20150820 TZHC Mbeya 1

IN THE HIGH COURT OF TANZANIA ATMBEYA PC. PROBATE AND ADMINISTRATION APPEAL 01/2014 (From Mbeya District Court Probate Appeal No. 6/2013 Original Mbeya Urban Primary Court Cause No. 112/2012) MAGDALENA ANTONY SANGA ................................ APPELLANT VERSUS THERESIA DOMINICUS TWEVE ........................... RESPONDENT JUDGMENT Date of last Order: 19/08/2015 Date of Judgment: 20/ 08/ 2015 A.F. NGWALA, J. This is an Appeal from the decision of the Mbeya District Court. The matter originated from Mbeya Urban Primary Court Probate Cause. The Appellant Magdalena Antony Sanga is aggrieved by the District court's decision which nullified her appointment as the administratrix of the estate of the late Dominicus s/ o Majibu Tweve. Mr. Kyando, the learned Advocate who is representing her in this Appeal argued that after the Senior Resident Magistrate' had determined that the Proceedings were null and void as the court had no jurisdiction; He erred to hold that the will of the deceased is null and void. He further pointed out that it was also wrong for the 1 Magistrate to state that, "If the parties may wish to file the Probate cause in the court with jurisdiction, as the will which appointed the Respondent was void, they may also wish to appoint another person to administer the estate, though much has been done by the present administratrix, the Respondent, if they think she has done a good work so far, the law be followed and she should continue with her work". In view of that quoted part of the Judgment of the said lower Appellate Court, Mr. Kyando insisted that it was for the Magistrate who had noted that the trial Magistrate had no jurisdiction and having directed that the matter be filed in a court of competent jurisdiction to further determine the legality of the will that had accompanied the said Application before the trial Primary Court. According to him it was enough for the Appellate Court to declare that the court had no jurisdiction and because the court had no jurisdiction then the case be refilled to the proper channels were the merits of the case could be determined. For those reasons Mr. Kyando prayed this court to direct the case to be filed in a court of competent jurisdiction and further declare that the Appellate Magistrate was wrong to determine the merits of the cases and to declare the will null and void. In reply Mr. Muya learned Counsel contended that the findings of the Appellate Court were correct that the Primary Court did not have jurisdiction on the basis of the mode of life of the deceased, or by the other evidence which may be adduced in the Primary Court. In the present case the deceased prophesied a Christian Religion, 2 V. j' and lived a Christian mode of life which the Primary Court did not have jurisdiction to determine the suit. Mr. Muya, further submitted that the trial court did riot have jurisdiction for the reason that it was a contentious Probate. The Respondent had resisted on the validity of the will. Hence the Primary Court had no jurisdiction to determine it as per Section 5 (2) of the Probate and Administration Act, Cap. 352 R. E. 2002 which stipulate that the Primary Courts have no powers over contentions matter once it exceeds Tshs. 15,000/=. Thus the matter was supposed to be tried by the High Court as long as it touched the validity of the will. On the argument that the appellate magistrate entertained the matter at page 18 of the Judgment as quoted in this Judgment Mr. Muya submitted that the Magistrate did not enter into the merit of the case but gave directions on what should be done. For those reasons he prayed for the dismissal of the suit with cost. In rejoinder Mr. Kyando agreed that the Magistrate had directed on what should ne done, but insisted that he determined the merits of the case at the said page 18 of his Judgment when he said, "The will was thus void, all what it contains is also void. The lower court wrongly relied on it in its decisions. The decision was thus of no any legal consequences". The principal question now 1n this Appeal relating to the jurisdictions of the court on the validity of the will, as argued by Mr. Kyando and well submitted by Mr. Muya on the legal position is on how an Appellate Court, the District Court should have assessed the legality of the will? It is Mr. Kyando's argument after he had 3 discovered that the will was void he went on determining the case while he had no powers to do so; because it is the High Court which had jurisdiction to determine the validity of the will and not the said Appellate Court. In view of the aforesaid submissions in the circumstances of this Probate case I am not inclined to agree with Mr. Kyando's submission that the Appellate Court had determined the validity of the will. On the proceedings, in my opinion therefore, there two reasons for this, the proceedings before the Appellate Court that were the subject of Appeal had the Application which had argumentation of the will that had been annexed to support the Appellant's Application and the trial Magistrate based its decision on that Application and those Proceedings. It is clear in the proceedings that there was challenges as to the legality of that will, and as rightly pointed as to the power of that court to allow and grant the letters of Administration to the administratrix to distribute the estate of the deceased on the basis of a purported will which was challenged in court. What then should have the Appellate trial Magistrate direct on the basis of those proceedings to that subordinate court? Indeed, it is obvious that having regard to the contents of the Application and or that form of Application and its annextures, the trial Magistrate should not have failed himself or herself to scrutinize on the validity of the will, the jurisdiction of the court, and direct the parties on the place or proper court of institution of their suit. The only question here is whether the interest of justice required that the Appellant's Appeal be allowed 4 ..I simply because the lower Appellate Court had stated in passing that the will was thus void and that the court relied on it in its decision. In my considered opinion, in the circumstances, this does not merit this Appeal to be allowed for that reason alone. The Appellate Court has the duty to see the errors or irregularities in the proceedings of the lower court. This is quite clear as it goes in Kiswahili, "kukosoa kosa lililomo ndani ya kosa sio kosa". When the Appeal is before an Appellate Court competent to determine the said appeal, it has the duty to see the errors and irregularities if any in the said proceeding of the lower court and point them accordingly. It also has the duty to direct the parties concerned and the courts below it accordingly. It is for the said reason that I see no merit in this Appeal and dismiss it with costs. ~' A.F. NGWALA JUDGE 20/08/2015 5 . •. , I Date: 20/08/2015 Coram: A. F. Ngwala, J. Appellant: Absent For Appellant: Mr. Kyando Respondent: Present For Respondent: Mrs. Kasebwa Court: Judgment delivered in the presence of the Respondent and the respective counsels for the parties. Court: Right of Appeal to the Court of Appeal of Tanzania expJain~q:. ,...,'l: .. ~ ~ \ A.F. NGWALA JUDGE 20/08/2015 ~· \ 1&,._ ••.. 6