Fortunata Meruli Mtenga & Another vs Eleuteri Francis M Tenga (Civil Appeal No. 1806 of 2025) [2026] TZCA 446 (28 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KEREFU. J.A.. MWAMPASHI, 3.A. And ISMAIL, J.A.) CIVIL APPEAL NO. 1806 OF 2025 FORTUNATA MERULI MTENGA................................................ 1 st APPELANT MARTIN MERULI MTENGA ........................................ ........ 2N DAPPELLANT VERSUS ELEUTERI FRANCIS M TENGA.............................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Temeke Sub-Registry, One-Stop Judicial Centre at Dar es Salaam) fOmar. J.^ dated the 10th day of July, 2025 in Civil Appeal No. 1339 of 2025 JUDGMENT OF THE COURT 20th & 28th April, 2026 KEREFU, J.A.: On 24th May, 2023, Eleuteri Francis Mtenga, the respondent herein, approached the District Court of Temeke, One-Stop Judicial Centre at Dar es Salaam where he petitioned for the grant of probate of the estate of his late brother one Meruli Francis Mtenga who died on 8th February, 2023 at St. Monica Modern HC Tanzania. In the said petition (Probate and Administration Cause No. 519 of 2023), the respondent maintained that the thrust of his prayer to be appointed an executor of l the deceased's estate was based on the fact that his late brother died testate and recommended him to be an executor of his Will. It is on record that, on 20th July, 2023, the said petition encountered a caveat which was entered by Fortunata Meruli Mtenga and Martin Meruli Mtenga, the appellants herein, who are the biological children of the deceased. After the citation to the caveator was issued and replied accordingly, in terms of the provisions of the Probate and Administration of Estates Act, Cap. 352 of the Revised Laws (the Probate and Administration Act), it became apparent that the appellants7 major contention was on the validity of the deceased's Will. Upon exchange of pleadings, as the matter turned to be contentious, in terms of section 52 (b) of the Probate and Administration Act, the proceedings before the District Court (trial court) took the form of a suit. Therefore, the main issues before the trial court were; (i) whether the purported Will was valid; and (ii) whether the petitioner could be named as the administrator of the deceased's estate should the purported Will be found invalid. The learned trial Magistrate, having heard witnesses for both sides, found that the purported Will was invalid for failure to comply with the legal requirements. Consequently, the said Will was declared invalid with no legal effect, thus unenforceable. In his own words, the learned trial Magistrate, at page 205 of the record of appeal stated that: "... The evidence adduced by DW1 in court shows that he had no knowledge at aii that he was signing a Will and had not received any direction from the testator. This signifies that the aforementioned Will is not valid at all and cannot be acted upon... The Will therefore is declared to be invalid o f the reasons stated herein above . " Ordinarily, having invalidated the said Will, the learned trial Magistrate ought to have ended there, find the caveat proved and proceed to dismiss the petition for the grant of probate to the respondent but, instead, he went ahead and determined who are suitable persons to be appointed as administrators of the deceased's estate. It is on record that, outrightly, the learned trial Magistrate appointed the second appellant and one Maria Meruli Mtenga as co- administrator and administratrix of the deceased's estate. Again, in his own words found at page 211 of the same record, the learned trial Magistrate concluded that: "Thus, the application is permitted to the extent detailed herein above. The court cannot act upon the Will since it is invalid. Therefore, the estate 3 o f the deceased Meru/i Francis Mtenga, to be jointly administered by Martin Meruli Mtenga and Maria Meruli Mtenga. Since the Will has been ruled ille g a lth e petitioner is unfit to serve as executor and should not be involved in any way with relation to his brother's inheritance." It is noteworthy that, although the learned trial Magistrate directed the co-administrator and administratrix to administer the estate of the deceased, with profound respect, he did not say anything on the law applicable which will guide them in performing the said task. Aggrieved, the respondent successfully appealed before the High Court. In its decision, the first appellate court found the affidavit filed by the appellants before the trial court in support of the caveat to be fatally defective hence rendered the entire caveat incompetent. Thus, the learned Judge allowed the appeal, nullified the entire trial court's proceedings and ordered that, any interested party on the matter, should file a fresh petition for grant of letters of administration and or grant of probate as the case maybe. As it were, the decision of the first appellate court prompted the appellants to lodge the current appeal to express their dissatisfaction. In the memorandum of appeal, the appellants preferred five grounds of 4 complaint which can conveniently be paraphrased as follows; first, the learned Judge erred in law and