ahmad daud nyabu vs rehema john lyimo 2023 tzhc 19509 31 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY) AT MOROGORO MISC. CIVIL APPLICATION NO. 16 OF 2023 (Application for Leave to Appeal to the Court ofAppeal of Tanzania against the ruling of the High Court of Tanzania (Morogoro Sub-Registry) delivered by Hon. Justice G.P. Maiata, J., in Probate Appeal No. 1 of2023 dated 21/02/2023) AHMAD DAUD NYABU (Administrator of the Estate of the Late DAUD MATHEW NYABU) .....APPLICANT VERSUS REHEMA JOHN LYIMO (Administratrix of the Estate of the Late JAMILA DAUD NYABU) RESPONDENT RULING IS^^&ai^JuIy, 2023 CHABA, J. Before me is an application for leave to appeal to the Court of Appeal of Tanzania (the CAT). The applicant, AHMAD DAUD NYABU (Suing as an Administrator of the Estate of the Late DAUD MATHEW NYABU) has filed the present application under section 5 (1)(c) of the Appellate Jurisdiction Act, [Cap. 141 R. E, 2002], now [R. E, 2019] and any other enabling provision of the law seeking leave to appeal to the CAT. In essence, the applicant intends to appeal to the CAT against the decision of this Court (Malata, J.) (the impugned ruling) in Probate Appeal No. 1 of 2023 which was delivered by this Court on day of February, 2023. According to the Court records, the preliminary objection raised by the respondent herein was accordingly upheld and the appeal preferred by the applicant herein was dismissed with costs. In addition, the applicant further seeks for costs be provided and any other relief this Court may deem just to grant to meet the end of justice. The Chamber Summons / Application is supported by the affidavit sworn by Mr. Bartolomew Lewanga Tarimo, the learned advocate for the applicant. Briefly, the reason for the application according to the affidavit are that, the applicant being dissatisfied with the ruling and order of this Court in Probate Appeal No. 1 of 2023 dated 21/02/2023 preferred the instant application seeking leave to appeal to the CAT against the said decision. Mr. Tarimo, deposed that intervention by the CAT is necessary to take a fresh look at the legal principles and interpretations to ascertain whether or not this Court applied or misapplied such principles in concluding that, Probate Cause No. 3 of 1985 was legally closed on 17/01/2023 by the District Court of Morogoro, at Morogoro on 17^^ January, 2023 and proceeded to dismiss Probate Appeal No. 1 of 2023 on 21^ February, 2023. The respondent on the other hand, vehemently resisted affidavit by filing a counter affidavit on June, 2023 deponed by the respondent herself. During the hearing of the application, the applicant was represented by Mr. B. Tarimo, learned advocate whereas the respondent was represented by Mr. Mkilya Daudi, also learned advocate. With the parties' consensus, the application was argued and disposed of by way of written submissions and parties adhered to the Court's scheduled order. Arguing in support of the application, Mr. Tarimo submitted that this application is fit to be brought before the CAT as its intervention is necessary to enable the Apex Court to take a fresh look at the legal principles and interpretations to see whether the District Court and this Court applied or misapplied the same, including section 107 of the Probate and Administration of Estate Act, [CAP. 352, R. E, 2019] read together with Rule 106 and 107 of GN No. 369 of 1963 referred to at page 2 of the typed Ruling of this Court that dismissed the Probate Appeal No. 1 of 2023. On the other hand, the learned advocate for the respondent, Mr. Mkilya Daudi strongly submitted that there Is nothing to be interpreted by the CAT in respect of the provisions of the law applied by this Court in Probate Appeal No. 1 of 2023 and the trial District Court. Mr. Mkilya submitted further that, this Court correctly interpretated and applied section 107 of the Probate and Administration of Estate Act, [CAP. 352, R. E, 2019] read together with Rules 106 and 107 of GN No. 369 of 1963 in respect of the Probate Appeal No. 1 of 2023. To backup and strengthen his contention, Mr. Mkilya referred this Court to the decision of the Court of Appeal of Tanzania in Andrew C. Mfuko (suing in person and as an Administrator