Hafsa Ally Makundi vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CIVIL APPEAL NO. 4978 OF 2024 (Arising from the District Court of Momba in Probate Appeal No. 04 of 2023, Original Probate Cause No. 16 of 2019 of Tunduma Primary Court) HAFSA ALLY MAKUNDI ………………………………….................… APPELLANT VERSUS JOHNSON AMANI ..…………….………………..…………………….. RESPONDENT JUDGMENT Date of last Order: 11th August, 2024 Date of Judgment: 22nd August, 2024 KAWISHE, J.: The appellant, Hafsa Ally Makundi filed an appeal in this court against the respondent, Johnson Aman after being aggrieved by the decision reached by the District Court of Momba in Probate Appeal No. 1 04 of 2023. In her petition of appeal, the appellant has seven grounds of complaints to the effect that: 1. That the 1st appellate court erred in law and facts for blessing the decision of the trial primary court which failed to first determine the issue of jurisdiction before embarking to determine other raised issues. 2. That the 1st appellate court erred in law and facts for blessing the decision of the trial primary court which failed to consider that, the appellant well established the existence of conflict of ownership of the house located at Plot No.10 and 23 Block “K” Tunduma and thus the court was required to order the same be determined in land case. 3. That the 1st appellate court erred in law and facts for blessing the decision of the trial primary court which failed to consider that, it lacked jurisdiction to entertain the dispute of ownership of house located at Plot No.10 and 23 Block “K” Tunduma. 4. That the 1st appellate court erred in law and facts for blessing the decision of the trial primary court which did not rule out on other raised objections without justifiable reasons. 5. That the 1st appellate court erred in law and facts for blessing the decision of the trial primary court which did not revoke the respondent’s administratorship and appoints the appellant despite of the strong grounds established by the appellant. 6. That the 1st appellate court erred in law and facts for blessing the decision of the trial primary court which dismissed the objections on the ownership of the house in dispute at the objection stage 2 without opportunity to the parties to give their evidence in support or opposition on the merits of the land dispute which amount to grave misconception. 7. That the 1st appellate court erred in law and facts for blessing the decision of the trial primary court which ruled out that, the respondent proved the ownership of house in dispute based on the copies of the official search documents attached in the respondent written submission which has not passed through the procedure of tendering evidence and this tested on their credibility. Briefly, the facts leading to this appeal are as follows: In the year 2019, one Awali Ally Makundi successful filed Probate Cause No. 16 of 2019, before Tunduma Primary Court seeking to be appointed as the administrator of the estate of his late father Ally Makundi who died in 1997. He was appointed as the administrator on 22nd November, 2019. The identified properties of the deceased were four houses located at Kiloleni, 8 acres of land located at Water Authority area and four acres located at Chapwa, bar (Kilimanjaro) and a hotel. Other properties were; cars (peugeot and land rover), domestic animals such as goats and fish and fruit trees such as mangoes trees. The trial court proceedings show that the distribution of the deceased property was there and the probate case was closed on 23rd March, 2020. 3 On 30th March, 2021, caveat was entered by Hafsa Ally Makundi claiming to be the second wife of the deceased. She stated that she was not informed of the probate cause in the trial court. Johnson Amani the grandson of the deceased testified that the appointed administrator is new to them. That he started misusing the property of the deceased, and he took the house which is not the property of the deceased appear in the name of Ally Kiwira and not Ally Makundi. The administrator denied the allegation, but the trial court revoked his administration of estate on 3rd May, 2021. The trial court appointed Johnson Amani to be the administrator of the estate in the presence of Hafsa Ally Makundi and in the absence of the respondent who had health problem. He collected and distributed the deceased properties; he entered inventory and closed the probate cause on 22nd October, 2021. Awally Ally Makundi was dissatisfied with the said decision hence he filed an appeal against Hafsa Ally Makundi, before the District Court via Probate Appeal No. 02 of 2021 in which the decision of the trial court was upheld. Being dissatisfied with the said decision Hafsa Ally Makundi filed an appeal before this court before Hon. Mongella, J in Probate Appeal No. 09 of 2022 against Johnson