fact to find that the memorandum of appeal did not contravene Order XXXIX rule 1 (2) of the Civil Procedure Code; second, the learned Judge erred in law and fact by entertaining the ground in regards to the defective attestation, while the same was not raised at the lower court, thus reached into unfair decision; third, the learned Judge erred in law to entertain the point of law touching on the defect of the attestation at an appellate level; fourth, failure by the learned Judge to appreciate the difference between the affidavit supporting appearance in probate proceedings and other affidavits; and fifth, failure by the learned Judge to evaluate the evidence adduced by the parties before the trial court. At the hearing of the appeal before us, the appellants and respondent were represented by Messrs. Emmanuel Mbuga and Makarious Tairo, both learned advocates, respectively. Pursuant to Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, the learned counsel for the parties had previously submitted their respective written submissions in support of or in opposition to the appeal. The said submissions were adopted into their respective oral submissions. 5 Upon taking the floor to expound on the grounds of appeal, Mr. Mbuga prayed to abandon the fifth ground of appeal and intimated that he would only argue the remaining four grounds. In arguing the second ground, Mr. Mbuga faulted the learned Judge by entertaining the ground on the defective attestation while the same was a new matter that calls for evidence which was not raised at the trial court. To justify his argument, Mr. Mbuga referred us to pages 214 to 231 of the record of appeal. He further stated that, in arguing the said ground, the respondent indicated that the attesting officer was in Dar es Salaam while the deponents were in Toronto Canada which were all new evidence not determined by the trial court. To support his proposition, he cited the cases of Morandi Rutakyamirwa v. Petro Joseph [1990] T.L.R. 50 and Felician B. Itemba v. The Board of Registered Trustees of ELCT-Eastern and Coastal Diocese, Civil Appeal No. 183 of 2022 [2025] TZCA 308. He then urged us to allow the appeal and set aside the decision of the first appellate court. In response to this ground, Mr. Tairo challenged the argument by his learned friend that it was baseless and unfounded. That, the issue of ascertaining as to whether the attestation was proper and done in accordance with the mandatory provisions of the law is straight forward 6 and does not require evidence as claimed by Mr. Mbuga. To amplify further, Mr. Tairo referred us to pages 56 to 63 of the record of appeal and argued that, the jurat at page 62 of the record clearly indicates that, the first and second appellants swore their affidavit at Toronto Canada on 7th August, 2023 before advocate Lujjaina Salim Mohamed who was in Dar es Salaam, Tanzania. That, the said deponents were introduced to the said advocate by Mr. Mbuga Emmanuel, learned counsel. Subsequently, Mr. Mbuga drew the said affidavit and signed it while in Dar es Salaam and filed it before the trial court. He contended that, since the said facts are clearly certain as they appear on the face of the impugned affidavit, there was no need of any further evidence to prove the same, he insisted that, in terms of section 8 of the Notaries Public and Commissioners for Oaths Act, Cap. 12 of the Revised Laws (the Act), an affidavit should mandatorily disclose before whom any oath or affidavit is taken, where and on what date the oath is made and or being administered. To substantiate his argument, he referred us to our previous decision in Linda Cosmas v. George Shida & 2 Others, Civil Application No. 183/08 of 2020 [2023] TZCA 17439. He then argued that, since in this appeal, the appellants' affidavit did not comply with the said requirement of the law, it was correct for the 7 learned Judge to declare it incurably defective liable to be expunged. That, the said omission had rendered the entire caveat incompetent before the trial court. Based on his submission, Mr. Tairo urged us to dismiss the second ground of appeal, with costs, for lack of merit. Having closely considered the submissions made by the learned counsel for the parties on the second ground and examined the contents of the appellants' affidavit in support of the caveat, we find no difficulty to agree with the submission made by Mr. Tairo. In our jurisdiction, the manner of attesting to an affidavit is governed by section 8 of the Act. For the sake of clarity, the said section provides that: "Every notary public and commissioners for oaths before whom any oath or affidavit is taken or made under the Act shall state truly in the jurat o f attestation at what place and on what date the oath or affidavit is taken or made". [Emphasis added]. The applicability of the above provision was dearly explained in Director of Public Prosecutions vs Dodoli Kapufi & Another, Criminal Application No. 11 of 2008 [2011] TZCA46, that: "The word "jurat" has its origin in the Latin word "jurare" which meant "to swear". In its brevity a jurat is a certification added to an affidavit or deposition stating when ; where