrator was ordered to submit to the trial court, the final accounts. On 24/06/2024, the administrator filed the final account and the trial court adjourned the matter to another date directing the respondent to appear before the trial court on the scheduled date to close the probate matter. However, on the date the final accounts was filed, the appellant instituted a revision application before the district court challenging the jurisdiction of the trial court in determining the probate matter while the deceased was a Christian. By that time, all administration process was already concluded Page 9 of 11 by the appointed administrator and what was pending is an order for closing the probate matter. As per record, the appellant was much aware of all process but waited until the final account was filed for her to approach the district court with an argument that the primary court had no jurisdiction to deal with the matter. I find such move unwarranted because the appellant did not complain when she was appointed or during the proceedings for her revocation. This would have given chance for the trial court to call parties to rationalize the deceased's mode of life before proceeding on appointing another administrator. From analysis of the record, I am satisfied that the second ground is unmerited. On the 3rd ground that the district court based its decision on extraneous matters, I have visited the said judgment. At page 7 and 8 of the judgment, the magistrate discussed the facts deponed in the affidavit visa vis the record. He observed that, the affidavit containing false information regarding the date of appointment of the administrator, a fact which I also find to be true. Despite false information in the affidavit, the magistrate continued determining the application and in fact, false information on the affidavit was not the basis of the district court's decision. Thus, the contention that the appellant was not accorded the Page 10 of 11 right to be heard cannot stand. I find no merit on the third ground of appeal. Based on the above discussion, I find no reason to interfere with the decision of two lower courts. The appeal is dismissed but in considering the circumstance of this case, I make no order as to costs. DATED at BABATI this 12th day of December, 2024. Page 11 of 11