CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, 3.A., MAIGE. J,A. And KHAMIS, J.A.^ CIVIL APPEAL NO. 490 OF 2020 HIDAYA SELEMAN.... „1ST APPELLANT MOHAMED SELEMAN 2 nd APPELLANT MAULID SELEMAN.... ,3rd APPELLANT ATHUMAN NASSORO .4th APPELLANT VERSUS MOSHI SALUM (As the Administrator of the estate of late JOHA NASSORO) RESPONDENT (Appeal from the decision of the High Court of Tanzania at MWanza) (Mqevekwa, 3.1 dated the 16th day of December, 2019 in PC. Probate Appeal No. 7 of 2019 RULING OF THE COURT 7th & 10thJune, 2024 MAIGE, 3.A.: The appeal at hand relates to succession of the estate of Joha Nassoro Abeid (the deceased). The deceased expired on 13th March, 2018 leaving a house at Usagara within Misungwi District in Mwanza Region (the real property) and some clothes. She left a WILL which was admitted as exhibit "M". In the said WILL, she bequeathed the real property to her l granddaughter one Hadija Nassoro (the beneficiary) and the clothes to the beneficiary, other relatives and the Mosque. The WILL which was witnessed by the respondent (PWl)and Habibu Rashidi (PW2) nominated the respondent as the executor thereof. Accordingly, the respondent commenced proceedings for the probation of the WILL which was not contested. At the end, it would appear, the WILL was probated and the respondent constituted the executor/administrator thereof. The appellants who were not parties to the proceedings at the primary court, were aggrieved by the decision. Therefore, they commenced revisional proceedings at the District Court of Misungwi questioning the said decision on two grounds namely; the respondent was appointed the administrator/ executor without there being proper citation and the WILL was procured illegally and fraudulently. The District Court nullified the judgment and proceedings of the primary court and ordered a retrial. Aggrieved, the respondent appealed to the High Court faulting the decision of the District Court for: One, revising and quashing the decision of the primary court without examining the proceedings thereof thus causing miscarriage of justice; Two, failure to assign reasons as to the finding that the grant was not preceded by citation and that the WILL was procured illegally; Three, failure to discover that the appellants slept on their right to object for appointment of the respondent before the trial court. The High Court was satisfied that, all the complaints raised in the grounds of appeal were valid and thus allowed the appeal. It, therefore, set aside the decision of the District Court and restored the decision of the primary court. This decision was negatively received by the appellants and hence the instant appeal which attacks the decision on the following two grounds: 1. That the appellate court erred In law by holding that there was a proper citation at the primary courtpursuant to the requirement o f law. 2. That the Appellate Court erred in law by holding that the District Court of Misungwi improperly declared the WILL illegalin revisiona!proceedings, In the conduct of the appeal, Mr. Erick Katemi, learned advocate, appeared for the appellant whereas the respondent appeared in person, without representation. Before the hearing of the appeal could commence, the Court, in its own motion, raised an issue doubtingthe proprietyof the revisiona I proceedings at the District Court. It is interesting that, in the appeal to the High Court, the issue, though not adjudicated upon was raised. It was in the third ground of appeal which was framed as follows: "3. That, the district court erred in law and facts for failure to discover that the respondents slept on their right to object for appointment o f the appellant before the trial court." Having noted that whether the respondents were aware or made aware of the proceedings was one of the questions in the revision at the District Court, we requested them to address us on whether or not the issue at hand could not be resolved by way of an application for revocation of the grant. Mr. Katemi conceded that, indeed, an application for revocation was the appropriate cause of action according to rule 2 (c) of the Fifth Schedule to the Magistrates' Courts Act. He prayed; therefore that, this Court invokes its revisional powers under section 4 (2) of the appellate Jurisdiction Act and quash the judgments and proceedings of the two courts below. Being unrepresented layperson, the respondent had nothing to comment rather than leaving the matter to be decided by the Court. The procedure to handle probate and administration proceedings in primary courts is set out in the Fifth Schedule to the Magistrates' Courts Act entitled "the Powers of the Primary Court in Administration Cases". The rules therein were made by the Chief Justice under section 19(1) (c) of the Magistrates' Courts Act. The powers of the primary court in such proceedings are exhaustively stated in rule 2 in the following words: "2. A primary court upon whichjurisdiction is the administration o f the deceased's states has been conferred may- (a) either o f its own motion or on application by any person interested in the administration o f estate appoint one or more persons interested in the estate o f the deceased to be the administrator or administrators, thereof, and, in selecting any such administrator, shall, unless for any reason it considers in expedient so to do, have regard to any wishes which may have been expressed by the deceased; (b) either o f its own motion or on application by any person interested in the administration o f estate, where it considers that it is desirable so as to do for the protection o f the estate and the proper administration thereof, appoint an officer o f the court or some reputable and impartial persons able and willing to administer the estate to be administrator either together with or in lieu o f an administrator appointed under sub-paragraph (a); (c) revoke any appointment o f an administrator for good and sufficient cause and require the surrender o f any document evidencing his appointment (d) make orders as to the administration o fthe estate, and, in particular but without prejudice to the generality of the foregoing, as to the law to be applied in the distribution o f the estate and as to advertising for creditors; (e) require an administrator to sign an undertaking to administer the estate faithfully; (f) require an administrator to give security for the due administration o f the estate; (g) make orders as to payments o f the shares in the estate o f any minor or other person under a disability to a relative or other suitable person for the maintenance or otherwise for the use o f such minor or person under a disability, or with the consent o f the Public Trustee, to the Public Trustee; or (h) make any order which it has power under this Act in cases of a civil nature. From the above provisions, it may be dear to us that the primary court has powers, in probate and administration proceedings to, among others, revoke the appointment of an administrator or executor as the case may be, if it has good and sufficient cause so to do. That is in accordance with item (c) of Rule 2 of the Fifth Schedule, In this case, the respondents were not parties in the proceedings. However, they were aggrieved by the appointment of the respondent for the reason that, they were not made aware of the proceedings and that, the respondent illegally and fraudulently procured the WILL which was the subject of the appointment. The grounds in the revision, we have no doubt, would, if established, amount to "good and sufficient cause" within the meaning of the Rules. No doubt, therefore that, the proper avenue for the appellants to challenge the appointment at the first-instance was by way of an application for revocation before the primary court. It was, in our judgment, quite premature for them to initiate superior proceedings to the District Court to challenge the appointment without exhausting the remedies available at the primary court. That is a notorious principle of law we need not cite any authority. 7 In the circumstances, we invoke our revisional powers under section 4(2) of the Appellate Jurisdiction Act and revise the judgments and proceedings of both the District Court and the High Court. We, as a result, set aside the judgments of the two courts below, quash the proceedings thereof and restore the decision of the primary court. We do not make an order as to costs in the circumstances. DATED at MWANZA this 10th day of June, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 10th day of June, 2024 in the presence of the Respondent in person, and in the absence of the Appellants, is hereby certified as a true copy of the original. . 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL