matilda zela vs benjamini chalamila 2023 tzhc 17635 2 june 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA PC PROBATE APPEAL NO. 16 OF 2022 (From the District Court of Mbeya at Mbeya in Probate Appeal No. 3 of 2022. Originated from the Primary Court of Mbeya District at Uyole in Probate Course No. 11 of 2022). MATILDA ZELA....................................................................... APPELLANT VERSUS BENJAMINI CHALAMILA........................................................... RESPONDENT JUDGEMENT Date of Last Order: 30/03/2023 Date of Judgement: 02/06/2023 NDUNGURU, J. In this appeal, the appellant Matlida Zela is challenging the decision of the District Court of Mbeya (the District) which nullified the whole proceedings and orders of the Primary Court of Mbeya District at Uyole (henceforth the Primary Court) on the reason that it had no jurisdiction to entertain probate matter in which the deceased was a Christian. Before the Primary Court in probate cause No. 11 of 2021, the appellant was appointed as an administratrix of the estates of the late i Chalamila Piksen Mgeni, she is also before this court under that capacity though the title above does not indicate so. Having been appointed as such, the appellant collected then distributed the estates to the heirs. It appears that Benjamin Mgeni (the respondent) was dissatisfied with the distribution made by the appellant. After raising some complaints to the primary court about his dissatisfaction the respondent decided to apply for revocation of the appellant from the office of administratrix on the reason that she has been biased in distributing the estates to the heirs especially him as the heir born out of wedlock and that she had hidden some properties which ought to form part of the estates of the deceased. The appellant protested the application, she told the primary court that she made her duty with sympathy to the respondent as he was otherwise not entitled to anything from the estates of his late father. On 1/04/2022 the Primary court made a ruling dismissing the respondent's application. It further ordered the heirs (including the respondent) who had received the distributions to return them to the administratrix for her to re-distribute the estates in a just way. The respondent was discontented by the dismissal of his application. He appealed to the District Court. The District Court 2 however, did not go to the merits of the respondent's appeal. It came up with legal issue as to whether the primary court had jurisdiction to entertain the probate where there was detail in Form No. 1 that the deceased was a Christian. Having heard the parties' arguments on the raised issue of jurisdiction, the district court came up to the conclusion that the primary court had no jurisdiction. At the end it quashed and set aside the proceedings and any subsequent order rendered by the primary court. It also ordered the appellant to surrender all necessary documents to the primary court and declared anything done by the appellant as lacking legal force. It is that decision prompted the appellant to institute the instant appeal. She raised eight (8) grounds as follows: 1. That the District Magistrate erred in law for revoking the appellant's letters of administration which were lawful(sic) acquired. 2. That having been satisfied that the appellant has after being appointed as administratrix of estates of her late husband he(sic) administered the deceased estates/assets, the District Court magistrate erred in law for failure to make finding and issue orders 3 in respect of the properties already distributed to the deceased hears. 3. That the District court Magistrate grossly erred in law for failure to recognize the work done by appellant administratrix to estates of the deceased. 4. That the District Court Magistrate strayed for failure to issue orders on the estates, instead he created chaos to the deceased hears(sic). 5. That the District Court Magistrate erred in law for failure to recognize the inventory filed by the appellant before the appointing court. 6. The district Court Magistrate erred in law for holding that the deceased was a Christian despite uncontroverted evidence on record that he was not prophesying Christianity. 7. The district Court Magistrate erred in law for failure to determine the appeal on merits. 8. The district court magistrate erred in law for quashing the records of the appointing primary court without there being any justification. 