MWANAMIMI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [MOROGORO SUB-REGISTRY] AT MOROGORO CIVIL APPEAL NO. 17 OF 2023 {Arising from the Decision ofthe District Court ofMorogoro(Hon. T.A. Kaniki, SRM dated June 2023in Probate Cause No. 77of2022) MWANAMIMI HASSAN ABDALLAH APPELLANT VERSUS CHUMA SALEHE SANGA RESPONDENT JUDGEMENT 20/03/2024 & 25/04/2024 KINYAKA^J.: In Probate Cause No. 77 of 2022 before the District Delegate of Morogoro at Morogoro, hereinafter,"the trial court", the appellant lodged a petition for letters of administration of the estate of her deceased husband, the late Salehe Huseni Sanga 5//55Salehe Hossein who died intestate at Morogoro Region Referral Hospital on 12^^ May 2020. On 10^^ November 2022, upon publication of the citation, the respondent lodged caveat under section 58 of the Probate and Administration of Estate Act, Cap. 352 R.E. 2019, hereinafter, "the Probate Act", and Rule 82 of the Probate Rules to prevent the grant of letters of administration upon the 1 appellant. In his affidavit lodged in Court on January 2023, the respondent contended that the family meeting recommended him and his brother, Amini Salehe Sanga to be the administrators of the estate of their late father. Consequently, the respondent and his brother petitioned for letters of administration of the estate of his late father on 12^^ August 2020 before the Urban Primary Court of Morogoro in probate Cause No. 221 of 2021, hereinafter "the original probate cause". Subsequently, the appellant filed an objection against the said petition. She further knocked the doors of the District Court of Morogoro through Misc. Probate No. 6 of 2021 applying to be represented by an advocate in the said objection, the prayer which was granted by the court. On 4^'' July 2022, the appellant filed Probate and Administration Cause No. 77 of 2022, hereinafter the "new probate cause". Objecting to the petition, the respondent lodged caveat before the trial court. The trial court made its decision on 9^^ June 2023 holding that it had no jurisdiction to entertain the probate cause on basis that, as the late Salehe Huseni Sanga professed Islam, his estate should have been determined and administered in accordance with Islamic law. The appellant was aggrieved by the decision and preferred six grounds of appeal as reproduced below:- 1. That the trial court grossly erred in law and In fact by pronouncing defective judgement which refer the contentious matter before it as probate cause instead of civil case and by failure to adhere to all principles in respect of civil case including failure to name plaintiff and defendant in the judgement; 2. That the trial court grossly erred in law and in fact by failure to answer air framed issues properly and by pronouncing judgement without reasoning for its decision in each issue thereof; 3. That the trial court erred in law and in fact by pronouncing judgement in favour of the defendant who is purported to initiate contentious proceedings through caveat but did not appear before the court to prosecute/defend the case; 4. That the trial court grossly erred in law and in fact by basing its judgement on extraneous matters in respect of repenting of deceased whereby the said extraneous matters are clearly against the evidence on record in respect of the mode of life of the deceased and the same <fer cannot be proved by human being before the Court of law. Further that, the trial court failed to evaluate evidence on record; 5. That the trial court erred in law and in fact by pronouncing judgement without considering credibility and demeanor od defense witnesses and failure to draw negative inference against the defendant by failure to bring key witnesses before the trial court; and 6. That the trial court erred in law and in fact by re-determining court's jurisdiction contrary to the decision of the same court (Hon. Kasele, PRM) in Misc. Probate Application No. 6 of 2021 while it was functus officio. On 20^^ April 2024 when the matter came for hearing, Mr. Jackson Liwewa who appeared for the respondent also held brief for Advocate Baraka Lweeka, who alongside Ms. Suzana Mafwere, also learned advocate represented the appellant. Mr. Liwewa prayed for disposition of the appeal by written submissions, the prayer which I granted. Parties lodged their respective submissions as ordered. Supporting the appeal, the appellant's counsels submitted in respect of the first ground of appeal that the judgement of the trial court did not disclose the name of the plaintiff and the defendant when the probate matter turned into a civil suit. They bolstered that the act is contrary to sections 59(3) and 52(b) of the Probate Act read together with section 53(2) of the Interpretation of Laws Act, Cap. 1 R.E. 2019, hereinafter, "the ILA". The learned counsels further submitted that upon the receipt of the respondent's caveat, the trial court erred when it failed to