Elizabeth Matinde

IN THE HIGH COURT OF TANZANIA

MUSOMA DISTRICT REGISTRY

AT MUSOMA CIVIL REVISION NO. 28012 /2024 REFERENCE NUMBER 202411061000028012 (Arising from Probate Appeal with reference number3622 of2024 at Serengeti District Court, Arising from 25 of2019 at Mugumu Urban primary court) ELIZABETH MATINDE....... ................................... APPLICANT

VERSUS CHACHA MWITA MWITA.......................................................... 1st RESPONDENT PAULO WANCHOKE MWITA..................................................... 2nd RESPONDENT (Administrators of the Estate of the Late DANIEL MWITA GESASE)

RULING 12th & 19th February, 2025 M, L, KOMBA, J.: Applicant move this court by way of chamber summons made under section 30 (1) (a) (b) (i) (ii) and (iii) and 31 (2) of the Magistrate Courts Act, Cap 11 R.E. 2019 (CAP 11) and any other enabling provisions of law. The applicant is praying for the following orders: Page 1 of 9 (i) This court be pleased to call proceedings in Probate Appeal No. 00003622 of Serengeti District Court which originate from Probate cause No. 25 of 2019 at Mugumu Urban primary court delivered October, 2024 and examine or inspect such proceedings and its decision for the purpose of satisfying itself as to the correctness, legality and propriety of such proceedings and decision. (ii) Costs to be provided for. (Hi) Any other reliefs as this court may deem fir to grant. Application is accompanied by affidavit sworn by applicant with a list of attachments. On the other side, respondents filed counter affidavit with preliminary objection. As tradition, I had to entertain preliminary Objection first before determination of the main application. The PO was argued orally and during the date set, Applicant was represented by Mr. Ostack Mligo while respondents were represented by Mr. Msafiri Henga and Mr. Levocatus Sepetu all advocates. It was respondent who started submission by dropping the 3rd and 4th points. On the remaining point, Mr. Henga started with the

2nd point that application is improperly as revision was preferred in alternative to appeal. It was his submission that applicant had right to appeal to High Court after Page 2 of 9 the decision of the Serengeti District court via Probate case which originated from Mugumu Primary Court. He insisted that right to appeal has to be exercised first before jumping to revision and refer me to D.B. Shapriya & Co. Ltd vs Stefanutti Stocks Tanzania Ltd (Civil Application 205 of 2018) [2021] TZCA 613 (27 October 2021). Further he cited Restuta Frank Msongole vs Maiko Ngaya Shoo, Civil Application 473/17 of 2022 CAT at DSM in which the court directed that revisional jurisdiction is exercisable when there is no right to appeal. On the 1st point Counsel Henga submitted that the section preferred to move this court is improper which are section 30 (1) (a) (b) (i) (ii) and (iii) and 31 (2) of the Magistrate Courts Act, Cap 11. The cited section, he contends that it allows court to make suo motto revision but not upon application by any party, it is used when High court make its mandated supervision, he elaborated. He insisted that parties are not allowed to call for record under that section. Therefore, he maintained that application was filed under wrong provisions of law and prayed this court to find the application is improper and dismiss it with costs. When it was his turn to address this

court, Mr. Mligo stated with second point by conceding that revision is not replacement of the appeal. Page 3 of 9 However, he was of the submission that sections used to move this court gave this court mandate to make revision. To him, revision is done when the right of appeal is not given, is given but is blocked by judicial process or when there are sufficient reasons amount to exceptional circumstances exist. He went on submitting that issue raised by counsel for respondent need evidence so that he can show exceptional circumstance which force applicant to file revision and those circumstances are explained in affidavit. He noted that affidavit is evidence but the submission must be on point of law as the matter is still on preliminary objection. Supporting his submission on existence of special circumstance as one of the grounds to file revision Counsel Mligo cited the decision in MS. Farhia Abdullah Noor vs Advatech Office Supplies ltd Civil Application 261/16 of 2017 where the Court resolved that revision may be resorted when there are exception circumstances and right of appeal blocked by judicial process. He also listed Nondo Kalomola t/a N.J. Petrolium SPRL and Another vs Broadgas Petrolium TZ Limited and 3 Others consolidated civil Application 165/16 and 518/16 of 2019. About the sections used to move this court he was of the submission that section 31 (2) and 30(1)

