LIZBERTH ASSEY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB- REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO 25536 OF 2024 (Originating from the Decision ofKinondoni District Court in Civil Appiication No. 169 of2022, which originated from the decisions ofKawe Primary Court Civil Case No 232 of2021 and Original Probate and Administration Cause No. 216 of2018) LIZYBERTH THOMAS ASSEY (As an attorney ofAngela Dieckmann) APPELLANT VERSUS ELIZABERTH PETER MOSHA RESPONDENT JUDGMENT ON APPEAL S.M. MAGHIMBI. J: The Appellant above named w/as aggrieved by the decision of the District Court of Kinondoni (Hon. Hon. E. RWEHUMBIZA-PRM)dated day of Aprily, 2023 in Civil Application No. 169 of 2022 which dismissed the appellant's application for Revision seeking the District Court to Revise the decision of Kawe Primary Court Civil Case No 232 of 2021. The aggrieved appellant has raised three grounds of appeal as follows: 1. That, the trial Magistrate erred In law and facts for failure to realize that once the probate and administration cause Is closed the former administrator shall be sued in a normal civil suit under his or her personal capacity. 2. That, the trial Magistrate erred in law and facts by misconceiving the mandatory legal requirement that the trial court has appellate or revisionary jurisdiction to entertain matter of civil nature originated from the lower Courts. 3. That, the trial Magistrate erred in law and facts that the Judicial of Tanzania in the District Court of Temeke(One Stop judiciary Centre at Temeke)/7a5jurisdiction to entertain the matter despite the fact that the probate and administration cause No 216/2018 was already closed. On those grounds, the appellant prays for the following; a) That, this appeal be allowed and this Honorable court to quash the decision of the trial Court. b) That, the respondent be ordered to pay the appellant on behalf of Mis Angela Dieckmann an equal share of a house with Certificate of Title No 1015745 formerly known as House No 9 and 3 hector of shamba located at Mbezi beach within Kinondoni municipality in Dar es Salaam. c) Cost of this appeal be provided for d) Any other order this Honorable Court may deem fit and just to grant. Before this Court, the appellant was represented by Mr. Katala Kallmba, learned advocate while the respondent was represented by Mr. Alex BaiomI, learned Advocate. Hearing of the appeal was by way of written submissions. Before I go Into the determination of this appeal, I have noted some discrepancies In the records which I find Important to be cleared before the determination of the substantive appeal. First It Is the appellant's second prayer In the memorandum of appeal whereby the appellant prays for this court to the respondent be ordered to pay the appellant on behalf of Ms. Angela DIeckmann an equal share of a house with Certificate of Title No 1015745 formerly known as House No 9 and 3 hector of shamba located at MbezI beach within KInondonI municipality In Dar es salaam. This prayer Is substantive upon determination of the rights and obligation of the parties, something which was not prayed for In the District Court In the first place. It Is trite law that a matter which was not tabled before the trial court (In this case the Revlslonal Court) cannot be freshly prayed for In the appellant court. Furthermore, It Is obvious on records that the matter appealed against ended at preliminary stage before the court went Into the determination of the Revision application, hence this court's jurisdiction Is only In so far as the determination of the preliminary objections raised at District court Is concerned. It cannot go further to determine the rights of the parties. Secondly, I have noted that the Issue comprised in the first ground of appeal was not determined by the trial court. In his brief determination of the objection, the District Magistrate only dealt with the issue of jurisdiction, for ease of reference, the trial magistrate held: "Having scrutinized the record of the triai court and the weii- researched submissions by the counseifor the parties, the issue for determination at this Juncture is whether the triai Court as jurisdiction to hear and determine this case as to caii for and examine the record of the primary Court of Kawe made in civii case No. 232 of2021 for purposes ofsatisfying itseif as to the correctness, iegaiity or propriety of the decision therein, and as to the reguiarity of the proceedings therein and quash the proceedings and judgment thereof. This appiication was presented by the Appiicant. According to the above civii case no. 232 Of20211 quote "Kwa viie suaia hiio Unahusikia na mirathi ikiwa ni nyumba inayokuwa viie pesa Hiyokuwa inadaiwa tayari Hishaingia kwenye akaunti ya mdai na swa/a iiiiiozuka ni ia nyumba ambayo ni ya mirathi,swa/a hiii kwenye mirathi Hiyokwisha maiizika Hii waweze kufanya yaie wanayoyataka. Jadafa hiii Unafungwa hapa Mahakamani."