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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY) AT MOROGORO PC PROBATE APPEAL NO. 16617 OF 2024 {Arising from the decision of Uianga District Court at Mahenge, Hon. Masimbi, M. SRM, Civil Revision No. 4318 of2024 dated 1(P^ June 2024; Originating from Probate Cause No. 2 of2023 before Lupiro Primary Court at Lupiro) CASTER ISAACK KOMBA(As Administratix of the late ISAACK JOSEPH KOMBA) APPELLANT VERSUS MONICA GINDE MUYOMBE RESPONDENT RULING 11/09/2024 KINYAKA, J.: Before this Court, the appellant, Caster Isaack Komba appealed against the decision of the District Court of Uianga at Uianga hereinafter, the "District Court" in Civil Revision No. 4318 of 2024 for reopening Probate Cause No. 2 of 2023 that was formerly closed by the Primary Court of Lupiro at Lupiro hereinafter, the "the probate court". The appellant was further aggrieved by the decision of the first appellate court to order for fresh collection of the deceased properties and distribute the same to the beneficiaries before the probate court. The appellant's grounds of appeal are as reproduced below: 1. That the first appellate court erred in facts and law in holding that Probate Cause No. 2 of 2023 before Lupiro Primary Court was incorrectly closed without solving the objection by the respondent while the said objection was properly heard and decided by the trial court Magistrate; 2. That, the first appellate court erred in facts by not considering that the trial court provided the parties with more time to convene family meetings and resolve issues raised in the said objection but it was the respondent herein who stalled the process by not attending those family meetings and her objection before the trial court was not supported by any valuable evidence; and 3. That, the first appellate court erred in revising and open the closed Probate Cause No. 2 of 2023 without considering that the Administratix had already performed her duties of administering the said estate by identifying, collecting and distributing the properties of the deceased to his legal heirs and properly filed Form No. V and VI as required by the governing law. The respondent lodged her reply to the petition of appeal on 26^ July 2024 protesting the appeal. Her reply to the petition of appeal was 4^ accompanied by a notice of preliminary objection to the effect that; the appeal is incompetent since the appellant lacks mandate to appeal under that capacity of adminlstratix of the estate. At the hearing, the parties appeared In person unrepresented. However, they prayed to dispose of the matter by written submissions. In her written submissions in support of the preliminary objection which were drawn by Mr. Kassian Karsian Matungura, learned advocate, the respondent contended that the appellant became legally non-existent with effect from the date the Probate Cause No. 2 of 2023 was closed by the probate court on 20^^ October 2023. Relying on the decision in case of Andrew C. Mfuko v. George C. Mfuko(An Administrator of the Estate of the late Clement N. Mfuko) which she did not provide its citation, she submitted that the closure relinquished the administratix from suing or be sued in such capacity as she lacked legal mandate to sue or be sued under that capacity. The appellant did not file her written submissions as she was not served with the respondent's submissions in support of the preliminary objection. On 11^'' September 2024 when parties were summoned, the appellant prayed to respond to the preliminary objection orally. The prayer was not objected to by the respondent. On taking the floor, the appellant prayed to the Court to overrule the preliminary objection for being unjustifiable. She submitted that she lodged the appeal after the decision of the District Court delivered on June 2024 which reopened the Probate Cause No. 02 of 2023 for two months after it was closed on 20^^ October 2023 and restored her administratix position in order to collect the properties of the late Isaack Joseph Komba and distribute the same to the beneficiaries. She argued that she was dissatisfied with decision that led her to appeal in her administratix capacity. She added that it was proper for her to appeal in her capacity as administratix of the estate of her late father as the respondent lodged a revision to the District Court against the decision of the Primary Court in which she was the administratix. He urged the Court to overrule the respondent's preliminary objection in order to serve time, costs and to uphold justice. In her rejoinder, the respondent submitted that the appellant was not restored into her administratix capacity but the District Court ordered the appellant to collect and distribute the estate of her late husband. She prayed for the Court to sustain her preliminary objection as the appellant is no longer the administratix of the estate. On closure of the parties' submissions, I now turn to determine whether the appeal is incompetent on account of the appellant's lodging the same in the capacity of administratix of the estate of the late Isaack Joseph Komba. In answering the issue, I find it imperative to reproduce the