and before what authority (whom) the affidavit was made...Such authority usually, a Notary Public and/or Commissioner for Oath, has to certify three matters, namely: - (i) that the person signing the document did so in his presence, (ii) that the signer appeared before him on the date and at the place indicated thereon, and (Hi) that he administered an oath or affirmation to the signer, who swore to or affirmed the contents o f the document" See also Zuberi Musa v. Shinyanga Town Council, Civil Application No. 100 of 2004 [2007] TZCA and D.P. Shapriya & Co. Ltd v. Bish International B.V. [2002] E.A. 42. In the latter case, the Court categorically ruled that the requirement to strictly comply with section 8 of the Act is mandatory and not a sheer technicality and that regularities in the form of a jurat cannot be waived at all by parties. In the instant appeal, it is evident at pages 62 to 63 of the record of appeal that, the first and second appellants swore the impugned affidavit on 7th August, 2023 at Toronto Canada before advocate 9 Lujjaina Salim Mohamed who was in Dar es Salaam, Tanzania. The said deponents were introduced to the said advocate, who administered their oath by advocate Mbuga Emmanuel. It goes without saying that, since the said deponents swore their affidavit while being in a different jurisdiction and not before the advocate who administered the oath and signed the affidavit as mandatory required by the law, the said affidavit was incurably defective as correctly found by the learned High Court Judge. That, the said omission had rendered the entire caveat incompetent before the trial Court. We have however noted that, since the said irregularity started at the stage of filling the said caveat, the learned High Court Judge was only required to nullify the trial court's proceedings from that stage and not otherwise. Anyhow, since our determination of the above ground is sufficient to dispose of this appeal, we find no need to delve into the remaining grounds of appeal raised by the appellant. Before concluding, we find it appropriate to determine yet, another procedurally irregularity occasioned by the learned trial Magistrate. That, having invalidated the said Will, the learned trial Magistrate was only required to dismiss the petition and direct any party who is interested to administer the deceased's estate to file a fresh petition for letters of 10 administration in accordance with the law. When we invited the learned counsel for the parties to address us on the said irregularity, they gave us different positions. On his part, Mr. Mbuga argued that, it was proper for the trial Magistrate, after nullifying the Will to proceed to appoint the appellants as joint administrator and administratrix of the deceased estate, because the trial court had the said powers, regardless of the absence of an application to that effect. On his side, Mr. Tairo faulted the procedure adopted by the learned trial Magistrate of appointing the appellants as joint administrator and administratrix to administer the deceased's estate, while there was no legal basis for that cause. Having examined the record of appeal, and specifically the proceedings before the trial court, we share similar views with Mr. Tairo. It is our settled view that, having invalidated the deceased's Will, it was improper for the learned trial Magistrate to proceed with the matter and appoint the appellants as co-administrator and administratrix to administer the deceased's estate while there was no legal basis to do so. We shall briefly demonstrate herein below. 11 It is common ground that, what was before the trial court was a petition for grant of probate which is regulated by section 24 (1) to (4) of the Probate and Administration Act read together with Rule 33 (1) of the Probate Rules, GN. No. 10 of 1963 (the Probate Rules). The said provision provides that: 24. (1) Probate may be granted only to an executor appointed by the wilt; (2) The appointment may be express or by necessary implication; (3) Where several executors are appointed, probate may be granted to them ail simultaneously or at different times; and (4) Where an executor is appointed by the will for a limited purpose only, probate shall not be granted to him except limited to that purpose. Furthermore, Rule 33 of the Probate Rules, requires, among others, a petition for probate to be made in the appropriate form prescribed in Forms 18, 20, 21 and 22 set out in the First Schedule to the Probate Rules. Pursuant to the said Rule, the petition for probate is required to be accompanied by the following documents; one, the last will of the deceased and all codicils thereto and when necessary, a translation thereof; two, a certificate of death of the deceased signed 12 by a competent authority; three, an affidavit to the deceased's place of domicile at the time of death; and, four, the executor's oath. On the contrary, a grant of letters of administration in cases of intestacy is regulated by section 33 (1) of the Probate and Administration Act read together with Rule 39 of the Probate Rules. Specifically, section 33 of Probate and Administration Act provides that: "33. (1) Where