Elina Muchuluza v Audax Paul Nkongo

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT BUKOBA PC CIVIL APPEAL NO. 000020756 OF 2025 ELINA MUCHULUZA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS AUDAX PAUL NKONGO .............................. RESPONDENT / DEFENDANT JUDGMENT KIWONDE, J The appellant, Elina Muchuluza, applied for revision so that the District Court could satisfy itself as to correctness, legality, propriety and legality of the proceedings of the trial primary court in Probate and Administration Cause No. 05 of 2024, Muhutwe Primary Court. She gave reason that she had interest in the land the respondent administered and there was a dispute over the subject matter before the District Land and Housing Tribunal. The application for revision was refused (D. P. Nyamkerya, PRM), hence, this appeal based on four (4) grounds of appeal as follows: 1) That the lower court erred in law and fact for holding that the facts contained in the appellant’s affidavit that she went to Muhutwe primary court to make a follow-up of the matter only to be informed by the trial magistrate that the court’s file has already been closed was supposed to be reflected in the trial court’s proceedings. 2) That the lower court erred in law and fact for holding that the appellant was supposed to appeal against the trial magistrate’s decision of not re-opening the already closed probate matter instead of lodging revision proceedings before it. 3) That the lower Page. 1 court erred in law and fact for holding that the grounds advanced by the appellant in her application are appeal-based grounds which do not suit in revision application. 4) That the lower court erred in law and fact for holding that the probate court had power to order re- opening of its own closed probate. The appellant, therefore, urged this court to allow the appeal with cost, quash the decision of the District Court, order the closed probate cause at Muhutwe Primary court be re-opened and give any other and further reliefs it deems proper to grant. During hearing of this appeal, the appellant was represented by Gildon Mambo, learned counsel, while, the respondent appeared in person. Briefly, the counsel for the appellant argued the first ground of appeal that the appellant had interest in the land which the respondent administered and there was a dispute in the land tribunal. But the respondent went to the primary court sitting at Muhutwe, filed probate cause, distributed the property including the one in dispute without her being aware of it. When she went to the primary court, she was informed by the magistrate that the probate proceedings had been closed. So, the counsel said this information could not be reflected in the primary court records as alleged by the District Court. Besides that, the counsel submitted that the only option was to file revision in Muleba District Court for re-opening of the closed file and the appellant could be heard about her complaint. He said once the probate cause is closed, the primary court becomes functus officio, so, it could not do anything in that file, he cited Miraji Salim Nyangasa Versus Ramadhani Omary Sewando (Administrator of the estate of the late Hussein Omary Sewando)(Civil Appeal No. 686 of 2023) Court of Appeal of Tanzania at Morogoro. The counsel for the appellant consolidated and argued together the second and third grounds of appeal. He argued that the lower court erred in law and fact to hold that the appellant was supposed to appeal against the decision or order in the closed probate matter and that the grounds in the application were appeal grounds and not grounds for revision. But there was no possibility of appealing because the order was not there in writing as the file had been closed and she was not a party to the case. Also, he submitted that there are no grounds specified in law for appeal and revision. They can be used interchangeably Page. 2 depending on the remedy available in the particular case. Finally, in the fourth ground of appeal, the counsel argued that the lower court erred in law and fact to hold that the probate court had powers to re-open its closed probate cause. He added that the respondent had explained that the estate he asked to administer had a dispute as to ownership. Therefore, the appellant had to be heard on the aspect to challenge inventory. He prayed the appeal be allowed and this court grant reliefs sought. In reply, the respondent opposed the appeal. He argued that the District Court refused application for revision because in probate causes, it is a process, all procedures were followed, citation was issued, but the appellant did not appear to court to oppose. He was appointed administrator of the decease estate, distributed the deceased properties to the beneficiaries or heirs. As to the said land dispute, the respondent admitted that the appellant has a dispute over it but the heirs have not. The respondent said the appellant appealed out of time because he had finished administration of the deceased estate because she claimed after the lapse of two years. In addition to that, the respondent argued that the appellant knew the inventory for everything was transparent. Her other relatives were there in court at the filing of