tanzlii zahoro drwn order PC Civil No

IN THE HIGH COURT OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC CIVIL APPEAL NO 40 OF 2023 (Arising from Civil Revision No. 7 of2022 of the District Court of Ilala at Kinyerezi originating from Probate Cause No. 21 of 1981 of Ilala Primary Court) ABDUL RAJABU ZAHORO.............................................. APPELLANT VERSUS RAMADHANI RAJABU ZAHORO........................... ..^RESPONDENT AMANI HASSAN RAJABU ZAHORO...................... 2ndRESPONDENT JUDGMENT Date of last order: 27/06/2024 Date of Judgment: 20/08/2024 OMARI, J. Dissatisfied with a decision of the District Court of Ilala in Revision No. 7 of 2022 the Appellant herein came to this court armed with six grounds of appeal as follows: 1. The honourable district court magistrate errored in law and facts by determining the matter which was complained out of time. 2. That the honourable district magistrate erred in a law and in facts to act suo motto on the complaint lodged in the Primary Court of Ilala by the 1st Page 1 of 10 Respondent through a letter dated 22/09/2022 addressed to the, honourable magistrate in charge of the Primary Court of Ilala and lodged the same in the Primary Court of Ilala without the Appellant being accorded with the right to be heard by the primary court on the complaint lodged against the Appellant. 3. That the honourable district court magistrate erred in law and in facts by setting aside orders and nullifying non-existing orders on record of the primary court. 4. That the honourable district court magistrate erred in law and in facts by determining the complaint against Abdul Rajab Zahoro and Amani Hassan Rajabu without according Amani Hassan Rajabu, the 2nd Respondent opportunity to be heard before the decision taken against him. 5. That the honourable district court magistrate erred in law and in facts by determining the res subJudice matter contrary to the law. 6. That the honourable district magistrate erred in law and in fact by determining the matter without the requisite jurisdiction. When the appeal was called for hearing the Appellant was represented by Gideon Opanda, the 1st Respondent by Egbert Milanzi and the 2nd Respondent by Anendumi Semu all of whom are learned advocates. As the record will depict, the Appellant passed away after he had already submitted Page 2 of 10 his submission, during the hearing of this appeal, no legal representative was brought to court. In what seems like an episode of a bad courtroom drama, the 1st Respondent later disowned his counsel, informing this court that the advocate was no longer under his instruction. Mr. Milanzi also informed this court that the instructions of the 1st Respondent were never properly withdrawn. The Respondent was insistent that he does not have counsel, thus, he filed his submission, therefore, the submission that was filed by counsel should be ignored by this court. Since the 1st Respondent has attended court in person several times and written letters insisting he no longer has counsel and has filed his submission in support of the appeal, I have taken a note that the 1st Respondent supports the appeal. And, whatever skirmish the 1st Respondent has with Mr. Milanzi is outside the purview of this matter. Since all the parties' submission are in the record, I shall not reproduce them here rather I shall refer to them, if need be, as I proceed with this judgment. Together with the other grounds, the Appellant's complaints are centred on the jurisdiction of the District Court of Ilala at Kinyerezi to suo motux&i\se a decision rendered on 20 August, 2020 by the Primary Court of Ilala in Mirathi Case No. 21 of 1981. Page 3 of 10 I start with jurisdiction since as pointed out by both counsel jurisdiction is, what gives a court powers to act, nothing should trump jurisdiction. Proceedings, orders and decisions of a court or tribunal that is not seized with the requisite jurisdiction are null and void. I need not over emphasize this fact for it has been the subject of many decisions Of our highest court. See for example the case of Makwizu Msuko and Others v. R, Criminal Appeal No. 326 of 2007 where the Court of Appeal held that where a court entertains a matter without jurisdiction its proceedings and decision become nullity. To get a glimpse of what transpired, I went through the record and the resultant ruling of the district court which I must insist that the learned magistrate has in the caption of her ruling state that is derived from Mirathi Case No. 21 of 1981 at the Primary Court of Ilala at Ilala, decision of 20 August,2020. In her ruling the learned district magistrate stated that the revision proceedings have been initiated suo motu after calling for records of the trial court: "following an oral complaint on irregularities in the subsequent proceedings and decision made on 20/08/2020." Page 4 of 10 She then gave a detailed background of the administration matter which is Mirathi Case No. 21 of 1981 at the primary court of Ilala. She also gave a detailed time line of events that led to the 20 August,2020 decision which culminated in the revocation of the administrator (Ramadhan Rajab Zahoro) and the appointment of Abdul Rajan Zahoro and Amani Hassan Rajab as administrators of the estate of the late Rajan Zahoro in Mirathi Case No. 21 of 1981. The learned district court magistrate also clearly explained the methodology she chose, after receipt of the complaint the record was called in accordance with section 22 (1) of the Magistrates Courts Act, Cap 11 RE 2019 (the MCA). And, as per section 22 (3) of the MCA, the parties were called and heard. Messrs. Milanzi and Opanda are the advocates who appeared for the parties. Mr. Opanda filed a Preliminary Objection on behalf of his client touching on various issues including that of the jurisdiction of the court to conduct the revision on the basis of being time barred