4 Owing to the above grounds of appeal the appellant implored this court to allow the appeal, set aside the orders of the District Court, confirm the appoint of the appellant and recognize the distribution of the estates done by the appellant. When the appeal was called on for hearing the appellant was represented by Advocate Amelia Chalamila while the respondent was represented by advocate Kamru Habibu. It was disposed of by way of written submissions. Having gone through the submissions by the counsels for the parties in relation with the grounds of appeal and considering the impugned decision of the District Court. It is my considered opinion that the appellant's grievances will be conveniently resolved by determining grounds 6, 7 and 8 of the appeal. The formed opinion is due to the fact that other grounds of appeal do not relate to the impugned decision. For example, the complaint under the 1st ground that the District Court erred in revoking the appellant's letters of administration I do not think if relates to the impugned decision since the District Court nullified the proceedings and the orders of the Primary Court for lucking jurisdiction not revoking the appellant's letters. The District Court's order for the appellant to surrender the documents including the letters does not 5 mean revocation but the consequences of nullifying the orders of the Primary Court. There is a different between nullification for want jurisdiction of the court and Revocation or annulment of grant of administration. In accordance with rule 9 of The Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971 revocation or annulment of grant of administration is made by the appointing court upon an application by a creditor or any heir or beneficiary of the deceased person's estate. The grounds for revocation or annulment are set forth under paras (a)-(e) of sub-rule 1 of rule 9 which are: (a) that the administration had been obtained fraudulently; (b) that the grant had been made in ignorance of facts the existence of which rendered the grant invalid in law; (c) that the proceedings to obtain the grant were defective in substance so as to have influenced the decision of the court; (d) that the grant has become useless or inoperative; 6 (e) that the administrator has been acting in contravention of the terms of the grant or wilfully or negligently against the interests of creditors, herein or beneficiaries of the estate. Whereas, jurisdiction and powers of the Primary Courts in administration cases are provided undersections 18 (1) (a) (i) and 19 (1) (c) of the Magistrates Courts Act, Cap. 11 R.E 2019 together with paragraphs 1 and 2 of the Fifth Schedule to the Act. It was under these provisions of the law the District Court relied on in its decision. Furthermore, the complaints by the appellant under grounds 2, 3, 4, and 5 of the of appeal are unrealistic. This is because the District Court would not have proceeded to make finding or issue order in respect of the properties already distributed to the deceased heirs whilst the proceedings of the Primary Court have been already nullified which meant that whatever done in nullity proceedings also had no legs to stand on. The foregone finding also applies to the complaint that the District Court erred for failure to recognize the work done by appellant administratrix to the estates of the deceased. With due respect as I have already pointed above, the appellant had already been granted her 7 prayer that all heirs who had received the distributes of the deceased estates should return back to her as administratrix the properties for to make a just distribution. I do not now see the essence of the appellant wanting this court to fault the District Court for not recognizing her work while it was herself who prayed for cancellation of her own work. In the circumstance the appellant thought cancellation of her work was to cause chaos she would have not made the prayer to the Primary Court. Equally, it is unrealistic complaint by the appellant that the District Court erred when it failed to recognize already filed inventory. The record does not support her complaint. It clear that before she failed any inventory the respondent filed the application for revocation in which the respondent being dissatisfied appealed to the District Court thereupon it ended up nullifying the proceedings and the resultant orders. The proof of the unrealistic of the complaint is also the appellant's counsel for failure to specifically point out in her submission the said inventory was regarding to which properties and the date it was filed. Now, the viable appellant's complaints are in the 6th, 7th and 8th ground which I will combine and jointly determine under a single issue 8 of whether the District Court was justified in quashing the records of the Primary Court. In her submissions, counsel for the appellant did not specifically argue if the Primary Court was clothed with jurisdiction to entertain the matter in which the deceased was a Christian. She however lamented about the District Court for failure to consider the efforts applied by the appellant in collecting and distributing the deceased's estates to the heirs. According to the counsel the District Court decision has created chaos and frustration and confusion to the heirs and the society at large. It was her further argument that the District Court ought to have acted wisely and prudent to consider that the work performed by the appellant for benefit of the heirs. In reply, counsel for the respondent supported the findings of the District Court on the issue of