Aman and Awali Ally Makundi claiming that 4 the house built at Plots No. 10 and 23 Block “K” located at Tunduma Urban have been included in the deceased’s properties while it is her own property. It was ordered the same to be re-opened from the stage of filling inventory so that investigation to be done. The decision of the District Court was quashed and an order issued by the Primary Court order on 22nd October, 2021 which endorsed the inventory and closing the probate cause was also quashed and the Primary Court was ordered to make an inquiry on the claims made by the appellant to be conducted and the decision to be entered thereof. The Primary Court complied to the orders. On 15th August, 2023, the appellant’s claims were dismissed for lack of merit. The appellant’s claims were dismissed since the trial court had no jurisdiction to hear and determine ownership of the disputed land. The respondent was ordered to proceed with the administration of the estate. Aggrieved by that decision Hafsa Ally Makundi filed an appeal against Johnson Aman before the District Court of Momba (1st appellate court) which confirmed the decision of the trial court. Still dissatisfied, she filed this appeal basing on the above- mentioned grounds of complaint. The appeal was argued by a way of a written submission. The appellant had the service of Ms. A. A Kamalika, 5 learned counsel and the respondent had the service of Mr. L. Ngogo learned counsel. The appellant’s counsel argued the 1st, 2nd and 3rd grounds of appeal collectively. She argued that, the trial court erred in dismissing the appellant’s claims on the ground that they were not proved while there was a dispute on the ownership of the houses between the appellant and the late Ally Makundi. She added that the trial court was supposed to direct the matter to be determined by the District Land and Housing Tribunal and not to dismiss it. To bolster her stance, she cited the case of Basoa Mfaume vs. Ulimwengu Sungura Hamimu, Land Case No. 04 of 2020, High Court of Tanzania at Kigoma (unreported). The counsel went further submitting that, the 1st appellate court erred to state that the Primary Court had jurisdiction because it was a probate court and the source of the dispute is a result of heir’s interest in the estate of the deceased but the dispute was who has a better title of the said houses between the appellant and the deceased. Arguing on the 4th ground of appeal, she argued that the trial court and the first appellate court failed to determine some objections (number 3, 4 and 5) without justifiable reasons. Thus, the appellant was not accorded with the right to be heard and justice was not done. She 6 referred the case of Nyakwama Ondare @ Okware vs. The Republic, Criminal Appeal No. 507 of 2019, in which the Court of Appeal insist on the effect of failure to consider the appellants grounds of appeal. The appellant’s counsel prayed for the case records to be remitted back before the trial court for retrial. On the fifth ground of appeal, she argued that, the first appellate court blessed the decision of the trial court which failed to revoke the administrator of the estate (the respondent) on the ground that the same was resolved by the High Court before Hon. Mongella, J. while in that ruling, the court refused to revoke the administrator at appellate stage and the same was to be filed before the trial court which granted the letters of administration and that is why the case record were reemitted back before the trial court. She cited the case of Miriam John Mallya and Others vs. Marian John Mallya, Misc. Application No. 07 of 2021, High Court, Temeke. She went further stating that this court will make a good move by directing the hearing of the application of revocation of the administrator and the one who will be appointed will be the one who is interested and with sufficient knowledge on the properties of the deceased since she is the legal wife of the deceased. 7 The 6th and the 7th grounds of appeal were jointly argued by the appellant’s counsel. She argued that, the trial court failed to abide with the procedures of administration of justice and the right to be heard to the parties was infringed. She added that, the trial court decided the dispute relying on photocopies which were not backed by original documents. The counsel submitted further that, even though the trial court could have jurisdiction to determine the matter, the dispute on ownership of the houses was not to be determined by a way of a written submission. She stated that, after receiving an objection raised by the appellant on ownership of the houses the trial court was supposed to follow the law by according the parties the right to be heard but the right to be heard was not accorded and the decision reached was unjust. She cited the case of In the matter of the estate of the late Hassan Ally Bwaga and In the matter of application for the letters of administration by Mwanaarabu Mohamed Tale and Ashura Ally Bwanga and in the matter of caveat against the grant of letters of administration by Salome Francis Dassa, Probate and Administration Cause No. 20 of 2012. 