JOSEPH IZDORI JUDGEMENT 222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MANYARA

AT BABATI CIVIL APPEAL NO. 18961 OF 2024 (Arising from District Court of Babati Civil Appeal No. 4676 of2024, originating from Primary Court of Babati at Babati Probate Cause No. 14 of2023) JOSEPH IZDORI DARABE................................................. APPELLANT

VERSUS KHALID RASHIDIIKAJI...................................... ............... RESPONDENT

JUDGMENT 07th & 11th March, 2025 Kahyoza, J. This is one of the several applications or judicial proceedings where the parties and the first appellate court did not appreciate the issue of contention. The parties appeared to this second appellate court on misconception of what was before the district court. On the date of hearing, I entertained doubts if the parties were competent to prosecute the appeal as they were claiming rights of their deceased relatives in their own names. Reading the proceedings, it become obvious that the matter commended as a probate and administration cause but ended up a civil suit. I invited the parties to address the court whether the matter was properly before this Court. As both were unrepresented, they had nothing substantive to tell the 1 court. I will consider whether it was proper for the first appellate court determined the issue of ownership. Briefly, the facts of this case are that; Joseph Izdori Darabe instituted probate and administration cause seeking to be appointed to administer the estate of his father, the late Izdori Joseph Darabe. The primary court appointed Joseph Izdori Darabe in administrator appointed him and granted him letters of administration of the deceased's estate. In the course of discharging his duties as an administrator, Joseph Izdori Darabe listed a motor vehicle with registration number T 729 CPB Toyota Harrier

as part of the deceased's estate. Khalid Rashid Ikaji filed an objection to the primary court contending that it was wrong for the administrator to list the motor vehicle with registration number T 729 CPB as part of the deceased's estate as the deceased did not pay the contractual price. Joseph Izdori Darabe opposed Khalid Rashid Ikaji's claims arguing that his late father paid the purchase price. The primary court in its capacity as the probate and administration court, heard the evidence and decided in favour of Joseph Izdori Darabe, that Khalid Rashid Ikaji did not prove his claims and ordered him (Rashid Ikaji) to surrender the registration card of the motor vehicle. 2 Aggrieved Khalid Rashid Ikaji appeared to the District Court, which decided in his favour. Dissatisfied, Joseph appealed to this Court contending that- 1. That, the first Appellate Court erred both in points of law and facts by failure to catch, grasp and totally disregarded and assess properly the evidence adduced by the Appellant and as a result, this led to an unfair and injustice decision.

2. That the first Appellate Court erred in point of law and facts to proceeding with hearing an appeal while petition of Appeal was doubtful and brought it out of time.

3. That the first Appellate Court erred both in points of law and facts when magistrate pronounce judgment in favor of Respondent while they failed to prove their case beyond balance of probability.

4. That the first Appellate Court erred in both point of law and facts by proceeding with the hearing of the appeal and claim against primary court magistrate did not summons the witness (an Advocate who witnessed the sale agreement) while it is not her duty to do that.

5. That the first Appellate Court erred in law when heard and composed a judgment contrary to the law. 3 Were the trial court and the district court justified to determine contractual issued in probate and administration cause? \ As pointed out above, the parties had nothing helpful to address the court on the issue raised by the court suo motto. I will answer the issue negatively, that a probate and administration cause cannot determine contractual matters. I will add that court entertaining a probate and administration cause has mandate to appoint an appropriate and suitable person to administrate or administer the deceased's estate and it has no power to deal with matrimonial issues, land dispute, contractual matters or to determine issued of paternity. I wish to cite the case of Mariam Juma v. Tabea Robert Makange, Civil Appeal No. 38 of 2008 CAT (unreported), where it was held that- "l/l/e are indined to agree with Mr. Lutema that the High Court Judge went beyond his jurisdiction of handling a caveat filed opposing the appellant's petition for letters of administration. The findings he made that the appellant was not the legal wife of the deceased and that the appellant's children were not entitled to inherit from the deceased's estate were beyond the scope of his mandate in handling the caveat filed by the respondent. "(Emphasis added) 4 The allegation that the

administrator had included in the motor vehicle which did or did not belong to the deceased's estate was not a ground for Khalid to file an objection to the primary court. Even if; Khalid had reasons to oppose the appointment of Joseph as the administrator it was too late to do. Khalid filed the objection after Joseph had been appointed and granted the letters of administration. It is trite law that a caveat filed after the grant of letters of administration of probate is inoperative. The Court of Appeal in Fatima Fatehali Nazarali Jinah v Mohamed Alibhai Kassam (Civil Appeal 85 of 2014) [2016] TZCA 642 (20 June 2016) held that- "In terms of section 58 (1) of the Probate Act, a caveat may be filed by any person having or asserting an interest in the estate of the deceased, and it must be made before a grant has been made." I am alive of the position of the law that the Probate and Administration of Estates Act, [ Cap. 352 R.E. 2002], does not apply to the primary court still, I am entitled to borrow leaf from the decision of the Court of Appeal in Fatima Fatehali Nazarali Jinah v. Mohamed Alibhai Kassam, (supra). Once the court has granted letters of administration of the estate of the deceased or a probate, a person who is dissatisfied with the administrator's action may seek revocation or annulment of appointment 5 of the administrator or removal of executor. An application

for annulment may be made by a person who has interest in the estate. The primary court has power to revoke any appointment of an administrator for a good and sufficient cause as provided by paragraph 2 (c) of the Fifth Schedule to the Magistrates Courts'Act, [Cap. 11 R.E. 2019]. I reviewed the record of the primary court and that of the first appellate court, it is not clear whether Khalid applied for revocation or he was objecting the grant of letters of administration to Joseph. See Chantal Tito Mziray & Another vs Ritha John Makala & Another (Civil Appeal 59 of 2018) [2020] TZCA 1930 (31 December 2020). I wish to state that if Khalid had filed a "caveat" that is an objection for grant of letters of administration, the issue ought to be whether Joseph was an appropriate and suitable person to administrate the estate of the late Izdiori Joseph Darabe. It was wrong for the probate to court to ask itself a question whether the deceased paid the contractual price or not. Such an issue may be framed and answered by civil court. In the end, I find that the trial court and the first appellate misdirected themselves to consider the issue which ought to have been dealt by the civil 6 court. The two courts wrongly assumed jurisdiction. Consequently, I nullify and quash the objection proceedings and set aside the judgment of both the trial and the appellate courts which stemmed from

the nullity proceedings. Khalid is at liberty, subject to the law of limitation, to sue the Joseph, the administrator of the late Izdori Joseph Darabe for the value of the motor vehicle. Joseph may proceed to file Form No (Vi). Khalid shall bear costs of this appeal. It is ordered accordingly. Dated at Babati, this 11th day of March, 2025. J. R. Kahyoza Judge Court: Judgment delivered on the virtual presence of the appellant and the respondent. B/C Mr. Shedrack present. J. R. Kahyoza, J. 11.3.2025 7