DICKSON

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA (PC) CIVIL APPEAL NO. 2554 OF 2023 (Arising from Civil Appeal No. 24 of2023 District Court of Bukoba, (PC) Civil Appeal No. 01 of2023 High Court of Tanzania at Bukoba, originating from Probate Cause No. 6 of2021 Kishanje Primary Court) DICKSON RWEGASIRA KAHABUKA (Administrator of the estate Of the late ANTHONY JOSEPH)........................................... APPELLANT VERSUS JONESTA BABINGANYA.................................................. RESPONDENT JUDGMENT 24/10/2024 & 06/11/2024 KIWONDE, J. In this appeal, the appellant, Dickson Rwegasira Kahabuka, as administrator of the estate of the late Anthony Joseph, being dissatisfied with the decision of the first appellate court delivered on 10th October 2023, has preferred an appeal to this court based on four (4) grounds of appeal namely: 1 i. That the learned Magistrate immensely erred in law by proceeding with hearing of an appeal without jurisdiction on the matters and ruling dated 2nd November 2021 in contravention of the order of the High Court that granted leave for extension of time to appeal against the ruling dated 29th March 2022 by the trial court. ii. That the Honourable Magistrate misdirected herself by even dealing with the matters that were not the subject of the objection against distribution of the deceased property of which its ruling was delivered on 29th March 2022. iii. That further, the learned Magistrate misconceived the application of the law relating to petitioning of the deceased estate by the appellant. iv. That the first appellate court grossly erred in law and in facts by quashing and setting aside the appointment and distribution of the deceased's property without taking into account of the pursuit of the compliance conducted by the appellant. The appellant prayed this court to reverse the order of the District Court, order cost and any other order and reliefs this court deems just to grant. 2 During hearing of the appeal, the appellant was represented by Mr. Lameck John Erasto learned counsel, while the respondent was represented by Mr. Aderick Lunyoro, advocate. In arguing the first ground of appeal, the counsel for the appellant said the learned Magistrate erred in law to entertain the appeal without jurisdiction. The respondent appealed against the ruling of 2/11/2021 instead of the ruling dated 29/03/2022 on a caveat/ objection to the distribution of the deceased estate. According to the counsel, the respondent was granted leave to appeal out of time and availed with 21 days to do so against the ruling dated 29/03/2022. The leave to appeal was allowed by the High Court in (PC) Civil Appeal No. 1 of 2023. He said, the first appellate court, dealt with the appeal and on 10th October 2023, quashed the decision of the trial court and ordered trial de novo. Besides that, the counsel argued that it is a matter of law that the court should not assume jurisdiction but must ensure that it has powers to try the matter before it. He referred this court to the decision in Fanuel Mantiri Ng'unda V. Herman Mantiri Ng'unda [1995] T. L. R 151 3 In reply, Mr. Aderick Lunyoro, advocate, resisted the appeal. He argued that the Magistrate in the first appellate court had jurisdiction to entertain the matter since the High Court had allowed extension of time to appeal out of time. The counsel submitted that nowhere in the decision of the High Court it was shown that extension of time was in respect of the decision of 2/11/2021 or 29/03/2022 as alleged. So, the first ground of appeal lacks merits. From the background of this appeal, the main issue for determination is whether the appeal has merit or otherwise. I have opted to begin my deliberations with the first ground of appeal which touches the jurisdiction of the first appellate court since if it succeeds, it will dispose of the entire appeal. It is apparent from the records that the respondent was discontented with the decision of Kishanje primary court on the objection she raised against the involvement of the personal properties in the distribution of the deceased estate to the lawful heirs. So, she intended to appeal against the ruling dated 29th March 2022. Even the PC Civil Appeal No.l of 2023 before the High Court, Bukoba Sub-Registry (I. K. Banzi, J) which extended time for the respondent to appeal to the District Court out of time, was in respect of the ruling dated 29th March 2022. 4 However, the respondent appealed to the District Court of Bukoba against the ruling dated 2nd November 2021, contrary to the order of the High Court. This was conceded to by Ms. Mastula Ahmed, counsel for the respondent that the respondent mistakenly appealed a different order and wanted to withdraw the appeal. In simple words, there was no appeal at all before the District Court. But the learned Magistrate raised suo motu, the issue of a Will, discussed it and at the end quashed the trial court decision and ordered retrial. Thus, the counsel for the appellant rightly argued that the District Court had no jurisdiction to entertain the matter not properly before it. The first ground of appeal has been merited and it is allowed. This ground alone suffices to dispose the entire appeal and so, I will not determine the rest of the grounds of appeal. To that end, the appeal has been merited and it is hereby allowed. The proceedings of the District Court are nullified and the decision thereto dated 10th October 2023 is hereby quashed and the subsequent order of retrial is set aside. However, since the matter involves the parties with interest in the deceased estate, they are at liberty to pursue their rights according to law. 5 Under the circumstances, I make no order as to cost. Dated at Bukoba this 6th November 2024. F. H. KIWONDE JUDGE 06/11/2024 Court: Judgment is delivered in chamber in the presence of the appellant, the respondents and Grace Mutoka (RMA) this 6th November 2024 and the right of further appeal is explained. 06/11/2024 6