NYAMEHE RULING

IN THE HIGH COURT OF TANZANIA (DAR ES SA LAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 30804 OF 2024 NYAMEHYE KARUDI.................................................................1ST PLAINTIFF KISIMBO REMILEKU KARUDI.................................................2ND PLAINTIFF VERSUS PRINCE MTWA GUNGA WILLILO...........................................1ST DEFENDANT CRISPIN RICHARD TIMBILI.................................................2ND DEFENDANT RULING 27th February & 11th March, 2025. MWANGA, J. Upon being served with the plaint that the plaintiffs filed, the defendants filed a written Statement of Defence (WSD) together with the plea in limine litis to the effect that the suit is untenable in law for being filed in the wrong forum as the sought reliefs are purely vested to be granted by the Court having jurisdiction in probate matters. As per the practice of the court, where there is a preliminary objection raised before the court, the court must first determine the objection before going into the substance of the case. Given that, the court ordered parties to submit for the said preliminary objection, which was disposed of orally. Both parties were represented; the plaintiff was represented by Learned Counsel Mr. Joesph Asenga, while the respondent had the services of Mr. Lusajo Mwakasege. 1 Supporting the Preliminary objection, Mr Lusajo submitted that the plaint filed by the plaintiffs in paragraphs 5 and 15 contains reliefs from(a- m) which do not by implication seem to be grantable by this court. According to him, the court that can grant the same is the court that has jurisdiction over probate matters. He cited the case of In Shyam Thanki and Another Vs. New Palace Hotel, (1972) HCD 92, where it was held that the court's jurisdiction is the creation of the statute and parties to the case cannot consent to give jurisdiction to the court, which does not have ordinarily. The counsel added further that, by looking at the pleading, it could be seen that this court cannot grant all the prayers without assessing the court file /proceedings of Magomeni Primary court on Probate and Administration Cause No. 385/2016, while this court has no such powers. In his view, the above prayer could only be sought through revision to the district court responsible for probate matters, or Temeke High Court, so to speak. He prayed that this suit be struck out with cost for want of jurisdiction. On his side, Mr. Asenga contended that this objection is legally misplaced. According to him, the cause of action is centered on the intermedalling of probate property by the 1st defendant. Clarifying, the 2 term inter meddling, he said, is defined in the BLACK LAW dictionary to mean officially interfering in the affairs of others or duty of the trustee or an administrator trust or estate property without justification, right, or title. He argued that the plaintiff discovered as such at the time when 1st defendant had already filed an account for the estate and closed the estate, the fact that is pleaded under paragraph 12 (i) of the plaint and Annexture- Karudi 6. The counsel cited the case of, Ahmed Mohamed Al Laamar Vs. Fatuma Bakari and Asha Bakari, Civil Appeal, No. 71 of 2012 CAT, where the court held that, once probate has been closed, the proper way is to file a suit and not to go for revision because the court becomes fanctus officio as the mater has already closed/ or Resi judicator. Cementing that point, he also cited the case of Simon Ngatola Woisso Vs. Joseph Simon Woisso, Misc. Civil Application No. 308 of 2010. After having gone through the rival submission by the parties herein and perusing the pleading filed by the respective parties, I am now in a position to determine whether this court has jurisdiction to determine this suit as raised by the defendant. The term Jurisdiction is defined in Halsbury’s Laws of England, Vol. 10, paragraph 134 to mean: 3 “the authority which a court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a formal way for its decision.” Further, in the case of Commissioner General of Tanzania Revenue Authority vs. JSC Atomredmetzoloto (ARMZ), Consolidated Civil Appeal Nos 78 and 79 of 2018 CAT at Dodoma (Unreported), on page 26 it was said; “Jurisdiction is a creature of statute, and as such, it cannot be assumed or exercised on the basis of likes and dislikes of the parties. That’s why the court has insisted that the question of jurisdiction is fundamental in court proceedings and can be raised at any stage, even at the appellate stage. The court suo moto can raise it, in adjudication the initial question to be determined is whether or not the court or tribunal is vested with requisite jurisdiction”. In light of the above legal position, the courts must be certain and assured of their jurisdiction at the commencement of trial. In this case, the defendant claims that this court has no jurisdiction since the prayers sought in the complaint can only be entertained by the probate court, while the plaintiff claims that since the probate cause is closed, the remaining remedy is to file a civil suit. 4 It is true, and I embrace Mr. Asenga's submission that when a probate cause is closed in a particular court, such court becomes fanctus official. The remaining remedy is filing a suit or dealing with the administrator through criminal proceedings, as the case may be. This sound position is stated in the apex court decision in Ahmed Mohamed Al Laamar vs Fatuma Bakari and Asha Bakari (supra), where the court held that; “Given the fact that the appellant had already discharged his duties of executing the will, whether honestly or otherwise, and had already exhibited the inventory and accounts in the High Court, there was no granted probate which could have been revoked or annulled in terms of section 49(1) of the Act. As the appellant was already functus officio, as correctly argued by Mr. Akaro, the revocation or annulment order, in our respectful opinion, was superfluous...One, if the respondents genuinely