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IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 7411 OF 2024 (Originating from Probate an Administration cause No. 966 of2022 in Temeke District Court at One Stop Judicial Centre) AIDAN EZEKIEL NGUVAGULU.......................................... APPELLANT VERSUS MWITA WARIOBA DAVID (As the Executor of the estate of the late Mirengeli Hassan Mahawa).............. ..................... ......1st RESPONDENT LUCIANA JOHN MAHAWA (As the Executor of the estate of the late Mirengeli Hassan Mahawa)............................................. 2nd RESPOND ENT JUDGMENT Date of last order: 05/11/2024 Date of Judgment: 19/12/2024 OMARI, J. The Appellant, Aidan Ezekiel Nguvagulu being aggrieved by the decision of the District Court of Temeke at (OSJC) in Probate and Administration Cause 966/2022 came to this court armed with 8 grounds to wit: 1. That, the learned trial Magistrate erred in law and fact by appo nting the respondents herein as the estate of the late Mirengeli Hassan Mahawa while was no Will tendered in court to that effect. 2. The learned trial magistrate erred in law and in facts by basir g his findings on a will which is known to himself. 3. That, the learned trial magistrate erred in law and in facts by basing his decision on 9 Will which was neither shown nor read to the p arties herein after the same was alleged to have been sent to the court by the Chief Commander of 401 KV ADM COY Battalion upon a court request which the parties no (sic) nothing about. 4. That, the learned trial magistrate erred in law and in facts by stood (sic) on the parties' shoes and ordered Chief Commander of 401 KV ADM Coy Battalion to scan and sent (sic) a soft copy of the purported deceased will to the court directly without parties request and acted up it, the act of which is against the rules of impartiality. 5. That the learned trial magistrate erred in law and in facts for acting upon documents such as purported letters of the deceased which was never tendered in court and the parties are not aware of it or testified on them during hearing of the case ((sic)). 6. That the learned trial magistrate erred in law and in facts for Lasing his ruling on exhibits which did not follow proper procedure for them to form part and parcel of the court's records. 7. That, the learned trial magistrate erred in law and in facts for failure to evaluate the parties' evidence, which clearly shows that the purported will claim by the Respondents here in did not exist and that is why the failed to tender it before the Court. 8. That the learned trial magistrate erred in law and in facts for not considering the Appellants evidence hence reached to erroneous decision. Based on the above grounds that the Appellant is seek! ig for inter alia the appeal to be allowed, that the court appoints h!m as admin of the deceased estates. Based on the above, the Appellant is seeking inter alia that the appeal be allowed and that the court appoint him as the administrator of the deceased's estate. The Respondents Mwita Warioba David and Luciana John Mahawa contested the appeal seeking for it to be dismissed for want of merit. The Appeal was heard in writing. Mr. Ambroce Menance Nkwera drew and failed the Appellant's submission while Mr. Tesiel Augustino Kikoti drew and filed the Respondents' submission. On the first ground of appeal, Mr. Mkwera argued that for a court to grant probate there must be a Will as per Rule 33(l)(a) of the Probate Rules, 1963 (the Rules). He contended that none was produced in the trial court nor was the alleged custodian of the purported Will called in to tender it or test fy on the same. Yet, the trial court granted probate to the Respondents. Counsel cited the case of Tabu Ramadhani Mataka v. Fauziya Haruni Saidi Mgaya, Probate and Administration Cause No. 15 of 2017 [2023] TZHC 15631 insisting that it was wrong to grant probate yet there is no Will. Mr. Nkwera consolidated and argued together the second, third, fifth and sixth grounds of appeal stating that by requesting and securing the purported Will without affording the parties the opportunity to see and or challenge the same violated the rules of procedure regarding exhibits. He argued that since the trial magistrate crafted the Ruling basing on the purported Will all of which contrives Rule 59 (3), 52 (a) (b) and 82(6) of the Rules and as per the cited cases of Raymond Calvin Maimu and two Others v. Narindwa Calvin Maimu, Civil Appeal No. 2 of 2021 [2022] TZHC 12143, Joyce Raphael Bisaya v. Eiya Raphael Bisaya and Another Civil Case No. 2 of 2020 [2022] TZHC 15117 and Robinson Mwanjisi and Three Others v. Republic (Criminal Appeal 154 of 1994) [2001] TZCA 28. He further argued that because the documents were not tendered, they cannot form part of the record thus, cannot be relied on as was held in the case of Ishfaque Shabir