[end ofquotation]so it very cieariy that the case fiie was aiready dosed and it was 4 originated from Probate and administration Cause No.216 of 2018 ofPrimary Court of Kawe. Therefore due to that this court has no jurisdiction to entertain this matter. As per Section 7(1) of civil Procedure Code Cap.33 R.E 2019 In which ordinary dvH Courts of Resident Magistrate or District Court-probate matter are now expressly barred by the law It reads 'subject to the provisions herein contained have jurisdiction to try all suits of civil nature excepting suits of which their cognizance Is either expressly or Implledly barred'. Based on that this Application this court would have been preferred direct to the Judiciary of Tanzania In the District Court of Temeke (one Stop Judiciary Centre At Temeke) and not In the ordinary Court. Finally, to cement on that this court cannot entertain revision In which the case was already decided and at hand It Is an application. Applying that principle, I hereby find that this Preliminary objection has merits as to this court as no Jurisdiction to entertain and second this court cannot entertain revision which the case was already dosed therein (originated from probate), therefore, the application was presented In wrong place and this courtcannotInterfered what was held In Primary Court ofKawe." From the above quotation, the magistrate did not determine whether once the probate and administration cause is closed the former administrator shall be sued in a normal civil suit under his or her personal capacity. Therefore it is only the second and third grounds of appeal that will be determine. Having said the above, I will now proceed to determine the remaining grounds of appeal the trial Magistrate erred in law and facts by misconceiving the mandatory legal requirement that the trial court has appellate or revisionary jurisdiction to entertain matter of civil nature originated from the lower Courts and that the trial Magistrate erred in law and facts that the Judicial of Tanzania in the District Court of Temeke(One Stop judiciary Centre at Temeke) Aas jurisdiction to entertain the matter despite the fact that the probate and administration cause No 216/2018 was already closed. The two grounds presuppose the determination of jurisdiction from two contexts, the first one is whether the application before the District Court was placed in the proper court and whether the matter before it was a Civil Case or a closed probate case. In his submissions, I have noted that Mr. Kalimba submitted in both issues of fact and issues of law. My determination will therefore consider the submissions on issues of facts because as said earlier, the matter ended at preliminary stage on issue of law. His submission on point of law were 6 focused on the provisions relating to the revisionary power of the District Court over the decision of the Primary Court under Section 22(1) of the Magistrates' Courts Act Cap 11[ R.E 20221 which empowers A district Court to call for and examine the record of any proceedings in the Primary Court for the purposes of satisfying itself as to the correctness, legality or propriety of any decision or order of the primary court, and as to the regularity of any proceedings therein, and may revise any such proceedings. His submission was that the district Court of Kinondoni has the power over the primary Court of Kawe. He submitted further that the next question the trial court ought to have asked itself was whether the appellant Civil Application No 169/2022 fit for the application of revision to be granted over the decision of the primary Court of Kawe. He answered the question by referring this court to the case of HALAIS PRO- CHEMIE VS WELLA A.G (1996)TLR 269(CA) whereby the court established the following tests for the court to invoke its revisionary power and these are; a) By the Court suo motu, where the Court at any time may invoke its revisional power in respect of the proceedings in the High Court; b) Where there are exceptional circumstances; c) Matter which were not appealable with or without leave d) Where the appellate process has been blocked by judicial process. Base on the above tests, his argument was based on the second test that the court may invoke its revisionary power where there are exceptionai circumstances in the decision of the triai court. He then eiaborated that the appeiiant herein instituted a Civii Revision No 169/2022 to the District Court of Kinondoni to challenge the decision of the Primary Court of Kawe in Civil Case No 232/2021. That there are exceptional Circumstances in the decision of the Primary Court of Kawe especially under page 1 & 2 of the judgment whereby the court state that: "Kuhusu swala la kutaka nyumba iuzwe naomba tupeieke swaia hifi kwenye kikao cha ukoo kuie Moshi waiiko wajomba zetUfWaiioniteua kuwa msimamlzl wa mirathi. Kwa viie suaia hiio iinahusika na mirathi ikiwa ni nyumba inayotakiwa iuzwe Java viie pesa iiiyokuwa inadaiwa tayari iiishangia kwenye