Mengi widow Jacqueline hits snag in court

THE Court of Appeal has rejected the application for revision lodged by the widow of prominent businessman, the late Dr, Reginald Mengi, Ms Jacqueline Ntuyabaliwe, challenging the nullification of the deceased will and statement over administration of his estates.

Justices Rehema Mkuye, Panterine Kente and Paul Kihwelo ruled in favour of Abdiel Mengi and Benjamin Mengi, the respondents, who were appointed as administrators of the deceased’s estates by the High Court, after holding a preliminary objection that the application in question was incompetent.

They were satisfied that the affidavits lodged by the widow, the applicant, and her counsel were defective for not only containing extraneous matters like assumptions, arguments, opinions, conclusions, sentiments and feelings but also verifications which do not disclose source of information.

“In the event, the defects render the application to be incompetent and, hence, we accordingly strike it out. Since the matter originates from probate, we make no order as to costs,” they said in their ruling delivered in Dar es Salaam recently.

The justices noted that some paragraphs in the widow’s affidavit and that of her counsel contained hearsay not supported by evidence, including averring of information obtained from Deputy Registrar regarding how best they could deal with defective decree while such officer has not sworn any affidavit.

Furthermore, they noted some paragraphs of the widow’s affidavit and that of her counsel contained impeachment of the High Court record regarding the trial court judge’s refusal to allow the advocate’s participation in the hearing of the matter before it including various prayers he made.

“The contention that certain submission by the applicant’s advocate was not reflected in the court record is a serious issue which tends to impeach the record but it is not supported by evidence,” the justices said.

According to them, it should be noted that in the court jurisdiction, it is a settled law that the record is presumed to present accurately what actually transpired in court and as such it should not be lightly impeached.

On top of that, the justices noted some paragraphs of the applicant’s affidavit and that of her counsel contained arguments and negativity on the court record and there were also opinions, sentiments and feelings as well as assumptions and conclusions.

Particularly, they observed, the applicant was shocked to learn in the High Court’s judgment that the deceased who died in her hands was said to have suffered from stroke and his mind impaired.

“Indeed, there are arguments, impeachment of court record, feelings or assumptions of the deponent, opinions and conclusions which are extraneous matters not allowed to be in the affidavit. It is well settled that affidavits are to be confined in facts and be free from extraneous matters,” the justices said.

Following such defects, they expunged all the offending paragraphs of the affidavits of the applicant and her counsel. Since the offensive paragraphs were the ones which carry the weight of the application, the justices found that the remaining paragraphs could not support the application.

There was another argument that the application was incompetent for being supported by an affidavit with defective verification clauses.

The purpose of verification in the affidavit is basically to enable the court to know which facts can be said to be proved on the affidavit evidence and those which may be true from information received from other persons or allegations based on records.

Looking at the affidavits of the two deponents, the justices noted that it was clearly shown that some averments were based on information obtained from other persons.

Furthermore, they said, it was an undisputed fact that in the verification clauses of the respective affidavits the deponents have not disclosed the sources of information as both have indicated that it is according to personal knowledge of the deponents.

The justices referred to some decided cases which indicate that in order for an affidavit to be valid it must show which information is true of the deponent’s own knowledge and which is based on information or belief and that has to be stated in the verification clause.

“Failure to do so, therefore, renders the verification clauses of the affidavits defective. The effect of the defective verification clauses is to render the application incompetent,” they said.

In the application, the widow had sought for an order setting aside the High Court’s order nullifying the last Will and Testament of the deceased dated August 17, 2017 and instead make a declaratory order that the Will is legally valid.

She also sought for order setting aside the respondent’s appointment as administrators of deceased’s estates, instead make an order appointing Benson Mengi, William Mushi, Zoeb Hassuji and Sylvia Mushi or with the applicant or the applicant alone as executor(s) of the Will or administrator(s) of the estate.