Yusufali v. Salim Lakhani & Others (Civil Application No. 521/01 of 2022) [2023] TZCA 17786. According to counsel, all of this prejudiced the Appellant's right to a fair hearing. Mr. Nkwera argued the fourth ground of appeal stating that the trial court magistrate was not impartial contrary to the natural justice principle of impartiality and Article 107 (2) (a) of the Constitution of the United Republic of Tanzania. He further submitted that section 110 and 111 of the Evidence Act, Cap 6 RE 2022, and the case of Oliva James Sadatally vs Stembic Bank Tanzania Limited (Civil Appeal 84 of 2019) [2022] TZCA 388 which require that a court rule in favour of those who prove their case yet the Respondents did not, as they failed to produce or tender an original Will which they petitioned probate with nor called the alleged custodian of the Will to tender it or testify on it despite being given the opportunity. He concluded on this ground stating that the magistrate was biased contrary to the cases of Kulwa Makomelo and 2 Others v. The Republic (Criminal Appeal No. 15 of 2014) [2015] TZCA 559 and VIP Engineering and Marketing Ltd and 2 Others v. CitiBank Tanzania Ltd (Consolidated Civil Reference 6 of 2006) [2007] TZCA 165. On the remaining seventh and eighth grounds of appeal Mr. Nkwera submitted that the deceased died intestate as the Appellant had insisted at trial and since no original Will was produced this corroborates the Appellant's contention that no Will exists. He concluded by stating that the irregularities pointed out prejudice the Appellant's rights. Therefore, he prayed fcr the honourable court to allow the appeal and appoint the appellant as the Administrator of the deceased's estate. In reply, Mr. Kikoti went straight to state that the deceased Mirengeli Hassan Mahawa did not die intestate. He explained his reason for the assert on is that the Appellant did not dispute the Will during his defence he just contested the date stating on 27 December, 2021, the deceased was :oo ill to make a Will but provided no proof. Counsel argued that this contravened section 112 of the TEA and the case of Juma Ramadhani Njiku v. Ibrahim Shaban, (Misc. Land Appeal 60 of 2020) [2021] TZHCLandD 6823 He then went on distinguish the case of Tabu Ramadhani Mataka v. Fauziya Haruni Saidi Mgaya (supra) stating it concerns consent of heirs which is not an issue in the present case. Mr. Kikoti explained that in addition to their testimony, the Respondents attached a copy of the Will to the pleadings and the court ordered the Chief Commander of 141 KV ADM COY Battalion to bring the Will to the court. Additionally, the Appellant in his defence stated there was a Will tha: was read by the leader of the Chief Commander of 141 KV ADM COY Battalion to the family in the presence of the Appellant. He explained that the copy of the Will was availed to the Appellant through the Respondent pleadings and the Court ordered the production of the Will which was done thus, the ground lacks merit. On the issue of there being no impartiality on the part of the court, counsel argued the procedures were followed and each party took the party and the decision was reached based on evidence as the respondents were able to prove their case on a balance of probabilities and hence were appointed. On the question of the deceased being too ill to write a Will counsel explained that not every sickness would make a person unable to make a testamentary statement. In this case the deceased made a Will and deposited the same with the Chief Commander of 141 KV ADM COY. He argued that since the Appellant had distanced himself from the deceased during the sickness, he did not have knowledge of this. He concluded that the Appellant was not a proper person to administer the estate and prayed that the decision of the trial court be upheld. In his rejoinder, Mr. Nkwera started with an argument that the Appellart had disputed the existence of the Will as that was the reason for the Cavea t. He went on to reiterate his submission that be trial court was wrong to base its decision on the alleged Will without it being tendered into evidence and according to the parties' opportunity to argue on it. Having gone through the counsel's submission for and against this appeal, there is only one issue for the determination of this court; that is whether the appeal has merit and if so what would be the way forward. In doing so, I am also mindful of the fact that this being the first appellate court, is charged with the role of going into the record and evidence to see whether the same was analysed and applied properly. As such, I went through the record of Probate and Administration Cause No. 966 of 2022. The Respondents herein petitioned for the appointment of an administrator of the estate of the late Miringeli Hassan Mahawa The Appellant herein lodged a Caveat against the appointment. The