akaunti ya mdai na swaia iiiiiozuka ni ia nyumba ambayo niya mirathi,swaia hiii kwenye mirathi iiiyokwisha maiizika Hi waweze kufanya yaie wanayoyataka jaiada hiii iinafungwa hapa makakamani" He then argued that the above decision of the primary court shows that what was decided never existed in our iaws because it is not possible for a court that has vested with power to decide in a particular civil matter but unreasonably to revert that power to "KIKAO CHA UKOO" while the 8 probate cause was already closed and the respondent power ceased automatic as the administratrix. He went on submitting that the Trail court didn't note that in the decision of the primary court on the issue of shamba located at madale was neither discussed nor decided although was mentioned by the appellant during hearing. That the act of referring the matter to KIKAO CHA UKOO and failure to decide on the shamba located at madale amounted to illegality, incorrectness, irregularity and procedural impropriety because the primary court was supposed to decide the suit to its finality and not to revert to kikao cha ukoo or ignore other issues like the Madale's shamba of which all of them formed part of the appellant cause of action in her case. That all these amount to exceptional circumstances that could render the district court through power vest on it to grant the appellant application for the purpose of satisfying itself as to the correctness, legality or propriety of the decision or order of the primary court. He then argued that the trial court failed recognize that the appellant was challenging the decision of the Primary Court in civil Case No. 232/2022 of which section 22(1) of the Magistrate Court Act Cap 11 R.E 2022 vest power to the trial court to revise the Decision and proceedings of the primary Court. However, he submitted, the trial Magistrate appears to bless and appreciate the decision of primary Court to revert its power to the KIKAO CHA UKOO, this has been witnessed under page 13 paragraph 3 where the triai court state that; 'Therefore, the application was presented in wrong piace and this court cannot interfered what was heid in primary court of Kawe. " He went on submitting that the above preposition of the triai court ied to miscarriage of justice because the court neither recognize and discuss whether has vested with revisionary power over the decision of the primary court nor expound aii of the above tests for application of revision as stated in the case of HALAIS PRO-CHEMIE VS WELLA A.G (1996)TLR 269 (CA). Further that it is crystal clear at this juncture that the triai court didn't discuss anything about the merit of the appellant application with the view that it had no jurisdiction because the said application for revision was trying to challenge the probate cause No 216/2018 which was already closed. It is trite law that the appellant application was correct, since the matter emanated from the normal civil case No 232 of 2021, taking into account that there are exceptional circumstances In the decision of the primary court amounting to illegality, irregularity incorrectness and impropriety, whereby the appellant instituted a civil revision No 169/2022 to the District Court of Kinondoni of which has vested with such jurisdiction to entertain revisionary 10 power over primary courts. His prayer was that this Honorable Court allow this appeal and quash the decision of the trial courts. In reply, Mr. Alex Mashamba BalomI for the respondent argued that, the trial court was correct as it decided. He justified that, the application before the trial court was Incompetent as It wrongly sued the respondent In her personal capacity as Elizabeth Mushi and not in the capacity as the personal legal representative of the late Agatha Joseph RItter, hence, she lacked locusstandito defend the matter. To verify his justification, he placed reliance in the case of Monica Nyamakare Jigamba vs Mugeta Bwire Bhakome(as administrator of the estate of Musiba Reni Jigabbha) & Another, Civil Application No. 199/01 of 2019. That the Respondent in the Primary Court of Kawe at Kawe was acting as a Personal Legal Representative of the estate of late ANGATHA JOSEPH RITTER, the Deceased and is from this Court the probate cause was filed and determined appointing the Respondent an Administratix of the estate. The Appellant was not satisfied with the decision of the Primary Court thereby, the Appellant sought to revise the proceedings therefrom. It is the humble submission by the Respondent that, the said Revision application was incompetent as it wrongly sued the Respondent In her personal capacity as ELIZABETH MUSHI and not in the capacity as the Personal Legal representative of late ANGATHA JOSEPH RITTER, the Deceased. He argued 11 that the Respondent being sued in her personal capacity she lacked locus standi to defend the Application arising from the probate and administration Cause of deceased. That the District Court was correct