of the Estate of the Late Anna C. Mfuko) vs. Grace C. Mfuko (An Administrator of the Estate of the Late Clement N. Mfuko), Civil Appeal No. 320 of 2021, CAT - DSM,(unreported) where the Court observed that: - "....On our part, having heard the advocates'submissions to the questions we posed, there is no dispute that the order of the High Court in Probate Cause dosed the matter with the result that the respondent ceased to be an administrator. Having vacated office as an administrator, he could not sue or be sued in that capacity. Apparently, both learned advocates agree that it was wrong for the appellant to have sued the respondent in his capacity as an administrator. That means the suit was instituted against a person who had no capacity to act as an administrator regardless of the fact that the order dosing the Probate Cause may have been erroneous. T Mr. Mkilya went on submitting that, as this Court found that the respondent legally filed the Inventory and statements of accounts before the trial District Court without being opposed, then the applicant's application is devoid of merits. Mr. Tarimo had nothing to add in rejoinder, but mostly retaliated what he submitted in chief and escaped to submit on the underpinning principles established in Mfuko's case. He insisted that, section 107 of the Probate and Administration of Estate Act, [CAR 352, R. E, 2019] read together with Rules 106 and 107 of GN No. 369 of 1963 should be interpreted by the CAT. Having anxiously considered the rival submissions advanced by both parties, I now turn to determine the merit or otherwise of this application. Before me, the main issue for consideration, determination and decision thereon is whether or not this Court and the District Court of Morogoro, at Morogoro correctly applied or misapplied the legal principle and interpretation of the provision of section 107 of the Probate and Administration of Estate Act (supra) and Rules 106 and 107 of the GN No. 369 of 1963, as to warrant intervention by the Court of Appeal of Tanzania. Having perused the applicant's submission and carefully gone through the rival arguments put forward by the learned advocates, I have found that there is nowhere disclosing that the complained provisions of the law were misapplied and resulted to misinterpretation of the above provisions of the law to warrant this Court grant the orders sought by the applicant. Upon scanning both the affidavit deposed by the learned advocate, Mr. Tarimo and the impugned decision, I am forced to hold that the applicant failed to show whether under section 107 and rule 106, the respondent's case at the trial District Court was not marked legally closed. As there in no confusion under section 107 of the Probate and Administration of Estate Act, [CAP. 352, R. E, 2019] and Rule 106 of the GN No. 369 of 1963 Probate and Administration of Estates Act (supra) in my considered view, nothing needs intervention and interpretation by the Court of Appeal of Tanzania. Rule 106 of the GN. No. 369 of 1963 states that, an inventory required to be exhibited by an executor or an administrator under section 107 of the Act shall be in Form 80 set out in the First Schedule, whereas section 107 of the Probate and Administration of Estate Act (supra) provides that, an account of the estate required to be exhibited by an executor or an administrator under section 107 of the Act shall be in Form 81 set out in the First Schedule and shall contain a statement showing in what proportion and to whom the residue is proposed to be paid. Having so said and done, it is my finding that this application is wanting. Consequently, it is hereby dismissed with costs. Order accordingly. DATED at MOROGORO this 31^ day of July, 2023. M. J. CM BA JUDGE 31/07/2023 Court: Ruling delivered under my hand and the Seal of the Court In Chamber's this 31^ day of July, 2023 in the presence of Ms. Sophia Omary, Learned Counsel holding briefs for Mr. B. Tarimo, Learned Counsel for the Applicant and Mr. Daudi Mkiiya, also Learned Counsel for the Respondent. E. A. LUKUMAY AG. DEPUTY REGISTRAR 31/07/2023 Court: Right to Appeal to the parties fully explained, E. A. LUKUMAY V\\GH fd . DEPUTY REGISTRAR ■r\ r- 31/07/2023 a; Page 8 of 8