8 She also faulted the decision of the first appellate court in upholding the decision of the trial court. Lastly, she prayed for this appeal to be allowed with costs. In response to the submission made by the appellant’s learned counsel, the respondent’s learned counsel, submitted that, the first, second and third grounds of appeal are on the issue of whether the trial court lacked jurisdiction to inquire into the appellants claims which were placed before it. He averred that, the arguments made by the appellant counsel that the trial court lacked jurisdiction to determine the matter since it has no jurisdiction are not correct. He submitted so by stating that, since the court heard the matter in compliance of the orders made by the High Court (Hon. Mongella, J) in Probate Appeal No. 09 of 2020, in which it was ordered the case records to be remitted back before the trial court for an inquiry into the appellant’s claims on whether the houses formed part of the estate of the late Ally Makundi or the property of the appellant. He argued that, the trial court was bound with the directives given by the High Court and it was required to comply with them. He added that, since those orders were not challenged by the appellant before the Court of Appeal it was valid and the trial court was 9 bound to implement the directives of the higher court. That, the contention that the trial court had no jurisdiction has no stand. He further submitted that, the appellant’s counsel allegation that the dispute was to be referred before the District Land and Housing Tribunal is not correct and she is misleading this court. He asserted that, the trial court has jurisdiction to determine whether the said plots of land formed part of the deceased’s estate or not. He added that, it is the settled legal position that when the land in dispute is related to the deceased’s estate, only probate court is entrusted with jurisdiction to entertain the matter. Fortifying his submission he cited the case of Isack Stephen Maganya vs. Joyce Derefa Machimu (Administratix of the Estate of the Late Derefa Masanja Machimu’s), PC, Civil Appeal No. 48 of 2022, Maria Gabriel Mzaura & Deogratius Gabriel (Administrator of the estate of the late Gabriel Mzaura) vs. Magdalena Gabriel Mzaura, Land Case No. 62 of 2023, High Court at Bukoba and the decision of the Court of Appeal in Mgeni Seif vs. Mohamed Yahaya Khalfani, Civil Application No. 01 of 2009 (unreported). The learned counsel submitted that the appellant’s counsel submission that the trial court had no jurisdiction is not correct and the 10 case of Basoa Mfaume (supra) cited by the appellant counsel is distinguishable from the present matter. On the fourth ground of appeal, he stated that it is baseless and unfounded as the trial court acted according to the directives given by the High Court. He claimed that, it was directed to make an inquiry on the appellant’s claims on the issue of whether Plot Number 10 and 23 Block “K” were part of the deceased’s estate. He went on submitting that, all the grounds of appeal were determined since all the issues which were raised were addressed. On the issue of revocation of the letters of administration, he argued that, the trial court was tied up by the decision reached by the High Court and the case of Nyakwama Ondare @ Okware which was cited by the is distinguishable to the appeal. On the fifth ground of appeal, Mr. Ngogo submitted that it is unmeritorious on the reason that the same was determined by this court in Probate Appeal No. 09 of 2022. That the reasons for denying the revocation are found at page 17 and 18 of the typed judgement. He stated that, inviting the trial court to revoke the administrator would amount to inviting the trial court to overrule the decision of the High Court. The counsel insisted that the High Court did not direct the trial 11 probate court to decide on the issue of revocation of the administrator since the probate filed the probate file was already closed by the trial court. To substantiate his argument, he referred to the case of Miriam John Mallya (supra) while stating that the case cited by the appellant is in favour of the respondent. Encountering the 6th and 7th ground of appeal, the learned counsel claimed that the same are baseless. The counsel argued that the complaint is an afterthought as the same was not raised before the trial court. That the objection was filed on 7th June, 2023 and on 8th June, 2023 the appellant prayed the objection to be heard by a way of a written submissions. The same was done, it is astonishing that the appellant is now complaining on the mode of hearing the objection as she prayed. Also, there is no law cited by the appellant which prohibit the hearing of the claims like that of the appellant before the primary court by a way of a written submission. He added that she was not prohibited to attach any document to prove her ownership or any evidence in form of affidavit. The hearing in form of contentious is governed by the Probate and Administration of Estates Act (Cap. 352, R. E. 2002) and Rules made thereto. That the trial court was governed by the Magistrates Courts Act (Cap. 11, R.E 2022) and rules made thereto. 