record further depicts that on 28 November, 2022 the court granted the Petitioners' prayer to amend the Petition as the deceased left a Will sc they were seeking to bring the same to court. As ordered a Petition for probate was filed and in paragraph 8 it stated that there is a Will that is annexed to the Petition as annexure ML3. The said Petition was verified by one Hawa Juma Saiye, one of the witnesses to the Will. It is also in the record that the matter was heard and the three issues that were framed on 14 March, 2023 include whether the deceased left a Will and if so whether the said Will is valid and lastly who should be appointed the administrator of the estate. Hearing of the matter concluded on 06 June, 2023 and on the same day the trial magistrate fixed the case for judgment on 29 August, 2023 at 09:30 Hours. The record further depicts that on 22 August, 2022 the trial magistrate made an order for the Will that was read at the funeral to be produced electronically (a scanned copy) cautioning that the judgment was to be delivered on 29 August, 2023 at 09:30 Hours. This is what the Appellant is calling unprocedural. I have gone through the parties' testimonies as can be seen in the proceedings; while both Respondents mention the alleged Will neither tendered the same to be admitted into evidence nor had any of the other Petitioners' witnesses. I agree with the Appellant's counsel that neither the original nor a ccpy of the said Will was tendered and admitted as evidence. The trial magistrate suo mottu called for the same to be brought (in electronic form) to court. However, there is no record of the said order in the handwritten proceedings and as alluded to by the Appellant the parties were not privy to the order nor were they availed the opportunity to be heard on the same. Mr. Kikoti is discrediting this argument stating the Appellant had an opportunity to see the Will as it is annexed to the Petition. I differ with him, as already stated the Will was not tendered into evidence thus, the Appellant did not get the opportunity to object or even cross examine the Respondents on the same. Likewise, the learned trial magistrate by not affording the parties opportunity to be heard on the alleged Will and the other documents submitted to him by the Chief Commander on his request, also prejudiced the Appellant. In that regard I find the first, the consolidated second, third, fifth and sixth grounds of appeal meritorious. As for the remaining fourth, seventh and eighth grounds of appeal, I have already explained how the hearing was conducted and how the purported Will was presented to the trial court. While one of the issues for determination was whether there was a Will and whether the same was valid or not, in my view this issue was not tested against the evidence The Petitioners' having failed to produce the original Will the trial magistrate exercised powers granted to him under section 60(1) of the Probate and Administration of Estates Act, CAP 352, R.E 2002 but did not accord the parties the right to be part of the said process and or to cross examire the person ordered to produce the Will. To make matters worse the copy that the Petitioners' had was not admitted into evidence. One can assume the trial magistrate realizing that the application was not for a copy of a Will he needed to have an origina Will. However, in obtaining the same (which ended up being a scanned copy) he alienated the parties and by doing so he prejudiced the Appellant. It is on this basis that I also find the remaining grounds of appeal to be meritorious on account of the parties not being afforded the opportunity to test the validity of the purported Will for it was not part of the evidence. Lastly, the Appellant's counsel has prayed that his client be appointed as the Administrator of the late Mirengeli Hassan Mahawa on account of being the procedural irregularities in the trial Court. Whereas I understand counsel's request, I am inclined to desist from granting it. The same procedural irregularities that his client is pivoting on are the same that cause that ask ungrantable for due to the procedural irregularities the court did not properly * determine the first and second issues as framed. Consequently, the appeal is granted only to the extent explained above. For clarity, the decision and order of the District Court of Temeke at One Stop Judicial Centre in Probate and Administration Cause No. 966 of 2C22 is quashed and set aside. The parties if they so wish can file a fresh Petition for grant of letter of administration or grant of probate as the case maybe. This being an appeal emanating from a Probate matter I make no orders as to costs. It is so ordered. Judgment dated and delivered 19th December 2024 in presence of Jackline Makene advocate for the Appellant and Tesiel Kikoti advocate for the Respondents. A.A. OMARI J JUDGE 19/12/2024