Martha Judgment

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA PC. CIVIL APPEAL NO. 22908 OF 2024 (Arising from Probate Cause No 1963 of 2024 Sengerema District Court at Sengerema before Hon. Kisoka SRM and original Probate and Administration Cause No.06 /2021 at Sengerema Primary Court) MARTHA MEDARD KALENJI …………………..……………………….. APPELLANT VERSUS ANJELINA JOHN MEDARD …………………………………….…….. RESPONDENT JUDGEMENT 22nd October & 29thNovember, 2024 CHUMA, J. Troubled by the decision of the District Court of Sengerema in Misc. Application No. 1963 of 2024 the Appellant knocked on the doors of this court via appeal fronting two grounds as here under; 1. That the District Court erred in law and fact for failure to observe that the Primary Court erred in law for determining Probate administration cause No 06/2021 without being vested with jurisdiction. 2. That the District Court erred in law and fact for failure to extend the time for the appellant to file revision. 1 During the hearing of this appeal, the appellant was represented by Mr. John Edward advocate while the respondent was represented by Mr. Kinango advocate. Arguing for the appellant Mr. John Edward stated under Magistrate Court Act section 18 (1)(a) Cap. 11 R.E 2019 the primary Court is vested with jurisdiction to hear and determine matters under customary law or Islamic law. In this matter probate, No. 6/2021 Mr. John Medard Buruma not only professed the Christian religion but was also a Rev of the Catholic church. This has been reflected in paragraph 4 of the applicant’s affidavit. Under second paragraph provides the date of death of the late Farther Rev John Medad who was buried at Nyegezi Seminary area created for priest burial. The style of life of the late John determines the manner his estate has to be handled. A similar situation was decided in the case of Fletcha Genes Meela Vs. Adelaida Genes Meena Pc. Civil Appeal No 4/2022 on pages 4 and 5. In this case, it was held that the Jurisdiction of the Primary Court is limited only where the law applicable is Customary Law or Islamic Law. On page 7 of this judgment, the court referred to the case of Rev Florian Katunzi Vs. Goodluck Kulola PC Probate Appeal No 2/2014. 2 Insisting the issue of jurisdiction of the primary court where the deceased professed the Christian religion governed by the Probate and Administration Act which is not applicable in primary Court. The deceased life lifestyle was purely Christian. Hence the District Court ought to have found that the primary court had no mandate to pertain to that probate. On the second ground, it was his submission that the appellant applied for an extension of time to file revision and was denied despite sufficient ground advanced to warrant the court to allow the sought order. Mr. John Advocate went on arguing that under paragraph 11 of the applicant ‘s affidavit now the appellant, indicates that the appellant was not aware of the ongoing probate cause No. 6/2021. The late John never stayed at Sengerema no had even properties in Sengerema. Even the applicant now appellant in her affidavit her address is from Mwanza confirming that she was not living at Sengerema and hence unable to know what was going on there. And that illegality issue is in itself sufficient to allow an extension of time. Paragraph five of the affidavit indicates that the late John Buruma had never lived in Sengerema District nor had owned any property in Sengerema District. Rule 1 of the fifth Schedule of the Magistrates Courts Act, provides a place of lodging the kind of application which is a place of domicile or abode. Since Sengerema was 3 not his place of abode, it was not proper to lodge that probate cause at Sengerema. The circumstance ought to have been considered by the District Court in its findings and fault the primary courts’ decision for acting without the powers conferred by the law. He finally prayed this appeal to be allowed with cost. In response, Mr Kinango's advocate challenged this appeal contending that the issue of jurisdiction is raised before this court for the first time. The same was not raised at the District Court. There was no illegality alleged by the appellants’ advocate. The asserted grounds on the non-existence of the deceased’s properties and that was not living at Sengerema are counted under paragraph 11 of the respondents’ counter affidavit which indicates that the deceased was living at the Village and Ward of Ibondo Sengerema. For illegality to stand has to be seen on the face of the record and not merely mentioning. Because the same was not mentioned and seen on the face of the record as the factor considered in the first appellate court decision. As to the argument that the deceased professed Christian religion and hence his estate had to be dealt with via the Probate and Administration Act, it was his submission that the court had the power to determine the matter because perhaps the deceased changed his style 4 from Christian. This is because the deceased left about five issues to a different woman the respondent inclusive. The circumstance does not suggest that the deceased professed