20171123 TZHC Mwanza

Page 1 of 6 . r C, IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) ATMWANZA HC CIVIL REVISION NO. 07 OF 2017 (Arising from the decision of the District Court of Nyamagana in Probate Appeal No. 02/2016 as per Hon. Sumaye, GJ<.J GIBSON KABUMBILE .................................... APPLICANT VERSUS ROSE KABUMBILE ................... ~................ RESPONDENT MAIGE, J. JUDGEMENT At the primary court of Mwanza Urban, the respondent petitioned for letters of administration with a will attached in respect of the estate of the late Nestory Rwechungura Kabumbule ("the deceased''). The applicant objected to the grant by way of filing a caveat. It is common ground that: while the applicant is the son of the deceased, the respondent is the widow 1 I' JO 11 Page 2 of 6 I of the deceased. Upon a trial being conducted, the trial court appointed the ',.:·' respondent and Aron s/o Kabumbile, the young brother of the deceased, co- administrators. It was about to constitute Justus Kato Lukaza, the executor of the will but for the reason of his age. The respondent was not pleased with the decision of the trial court constituting the said ARON a co-administrator. She appealed to the first appellate court vide Probate Appeal No. 02 of 2016. She was complaining, in her second ground of appeal that, the appellate court was wrong in constituting the said ARON ·an administrator while he neither petitioned for nor objected to the appointment as such. In his judgment, the learned resident magistrate disqualified the said Aron on account of misconduct. In his own words, the learned resident magistrate has the following to say at page 5 the judgr:nent:- As the 1st appellate court, and in the interest ofJustice, and in reference of the family meeting minutes which clearly explained all the situations, I myself find out that, the co-administration is disqualified to. be a co- administrator of the deceased estates for the ground that, his conduct 2 Page 3 of 6 makes him a person of not trust I therefore allow the 1st ground of appeal. As to what misconduct did the said ARON commit, the learned· magistrate exposes it at page 4 of his judgment wherein the said ARON is condemned for filing a caveat during the hearing of the appeal to the effect that the will admitted into evidence during trial was forged. This issue, it would appear, was raised by the court on its own motion without affording the parties a right to be heard. The ground for disqualification of the said ARON as an administrator, it would appear to me, emanates from a conduct which happened subsequent to the disposal of the petition at the trial court. It was thus neither in. the proceedings nor the decision of the trial court, the subject of the appeal to the District Court. In paragraph· 3 of his affidavit, the applicant faults the first appellate court in delivering a judgment in favour of the respondent basing on the new ground of appeal raised suo moto by the appellate court and gave a dded grounds of appeal. 3 Page 4of 6 , (J In their written submissions in support of the application, Lzone Allied, advocate who represented the applicant, submitted with all forces that; the district court was not entitled to dispose of the appeal on a new ground raised by it suo moto without affording the parties a right to be heard and without addressing other grounds of appeal. There was no useful reply from the respondent who appeared in person on this issue. I have duly examined her written submissions and I have not seen any comment on this point. Without wasting much time, I think the applicant is quite right on this point. The appeal before District Court was not founded on misconduct on the part of the said ARON. Instead, it ·was based on the decision of the trial court. The misconduct raised by the resident magistrate came into being subsequent upon the pronouncement of the judgment of the trial court. For all intents· therefore, it was not part of the judgment and proceedings of the trial court. It could therefore not be addressed within the domain of appeal. For an appeal is an examination of the judgment and proceedings of the lower court and not an extraneous matter that arose subsequent to the pronouncement of the judgment. · Was there any part of the administrator 4 j, Il ,1 r '' Page 5 of 6 \..J subsequent upon appointment, the aggrieved party would have applied for revocation of the grant in terms of Item 2(c) of the Fifth Schedule to the Magistrate Courts Act. For those reasons therefore, I find that the learned resident magistrate did not properly exercise his jurisdiction by disposing of the appeal in extraneous event that happened subsequent to the trial without hearing from the parties. The application is accordingly granted, and the judgment and proceedings of District court revised. As a result, the judgment and proceedings ·of the district court are quashed and set aside without costs. The file is remitted to the district court for redetermination of the appeal before another magistrate. It is so ordered. I.MAIGE JUDGE 5 ,1 r Page 6 of 6 Date: 18/10/2017 Coram: Hon. Maige, J Applicant: Mr. Mtalemwa/Godfrey Respondent: present B/C: M. Said · Judge 23/11/2017 6