12 He went on submitting that contentious proceedings apply only where there is caveat on revocation of the grant of administration, which was not the issue before trial court. The only issue was to determine on whether the disputed plots formed part of the estate or not. Lastly, he prayed for this appeal to be dismissed with costs. In her rejoinder the appellant counsel raised a point of law, that Probate Cause No. 16 of 2019 was filed out of time before the trial court. She argued that, being a point of law, it can be raised at any stage. Strengthening her stance, she cited the case of Julius Nyaga Njororo/Njololo (Administrator of the late Nyaga Njololo/Njororo vs. Lutonja Mashilingi & Others, Civil Appeal No. 13 of 2021, High Court of Tanzania at Mwanza in which the court dismissed the application for appointment of the administrator which was filed out of time. The learned counsel added that despite that there is no prescribed time to file probate appeal in primary court but there should be unwarranted delay to bring such proceeding. All probate cases have to be filed within reasonable time and if filed out of that reasonable time there has to be reason for such delay. She referred the case of 13 Masanja Luponya vs. Lubinza Mashili, PC Probate Appeal No. 01 of 2020 (unreported). The counsel went further submitting that, the Probate Cause No. 16 of 2019, was filed out of time without any statement explaining the delay contained in the petition. Since there is such irregularity then all proceedings of the said file become nullity and has to be quashed. She cited the case of Mhina Tulangoma vs. Singida Municipal Council, Misc. Land Appeal No. 57 of 2022 (High Court of Tanzania at Dodoma). Thus, she prayed this court to nullify all the proceedings of this case. Rejoining on the first, second and third grounds of appeal she reiterated her submission in chief and insisted that the trial court had no jurisdiction to entertain the matter and the cases cited by the respondent are distinguishable. On the fourth ground of appeal, she argued that the parties were not given the right to be heard on the other raised grounds of appeal. The respondent in his sur-rejoinder submission argued on the point of law raised by the appellant in her rejoinder. He argued that the Probate Cause No. 16 of 2019 which was filed before Tunduma Primary Court while, the instant appeal is from Probate Appeal No. 04 of 2023. That the trial court acted under the directives of this court made by Hon. 14 Mongela, J. The learned counsel added that, this court to nullify all the proceedings of this case is misconceived because the same will be functus officio. He referred to the case of Mohamed Enterprises (T) Limited vs. Masoud Mohamed Nasser, Civil Application No. 33 of 2012. The counsel argued that the appellant still has the remedy to challenge the decision in Probate Appeal No. 9/2022 at the court of appeal. He argued further that the court being the court of record should not accept an invitation by the appellant to nullify the proceedings basing on extraneous matters which are not in the court records. To bolster his submission cited the case of Attorney General vs. Maalim Kadau & 16 Others (1997) T.L.R 69. Basing on the issue of jurisdiction he submitted that the counsel cited Probate and Administration Act and its Rules the same are not applicable in primary court where the law applicable is customary or Islamic law. He contended that, the Primary Courts (Administration of Estates) Rules (GN No. 49 of 1971], The Magistrates Courts (Limitation of Proceedings Under Customary Law) Rules (G.N No. 311 of 1964) or even the Magistrates Courts Act (supra) has no provision which requires that the petition for probate or letters of 15 administration before the primary court should be lodged within three years after death of the deceased. Having gone through the submissions made by both parties and perusal of the lower courts’ records, I find there are four issues which need to be determined by this court. The first issue is whether the trial court had jurisdiction to entertain the matter before it. The second issue is whether there were other