the deceased has died intestate, letters o f administration o f his estate may be granted to any person who, according to the rules for the distribution o f the estate o f an intestate applicable in the case o f such deceased would be entitled to the whole or any part o f such deceased's estate; (2) Where more than one person applies for letters o f administration, it shall be in the discretion o f the court to make a grant to any one or more o f them ; and in the exercise o f its discretion the court shall take into account greater and immediate interests in the deceased's estate in priority to lesser or more remote interests; (3) Where no such person applies, letters o f administration may be granted to a creditor o f the deceased; and 13 (4) Where it appears to the court to be necessary or convenient to appoint some person to administer the estate or any part thereof other than the person who under ordinary circumstances would be entitled to a grant o f administration ; the court may, in its discretion, having regard to consanguinity, amount o f interest, the safety o f the estate and probability that it will be properly administered, appoint such person as it thinks fit to be administrator; and in every such case letters o f administration may be limited or not as the court thinks f it " In addition, Rule 39 of the Probate Rules impose conditions that, a petition for letters of administration shall be made in the form prescribed in Forms 26 or 27 set out in the First Schedule to the Probate Rules and shall be accompanied by the following documents: first, certificate of death of the deceased signed by a competent authority; second, an affidavit as to the deceased's place of domicile; third, administrator's oath; fourth, administrator's bond; fifth, certificate as to the financial position of the sureties; sixth, consent of the heirs; and seventh, an affidavit of the petitioner (in case of a grant to the sole administrator). 14 In terms of the above provisions, it is clear that, the petition for grant of probate and a petition for grant of letters of administration are governed by different provisions which stipulate distinct procedures to be followed by the respective petitioners. That, in a grant for probate, it is the wish of the deceased testator that is given effect as shown in the Will. In such cases, the court's role is only limited to ensure that the executor and or executrix is executing the deceased's wishes as indicated in his/her Will. While, in a grant for letters of administration, the Rules have imposed safeguards including the duty of the administrator to file an inventory on the list of the deceased's assets which will come into his/her possession together with the deceased's liabilities; administrator's bond and certificate of financial position of the sureties to ensure that, in cases of misappropriation of the deceased's estate, the fortune of the rightful heirs is protected and secured; and in the end, an administrator/ administratrix will be required to provide a full account on the division of the deceased's estate to the beneficiaries. In the instant appeal therefore, it was erroneous for the learned trial Magistrate to grant letters of administration to the appellants herein while there was no application before the trial court to that effect, as the 15 appellants were yet to comply with the above mandatory requirements of the law for a grant of letters of administration. In the case of Magdalena Anthony Sanga v. Theresia Dominicus Tweve, Civil Appeal No. 482 of 2021 [TZCA] 1259, when we considered an akin situation, we stated that: "...the appointment o f the appellant and the respondent as joint administrators o f the deceased's estate was highly irregular as it was not backed up by any law. Neither did the High Court have power to do so upon upholding the caveat" See also our previous decision in John Ngomoi v. Mohamed Ally Bofu [1988] T.L.R. 63 and Joseph Shumbusho v. May Grace Tigerwa & 2 Others, Civil Appeal No. 183 of 2016 [TZCA] 1803. Likewise, in the instant appeal, having sustained the caveat and invalidated the deceased's Will, it was improper for the learned trial Magistrate to proceed with the matter and appoint the appellants as co- administrator and administratrix to administer the deceased's estate while there was no petition for grant of letters of the administration before the trial court. 16 Consequently, we allow the appeal, quash and set aside the subsequent orders issued by the High Court. For the interest of justice, we remit the case file concerning Probate and Administration Cause No. 519 of 2023 to the trial court with direction that, the hearing of the petition starts afresh before another Magistrate in accordance with the law. Considering the circumstances of this appeal, we make no order as to costs. DATED at DODOMA this 28th day of April, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 28th day of April, 2026 in the presence of Mr. Emmanuel Mbuga, learned advocate for the Appellants, Dr. Onesmo Michael Kyauke, learned advocate for the Respondent and Mr. Shafii Tnnrt Hprk k hprphv rpr1-ifip(j 3S a true COpy Of the DEPUTY REGISTRAR COURT OF APPEAL 17