By FAUSTINE KAPAMA-Judiciary
THE High Court, Dar es Salaam District Registry, has
dismissed the appeal lodged by former Miss Tanzania, Jacqueline Ntuyabaliwe,
the widow of prominent businessman Reginald Mengi, against refusal to grant
claims for maintenance payments of her two juvenile sons.
Judge John Nkwabi ruled against Mengi’s widow, the
appellant, after holding that the Juvenile Court of Dar-es-Salaam at Kisutu,
which had rejected to grant her claims lacked jurisdiction to entertain the
matter.
“I am not inclined to grant the prayers sought by the
counsel for the appellant in this Court and in the trial court because in my
view, the trial Court lacked the requisite jurisdiction to entertain the
matter. I proceed to dismiss this appeal,” he ruled.
The judge pointed out that a suit or application which
is lodged in a court which has no jurisdiction to entertain ought to be
dismissed, so does an appeal which originates from a court which had no
jurisdiction.
“In the premises the advice given to the appellant by
the trial court that (she) had to lodge her claims in the probate and
administration Court is found to be proper by this Court because it is mere
advice,” he said.
When refusing to grant the appellant’s claims, the
trial court ruled that since there were ongoing probate cases which all aim at
making sure that the estate of the deceased is distributed fairly to the lawful
heirs it was better for her to lodge the prayers before the Probate court and
not juvenile court.
During hearing of the appeal, the appellant counsel
had submitted that the trial court erred in law and fact by not upholding the
claims having not been contradicted and actually having been admitted by the
two Administrator of the estate of the deceased, Abdiel Mengi and Benjamin
Mengi, the respondents.
He stated that the trial court erred in law and in
fact by not making a clear order stating the sum of money with figures, which
is executable which the respondents were to pay the Appellant for the children
to realize their right of maintenance against the respondents and who were
disputing it.
In his judgment delivered on Monday, the judge
inclined to agree with the counsel for the respondents that it was the probate
Court which is vested with the jurisdiction, thus the trial court lacked the
jurisdiction to entertain the matter.
He gave five reasons to support the court’s position
on the matter, saying the administrators have the duty to use the estate to
ensure the welfare of the issues of the deceased particularly those who are
under 18 years of age and failure to do so may be challenged in the probate
court and be removed.
According to him, administrators of the deceased's
estate have the fiduciary duty to consult other heirs in the administration of
the estate. He referred to a case of Joseph Shumbusho v Mary Grace Tigerwa
& 2 Others, Civil Appeal No. 183 of 2016, CAT (unreported).
“Like the argument of the counsel for the respondents,
the deceased has no station of life. In the circumstances, a court that is best
placed to decide on the matter is not the juvenile Court rather the Probate and
Administration Court,” he said.
The judge assigned the fifth reason to cement the
court’s decision that in the administration of the estate, the Probate Court
has no power to interfere in the acts taken by the administrator as opposed to
the Juvenile Court which gives orders as to the maintenance.
Before the trial court, the appellant had sought for
several payments, including 200,978,240/- in arrears for each child, hence
401,956,480/-for both of them and other 94,392,000/- for the school fees for
the year August, 2021 to July, 2022.
She also pushed for payments of school fees at
94,392,000/- (or at such other rate, if any, to be stated by the school (s) at
which the students shall be studying for the year starting from August 2022 to
July 2023 and so on every year until when the children complete form six (6)
studies.
The appellant applied for payments of 24m/- for
transport of the children to and from school from January, 2022 to December,
2022 and all succeeding years until the children finish form six.
She also demanded for payments of 30m/-for medical
insurance of the children for the period of 12 months from May, 2022 to April
2023 and for all subsequent years until when the children attain the age of 18
years.
The appellant also pushed for payments of 15m/- for
general maintenance every month in advance from February, 2022 to when the
children will attain the age of 18 years and other 36,150,480/- for house
insurance per year from January, 2023 to when the children attain the age of 18
years.
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