20140625 TZCA Tabora

'f • f, ,. IN THE COURT OF APPEAL OF TA~_ZANIA AT TABORA {CORAM: MBAROUK, J.A., MASSATI, J.A., And MUS~A. J.A.) CIVIL REVISION NO 4 OF 2013 lUMANNE JAFARI NGUGE ••••••.••••••••••••••.••••••••••••••••••••••••••••••••.••••••••••.•':.,,APPLICANT VERSUS NZILIKANA RAJABU ••••••••••••••••••••••••••••••••••••••••••• -•••••••••••••••••••••••••••••••• RESPONDENT (Revision from the Ruling of the High Court of Tanzania at Tabora) (Rumanyika, J.} Dated the 15th day of October, 2013 in - Mic. Civil Application No. 24 of 2009 . ---------------- . RULING OF THE COURT 24th & 26th June, 2014 & MUSSA. l .A.: ....... The parties herein are wrangling over the administration of the estate of the late Farahani Jafari Nguge, who died intestate at Businde, Kigoma. The applicant and the respondent are, respectively, brother and widow of the deceased. Both were appointed joint administrators of the deceased's estate in a decision handed down by the Ujiji Primary court, way back on the 9th May, 2006. In the aftermath, the parties have evolved through numerous proceedings which are not quite of relevancy to this matter. Eventually, in Miscellaneous Civil Application No. 24 of 2009, the applicant sought to move the High court under the provisions of sect.ion 92 and 93 of 1 the Probate and Administration of Estate Act, Cap. 352 (PAEA) for the following orders:- i} Cap. 352 shall apply to the administration of the estate in Ujiji Primary Court Deceased Estates Cause No. 11 of 2006; ii) The High Court takes over the proceedings of the estate of Farahani Jafari Nguge and invokes Cap. 352; iii) Letters of administration without will, be granted to Jumanne Jafari Nguge and Nzilikana Rajabu as co-administrators and; iv) Costs in this application be costs in the administration of the estate. In a Ruling that was pronounced on the 15th October, 2013 the High Court (Rumanyika, J.), dismissed the application and, in the upshot, upheld the lower court's verdicts. Dissatisfied, the applicant presently seeks to move this Court to vacate the decision of the High Court in revision. The application is by Notice of Motion, purportedly, taken out under the provisions of Rule 65 of 2 the Tanzania Court of Appeal Rules ("the Rules''). The same is accompanied by an affidavit, duly sworn by the applicant. The respondent has greeted the application with a notice of Preliminary objection to this effect:- i) The Applicant's application for revision is legally misconceived since this matter ought to have come by way of an appeal before the Honourable Court. ii) The Applicant is wrongly moving this Honourable Court to entertain the matter · through the forum of revision as an alternative to appeal. iii) The alleged grounds as set forth in the Applicant's Notice of Motion are legally flimsy for this Honourable court to revise the impugned decision of the High Court. Before us, the applicant was represented by Mr. Musa Hussein Kwikima, learned Advocate, whereas the respondent had the services of Mr. Method R. G. Kabuguzi, also learned Advocate. In accordance with 3 established practice, we invited Mr. Kabuguzi to first address us on the preliminary points of objection. The learned counsel for the respondent prefaced his submission with a remark that the three points of objection are interrelated and so, for that reason, he proposed to canvass them generally. Mr. Kabuguzi then contended that the decision sought to be impuged by the applicant is appellable under the provisions of section 5(1) (c) of the Appellate Jurisdication Act, Chapter 141 of the Laws (AJA). That being so, he urged, the applicant should not have sought the revisional jurisdiction of this Court, more so, as a party cannot resort to the revisional jurisdiction of this Court as· an. alternative to the appeal process. To the extent that the applicant improperly seeks to move the Court in revision, counsel concluded, this application is incompetent and should be struck out with costs. To bolster his submission, Mr. Kabuguzi referred to us two decisions of this Court, viz, AR. Civil Application No. 3 of 2002 J.H.KOMBA Esq vs The Regional Revenue Officer, sub-Treasury Arusha and Two others and; Civil Application No.5 OF 2013- Chrisostom Lugiko vs Ahmednoor Ally (both unreported). 