THE High Court, Dar es Salaam District Registry, has dismissed the appeal lodged by former Miss Tanzania, Jacqueline Ntuyabaliwe, the widow of the then 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 that 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.