remit the file to the Honourable Deputy Registrar for assignment of a civil case number to the contentious matter contrary to Rule 82(6) of the Probate Rules. To bolster their contention, they relied on the decision of the High Court in the case of Fadhili Tewa Said v. Amina Tewa Said and Another, Probate and Administration Cause No. 45 of 2018 and the decision of the Court of Appeal in the case of Chantal Tito Mziray & Another v. Ritha John Makala & Another, Civil Appeal No. 59 of 2018. In respect of the second ground of appeal, it was the counsels for the appellant's submission that the trial court failed to answer all issues and assign reasons for its decision on each issue contrary to Order XX Rule 4 and 5 of the Civil Procedure Code, Cap. 33 R.E. 2019, hereinafter, "the CPC". They argued that the omission is fatal as per the decision of the High Court in the case of Ben Ezekiel Haule v. Ben Rumishael Makundi, Civil Appeal No. 73 of 2021 where it was held that it is necessary for a trial court to make a specific finding on each and every issue framed in a case, even where some of the issues cover the same aspect. In the third and fifth grounds which were argued together, Counsels argued that the caveator, who ought to be the defendant in the civil proceedings did not testify in the proceedings. They argued further that the defendant failed to present key witnesses, being himself, and the spiritual leader to testify on the mode of life of the deceased instead he presented Sheikh Kombo Hussein Mkumirwa who was not a leader (imam) of any mosque. They contended that the defendant failed to defend his case and urged the court to draw negative inference on the defendant's failure to present key witnesses relying on the case of Allen Frank Maguzo v. R., Criminal Appeal No. 26 of 2021. In respect of the fourth ground, the learned advocates submitted that the fact that the deceased had a child outside marriage prove that his mode of life was not purely Islamic as adultery is not accepted in Islam. They faulted the decision of the lower court for considering extraneous matters including the assumption that the deceased repented to God instead of focusing on facts, evidence and issues before it. On the sixth ground, the advocates contended that the probate was initially filed at the Urban Primary Court of Morogoro and the same was transferred to the District Delegate (Hon. Kasele, PRM) vide Misc. Probate Application No. 6 of 2021 after the District Delegate was satisfied that it had jurisdiction. It was their argument that upon the transfer, the trial court became functus officioto re-determine the jurisdictional matter. On the whole, the appellant's counsels prayed for the appeal to be allowed with costs. They also urged this Court to re-evaluate evidence and direct the trial court to appoint the appellant as Administrator of the estate of the deceased. In his reply submissions against the appeal, Mr. Liwewa started by reproducing the background of the case in relation to the deceased's mode of life including his profess of Islam. He said, the deceased was buried in accordance with Islamic rites, he married four wives, he was a leader of Islamic Institution called UKUMBUSHO WA ZAKA TANZANIA, and donated one of his house used for madrassa. He submitted against the first ground that the trial court's failure to write Civil Case in the heading is not fatal but clerical error and slip of the pen which fall under section 96 of the CPC. The learned counsel referred this Court to the decision of the Court of Appeal in the case of Victor W. Meena & Another v. Arusha Technical College, Civil Appeal No.515 of 2020 [2024 TZCA 111 (21 February 2024)] to fortify his position. He submitted further that the error can be rectified by inserting the words plaintiff and defendant and thus, the appellant's prayer for the remittance of the file for retrial is unmerited. Against the second ground of appeal, Mr. Liwewa submitted that a trial court can determine unframed issue if the parties are aware of the same upon adducing evidence to that effect relying on the decision of the Court of Appeal in the case of Erastus Vicent Mtui v. Coca Cola Kwanza Limited, Consolidated Civil Appeal No. 619 of 2022 and 13 of 2023 [2024 TZCA 122(23 February 2024)]. He stated that the parties adduced evidence as to the deceased way of life as a Muslim. He submitted that under paragraph 1 of the Fifth Schedule to the Magistrates Act, Cap. 11 R.E. 2019, hereinafter "the MCA", the District Court had no jurisdiction relying on the decision of the Court of Appeal in the case of Isaya Linus Chengula (administrator of the estate of the late Linus Chengula) v. Frank Nyika (as administrator of the estate of the late Asheri Nyika), Civil Application No. 487/13 of 2020 [2022 TZCA 167]. Against the third and fifth grounds of appeal, relying on section 147(5) of the Evidence Act, Cap, 6 R.E, 2022, hereinafter, "the