believe that the appellant acted in excess of his mandate or wasted the estate and/or subjected it to damage or occasioned any loss to it through negligence, they are free to sue him. Sections 138 and 139 are relevant. Two, if they are also convinced that he either fraudulently converted some properties forming part of the estate, and/or that he deliberately exhibited a false inventory or account, they are equally free to institute criminal proceedings 5 against him in accordance with the provisions of the governing laws”. Guided by the above authority's principle, I profoundly believe the plaintiffs took a proper cause by instituting a suit. Nevertheless, looking at the cause of action and the reliefs they sought in this case suggests that this court is not clothed with jurisdiction to entertain the same. The reasons I so find are not farfetched. Starting with the cause of action, as stated in paragraph 5 of the plaint, the plaintiffs stated that; “That the plaintiffs claim against the defendants is for a declaration that 1st defendant obtained administration of the estate of Ras Bupe Mkushi by fraud, deceits, and misrepresentation; Court order that the 1st defendant clandestinely and unlawfully concealed summons for revocation of the appointment of 1st plaintiff to the 1st and 2nd plaintiffs who stand as a son and wife of the deceased respectively; that the defendant was unlawfully awarded a sum of TZS =300,000,000/- out of the estate of Ras Bupe Mkushi (deceased) without any proof; order that 1ST defendant unlawfully and hurriedly filed accounts and closed estate without notice to the plaintiffs who stand as heirs of the deceased; order that la plaintiff unlawfully sold as estate a landed property contained in 6 plot no. 2035 block E Mbezi Beach without obtaining a prior consent of heirs/benefidanes; order that 1st defendant unlawfully obtained TZS 300 million out of estate of deceased without a prior proof of his debt as a creditor; Order that the court to set aside and quash the position of 1st defendant as a creditor of the estate of Ras Bupe Mkushi; Court order to nullify sale of the estate in nature of a landed property Plot No. 2035 Block ”E" Mbezi Beach; that Is and 2nd plaintiffs be compensated at a sum of TZS =599,000,000/- being a loss that the heirs of Ras Bupe Mkushi suffered as a result of I51 defendant obtaining administration of estate of Ras Bupe Mkushi in which 1st defendant is neither a heir nor a credito; costs of the case; interest on principal claim on principal claim (TZS =599,000,000/- at commercial bank lending rate of 20% from on 23/09/2024 to the date of final and full payment and Court rate of 7% per annum (on TZS 599,000,000/-) from the date of judgment to the date of final and full payment, and any other order this honourable Court deems fit and fair to grant”. Following the above, the plaintiffs prayed for the following prayers; (a) A declaration that 1st defendant unlawfully obtained administration of the estate of Ras Bupe Mkushi by fraud, 7 deceits, and misrepresentation, thus intermeddling of estate property (b) Court order that the 1st defendant clandestinely and unlawfully concealed summons for revocation of the appointment of 1M plaintiff to the 1st and 2nd plaintiffs who stand as a son and wife of the deceased, respectively; (c) (c) A declaration that 1st defendant was unlawfully awarded a sum of TZS =300,000,000/- out of the estate of Ras Dupe Mkushi (deceased) without any proof and justification; (d) Order that 1M defendant unlawfully and hurriedly filed accounts and closed estate without notice to the plaintiffs who are legal heirs of the deceased; (e) Order that 1st defendant unlawfully/illegally sold as estate a landed property contained in plot no. 2035 block "E" Mbezi Beach without obtaining the prior consent of heirs/beneficiaries; (f) Order that 1st defendant unlawfully obtained TZS 300 million out of the estate of the deceased without prior proof of his debt as a creditor; (g) Order that the court set aside and quash the position of 1st defendant as a creditor of the estate of Ras Bupe Mkushi; (h) Court order to nullify the sale of the estate in nature of a landed property Plot No. 2035 Block "E" Mbezi Beach; (i) Order that 1st and 2nd plaintiffs be compensated at a sum of TZS = 599,000,000/- being a loss that the heirs of Ras Bupe Mkushi suffered as a result of 1st defendant obtaining 8 administration of the estate of Ras Bupe Mkushi in which 1st defendant is neither an heir nor a creditor; (j) Costs of the case; (k) Interest on the principal claim on the principal claim (TZS =599,000,00 /- at commercial bank lending rate of 20% from 23/09/2024 to the date of final and full payment and (l) Interest at a Court rate of 7% per annum (on TZS =599,000,000/-) from the date of judgment to the date of final and full payment and (m) Any other order this honorable Court deems fit and fair to grant. Looking at Paragraph 5 together with the reliefs in item number (a), (b), (d), and (g), it is apparent that the same could only be entertained by the probate court after assessing proceedings of Magomeni Primary court before the closure of the proceedings on probate and administration cause No 385/2016. Such powers are not vested in this court. All being said, I believe that, though the plaintiffs took a proper cause, the nature of their reliefs sought, as mentioned above, cannot be entertained by this court. I, therefore, uphold the preliminary objection. The suit is incompetent before this court for want of jurisdiction; thus, it is struck out. The plaintiff is at liberty to institute a fresh suit in full compliance with 9 the law. This being a suit in the nature of probate cause, I order each party to bear its costs. It is so ordered accordingly. H.R. MWANGA JUDGE. 11/03/2025 COURT: The ruling was delivered at Dar es Salaam on 11th March 2025 in the presence of Mr. Joseph Assenga, learned counsel for the Plaintiff, and Mr. Lusajo Mwakasege was the learned counsel for the Defendants. H.R. MWANGA JUDGE 11/03/2025 10