Christian religion. To know if the deceased used to stay in Sengerema and had properties there the appellant had to file the said objection at the same primary court because is the issue that requires evidence to prove or disprove. The primary court at Sengerema is a proper court to determine the issue after hearing the evidence of both parties. The appellant in paragraph 9 of the affidavit indicates that she filed a revocation application to remove the administrator of the estate which was later withdrawn. He failed to know why the applicant decided to withdraw the same because that was the proper remedy. Even if she could have obtained the extension of time sought still it could have been difficult to establish if the deceased had property at Sengerema because it needs evidence. The first ground of appeal lacks merit and he appealed to this court to dismiss it. On the second ground, section 22(4) of MCA provides for 12 months to file a revision to the District Court. In this matter, the appellant was appointed to administer the estate of the late Rev John Buruma on 15 March, 2021 and the application for revision was filed on 3rd January, 2024 5 which was a lapse of almost three years. One of the grounds is unawareness of the existence of the case and that she made aware on November, 2023 as per paragraph 8 of the applicant’s affidavit. Under annexture GM2 a clan meeting minutes convened on 16th November, 2019 and was attended by 39 clan members who are brothers and sisters to the deceased among members. The meeting nominated the respondent as administrator of the deceased estate John Medad Buruma. The appellant was among the members who didn’t attend the meeting without reason or notice. Under the circumstances, it is unjustifiable to allege that the appellant did not know of the existence of the application in issue. Even if we are to believe that the applicant now appellant made aware in November, 2023 and filed an application on 3rd January, 2024 a lapse of almost two months. Still no explanation on her delays from November, 2023 to January, 2024. It is a settled position that for an application for an extension of time to sustain the applicant has to advance sufficient reasons. In the case of Bazilla Benedict Kisomo Vs. The AG & Two Others Misc. Civil Application No 478/2022 on page 7 grounds for consideration have been provided for. 6 In the case of Lyamuya Construction Company Ltd Vs. Board of Registered Trustee of Young Women’s’ Christian Association of Tanzania Civil Application No 2/2010 on the last paragraph of page 6 the court of appeal gave guidelines for the court to consider in determining such kind of application. Guided by the above authorities the applicant now appellant failed to meet such conditions. Till now the appellant failed to explain her interest to the deceased estate because the respondent is among the deceased daughter. She has done her role to administer the estate including division or distribution of the estate to the beneficiaries. Mr. Kinango advocate rested his submission by urging this court to dismiss this appeal with cost for want of merit. In his rejoinder, Mr. John Edward's advocate argued that the issue of jurisdiction can be raised at any time even in the appeal stage. In the case of Fletcher, a similar issue was raised and the court on page 4 explained jurisdiction points can be raised at any stage including the appeal stage contrary to what was submitted by Mr . Kinango's advocate. Regarding the lifestyle of the late John Mr. Kinango never contested rather than explaining that the late left surviving children as a factor that shows a changing of lifestyle. That argument is misplaced because nowhere do the facts indicate lifestyle changes. Even in the counter affidavit in 7 paragraph 3, the issue of the burial place to the priest was not contested. As to the named Ibondo Village, it was his submission that paragraph 11 of the counter affidavit indicates that he had even a residential house there but the mentioned property does not feature on the deceased’s properties. The alleged five issues are not recognized by the relatives. The asserted meeting is known by the Gakara clan not from the Buruma clan that’s why the respondent failed to attend. Regarding the issue of objections which were later withdrawn, is because the administrator was ready-appointed that is why revision was opted. And that decision can be challenged in so many ways including revision opted by the appellant who was challenging the appointment of the administrator. About the clan meeting to have been attended by brothers and sisters, the appellant was not aware of the existing application. The properties were divided illegally that’s’ why this appeal has been preferred. He prayed this appeal be allowed. Having considered the parties' submissions, and my scrutiny of the record, the issue which calls for determination is whether the instant appeal is or not meritable. On the first ground, the appellant is challenging the issue of the trial court's jurisdiction which however contested by the respondents’ advocate 8 that the same was not raised at the first