extract of the order of the probate court on the 6^^ page of the decision where it was held: "Mahakama hii tumejihdhisha kuwa msimamizi wa mirathi ametenda haki kwa kugawa mail za marehemu kama inavyotakiwa chini ya aya ya 10 ya jedwaU ya V la sheria ya Mahakama za Mahakimu Sura ya 11 marejeo ya 2019. Hivyo basi mirathi hii inafungwa baada ya Mahakama kujiridhisha ya kuwa maiizimegawanywa kwa warithi chin!ya aya ya 11 yajedwaii ia V ia sheria ya Mahakama za Mahakimu, Sura ya 11 marejeo ya 2019. It is clear from the above extract of the decision of the probate court that upon discharging her duties in accordance with the law, the respondent was relinquished of her status as the adminstratix of the estate of the late Isaack Joseph Komba following the probate court's order of closing the probate cause before it. Undisputedly, the order also meant that the appellant's capacity to sue and be sued on behalf of the deceased was also relinquished as it was the holding of the Court of Appeal in the case of Andrew C. Mfuko V. George C Mfuko, Civil Appeal No. 320 of 2021 [2022] TZCA 741 (24 November 2022) on page 5 where the Court stated that: "...there is no dispute that the order ofthe High Courtin Probate Cause dosed the matter with the resuit 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 actasan administrator regardless of the fact that the order dosing the Probate Cause may have been erroneous..." Even by assuming that the closure of the probate cause had no effect on the appellant's capacity to sue on behalf of the deceased, still it could not have been proper for her to vary the name at the appellate stage without first seeking leave of the court to rectify the same considering that in Civil Revision No. 4318 of 2024, the appellant was sued in her individual capacity. In my view, for the purpose of keeping proper records of the courts and execution of the courts' decrees, the names should always remain intact as they were at the subordinate court, which in this case, the District Court where the present appeal emanated. I say so being aware of the settled principle that the issue of names of the parties to a suit is central to their identification and that the parties to an appeal or revision must appear as registered in the original suit. See the case of CRDB Bank Pic Ltd vs George Mathew Kiiindu, Civil Appeal No. 110 of 2017[2020] T7CA 361(23 July 2020) where the Court of Appeal on page II instructively held: "IVe wish to emphasize that the issue ofnames ofparties to the case is centrai for their identification. The right ofappeai is for the parties who have been involved in the original suit and not any other person. This was also the position in the cases of Attorney General v. Maalim Kadau & 16 Others[1997]TLR 69 and Jaluma General Supplies Ltd v. Stanblc Bank(T) Ltd, Civil Appeai No. 34 of 2010 (unreported) and Inter - Consult Limited(supra). However, having taken a closer look at the appellant's petition of appeal in which the appellant is complaining of his reinstatement as the administratix of the estate of the deceased, I am of an increasing view that her insertion 7 of the words "suing as the administratix of the estate of the late Isaack Joseph Komba" In her title in the petition of appeal was a mere slip of the pen which can be cured by invoking the overriding objective principle under sections 3A and 3B of the Civil Procedure Code Cap. 33 R.E. 2019 that insists on dispensation of substantive justice instead of upholding technicalities. I have not found any miscarriage of justice to the respondent occasioned by the appellant's appealing in her administratix position. This is especially in the circumstance of this matter where the District Court restored the appellant's administratix position in order to collect and distribute the deceased's estate to the beneficiaries. As such, I strongly believe that given the circumstances of the present matter, justice requires that the appeal be heard on its merits. Based on the above observation, I agree with the respondent that the appellant wrongly registered her appeal whose title indicates her suing as the adminstratix of the estate of the deceased. However, contrary to the respondent's reasoning that the omission renders the present appeal incompetent for the appellant's lack of focus standito sue on that capacity, I hold that the omission does not occasion miscarriage of justice to the respondent and can be rectified to avoid protracted litigation and unnecessary costs. That said, for the purpose of maintaining proper court records, I partly sustain the preliminary objection that it was incorrect for the appellant to prefer her appeal in her capacity as an administratix of the estate of her late father. However, I grant the appellant leave to rectify the title in the petition of appeal by removing the words "suing as the adminstratix of the estate of the late Isaack Jacob Komba". I order that the proceedings in this appeal shall be between Caster Isaack Komba and Monica Ginde Muyombe. Due to probate nature of the matter, I do not make an order as to costs. It is so ordered. DATED at MOROGORO this day of September 2024. H. A. KINXAKA JUDGE 11/09/2024 -$?ogobo'