julieth jackson severine another vs fedrick kaiza bifanimanya as administrator of the estate of the late jackson severine 2021 tzhc 9463 31 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA DISTRIC REGISTRY AT MBEYA PROBATE APPEAL NO. 2 OF 2020 (Arising from Revision Application No. 3 of 2020 in the District Court of Mbeya) JULIETH JACKSON SEVERINE................................ 1st APPELLANT KASHAIJA JACKSON SEVERINE............................ 2nd APPELLANT VERSUS FREDRICK KAIZA BIFANIMANYA(as administrator of the Estate of JACKSON SEVERINE)................................................... RESPONDENT JUDGMENT A.A MBAGWA J. This appeal stems from the ruling of the District Court (Hon. M.F. LUKINDO - RM) in Revision Application No. 03 of 2020 whereby the District Court struck out the appellant’s application. This matter originally started in the primary court where respondent applied for and was appointed administrator of the estates of the late Jackson Severine through Probate and Administration Cause No. 77 of 2019 in the Primary Court of Uyole. Aggrieved by the decision of Uyole Primary Court, the appellants appealed to the District Court of Mbeya in Civil Appeal No. 14 of 2019. i However, their appeal was unsuccessful on the ground that they were not parties to the case from which the appeal emanated. As such, the appeal was struck. The appellants were advised to file a revision as the only remedy available to them. Following the decision of the District Court in Civil Appeal No. 14 of 2019, the appellants filed Revision Application No. 03 of 2020 in the District Court (Before Hon. Lukindo RM) from which this appeal arises. This application was initiated by way of written complaints in which the appellants enumerated the grounds for challenging the decision of Uyole Primary Court. When the revision was set for hearing, the respondent raised a preliminary objection on point of law to the effect that the application was made from a non-existent and unknown document hence bad in law as it contradicts order XLIII Rule 2 of the Civil Procedure Code. In its ruling dated 01/06/2020, the District Court (Hon. Lukindo RM) held that since the matter originated from primary court, the provisions of Order XLIII Rule 2 were not applicable. Further, at page 5 of the ruling, the court ruled that section 22 of the Magistrates’ Courts Act from which the District Court derives revisional powers does not provide for a specific format for an application nor does it prescribe for the manner in which the court may be moved. Despite these findings, the District Court 2 at page 6 of the ruling, sustained the objection and consequently struck out the application. For sake of clarity I find it pertinent to reproduce the relevant part of the ruling. ‘However, in that document there is nowhere which cited the enabling provision which empowers this court to make revision, which is section 22 of the Magistrates Courts Act Cap. 11 Hence, I find the objection raised by the learned advocate for the respondent having merit. I accordingly uphold the preliminary objection and strike out the application for revision’ The appellants were not amused by the decision of the District Court striking out their application hence this appeal. In their petition of appeal, the appellants raised one ground to the effect that the magistrate erred in law by compelling the Applicant to comply with the provisions of the Civil Procedure Code in respect. The appeal before this Court was heard ex parte after the respondent was served through substituted service to no avail. The appellants were represented by Peter Kilanga assisted by Essau Sengo, both leaned advocates. Submitting in support of the appeal, Mr. Kilanga said that Civil Procedure Code is not applicable to the matters originating from the Primary Court. 3 He argued that according to Section 2 of the CPC, CPC applies only to the High Court, Court of Resident Magistrate and District Court. Essau Sengo added that CPC applies to civil matters originating from the High Court, court of Resident Magistrate and the District Court. He said the provision uses the word “shall” which connotes a mandatory function. He cited section 53(2) of the interpretation of Laws Act and said that it clearly states that the word shall where it is used to confer a function, it connotes a mandatory function. Sengo continued to argued that the applicants, now the appellants were not part of the original Probate and Administration Cause No. 77 of 2019, for that reason, they had no right to appeal against the decision of the Primary Court. The counsel argued that the only remedy which the appellants had was to apply for revision to the District Court and not to appeal. He further told the Court that the appellants approached the District Court with an application for revision under section 22(1) of the MCA. It is the appellants’ submission that the District Court decision is erroneous in that there is no law which provides for modality of moving the court in the revision application to the District Court. Sengo said that the powers of the District Court to revise the primary court decision is provided under 22(1) of the MCA. He contended that on reading section 22(1), the District Court may revise the proceedings suo motu or upon being moved by the party but the law does not provide how the party should move the court. He argued that it is unlike appeals where under section 20(3) it is clear that the appeal is by way of petition. The appellants’ counsel argued that it has been practice for the party to appear before the District Court Magistrate in Charge and complain orally. He said in some occasions, the party would write a letter to the District Court Magistrate in Charge complaining about the decision whereas in case the advocate is engaged, the party would make formal application i.e. chamber summons supported by affidavit. Thus, the appellants’ counsels strongly submitted that the revisional magistrate erred in law when she struck out the revision No. 3 of 2021. As such, they beseeched the Court to allow the appeal, quash the ruling and order of the District Court the application for revision on merits. I have thoroughly canvassed the appellants’ complaints vis a vis the record of appeal. It is undisputed that the appellant moved the District Court via a written complaint in which they expressed their dissatisfaction with the decision of Uyole Primary Court appointing the respondent as administrator of the estates of the late Jackson Severine. At page 5 of the impugned ruling, the learned magistrate held that section 22 of the Magistrates Courts Act does neither provide for modality nor format of bringing the application. Nonetheless, she proceeded to strike out the application on the ground that the appellants did not cite section 22 of the Magistrates Courts Act. It is inconceivable how would the appellants be compelled to cite the enabling provisions in written complaints. It is common cause that citation of enabling provisions is necessary in the statutory documents such as chamber summons, notice of motion and the like. Further, the learned magistrate raised suo motu the issue of non­ citation in the course of composing the ruling without affording parties the right to be heard. On the face of record, what was at issue was whether the provisions of the Civil Procedure in particular Order XLIII Rule 2 applies to matters that originate from the primary court. Despite overruling this objection by holding from the primary court. Despite overruling this objection by holding that CPC does not apply, the learned magistrate at the last page of the ruling continued to sustain the objection. I find this to be a misconception on the part of the court in arriving at the decision. In view of the foregoing, it is my findings that section 22 of the Magistrates’ Court Act does not specify the modality in which the court may be moved to invoke its revisional powers. As such, I am opined that the revision can be initiated by formal application i.e. chamber summons 6 A J and affidavit, correspondence i.e. complaint letters or suo motu. It is my further findings that where the court is moved by correspondence, the requirement to cite enabling law does not apply. In the circumstances, it is my considered views that the learned magistrate erred to strike out the application for want of citation of the enabling provision. That said and done, I find the appeal meritorious and allow it. Consequently, the ruling of the District Court is quashed and its consequential order is set aside. As such, I hereby order that the revision application be heard on merits. It is so ordered. Right of appeal fully explained. A.A. Mbagwa Judge 31/12/2021 This judgment has been delivered in the presence of Peter Kilanga, advocate for the appellant and in absence of the respondent this 31st A.A. Mbagwa Judge 31/12/2021 7