Evidence Act", Mr. Liwewa argued that the law permits a witness to be deferred and other witnesses to give their testimonies. He argued that, as the Issue before the trial court was on the mode of life of the deceased, the witnesses who testified, including the appellant, were sufficient. There was no need to present other witnesses. Regarding the fourth ground on the allegation of the deceased's adultery, Mr. Liwewa submitted that the evidence adduced proved that the mode of the deceased's life was Islam. On the sixth ground of appeal, Mr. Liwewa admitted that the probate was initially filed at the Urban Primary Court of Morogoro and an order to transfer the same was issued by the District Delegate. He submitted that the transfer order was wrong as the District Delegate had no jurisdiction to entertain a probate where the law applicable is Islamic law based on paragraph 1 of the Fifth Schedule to the MCA. He argued that the court was not functus officio as the transfer was a nullity due to lack of jurisdiction of the District Court. Mr. Liwewa prayed for the dismissal of the appeal with costs. In the course of composing judgement, and upon appreciating the parties' submission in the sixth ground of appeal, as well as reading the proceedings of the trial court, I noted that the original probate cause was lodged by the respondent and his brother, Amini Salehe at the Urban Primary Court of Morogoro in the year 2020 followed by the appellant's Misc. Application No. 6 of 2021 for transfer of the same. I have also noted that the transfer was granted by the District Court of Morogoro on 15/07/2021 ordering parties to file documents. Subsequently, the appellant lodged the new probate cause before the trial court, the District Delegate. As such, I asked parties to address me on the propriety of the Probate and Administration Cause No. 77 of 2022, hereinafter "the new probate cause" vis a i//5 Probate Cause No. 221 of 2021 and the transfer proceedings. Addressing the Court, Mr. Lweeka submitted that the new probate cause was proper before the District Delegate of Morogoro. He submitted that the respondent failed to file a petition at the District Court or challenge the order allowing transfer of Probate Cause No. 221 of 2020 within 60 days prescribed under item No. 21 of Part III of the Schedule to the Law of Limitation Act Cap. 89 R.E. 2019, hereinafter, "the LLA" since 15/07/2021 when the order of transfer the District Court was granted. 10 He contended that the transfer of original probate cause from the Urban Primary Court of Morogoro was made according to section 47(1)(b) of the MCA for the purpose of affording the appellant's legal representation of an advocate as by then advocates were not allowed to appear in primary courts. He argued that the District Court had jurisdiction to entertain the matter as the estate of the deceased was a small estate whose value was approximately TZS 90,000,000. He argued that though the District Court did not record reasons for the transfer, under the overriding objective principle, the same remained proper as it did not prejudice any of the parties. He stated that the appellant waited from 15/07/2021 for the respondent to file necessary document after the transfer order but he did not do so which was a clear demonstration of lack of interest of the respondent to proceed with the probate cause. He contended that the new probate cause was not a continuation of Probate Cause No. 221 of 2020, and that the latter automatically ended and died a natural death when the respondent failed to lodge necessary documents before the District Court for more than 60 days. He argued that as an interested person In the estate of her late husband, it was proper for the appellant to lodge the new probate cause. 11 He further submitted that the trial court being the District Delegate had jurisdiction to determine the new probate cause at the date of filing of the same until 10^^ November 2022 when the caveat was entered and matter became contentious. He viewed it to be an error on part of the District Delegate not to report the matter to the Deputy Registrar of the High Court under Rule 83 of Probate Rules and section 5(3) of the Probate Act as held in the case of Chantal Tito Mziray & Another (supra) where the Court of Appeal remitted the file to the High Court to be dealt with according to the dictates of the law. The learned counsel finalized his submissions by insisting that the new probate cause was properly before the District Delegate of Morogoro and invited this Court to proceed determining the present appeal. On his part, Mr. Liwewa reiterated the historical background of the deceased and his mode of life which prompted the respondent and his brother to file the original probate cause at the Urban Primary Court of Morogoro. He contended that the original probate cause was in respect of the estate of the deceased who professed Islam and whose