19960510 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SAL ...AM :::-rsTRICT REGISTRY ~AR :ss SALAA!VJ MISCELLANEOUS CIVIL CAUSE N0.5 OF 1995 F AU'STIIl FELIX ISAY .A • • • .• , • • , -·• .APPLICANT ,, JOVITA KATUNZI • • ...• • . .. " RESPONDENT ~UL ING The applicant F.\USTIN FELIX I.SAY/:;, has, through his counsel Mr. Ukwonga, filed this applicqtion under sub section 79 (1) and 95 of. the C.P.C. 1996 and section 44 (l)(b) of the M,C.A. 1984, seeking for this court to exercise_its revisional powers · in Kisutu RMC Probate cause No .19 o.f 1994 and quash the v/· Ruling made on 29/3/95 whereby the application to have the exparte · hearing set aside was refust:cd. The applicant is also asking this court to revise the exparte proceedings from 22/2/95.up to 29/3/95 for being 3 nullity. The ·history bel:L1c. this appJ.5.-::at.::..)n, as it was revealed after going ti1rough the :'.'.'E:COr'- .3 as follows• One JOVITA KA'I'u:: ·:~:~, the son cf tl · ~eased Seconda Nlp.t'ba• applied on 14/5/93 to be granted letterJ of administration for the estate _of his c.eceased mother wh::i died in Dar es Salaam on 6/6/90. That was P1~obate Cause iro .35 of 1993. As, the hearing was in progress the trial magistrate was directed by his senior to transfer the file to - the Distri«;i Court~ This transfer was a result of the application by Mr. Ukwonga acting on behalf of one Faustin Felix ls;5aya the husband of the deceased. It was not transferred on the ~stante of the applicant as was recorded by the trial Magistrate, Probate Cause No,19 of •994 was therefore_ opened at the RM Court Kisutu, and Faustin Felix Issay applied ' for letters of administration in regard to the estate of the late Secunda Nkuba. I mu~t remark -1::;hat this is where ?Datte rs started going off courwe I The ;;~pplicant Faustin Felix ought to have filed a eave~t in Probate Cause N~ 119 of 1994-. ...../,. . 2 :rnstead it is the origiYlal appJ.ic2nt Jovita who having opened another file at R}. ~:isutt: - Probate cause No .24 of 1994 -· now bec.3_r,:c th2 caveator, :j'ter being advised to do so by the RE incharge. I n0te ..::1 record that there is a piece of paper insorj.bed by ths Pi1M on 25/4/94 to that effect. Be it as it may, Jovita KatunLi continued to press with the matter. He filed a cc.3.r;.:::ier :,p· L.cation to challenge the application by F2.ustin Felix I.,c:::tya. The hearing took of':t with the usual ri,entions an:5. ad~ ournments until on 22/2/95 when the PR1'1 rule:d that the hecring of the application proceed exparte as th2 app2.icant Faustin had refused to Qbeya court summons. On 15/3/95 the applicant then respondent filed another c~1amber sur.irrjo.:1s under O 9 Rule 13 asking the eourt to set aside th2 expente c -rde:.., and hearing to proceed interpartes. An o.i'fidavi t \~as f .~12,_, by Faust in in support - of the application, whi:~9 Jovita th,.~ ~nvC?ator countered the affidavit. The trial c~:istrate ·ias ~:t imprGssed. He was· of the firm view tn2·::; 2, :' F~1ustin ... d __~:......:\:. eel tc, be serve_dJ: the court was right to ::::::,~;c2~~d ex:· ::.irt ..,.. ~'.':_ustin felt aggrieved nence this applicatioL ::'c,::- revieV\-· ·.Jcf .. ::..~c -~:Lis court. The issue bc.fc:,:;."::.. L:: -~s whethe::- th2 t:~j_al magistrate I was justified in orcerinG on 22/2/S15 t0 ceed exp~rte. In otherwords, whetho:.' the court co:J.ld pl'.)C:::ed exparte in 1uch probate procecdingsQ That there are several persons interi2sted to admini$ter the estate of the late SecundG. Nkuba is not disputed·. There ~ Jovita Katunzi the son, Faustin F~lix Issaya the husband and of course the brothers of the dec,'?ased.. It is therefore a contentious matter and from the record it is clear that : . none of the parties is willing to give up the claim w•thout a fight. The ap_,,1licant filed an affidav.1.t 0::1 15/3/95 in suppo:Pt of his chamber ap)lication to have the , :-:p3.rtG order set a~de 1 Wherea~ the trial magistrate had based Lis decision on the fact that the ar;plicant refused to be se:'\'ed, the 8:PPlicant h;i,mself says noth5.ng on the matte~•, Rath2r he says he wa~ ,informed on the dntes by a court clerk by the name of The snid Mtui has not been asked tJ deny or confirm J.icant' s story •. • .•. /3 - 3 I view oi -t:~e evidence on :'2cord that the· applicant had refused to br~ served, I th~..1k the trial magistrate acted properly in the circu~stanc~s t~ proceed to hear the objector alone. I am not so.'tisfied that the a1)plicant has shown sufficient CG.USC? to .noJ<e me depart from the '• path taken by the trial magistrate. The applicant has, in my ·view conveniently avoided to say.anything on the summo~ .. why? It is not for this court to f.:i.11.up the gap. In the event, I cannot fo.ul t the decision by the tr_ial magistrate . to proceed exparte.,. Application dismissed w,ith- cos.ts. lJ/5/96 Delivered before Mr~ Ndanzi for Respondent Applicants being abs2nt th9ugn served.