inventory and closing the probate cause, but the appellant was not there. He prayed the appeal be dismissed for want of merit. The counsel for the appellant had no rejoinder submissions. Having read the lower court records, petition of appeal and considered the oral submissions by the counsel and the respondent, the major issue for determination is whether this appeal has merit or otherwise. It can be certainly gleaned from the records and oral submissions that the appellant does not object the appointment of the respondent as administrator of the deceased estate. Rather, the appellant challenges the act of the respondent distributing to the heirs the land which she has an interest in it and there was dispute over ownership filed before the land dispute body. Also, the appellant faults the order of the primary court closing the probate cause file while some interested parties including her, were not availed the right to inspect the inventory. I have gone through the primary court proceedings where the respondent and his witnesses clearly informed the probate court that the deceased, Augenia Page. 3 Damian left two farms which the appellant Elina Muchuluza had dispute over ownership. So, the respondent, knowingly, distributed the property to the beneficiaries without resolving the dispute over the said farms as to ownership. Moreover, the court was notified of the existence of the said dispute, yet, closed the probate file upon the respondent filling what he purported to be inventory. In law, the probate proceedings are closed only if the probate court is fully satisfied that no heir, beneficiary or creditor opposes the inventory. This was a position in Beatrice Brighton Kamanga and another Versus Ziada William Kamanga (Civil Revision 13 of 2020) [2020] TZHC 1428 (10th July, 2020) TanzLII, where it was stated among other things that the administrator after filing the inventory and statement of accounts, the court has to let them be available for inspection by the heirs, debtors, interested parties and or creditors who can file objections if they so wish. If there is no any objection, the distribution done by the administrator is final and conclusive. But if there is any objection, the court will be at liberty to return the documents to the administrator (s) for rectification. In the appeal at hand, the respondent has admitted that at the closure of the probate cause at Muhutwe primary court, the appellant was not there. She came to know about it in the later times when the local area leaders went to hand over the land to the respondent while she knew the dispute over the property had not been determined. Therefore, it is apparent that the probate matter was closed without the interested parties being aware and being afforded opportunity to inspect the inventory. This was a misdirection of the law. Furthermore, in law, a person who was not party to the proceedings before the lower court cannot appeal against the decision of order but the remedy available is to apply for revision. This position of the law is backed up by the decision in The Registered Trustees of SOS Children’s Villages Tanzania Versus Igenge Charles and 9 others (Civil Application No.426 of 2018) [2022] TZCA 428 (14th July, 2022) TanzLII and that of Miraji Salim Nyangasa Versus Ramadhani Omary Sewando (Administaror of the estate of the late Hussein Omary Sewando))(Civil Appeal No. 686 of 2023) [2024] TZCA 895 (17th September, 2024) TanzLII, referred to the counsel for the appellant. For that matter, the Page. 4 District Court had to base its decision on the correctness, legality, propriety or else of the complained of primary court proceedings. Likewise, the primary court once closed the probate proceedings, it became functus officio. However, in law, re-opening of proceedings is generally precluded unless there are compelling and exceptional circumstances. In this matter, the primary court magistrate merely told the appellant that the case filed had been closed, which entails that it was refused to re-open the same to hear the complaint of the appellant. Therefore, the appellant had no other alternative than to apply for revision to set aside the order closed probate proceedings for her to get chance to be heard on the ownership of the land in dispute. In Mgeni Seif Versus Mohamed Yahya Khalfan (Civil Application No. 1 of 2009) [2017] TZCA 258 (29th June, 2017) TanzLII, it was stated that where there is a dispute over the deceased estate, it is the probate court which can decide on the ownership. It is my firm view that the first, second, third and fourth grounds of appeal are merited. In the upshot, the appeal is merited and it is hereby allowed. The decision of the District Court is quashed; subsequent orders are set aside. The order of Muhuitwe Primary Court which closed Probate and Administration Cause No. 05 of 2024 dated 29th October, 2024 is hereby set aside. It is ordered that the proceedings be re-opened so that the appellant can inspect the inventory and be heard on the ownership of the land alleged to belong to the deceased Augenia Damian. Given the circumstances of the matter, each party to bear won cost. Order accordingly. Dated at BUKOBA this 28th of August 2026 . F. H KIWONDE JUDGE OF THE HIGH COURT Page. 5