estate was to be administered according to Islamic law. For that matter, he argued, it was improper for the District Court to order the transfer of the original probate cause to itself 12 contrary to section 47(1) proviso (a) and (b) of the MCA and paragraph 1 of the Fifth Schedule to the MCA. He argued further that as the transfer was a nullity, It left the original probate cause before the Urban Primary Court of Morogoro hanging. In his opinion, the original probate cause was not closed as its transfer to the District Court was a nullity from the beginning. He concluded that the Probate and Administration Cause No. 77 of 2022 was improperly initiated as there was Probate Cause No. 221 of 2020 pending and which was filed in accordance with Paragraph 1 of the Fifth Schedule to the MCA. He retted on the case of Fanuei Mantiri Gunda v. Helman M. Gunda & Others [1995) TLR 155, where the Court of Appeal held that courts must exercise jurisdiction provided for by the statutes. He argued that as the statute was very specific on the jurisdiction of the primary courts over estates administrable- in accordance with Islamic law, the subsequent Probate and Administration Cause No. 77 of 2022 was improper. On the basis of the above submissions, Mr. Liwewa prayed for the Court to nullify and quash the proceedings and resultant decision in Probate and Administration Cause No. 77 of 2022, and the proceedings and resultant order in Misc. Probate Cause No".'6 of 2021 and order parties to revert to the Urban Primary Court to proceed with Probate Cause No. 221 of 2020 as 13 according to him, it is the Primary Court that has powers to hear the petition for probate by virtue of Paragraph 1 of the Fifth Schedule to the MCA. Rejoining, the appellant's counsels reiterated their submission and position stated in the submissions in chief. They contended that as of the present, the ruling in Misc. Probate Cause No. 6 of 2021 is valid as there is no any order of the court that nullified the same. They argued that the respondent's prayer for nullification of the order in Misc. Probate Cause No. 6 of 2021 dated 15/07/2021 has been brought by the respondent's Counsel out of time, and after the lapse of more than 2 years from the date of the grant of the order. It was their argument that the respondent neither challenged nor complied with the order, but he slept over his rights for more than 60 days as he lost interest to petition for letters of administration. The counsels contended that paragraph 1(1) of the Fifth Schedule to the MCA does not speak of religion but deals with law applicable which centers on the mode of life and not religion. They stated that the mode of life was determined in the new probate cause and is the subject of the present appeal. They insisted that the District Court had jurisdiction as the estate was a small estate and reiterated that at the time the new probate cause was lodged, there was no any probate pending relating to the estate of the 14 late Saleh Husein Sanga. They reiterated further that the new probate cause was properly filed and prayed for determination of the present appeal on merit. With the above background and the parties' submissions for and against the grounds of appeal and the point raised by the Court, I am enjoined to determine whether the present appeal is meritorious. In doing so, I will first determine the ground of appeal touching on the jurisdiction of trial court, the District Delegate of Morogoro, to determine Probate and Administration Cause No. 77 of 2022. In the course, I will determine the sixth ground together with the point raised by the Court on the propriety of the new probate cause, and if need be, I will determine the remaining grounds of appeal. The sixth ground of appeal faults the decision of the trial court to re- determine the trial court's jurisdiction contrary to the decision of the same court in Misc. Probate Application No. 6 of 2021 while it was functus officio. Based on the ground of appeal, upon this Court's request, the parties addressed the Court on the propriety of the new probate cause before the trial court whose decision is the subject of the present appeal. 15 As Stated in the introductory paragraphs of this judgement deduced from the proceedings of the lowers courts, the respondent and his brother, Amini Salehe lodged before the Urban Primary Court of Morogoro the original Probate Cause No. 221 of 2021. However, it is on record that the appellant applied for the transfer of the same to the District Court of Morogoro through Misc. Probate Application No. 6 of 2021. The transfer was consented by the District Court of Morogoro vide \ts decision dated 15/07/2021. Subsequently, on 04/07/2022, the appellant lodged the new Probate and Administration Cause No. 77 of 2022 before the District Delegate. With the above background, it is clear that the District Court which consented to the transfer of Probate Cause