as per section 22 (4) of the MCA. The learned district court magistrate made reference to section 22 (4) of the MCA stating she had the powers to conduct the revision suo motu, she defined what proceedings are and what termination of proceedings entails and went on to observe that since what she was seeking to review are proceedings of a probate matter the same only terminates when the probate Page 5 of 10 is closed. She cited the case of Millicom Tanzania N.V v. Janies Alan, Russel Bell & Others (Civil Revision No. 3 of 2017) [2018] TZCA 355 in which the court stated that it could exercise its revisional jurisdiction suo motu at any time. Then, the learned magistrate went on to state she was seized with the jurisdiction to proceed with the revision suo motu, which she did after determining the other points of the preliminary objection and dismissing them. I shall start with the provision of the law that the district court relied on to shroud itself with the jurisdiction to revise the matter suo motu. Section 22 (1) of the MCA provides as follows: "A district court may call for and examine the record of any proceedings in the primary court established for the district for which it is itself established, and may examine the records and registers thereof, for the purposes ofsatisfying itselfas to the correctness, legality or propriety of any decision or order of tiie primary court, and as to the regularity of any proceedings therein, and may revise any such proceedings." This means, the learned magistrate was seized with the power to call for and examine the record of the primary court. Furthermore, section 22 (4) of the MCA provides as follows: Page 6 of 10 "No proceedings shall be revised under this section after the expiration of twelve months from the termination of such proceedings in the primary court and no proceedings shall be further revised under this section in respect of any matter arising thereon which has previously been the subject of a revisionai order under this section." (Emphasis supplied) From the above, it is evident that revisionai powers are only exercisable within 12 months of the termination of the proceedings that are sought to be revised. To dismiss Mr. Opanda's argument that the matter is time barred; the learned magistrate first stated that the matter being a probate matter that was unclosed the proceedings had not terminated. In addition, she sought guidance from the case of Millicom Tanzania N.V v. James Alan Russel Bell & Others (supra) where in it was stated: "It is dear from all these cases that this Court can exercise revisionai jurisdiction suo motu, at any time which is in line with the manifest intention ofparliament in deciding to vest this Court with supervisory powers over the High Court in order to determine the propriety or oHierwise of the finding, order or any decision of Page 7 of 10 the High Court regardless of proceedings being . finalized by the High Court." The above observation of the Court of Appeal is as regards its powers to revise proceedings of the High Court powers that it obtains from the Appellate Jurisdiction Act, Cap 141 which the Court explained the essence of from page 26 to page 33 of its decision. It is after the analysis and explanation of the essence of the Court's powers to revise proceedings of the High Court suo motu that it went on to articulate the above quoted statement that the learned magistrate relied on. The nuance of the powers of the Court of Appeal and those of the district court to revise proceedings cannot be starker. The MCA limits time for revision to be before the expiration of 12 months while section 4(3) of the Appellate Jurisdiction Act has not incorporated such a time limit. The learned magistrate was of the view that even if there were a 12 months time limitation, the probate matter she was seeking to revise was not closed and thus not subject to time limitation for its proceedings had not terminated. In my view this notion needs unpacking; it would be a correct notion if the magistrate was revising the whole of the probate matter. To the Page 8 of 10 contrary she was seeking to revise the decision or the trial court, which was made on 20 August, 2020 and this is what the ruling also states. The said decision cannot be said not to be in excess of 12 months up to the date of the suo motu which I beg to differ with the learned magistrate in that she is not clothed with the same powers as those of the Court of Appeal in so far as being able to exercise revisional powers at any time. Thus, I find that the Appellant does have a point in that the district court did not have the jurisdiction to act in the manner it did. Moreover, looking at the record one also wonders if the district court was clothed with the jurisdiction to determine a matter emanating from a probate matter at the time it did, since the said revision was initiated at a time when the Judicature and Application of Laws (One-Stop Judicial Centre of Temeke) (Establishment) Order, 2021 Government Notice 640 of 2021 published on 27 August, 2021 was already promulgated. However, I am going to leave this discussion for another day and time. Having discussed as above, I find that the district court had no jurisdiction I to revise the proceedings and decision of the trial court made on the decision of the trial court, which was made on 20 August, 2020 as regards Mirathi Case No. 21 of 1981. Therefore, I find it futile to discuss the rest of the grounds of appeal for it would be rather painstakingly vain. Page 9 of 10 Consequently, I quash and set aside the Ruling and orders of the district. court in Revision No. 7 of 2022. This matter being one that originates from an administration matter involving close relatives, I make no orders as to costs. It is so ordered. A.A. OMARI JUDGE 20/08/2024 Judgment delivered and dated 20th day of August, 2024. A.A. OMARI JUDGE 20/08/2024 Page 10 of 10