of Cap 11 gave this court power to make revision Page 4 of 9 specifically when there is irregularity and the irregularities are explained in affidavit. He insisted that this application is not alternative to appeal but they have filed revision so that this court may know what is going on in lower courts as the rights to appeal has been blocked by judicial process. About enabling provisions, he submitted that this court has supervision power and revision power as per section 30 and 31 (2) of Cap 11. However, citing the case of the Director General LAPF vs Pascal Ngalo, Civil Application no 76/08 of 2018 he said it was decided that even when there is mis-quote of the provision of law that alone should not make the application improper as revision is mandate of this court and applicant was right to apply this court to call for record for inspection and or examination under section 31(2). He said PO should not be used as punishment and delay of rights of parties as was in Alliance Tobacco Tanzania vs Mwajuma Hamisi, Misc Civil Application No. 803 of 2018 and prayed hearing of the matter on merit bearing in mind that reason for this application is found in affidavit. He further prayed the PO to be overruled or else if it will be found the application is improper it should strike out and not dismissed. Being a matter of probate, he did not pray for costs. Page 5 of 9 During rejoinder

counsel for respondent reiterate his submission in chief. I am called upon to determine if PO has merit. Parties are contesting if it is proper for the applicant to apply for revision under section 30 (1) of Cap 11 which gives this court power to call and inspect records. In other words, respondent is challenging if this power be applied by party to a suit. From submission it is not disputed that the power is best owned by the High court, however can it be applied by a party? If not then this court is wrongly moved. To make it short High court has powers to call and inspect record of any proceeding of the lower court as picked in cited provisions. The issue that it must be suo motto or upon application is miner in the circumstance of this application. If this court was not aware of what was going on in lower court, it is not unlawful to be notified by any party so far as what was applied is within the mandate and therefore, I ignore the irregularity as was in Director General LAPF vs Pascal Ngalo (supra) and find this court has powers to entertain the matter. Remaining point is whether this application was preferred as an alternative to appeal. Mr. Henga submitted that applicant had right to appeal to High Court after the decision of the Serengeti District court via Probate case Page 6 of 9 which originated from Mugumu Primary Court and cited D.B. Shapriya & Co. Ltd vs

Stefanutti Stocks Tanzania Ltd (supra) that when there is right of appeal then parties shall appeal. In that case, the center of discussion of the Court was section 5 of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019] that an appeal from High court lies to the Court. However, it went on noting exceptions which was not prayed by the applicant in that case when referring the case of Transport Equipment Ltd vs Devram Valambhia [1995] TLR 161 at page 9 On the other hand, Mr. Mligo while noted the right to appeal do exist, he submitted that there is exemption where revision can be filed and entertained without an appeal depending on the nature of application. As ruled in MS. Farhia Abdullah Noor vs Advatech Office Supplies ltd and Nondo Kalomola t/a NJ. Petrolium SPRL and Another vs Broadgas Petrolium TZ Limited and 3 others (supra). In the latter case the court observed; 'We have considered the submissions by the learned counsel for the parties and the issue which comes to the fore for our deliberation is whether the present applications are properly before the court. It is trite law that the court's power of revision van only be invoked; One, where there is no right of appeal; two, where right of appeal exists Page 7 of 9 but has been blocked by a judicial process; three, where although a party has a right of appeal, sufficient reason amounting to exceptional; circumstance

exists, and four, where a person was not a party to the relevant proceedings of the High Court. See for instance, the cases of Transport Equipment Ltd vs Devram P. Valabhia [1995] T.L.R 161, Momses Mwakibete vs The Editor, Uhuru and Two Others [1995] T.L.R 134, Haiais Pro-Chemie vs Weffa A. G [1996] T.L.R 161 and Ms. Farhis Abdullah Noor, Civil Application 261/16 of 2017. In this case, Counsel for applicant submitted that there are circumstances which forced them to file this application are deponed in affidavit. Because this issue was raised as PO and because he is aware that PO involve point of law only, he refrains from elaborating what circumstances and hardship they undergo and forced to apply to this court to call records and examine its correctness. I understand Mr. Mligo that whether the appeal is blocked by judicial process or there is special circumstance make them not to file an appeal, ail that may be explained in evidence and he prayed the application to be allowed to proceed and overrule the PO. So far as there is decision of the court that when there is special and exception circumstance a party may apply for revision instead of review, and so far as special circumstances may be elaborated well in evidence, Page 8 of 9 Am moved to and find the application is proper. I hereby overrule PO and allow the matter to proceed on merit. No order to costs as matter originated from probate cause. DATED at TARIME this 19th day of February, 2025. M. L. KO MBA Judge Page 9 of 9