No. 221 of 2021 in Misc. Probate Application No, 6 of 2021 is not the same as the District Delegate which determined the new Probate and Administration Cause No. 77 of 2022. In view thereof, the sixth ground of appeal fails for two reasons. The first is that the trial court, being the District Delegate did not hear Misc. Probate Application No.6 of 2021 but the District Court. The District Delegate and the District Court are two distinct courts with different jurisdictions in probate matters as provided for under sections 5 and 6, respectively, of the Probate Act. It is a common ground that a court becomes functus offido 16 once it has delivered its judgment or makes an order in respect of a matter before it. In the case of Maria Chrysostom Lekamwa v.Palcid Richard Lekamwa & Another, Civil Application No. 549/17 of 2019, the Court of Appeal on page 13 quoted with approval the decision in the case of Mohamed Enterprises(T) Limited v. Masoud Mohamed Naseer, Civil Application No. 33 of 2012(unreported) where it was articulated that:- "Oncejudgmentand decree are issued by a given court,judges (magistrates)ofthatcourt become "functus officio"in so far as the matter is concerned"[Emphasis added] It follows that the trial court, being the District Delegate was not functus when it determined its jurisdiction on estate administrable by Islamic law. The second is that the District Court in Misc. Application No. 6 of 2021 determined the application for transfer of Probate Cause No. 221 of 2021 from the Primary Court. Although by consenting to the transfer, the District Court assumed jurisdiction, in Its ruling dated 15/07/2021, there is nowhere the District Court determined the issue of jurisdiction. This takes me to the determination of the appropriateness of the consent for transfer of Probate Cause No. 221 of 2021 by the District Court. 17 The appellant's counsels argued that the District Court had jurisdiction to determine the original probate cause as the deceased's estate was a small estate. On the other hand, the respondent argued that the deceased's estate was administrable according to Islamic law as the deceased was a Muslim, his mode of life demonstrated his commitment to Islam and he was buried in accordance with Islamic rites, hence the District Court had no Jurisdiction to entertain the same. Noteworthy, the jurisdiction of the District Court is provided for under section 6 of the Probate Act with powers to appoint administrators of small estates to administer small estates whose value is TZS 100,000,000. However, the Original Probate Cause No. 221 of 2021 which the District Court consented to its transfer from the Primary Court, was predicated on the fact that the deceased professed Islam, he died a Muslim, he was buried in accordance with Islamic rites, and that his mode of life was in accordance with Islamic rites. '■ My abb\^ observations are supported by the affidavit of the respondent who was the caveator in the new Probate and Administration Cause No. 77 of 2022. Paragraphs 4, 5,-6, 7, 8 and 9 of thd affidavit of the respondent and the attached annexufe "A" "C", and "D" proved that the deceased was a 18 devoted to Islam. Annexure "A" was Fomu Maalum ya Uhakiki wa Taasisiza Kidinina Jumuiya za evidencing that the deceased was the Chairman of the Board of Trustees of Taasisi ya Ukumbusho wa Zakka (TAUZAMO). The same Annexure "A" attached the deceased's donation of his house to Safina Madrasa for Islamic religion development. It is important to point at this juncture that the appellant was one of the signatories of the document evidencing donation of the house. Annexure "C" was Form No. I the petition for letters of administration in Probate Cause No. 221 of 2021 before the Urban Primary Court of Morogoro in which the petitioners pleaded that the deceased was a Muslim. Annexure "D" was the minutes of the meeting of the deceased's family which recommended the respondent and his brother to be administrators of the estate of their late father. The minutes reveal in agenda items 2, 3 and 4 as follows: AGENDA YA 2:Aina ya Usimamizi wa Mirathi Wajumbe wanapendekeza kuwa makini kuangaiia aina ya mirathi, kiserikaii au kidini (kiisiamu). Kwa kuwa Shehe Swaieh amekufa haii ya kuwa ni muisiam famiiia imekubaiiana mirathi itakuwa ya kiisiamu. AGENDA YA 3:MslmamizI wa Mirathi Famiiia imependekeza Bwana Chuma Swalehe Sanga na Amini Swaiehe Sanga kuwa wasimamizi wa mirathi. 