jurisdiction. He argued that the issue of jurisdiction is vested to the court by the provisions of the law and not by evidence. That since the appellant stated in Form No. 1 that the deceased professed Christianity the Primary Court's jurisdiction had been ousted. Needless repeating, the issue of jurisdiction of the court has been overemphasised now and then in our land. For instance, in the case of 9 Yusufu Selemani Kimaro vs Administrative General & Others [2022] TZCA 306 (Tanzlii). The Court of Appeal of Tanzania had this to say: "... n/e need not cite any authority to support or expound on the principle which is fast becoming trite that, the question of jurisdiction for any court is very fundamental as it determines the court's authority to hear and determine cases." (Emphasis added). In the matter at hand the law is certain that the Primary Courts' jurisdiction in determining probate matters is not absolute, it is subject to limitation on the matters relating to Islamic and customary nature. This is per sections 18 (1) (a) (i) and 19 (1) (c) of the Magistrates Courts Act, Cap. 11 R.E 2019 together with paragraphs 1 and 2 of the Fifth Schedule to the Act. Petition for administration in the Primary Courts is made by the Form No. 1 as per Rule 3 the Primary Courts (Administration of Estates) Rules. G.N. No. 49 of 1971. In that regard, a Primary Court checks her jurisdiction as soon as the petitioner files Form No. 1. This is due to the fact that in the form under paragraph 7, the petitioner is required to fill io in the religion of the deceased. That is what this court (Mugeta, J) observed in the case of Jane Francisca Mwambene vs Tumain John Mwambene and 2 others [2022] TZHC 10818 (Tanzlii). It illustrated that: "... AH petitions for probate or letters of administration forms (No. I in PC...) has paragraph where the petitioner must state the religion of the deceased. This is for purposes of determining the jurisdiction at admission stage." In the case of Jane Francisca Mwambene (supra), my brother Judge observed further that: "... Therefore, once form No. I stated that the deceased was Christian, the PC ought to have rejected the petition and order the same to be filed in the proper court. The question of life style which was used to determine jurisdiction at the judgment stage is a matter of evidence. Jurisdiction of the court had to be determined in accordance with information supplied in the petition before hearing commenced.''(emphasis is mine). ii Certainly, the circumstances in the Jane Francisca Mwambene case (supra) were akin to this under consideration. This is proved by the determination made by the District Court in the impugned decision. At pages 8 and 10 of the impugned judgment for example, it observed in the following words: "... the most crucial issue which applies as a determinant factor or a yard stick to ascertain primary court's jurisdiction are the information to be obtained from Form No. 1 more particularly under para 7 of the from." "The rationale behind the details provide under form no. 1 is to establish at the earliest stage matters pertaining to jurisdiction of the primary court in administration of estate. Conversely there is no gainsaying that, the subsequent proceedings purported to be conducted despite of the very details description which established that the deceased was a Christian subject to form no. 1 amounted into overstepping the powers conferred to the trial subordinate court." I am persuaded by the findings of the District Court as above quoted. I also fully subscribe to the observation of my brother Judge. I wish to add that the presence of Form No. I in petitioning for the letters of administration in the primary courts is not for cosmetics purpose. It intends the Primary Court upon receiving it to consider the matter to be 12 determined also, its jurisdiction. After completing and filed Form No. 1 the court cannot go further to find evidence about the mode of life of the deceased as it was the case in the matter at hand. I am of that view since evidence regarding the life style of the deceased may come into play when there is a dispute on which law to be applicable. This may happen if one would come to the court challenging the statement offered in the Form about the mode of life of the deceased. This is not the case in the matter at hand. In the matter under consideration, the appellant herself filed the Form stating that the deceased was a Christian. Suppose the appellant claimed to have offered the statement in form under the ignorance of the application of that information, she would have requested to amend it. Leaving the same as it is and then come to lead evidence as if there was a dispute about the mode of life of the deceased was not a proper procedure. In the end, I do not find any justified reason to fault the decision of the District Court. I therefore dismiss the appeal on its entirety for want of merits. Being a probate matter I make no order as to costs. 13 Ordered accordingly. D.B. NDUNGURU; JUDGE 02/06/2023 14