appellate court hence is unjustifiable to be raised at this stage. On my part, I feel unable to side with the submission of Mr. Kinango the Learned advocate for the respondent because as correctly submitted by Mr. John Edward advocate for the appellant, the issue of jurisdiction can be raised at any stage even on appeal. This position was held in several cases by the Court of Appeal including that of R.S.A Limited Vs. Hanspaul Automechs Limited Govinderajan Senthil Kumal, Civil Appeal No.179 of 2016, and Peter Ng’homango Vs. Attorney General, Civil Appeal No. 114 of 2011. The above position takes me to determine whether the trial court had jurisdiction to entertain the matter. The power of the Primary Courts in the Administration of the deceased estate is governed under Rule 1 of the Fifth Schedule of the Magistrate Courts’ Act Cap. 11 R.E 2019 which provides that; “The jurisdiction of a primary court in the administration of the deceased’s estate, where the law applicable to the administration or distribution or the succession to, the estate is customary or Islamic Law, may be exercised in cases where the deceased at the 9 time of his death, had a fixed place of abode within the local limits of the court’s jurisdiction”. Also, under section 18(1)(a) of the Magistrates’ Court Act, Cap 11 RE 2019 the jurisdiction of Primary Court is Limited only where the law applicable is Customary Law or Islamic Law. This position was succinctly held in the case of Ibrahimu Kusaga Vs. Emmanuel Mweta[1986] TLR 26. Going by the trial court record, especially the application form No.1 for appointment of the administrator of the deceased estate on page 9 the same is black on the kind of the religion the deceased professed. The referred form No. 1 in item No. 9 reads; “Marehemu alikuwa (eleza kabila) Msukuma na alikuwa mfuasi wa dini ya…’’ The above-quoted item implies uncertainty about the kind of religion the deceased professed. In this circumstance, the trial court assumed its jurisdiction as the application form doesn’t reflect the kind of religion of the deceased for the court to determine the laws applicable. A Court can only exercise jurisdiction as conferred by the Law. No court can confer jurisdiction upon itself. It is a cardinal principle of law that, any decision reached by any court without jurisdiction is a nullity and there is a plethora of authorities 10 on this issue including the case of Fanuel Mantiri Ng'unda Vs. Herman Mantiri Ng'unda and 20 Others, Civil Appeal No. 8 of 1995 (unreported) the Court of Appeal observed thus; "The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature ... The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial... 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. " In the other case of Jumanne Leonard Naqana @ Azori Leonard Nagana & another Vs. The Republic, Criminal Appeal No. 515 of 2019 Court of Appeal of Tanzania at Musoma (unreported) it was observed thus: “The fate that befalls the proceedings and a decision made without jurisdiction is a nullity. Even where a court decides to exercise a jurisdiction which it does not possess, its decision amounts to nothing". A similar view was held in the case of CRDB Bank PLC Vs. Lusekelo Mwakapala, Civil Appeal No. 143 of 2021 where the court held that: - 11 "It is worth noting that, the question of jurisdiction is crucial and must be determined by the court/ tribunal at the earliest opportunity. Jurisdiction is everything without which a court has no power to determine the dispute before it... Generally, a court is barred from entertaining a matter in which it has no jurisdiction" The Court of Appeal of Kenya in the case of Owners of Motor Vessel Lillian Vs. Caltex Oil Kenya Limited (1989) KLR the court inter-alia held through persuasively that; "Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. " In the spirit of the foregoing, in the absence of indication in the application form of the kind of religion of the deceased and since nowhere else on record the same has been reflected for the court to determine the laws applicable, the assumed power cannot be condoned by this court. The first appellate court also stepped into the same error to determine a nullity. Hence the whole trial in both Primary Court and that of District Court are void ab initio for want of jurisdiction as herein above explained. I find the first ground of appeal meritorious. This ground suffices to dispose of this appeal without venturing to the second ground. 12 In the final analysis, the proceedings, judgments, and all orders of the trial court and the first appellate court are hereby quashed and set aside. The parties may wish to re-institute the matter to the competent court subject to the above directives. The appeal is then allowed as per the above discussion. Owing to the nature of the matter involved I desist from making an order for cost. I so order. DATED at MWANZA this 29th day of November, 2024. W.M. CHUMA JUDGE 13 The judgment delivered virtually in court in attendance of Mr. John Edward advocate and Mr. Joseph Kinango advocate this 29th day of November, 2024. C. KISONGO DEPUTY REGISTRAR 14