19 . V-- ' ■■ AGENDA YA 4: Maden! Kuna deni kwa MUNGA Tsh. 122,000/- na wafimu wa madrasa mtoto wa kitunga 45,000/= mwezi uHopita na Tsh. 60,000/= mwezi huu. FamHia imekubaHana itaenda kuUpa madeni hayo na kuendelea kumpa mshahara. Again, the appellant and another wife of the deceased, one Tatu Ally Khalfan attended and signed the minutes of the meeting. Clearly, Annexure "A", "C" and "D" were attached to Form No I in Probate Cause No. 221 of 2021 which means that the District Court in Misc. Probate Application No. 6 of 2021 was aware of the nature of the estate of the deceased Muslim whose administration was in accordance with Islamic law and which had been lodged before the Primary Court. It Is noted from the proceedings In Misc. Probate Application No. 6 of 2021 that the reasons for the appellant's application for transfer was to obtain legal representation which she could not access at that time before the Primary Court. Notably, the appellant never objected to the applicability of Islamic law to the estate of her late husband before the Primary Court or District Court when she applied for the transfer. From the foregoing observations, it is my considered position that it was the Urban Primary Court of Morogoro which had jurisdiction to entertain and 20 grant letters of administration in Probate Cause No. 221 of 2021 and not the District Court of Morogoro by virtue of Paragraph 1(1) of the Fifth Schedule to the MCA which provides ''The jurisdiction of a primary court in the administration of deceased's estates, where the iaw applicabie to the administration or distribution or the succession to, the estate is customary iaw or Isiamic law, may be exercised in cases where the deceased at the time ofhis death, had a fixed place ofabode within the local limits of the court'sjurisdiction: Provided that, nothing in this paragraph shall derogate from thejurisdiction of a primary court in any proceedings transferred to such court under Part V ofthis Act." Apparently, the consent by the District Court for the transfer of Probate Cause No. 221 of 2021 to itself was incorrect for lack of jurisdiction of the District Court to determine a probate cause whose estate is administrable by Islamic law. This is regardless of the value of the estate of the deceased be it small estate or otherwise. The transfer of the probate cause to the District Court of Morogoro from the Urban Primary Court of Morogoro was contrary to section 47(1)(a) and (b) and the proviso (a) and (b) of the section 47(1) of the MCA which provides:- 21 47(1) Where any proceeding has been instituted in a primary court, it shaii be iawfui, at any time beforejudgment, for— (a) the primary court, with the consent ofthe district court or a court of a resident magistrate having jurisdiction, to transfer the proceeding to such district court or court ofa resident magistrate or to some other primary court; (b) the district court or a court ofa resident magistrate within any part ofthe iocaijurisdiction ofwhich the primary court is estabiished, to order the transfer ofthe proceedings to itselfor to another magistrates'court; in any case where— it appears that the circumstances or gravity ofthe proceeding make it desirable that the same should be transferred; (i) there is reasonable cause to believe that there would be a failure ofjustice were the proceeding to be heard in the primary court; Provided that, nothing in this subsection shall authorize— (a) the transfer by a magistrates'court ofany proceeding which is required bylaw to be commencedin a primary court except to another primary court; or (b) the transfer of any proceeding to a court which, however constituted, 22 has no jurisdiction in respect of the subject matter thereof. [Emphasis added] The above legal position has been expounded in plethora decisions of this court. In Nyamisango Jonathan v. Maulid Abas, Civil Appeal No. 13 of 2020(unreported) this Court was faced with a kin scenario in .which the appellant therein had lodged Misc. Civil Application No. 16 of 2020 before the District Court of Bukombe requesting for the transfer of a Civil Case No. 238 of 2019 that was pending at Ushirombo Primary Court to the District Court for the reason that she wanted to be represented by an Advocate. On p^ge 6 of its judgment, the Court held as follows:- "7^ is also a cardinal principle ofthe law that the need for legal representation cannot give the courtjurisdiction which it does notlegally have. The courtis duty-bound to entertain matters in accordance with the law. Ifthe case can be entertained by the ■ Prirfiary Court and the same had actually been instituted and hearing,started^ it.cannot be transferred to the District Court on a mere reason that the appellant has decided to engage an advocate.''' Reading the above holding in line with my findings that the District had no jurisdiction to determine the original Probate Cause No. 221 based on the nature Of the estate, it follows that the transfer was void from the beginning. .23. ^ ■ ■ ■ ...a .i. ..k. ' i - ■. It means that there was no transfer of the original probate cause to the District Court from the Primary Court at the first place. In the event,Iinvoke the powers of this Court under section 72 (1) of the Probate Act read together with section 79 (1) (c) and (3) of the CPC to nullify the proceedings and resultant order of the District Court in Misc. Probate Cause No. 6 of 2021. As the