JOSEPH K

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CIVIL APPEAL NO. 35 OF 2023 (Arising from the decision of the District Court of Dodoma in Civil Case No. 146A of 2022 dated 16/08/2023, Originating from Probate and Administration Cause No. 146 of 2022 before the District Court of Dodoma) JOSEPH KAMUGA TIBAKUNDA……………………………………..…………APPELLANT Versus IRENE EMMANUEL SHULI..……….…………..…….………………………RESPONDENT JUDGEMENT Date of last order: 30th July, 2024. Date of Judgment: 30th August, 2024. E.E. KAKOLAKI, J. The appellant herein is displeased with the decision of the District Court of Dodoma handed down on 16/08/2023 in Civil Case No. 146A of 2022, dismissing his caveat filed in respect of Probate and Administration Cause No. 146 of 2022 which later on turned in to civil case as referred herein above. He is therefore seeking to displace it by way of appeal fronting three grounds of appeal going thus: 1. That, the trial Court erred in law for failure to observe the law. 2. That, the citation before the lower court was wrongly cited in terms of the cited case heading and the status of the parties hence they caused confusion. 3. That, the judgment does not correctly reflect what was exactly adduced in the proceedings. 1 Briefly the facts breeding this appeal as garnered from the trial Court records and the impugned judgment are simple to tell. Before the District Court of Dodoma in Probate and Administration Cause No. 146 of 2022, the respondent herein petitioned the Court for grant of letters of administration to administer the estate of the late Jesser Stellah Emmanuel, a resident of Mnadani area within Dodoma District and Region who died intestate at Bugando Medical Centre in Nyamagana District, Mwanza region on 27/06/2021 and buried at Dodoma. According to the petition the estimated value of the estate likely to fall under petitioner’s administration is more than Tshs. 40, 000,000/-. The general citation having been made, the appellant filed a caveat in respect of the said petition the result of which the learned trial magistrate on 15/02/2023, renumbered said petition as Civil Case No. 146A of 2022, turning it into civil suit after being moved by the parties to act in terms of the provisions of Rule 82(6) of the Probate Rules, 1963, in which the appellant featured as defendant while the respondent appearing as plaintiff. Upon completion of pleadings it appears the trial Court framed issues for determination of parties dispute and proceeded to try the matter as during trial and in proof of her case the respondent/plaintiff paraded two (2) witnesses and relied on two (2) exhibits being minutes of clan meetings endorsing her to petition for administration of deceased’s estate and three pictures as exhibits P1 and P2 collectively while the appellant/defendant fending for himself without placing reliance on any documentary exhibit. Upon 2 closure of defence case and having weighed both parties’ evidence the trial Court was satisfied that, the appellant had failed to advance justifiable reasons to disqualify the respondent/plaintiff from applying for letters of administration of deceased’s estate hence dismissal of his caveat while ordering hearing of the matter to proceed upon being scheduled by the Court. It is this decision believingly irritated the appellant hence the present appeal as expressed on the above narrated grounds of appeal. When the matter came up for hearing the appellant appeared represent by Mr. Hubert M. Lubyama, learned advocate while the respondent proceeded in person unrepresented. It was ordered that, the appeal be disposed of by way of written submission upon the Court granting parties’ prayers to that effect and the submissions were filed in accordance with the court orders save for rejoinder submission in which the appellant expressed his intention not to make. In the course of composing this judgment the Court acting under the proviso of Order XXXIX Rule 3 of the Civil Procedure Code, [Cap. 33 R.E 2019], suo motu raised an issue and invited parties to address it as to whether the trial Court was seized with jurisdiction to entertain the matter to its finality despite of the estate value exceeding fifteen thousand shillings. In response to the Court’s invitation both parties appeared in Court on 30/08/2024 as usual the appellant represented by Mr. Lubyama, learned advocate while the respondent proceeding on her own unrepresented. 3 Addressing the Court on the suo motu raised issue Mr. Lubyama having revisited the law and lower court proceedings intimated that, the trial magistrate was in error to proceed in contravention of the law as dictated under Rule 83 of the Rules, the remedy of which is to quash the proceedings affected and set aside the subsequent decisions and orders thereto. On her side the respondent having understood the issue raised by the Court lay as she is in legal matters conceded that, it is true the law was not followed as the matter was not forwarded to the Court by the trial Court as required by the law. She thus left it to the court to decide the fate of this matter. in rejoinder Mr. Lubyama had nothing more to offer apart from reiterating his earlier submission and prayer. I have paid due consideration to both parties submissions and took sizeable time to revisit trial court’s proceedings as well as consult the law related to probate and administration of estates in a bid to answer the above raised issue. It is uncontroverted fact that, the matter at hand is governed by the Probate and Administration of Estates Act, [Cap. 352 R.E 2002] (the Act) and the Probate Rules, 1963 (the Rules). As alluded