to hold so. He cited the case of MONICA NYAMAKARE JIGAMBA V. MUGETA BWIRE BHAKOME as Administrator of the Estate of MUSIBA Reni JIGABBHA & ANOTHER, CIVIL APPLICATION NO.199/01 OF 2019 found at page 197 of the book titled; A case Digest on Probate and Administration of Estates in Tanzania by L.M. MLACHA, Z.N. LUKUMAY & D.P. KINYWAFU. In the premises, he concluded, all the duties are vested into the Administrator/Administrix. To sue the Respondent in her personal capacity contravenes the provisions of the governing law i.e. The Probate and Administration of the Estates Act Cap. 352(R.E 2019) On the second ground of appeal, he submitted that it was correct to the Court to find that, the District Court had no jurisdiction to entertain the Application for revision originating from a Probate and administration because which falls under a specific forum i.e. at the District Court at One Stop Judicial Centre at Temeke and not to the ordinary Court in the District Court of Kinondoni at Kinondoni as it was in the instant case. He then cited the provision of Section 7(1) of the Civil Procedure Code Cap 33.(R.E 2019) where clearly provides that: 12 'The court shall subject to provisions herein contained have jurisdiction to try all suit of civil nature excepting suit of which their cognizance Is either expressly or Implied barred'. He then argued that the matter is expressly barred by the law to be entertained In the ordinary courts of law as the Appellant did. He supported his submissions by citing the case of Attorney General V, Lohay Akonaay & Another (1995) T.LR 80. The Court observed at page 92 as below: '...Courts would not normally entertain a matter for which a special forum has been established unless the aggrieved party can satisfy the court that no appropriate remedy Is available In the special forum'. He concluded that the Appeal ought to have been filed In the exclusive jurisdiction In the United Republic of Tanzania at One Stop Judicial Centre at Temeke which has been established strictly for special forum for among other things probate and administration cause, matrimonial and juvenile matters. In this this view, the High Court (Dar es Salaam Zone/Sub-Reglstry) has no vested Itself with jurisdiction which It possesses to try matters of this nature as submitted above. On the ground that the Revision was a correct remedy Instead of an Appeal against the decision of the Primary Court at Kawe, Mr. BalomI 13 submitted by making reference to the same relied on case of HALAIS PROCHEMIE Vs WELLA A.G (1996)T.L.R 269(CA). he then submitted that Civil Application No.169/2022 in the District Court of Kinondoni at Kinondoni was not a fit case for Revision. That instead, it was a fit case for an Appeal to the District Court in One Stop Center. He then elaborated that in order to signify its origin, it was supposed to be even designated as PC Civil Application No 169/2022 and not Civil Application No 169/2022 and similarly in this instant appeal pre word'PC was required but was not so done but has legal implication on records keeping though is not a subject of this appeal. He argued that in analysis of the Decision above, the Respondent agree with the test given by the highest Court in Tanzania to determine which is a fit case for Revision. That the holding in this case is not in favor of the Appeal before the Court as argued in connection with the Revision Application dismissed by the District Court. This cited case was meant to guide revision to be preferred from the District Court to the High Court and not from Primary Court to the District Court. That the wording of the Decision is making reference to the High Court powers and not of the District Court powers of revision. He went on submitting that four things to be applied to test fitness to revision are that the High Court can do it sua moto; there must be exceptional circumstances-no exceptional circumstances are correctly 14 given In the Instant case at the District level. He argued that the order to go to get endorsement to the Clan Meeting does not constitute to be exceptional circumstances and not appealable. He submitted further the third reason Is that the matter should not be appealable- the matter In the primary court was appealable to the relevant District Court; and lastly that the appellate process In the Instant case was not blocked by any judicial process. He then argued that these tests were cumulatively not met In favor of the Appellant's case. Having meticulously painstaking the parties' written submissions on the grounds of appeal, It Is plain that the determination of the appeal turns on whether the trial court was clothed with jurisdiction to entertain the matter, If the answer Is In the affirmative. It follows that, whether revision was a proper remedy or an alternative to appeal. In the first place. It Is noteworthy to state that jurisdiction of the court Is a creature of the statute and Is conferred and prescribed by the law. In other