District Court had no jurisdiction over Probate Cause No. 221 of 2021, and the transfer to itself being of no legal effect, the Probate Cause No. 221 of 2021 remained valid and undetermined by the Urban Primary Court of Morogoro. This is irrespective of the respondent's failure to challenge the consent for transfer or his failure to comply with the required procedure as ordered by the District Court within 60 days. This is coupled with the fact that the original probate cause was never referred, heard or determined by the District Court. This takes me to the determination of the propriety of new Probate and Administration Cause No. 77 of 2022. I agree with the learned counsels for the appellant that the new Probate and Administration Cause No. 77 of 2022 was distinct and separate from original Probate Cause No. 221 of 2021 and was not a continuation of the Probate Cause No. 221 of 2021. However, the crucial question is whether it was 24 appropriate for the appellant to lodge a new probate and administration cause while Probate Cause No. 221 of 2021 on the same estate of the same deceased person was pending in another court and undetermined. It is my considered position that it was not appropriate. Then move was contrary to section 8 of the Civil Procedure Code which provides:- : ''No court shah' proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same tide where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed." In the present matter, the appellant was aware of the original Probate Cause No. 221 of 2021, applied for its transfer and knew that it was not determined. Instead of taking legal recourse to have the probate heard and determined, or to apply for its dismissal for lack of interest of the petitioners to prosecute the same, she filed the new probate cause before the District Delegate, a distinct court from the Urban Primary Court where the probate cause was originally filed or though erroneously, before District Court upon the order for transfer. In my settled opinion, the said act was tantamount to forum 25 shopping and an attempt to pre-empt the original probate cause and the applicability of Islamic law on the estate of the deceased. Further, even if the new probate cause was appropriately preferred by the appellant, which was not, the trial court, being the District Delegate had no jurisdiction to entertain contentious petition for letters of administration on the estate administrable by Islamic law and whose value of the estate exceeded TZS 15,000. The jurisdiction of District Delegate within the meaning section 2 of the Probate Act is stipulated under section 5(2) of the Probate Act which provides:- ■>1 District Delegate shall have jurisdiction in all matters relating to probate and administration of estates with power to grant probate and ietters of administration of estates if the deceased, at the time of his death, had his fixedplace of abode within the area for which the Deiegate is appointed- (a) N/A; (b) in contentious cases, ifthe Deiegate is satisfied that the gross value of the estate does not exceed fifteen thousandshillings, or the High Court authorizes the Delegate to exercise jurisdiction in such circumstances as are specified in subsection (3). (3) N/A. 26 % That being said and in consideration of the above provision, I invoke the revisional powers of this Court under section 72(1) of the Probate Act read together with section 79(1)(c) and (3)of the CPC to nullify the proceedings and resultant order of the District Delegate in the new Probate and Administration Cause No. 77 of 2022. This is based on my finding that at the time of the pendency and determination of the new probate cause, there was Probate Cause No. 221 of 2021 pending and undetermined by the Urban Primary Court of Morogoro which had unfettered jurisdiction to determine the original probate cause. On the basis of the above findings, I will not dwell into determining the first, second, third, fourth and fifth grounds of appeal as doing so will not serve any purpose. In the final analysis, the present appeal is dismissed for the reasons articulated above. Consequently, the parties are ordered to revert to the Urban Primary Court of Morogoro to continue with hearing and determination of Probate Cause No. 221 of 2021. The order is granted considering that the appellant's right of legal representation shall be maintained before the Primary Court. As the present matter involve family members, I make no order as to costs. 27 It is 50 ordered. DATED at MOROGORO this 25^^ day of April 2024. gH cc P CxA<A^ U H. A. KINYAlfEA JUDGE 5^ogoro 25/04/2024 OAT£D MOROCORO I: H. A.. K/NV^H.m- 28 Court Judgment is delivered before Geofrey Luyanji, Advocate holding brief of Advocate Susan Mafwere for the appellant and Mr, Yona Assey, Court Clerk. S.P."Mnawa DEPUTY REGISTRAR 25/04/2024 Court Right of Appeal fully explained. c>^ COUtii y» / S.P. K4nawa DEPUTY REGISTRAR 25/04/2024 29