grounds of objection which were not determined by the trial court and the first appellate court; the third issue is whether the trial court was empowered to revoke the powers of administrators to the respondent and the fourth issue whether the parties were not accorded with the rights to be heard. Before discussing the above raised issue, I will start with the point of law raised by the appellant’s counsel in her rejoinder submission. That the application for appointment of the administrator in this appeal was filed out of time. There are two schools of sought in respect to that point of law. The first one is as argued by the appellant counsel, that the matter was filed before the trial court after the lapse of three years which is the time limit to file probate cause. This was backed up by the decision made by this court in the case of Masanja Luponya (supra) and Mhina Tulangoma (supra) cases cited by the appellant’s counsel 16 and in the case of in Probate Administration Cause No. 03 of 2019 High Court Tanzania at Musoma, In the matter of the estate of the late Noela Songo Nyekaji in which the letters of administration were revoked on the ground that it was filed after the expiry of 24 years without having a good reason for that delay. The second school of sought is supported by the respondent’s counsel that there is no time limit in filing probate applications for letters of administration. That, there is no requirement for a statement of delay to accompany the application for appointment for letters of administration. This school of thought is supported by the case of Majuto Juma Nshauz vs. Issa Juma Nshauz, Civil Appeal No. 09 of 2014 (High Court at Tabora) and Hezron Mwakingwe vs. Elly Mwakyoma, Probate Appeal No. 03 of 2020 (High Court at Mbeya). It is the view of this court that, there is no specific provision of the law which provides for the time limit in filing applications for letters of administration. It has been a long-time practice that, all applications for letters of administration are filed before the primary court regardless of the lapse of time. In the matter at hand the deceased died in 1995 but the letters of administration were applied in 2019, almost after 24 years. As long as there is no specific provision for time limit which was 17 contravened, and since the appellant has not shown how she was prejudiced with the lapse of time, I do not think if the same prejudiced the appellant. Thus, the raised point of law has no merit. In respect of the first issue which is based on the first, second and third grounds of appeal, as to whether the primary court had jurisdiction to determine the matter, the counsel for the appellant has argued that the trial court had no jurisdiction to entertain the dispute on ownership of the house. She is of the view that the dispute would have been referred before the District Land and Housing Tribunal for determination. The respondent’s counsel has argued that the trial court was acting under the directives of the High Court and it had jurisdiction to determine the dispute on the ownership of the disputed house. As a matter of law and practice, a primary court exercising jurisdiction on probate and administration of estate has jurisdiction to determine a dispute on any property forming part of the estate. The primary courts’ powers are not limited to appointing the administrators of estates and approving the rightful heirs and supervising the administrator to account for his/her administration. It is also empowered to determine in case there is any dispute in relation to the estate or part of it. This was the stance of the Court of Appeal in the case of Mgeni 18 Seif vs. Mohamed Yahaya Khalfan, Civil Application No. 01 of 2009, in which the Court had this to state: “As we have said earlier, where there is a dispute over the estate of the deceased, only the probate and administration court seized of the matter can decide on the ownership”. [emphasis added]. In the instant appeal, the appellant is claiming the title of land which has been distributed to the heirs of the deceased. However, if there is dispute over the estate of the deceased. With the position accentuated by the Apex Court of the land, I abide to the precedent set, that is only the probate and administration court was seized with jurisdiction to decide the dispute on the ownership. Therefore, I concede with the respondent’s counsel that, the matter was remitted before the trial court for determination of ownership of the houses built at Plots 10 and 23 Block ‘K’ located at Tunduma. Thus, it is not plausible at this stage to state that the trial court had no jurisdiction to determine the dispute on the ownership. The same was done by the trial court and decided that the properties formed party of the deceased’s estate. The appellant failed to have strong evidence to prove that the houses are not among the properties of the deceased. In the circumstances stated above, the first issue is not in affirmative. 