to in the facts above after general citation was made the appellant herein filed his caveat in court challenging the respondent’s petition, the caveat that led to issuance of citation to the caveator in terms of section 59 of the Act and Rule 82(3) of the Rules hence appearance in Court supported with counter affidavit in terms of 4 Rule 82(4) of the Rules. It is settled law under section 54(1) of the Act and Rule 83 of the Rules that, once an application for grant of probate or letters of administration the estate is filed before the District Delegate the value of which exceeds fifteen thousand shillings and the same is contested or appearance is made before the said District Delegate supported with affidavit after caveat is entered in respect of the petition in which gross value of estate exceeds fifteen thousand shillings, the District Delegate shall cease to have jurisdiction over matter as he/she will be enjoined to forward the records to the Registrar of the High Court for him/her to deal with it in accordance with the provisions of Rule 82(6) of the Rules or for the High Court to direct otherwise. The said section 54(1)(a) of the Act reads: 54(1) Where an application for probate or letters of administration is made to a District Delegate and either- (a) The application is made in respect of an estate the gross value of which exceeds fifteen thousand shillings and I opposed; or the District Delegate shall stay the proceedings and report the matter to the High Court. Rule 83 of the Rules also provides thus: 83. Where an application for grant of probate or letters of administration has been made to District Delegate in respect of an estate the gross value of which exceeds fifteen thousand shillings and a persons who has filed a caveat against such application has entered an appearance, the District Delegate shall upon receipt of the appearance and 5 affidavit is support thereof forward the record of the proceedings to the Registrar who shall proceed as required by paragraph (6) of rule 82. And Rule 82(6) of the Rules reads: (6)Where a caveator enters an appearance the proceedings shall be numbered as a suit and the Registrar shall appoint a date upon which the suit shall be listed before a Judge in Court for such orders as to pleadings and the hearing as the Judge may make. Back to the matter at hand what is gathered from the trial court record as correctly submitted by Mr. Lubyama and rightly conceded by the respondent is the unchallenged fact that, the trial magistrate acting as a District Delegate and having received caveator’s appearance supported with affidavit, in contravention of the law on 15/02/2023 usurped the High Court or Registrar’s powers when decided to proceed assigning the petition with the civil suit number and conducted hearing of the case to its finality by appointing the respondent as adminstratrix of the estate of the late Jesser Stellah Emmanuel instead of forwarding the record to the High Court for the Registrar to deal with it in accordance with the law or for the High Court to direct otherwise. By so doing I hold the learned trial magistrate strayed herself as she ought to have acted in terms of Rule 83 of the Rules, by deferring the proceedings and forward the record to the High Court for its guidance or for the Registrar to treat it in terms of the provisions of Rule 6 82(6) by assigning it a civil case number and cause it to be placed before the Judge for him to deal with it in accordance in law. Such violation of the law by the learned trial magistrate I hold is inexcusable in law and vitiates the trial court proceedings from 15/02/2022 onward and the subsequent decisions thereof including issuance of letters of appointment of the respondent as adminstratrix of the estate of the Jesser Stellah Emmanuel, for originating from null proceedings. It follows therefore the sup motu raised issue by the Court is answered in negative in that under the circumstances the trial court was not seized with jurisdiction to entertain the petition under consideration. This issue no doubt disposes of this appeal and therefore I remain with no reason to venture into considering the appeal in which the impugned judgment emanates from the null proceedings. Now with such incurable irregularities in the proceedings the follow up question is what is the appropriate remedy under the circumstances? In my humble view the only remedy is to invoke the revisionary powers bestowed to this Court under the provisions of section 44(1)(b) of the Magistrates Courts Act, [Cap. 11 R.E 2019] which I hereby do and proceed to revise the said irregular proceedings. I therefore quash the proceedings of the District Court of Dodoma in Probate and Administration Cause No. 146 of 2022 from 15/02/2023 when the Court renumbered the Probate Cause as Civil Suit No. 146A of 2023 and onward and set aside the judgment dated 16/08/2024 7 and subsequent orders thereto including letters of appointment of Irene Emmanuel Shuli as administratrix of the estate of the late Jesser Stella Emmanuel. I return the case file to the trial court with an order to comply with the requirement of the provisions of Rule 83 of the Probate Rules, 1963. The appeal is therefore allowed to that extent. Each party to bear own costs. It is so ordered. Dated at Dodoma this 30th of August, 2024. E. E. KAKOLAKI JUGDE 30/08/2024. Court: The Judgment has been delivered at Dodoma today on 30th day of August, 2024, in the presence of Mr. Hubert M. Lubyama, Advocate for the Appellant, Appellant in person and Respondent in person and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 30/08/2024. 8