words. It does not derive from the air or parties' submissions rather than from the statutes. This legal position was lively restated In Amina Karim Jetha vs Wakf & Trust Property Commission (as administrator of the estate of the late All Salim All), (Civil Appeal No.86 of 2019)[2019]TZCA 511(13 December, 2019)TanzLII that: 15 "A court's jurisdiction is conferred by a statute and that the parties cannot, expressly or by conduct, confer on a court the jurisdiction it does not have under the iaw". Similarly, in the Court's pronouncement of Yohana Balole vs Anna Benjamin Malongo,(Civil Appeal No. 18 of 2020)[2021] TZCA 388 (19 August, 2021)TanzLII it was echoed that; "...the authority which a court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a forma! way ofits decision. The limits of this authority are imposed by the statute; charter or commission under which the courtis constituted, and may be extended or restrained by similar means". Emphasis supplied. As held above, the issue of jurisdiction being so fundamental, it can be raised at any stage of the proceedings. It compels the court to delve into and determine what is alleged before going into the nitty gritty of the appeal. Looking at section 22(1) of the MCA, it expressly provides for the revisional jurisdiction of the District Court over the proceedings underpinning the Primary Court. As intimated earlier, it is certain that Civil Application No. 169 of 2022 was in respect to Civil Case No. 232 of 2021 and not Probate and Administration Cause No. 216 of 2018 before the PC, this is visibly confirmed through the prayers sought in the chamber summons to the application. 16 The ruling of the trial court connotating that the same arose in Civil Case No. 232 of 2021 and Probate and Administration Cause No. 216 of 2018, with respect, it is misplaced as the two are different cases whereby the former was on recovery of beneficiary rights from the then administratrix whilst the latter was on probate and administration of the deceased's estate. As correctly pointed out, the Probate matter was already closed and that Is why the respondent was sued in her personal capacity. Therefore, the District Court had jurisdiction to entertain the matter in terms of nature of the case basis, that since the Probate was already closed, then the respondent is to be sued in her personal capacity, something with the appellant did via Civil Case No. 232 of 2021 which was a subject of the Revision at the District Court. The third ground is therefore answered in the affirmative as the matter was no longer a probate cause. At that point, since the appellant was not barred by the law, the path she enroute was uncalled for, the question remains, which is the last ground to determine, whether revision was the proper remedy to be sought. To begin, I will start with the position held by the Court of Appeal in the case of Hassan Ng'anzi Khalfan Vs Njama Juma Mbega (legal representative of the late Mwanahamisi Njama) & Another, (Civil Application No. 218/12 of 2018) [2020] TZCA 32 (20 February, 2020)TanzLIl whereby the Court stressed that: 17 "...unless there are exceptional circumstances, the revlslonal jurisdiction of the Court should not be resorted to as an alternative to Its appellate Jurisdiction". See; Moses Mwakibete vs The Editor Uhuru & 2 Others[1995]TLR 134 and to name the few. Equally, In the case of Maleckezedeck John Mallya vs Miriam John Mallya &4 Others,(Civil Application No.67/01 of 2023)[2024] TZCA 939(25 September, 2024)TanzLII the Court reiterated that: "Settled law holds that revision Is only available to a litigant In fitting circumstances for, unlike appeals, there Is no statutory right to apply for revision it being a discretionary remedy neither an alternative to an appeal". Emphasis added. Being guided by the above case laws, I find that the remedy exhausted by the appellant before the trial court was unwarranted for want of proper remedial measures. As Is on the records, the Primary Court dismissed the suit before It. In the circumstances, the proper remedy for the appellant was to lodge an appeal against the decision of the Primary Court of Kawe and not Revision because as it stood, the rights of the parties were finally determined by the Court returning the matter to the Clan Meeting. As the law has dictated through precedents, the revlslonal jurisdiction of the Court should not be resorted to as an alternative to its appellate jurisdiction. The 18 conditions aiiowing an application for revision must be fulfiiied before that right is resorted to. That being the case, the ground lacks merits and it is hereby dismissed. The above said and done, I find the appeal before me untenable and it is hereby dismissed in its entirely. Since the matter originated from a Probate Cause by an unsatisfied beneficiary, I find it just that each party bear its own costs. Dated at Dar es Salaam this day 24"^ day of February, 2025. o o cn IT- X >li S.M. MAGfllMBI JUDGE 19