19 On the second issue, as to whether there were grounds of objection which were not determined by the trial court as required by the law, I will start by referring to the case of Nyakwama Ondare @ Okware (supra), in which the Court had this to state: “...that failure to consider appellants grounds of appeal was a fatal irregularity rendering the first appellate courts judgement a nullity. In this regard, we wish to emphasize that, though it is not the duty of the first appellate court to resolve the issues as framed by the trial court, yet it is expected and bound to address and resolve the complaints of the appellant in the grounds of appeal either separately or jointly depending on the circumstances of each case.” Having a thorough perusal of the trial court’s records, I found out that, there were five grounds of objections. The first ground was on the issue of whether the houses built in Plots No. 10 and 23 Block “K” located at Tunduma is the property of the appellant or her husband, the late Ally Makundi. The second ground was whether the respondent was aware on the dispute over the houses built in Plot No. 10 and 23 Block “K” located at Tunduma. The third objection was on the fact that the respondent mentioned that there were three houses while there were two houses which renders the collection of the deceased’s property into nullity. The fourth ground of objection was on the dispute on the quality of the houses and the fifth ground of objection was on Form No. V, that 20 it did not mention the whole estate of the deceased as it was listed in Form No. VI. Having made a thorough perusal of the lower courts’ records, I find the above-mentioned grounds were determined in three issues as follows, I quote: “Kama mleta pingamizi ameweza kuibua mgogoro wa umiliki wa nyumba? Kama Mahakama hii ina mamalaka ya kusikiliza shauri hili? Kama Mahakama hii inaweza kumtengua msimamizi wa mirathi?” The law is very static that courts are not bound to determine each complaint separately. It may address and resolve the complaints of the appellant or objector either separately or jointly depending on the circumstances of each case. What was important was to resolve all the controversies placed before it. In her submission, the appellant’s counsel has failed to name which ground of complaint was not determined. This court have gone through the records of the lower courts and finds that, there is no any ground of complaint which was not decided. Therefore, the complaints made by the appellant that there were some grounds of objection left undecided has no merit since court records show that they were resolve as stated above. 21 On the third issue on whether the trial court was empowered to revoke the administratorship of the respondent. The issue of revocation was not among the prayers sought by the appellant but it was an extra explanation in her submission made before the trial court. The same was among the issues determined by the trial court. It is important to note that, the procedure of appointing administrators in Primary Courts are provided for under paragraph 2(a) of the Fifth Schedule to the Magistrates courts Act (supra), which provides that: “2. A primary court upon which jurisdiction has been conferred may: a) either of its own motion or on an application by any person interested in the administration of the estate appoint one or more persons interested in the estate of the deceased to be the administrator or administrators thereof and in selecting such administrator, shall, unless for any reason it considers inexpedient so to do, have regard to any wishes which may have been expressed by the deceased”. Thus, the primary factor to be considered in appointing the administrator of the deceased’s estate is whether the person has an interest in the deceased’s estate. In the case of Naftary Petro vs. Mary Protas, Civil Appeal No. 103 of 2018 (unreported), it was stated that: 22 “It was observed that in our view, sub paragraph (a) above is unambiguous and thus it should be construed in its plain and ordinary meaning. In essence, it empowers a primary court, either of its own motion or upon an application, to appoint one or more persons interested in the estate of the deceased to be the administrator or administrators thereof. The primary consideration, therefore, is holding of an interest in the estate of the deceased. The term interest in a deceased’s estate has not been given any statutory definition. But we think it should be looked at as beneficial interest which is defined in the Black’s Law Dictionary.” In the case at hand the appointed administrator has no interest in the deceased’s estate. He was called by the appellant to testify as