4 At the end of his submission, we invited Mr. Kabuguzi to, additionally, comment on whether or not the Court is properly seized of its revisional jurisdiction, particularly on account of the applicant's mere citation of Rule 65 as the enabling clause grounding the application. Without hesitation, the learned counsel for the respondent suggested that the applicant should have, also, made reference to section 4(3) of AJA which is, actually, the enabling provision through which this Court is enshrined with revisional jurisdiction. Counsel further urged that on account of the non-citation of the referred enabling provision, the application was just as well incompetent and ought to be struck out. Responding on behalf of the applicant, Mr. Kwikima cautioned that the proceeding in the High Court was instituted under the provisions of the PAEA which hardly involves the Civil Procedure code. More specifically, counsel for the Applicant contended that although an appeal lies from the High Court's refusal to grant the orders prayed; the same is upon a cumbersome process which is quite unwarranted to such a simple matter ,t, as the probate cause at hand. Coming to the other apparent infraction raised by us in the course of hearing, Mr. Kwikima defended the applicant's citation of Rule 65 of the Rules which, he said sufficiently moves this Court 5 to exercise its revisional jurisdiction. According to him, Section 4(3) of AJA only relates to a revision which is initiated by the Court on its own accord and, thus, in his construction, the only avenue open to a party in the applicant's shoes is to initiate the revision through the invocation of Rule 65 of the Rules. In our consideration of the learned rival arguments, we propose to begin by satisfying ourselves whether or not upon the mere citation of Rule 65, of the Rules, the Court is properly moved to exercise its revisional jurisdiction. In this regard, we should, at once, respectfully decline Mr. Kwikima's suggestion that the provisions of section 4 (3) of AJA are exclusively preserved for a revision initiated by the Court suo motu. We take the position that, upon a legitimate occasion, a party to proceedings in the High Court may just as well, invoke the revisional jurisdiction of the Court under that provision. Thus, whereas section 4 (3) of AJA is the enabling provision through which the Court is seized of revisional jurisdiction, either on its own motion or through a party; Rule 65 of the Rules lays out the manner through which the latter invokes that jurisdiction. To this end, we entirely subscribe to Mr. Kabuguzi's submission to the effect that for the Court to be properly seized of its 6 q revisional jurisdiction, it is imperative for a desirous party to cite the enabling section 4 (3) of AJA. Upon a plethora of authorities, it is now settled that the non- citation or wrong citation of an enabling provision of the law has the effect of rendering a matter incompetent (See, for instance, the decision of this Court in Civil Application No. 20 of 1997- NBC Vs Sadrudin Megliji (unreported). Thus, on account of this infraction alone, the application stands to be struck out for incompetence. We are, however, impelled to additionally· consider the preliminary points of objection raised by the respondent of which we find to be just as compelling. In agreement with the learned counsel for the respondent, we should take note that the respective appellate and revisional jurisdictions of this Court are, in most cases, mutually exclusive. Thus, if there is a right of appeal, then that right has to be pursued by the concerned party and, except for sufficient reason amounting to exceptional circumstances, there cannot be resort, by the party to the revisional jurisdiction of the Court. The case of Halais Pro-Chemie Vs Wella A.G [1996] TLR 269 meticulously laid down the legal pre-requisites for the invocation of the revisional jurisdiction of this Court:- 7 (i} The court may on its own motion, and at any time, invoke its revisional jurisdiction in respect of the proceedings of the High Court; (ii) Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the revisional jurisdiction of the Court as an alternative to the appellate jurisdiction of the Court; (iii} A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court in matters which are not appelable with or without leave; (iv) A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court where the appellate process has been blocked by Judicial process. 8 Quite cleary, the matter under our consideration does not, at all, fall under any of the foregoing benchmarks. More specifically, if by reference to the so-called cumbersome process the learned counsel for the applicant had in mind the requirement under section S(l)(c) of AJA for one to seek and obtain leave ot the High Court ahead of an appeal; such is a due process to which every litigant is obliged. As such, the requirement cannot, by any stretch of imagination, and which, as such, cannot amount to a judicial blockage. In the end result, be it on account of non-citation of the vital enabling provision of the law or the improper invocation of the revisional jurisdiction of the Court, this application is, either way, incompetent and we, accordingly, strike it out with costs. DATED at TABORA this 25th day of June, 2014. I certify that this is a true copy of t h e ~ ~KWIZU ~t:PJJf..¥-R1:GISfRAR COURT OF APPEAL 9