the first grandson of the deceased (close relatives), he is not among the heirs, but because the appellant health was not good, he was appointed by the trial court to administer on behalf and the appellant blessed the same. The trial court in discussing this issue based on the reason adduced by the High Court in Probate Appeal No. 09 of 2022. The reason was that the administrator was appointed after being accepted by the appellant. Upon perusal of the trial court’s records it is true that the appointed administrator was brought by the appellant before the trial court. Having heard the testimony from both parties, the appellant and the former administrator Awali Ally Makundi), the trial court decided 23 to revoke the administratorship of the first appointed administrator and appointed the respondent (Johnson Amani) as the administrator. The same was blessed by the appellant. In this appeal, the appellant is claiming that, it was the High Court’s order that the matter be heard afresh and the issue of revocation of the power of the administrator was supposed to be determined. This was fiercely contested by the respondent on the ground that, the issue of revocation was determined by the High Court and the same was dismissed since the appointment of the administrator was blessed by the appellant. In my view, I am inclined to the respondent’s counsel submission that the High Court in Probate Appeal No. 09 of 2019 did not direct the trial court to determine the issue of revocation of the respondent. That issue was discussed and dismissed by the High Court. In its decision it stated that: “It is clear in the judgement that the trial court appointed the 1 st respondent on the ground that the health of the appellant was not fit enough to manage the duties of administration. In my considered view, this observation by the trial court and subsequent appointment of the 1st respondent was blessed by the appellant and the rest of the beneficiaries who appear to have no issues with the distribution of the deceased’s estate. The 24 appointment was made through the decision delivered on 3/5/2021 whereby the records shows that the appellant was present”. I have perused the trial court’s proceedings, there is nowhere the appellant had raised any objection to the appointment of the respondent as an administrator of estate of the late Ally Makundi. It is a new fact which must be disregarded. See the case of Mwashi Nchungila and 4 Others vs. Pagi Sengeka, PC, Probate Appeal No. 01 of 2023, High Court at Tabora. Thus, coming at this stage to claim that the appointed administrator to be revoked on the ground that he is not interested and has no sufficient knowledge on the properties of the deceased is an afterthought. Thus, disregarded. Reverting to the issue whether the parties were not accorded the right to be heard, this issue will be determining basing on the sixth and seventh grounds of appeal. The appellant claims that they were not accorded with the right to be heard because the objection was heard by a way of a written submission. Therefore, the attached documents were not tendered in accordance with the law. On the side of the respondent, he argued that the appellant’s counsel was the one who prayed before the trial court that the objection be heard by way of written submission. 25 It is a settled principle of law that, when the court orders the matter to be heard and disposed of by way of written submissions is the same as oral hearing of the matter. There is plethora of decisions on the same. To mention just a few, the case of Olam Tanzania Limited vs. Hawala Kwilabya, Civil Appeal No. 01 of 2023 and P.3525 LT Idahya Maganga Gregory vs. Judge Advocate General, Court Martial, Criminal Appeal No. 02 of 2002, In which the Court observed that: “It is now settled in our jurisprudence that the practice of filling written submissions is tantamount to a hearing and; therefore, failure to file the submission as ordered is equivalent to nonappearance at a hearing or want of prosecution.” [emphasis supplied]. The case of In the matter of the Estate of the Late Al- Hassan Ally Bwaga and In the matter of application for the letters of administration by Mwanaarabu Mohamed Tale (supra) which was cited by the appellant’s counsel are distinguishable from the present case since in this appeal, there was no contentious probate and was not raised when the matter was scheduled for hearing. Thus, raising that issue at this stage is an afterthought and the appeal stands unmerited and it is dismissed with no order to costs. 26 It is so ordered. DATED at MBEYA this 22nd day of August 2024. E. L. KAWISHE JUDGE Court: Judgment delivered virtually before Mr. Luka Ngogo, learned counsel for the respondent also holding brief for Ms. Atuganile Kamalika, learned counsel for the appellant. E. L. KAWISHE JUDGE 22/8/2024 27