magdalena mwila chawala vs adam lyoba kanijo others 2023 tzhc 22901 4 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB- REGISTRY OF TABORA AT TABORA PC. CIVIL APPEAL NO. 3 OF 2023 (Arising from Misc. Application No. 06 of2021 in the District Court of Tabora, Originating from Probate Case No. 1 of2021 oflsevya Primary Court of Tabora) MAGDALENA MWILA CHAWALA................................... .....APPELLANT VERSUS 1. ADAM LYOBA KANIJO 2. DOMITILA PAUL KAPAYA ............................... RESPONDENTS 3. PENDO PAUL KAPAYA RULING Date:19/7/2023 & 4/8/2023 BAHATI SALEMAJ.: This appeal emanates from the decision of the District Court of Tabora in Misc. Civil Application No. 06 of 2021 originating from Isevya Primary Court in Probate Case No. 01 of 2021. In brief, the appellant Magdalena Mwila Chawala is challenging the decision of the Primary court in Probate and Administration of Estate of the late Paulo Kapaya Kanijo which appointed her and Pendo Paul Kapaya as the administrators of the estate of the said deceased. ■3 t 1 Dissatisfied with the decision of the Primary Court, the appellant Magdalena Mwila Chawala filed an application for revision under section 22(1) of the Magistrate's Court Act, Cap. 11[R.E 2019] before the district court to call and examine the record of proceedings in administration cause before Isevya Primary Court to satisfy itself to the correctness and legality of the orders dated 10/3/2021 in respect of the appointment of the third f' respondent as the co-administrator of the Estate of the late Paulo Kanijo and wrongful inclusion of the 3rd respondent as the lawful and rightful heiress and beneficiary of the estate. 2) that the district court be pleased to revise the order in respect of the appointment of the 3rd respondent as the co-administrator and wrongful inclusion of the 3rd respondent as the lawful and rightful heiress and beneficiary and who was neither a party nor caveator to the proceedings iq the primary court. The case proceeded only for the 3rd respondent as the objection which the applicant brought before the court was against her. The District Court upheld the trial court decision by ordering the 3rd respondent to be included in the list of heirs and be entitled to equal share and dismissed the revision. Disgruntled with the decision of the District Court, the appellant filed an appeal to this court. Before the case could come for hearing, the 3rd respondent under the service of Mr. Akram Magoti learned counsel, lodged a notice of preliminary objection that; the appeal is incompetent before this honorable Court as it emanates from the incompetent revision application registered as Misc. Civil Application No. 06 of 2021. jj 2 . i The hearing of the Preliminary Objection was disposed of by way of written submissions; In support of the preliminary objection Mr. Akram Magoti for the 3rd respondent submitted on the competence of the appeal filed by the appellant against the respondent. He submitted that the said appeal emanates from the decision of the District Court of Tabora in Misc. Civil Application No. 06 of 2021 originating from Isevya Primary Court in Probate Case No. 01 of VI 2021. He further submitted that an appeal or application originating from the Primary Court is governed by the Magistrates' Courts Act, Cap. 11 [R. E 2019] and its subsidiary legislation. Under section 20(l)(b) of this Act, ar) aggrieved party to the proceedings of the Primary Court may appeal therefrom to the District Court. Section 22(1) further provides that the District Court may on application by a party or suo motto, call and examine the proceedings of 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. He further stated that it is also a settled position of the law that where I! there is a right of appeal, the Court cannot resort to its revision jurisdiction unless there are exceptional circumstances shown by the party applying for revision. In other words, revision is not an alternative to an appeal.. Reinforcing his stance he referred to the number of authorities including the case of Transport Equipment Ltd vs. Devram Valambhia [1995] TLP 161, the case of Augustino Lyatonga Mrema vs. Republic (1996] TLR 267, and the case of Samwel Labani vs. Lulu Wanga, PC. Civil Appeal No. 11 of2021 (unreported) that; 'i ■ ■5. 3 3 "Under the circumstances, this court finds that it was improper to file civil revision in the District Court of Bagamoyo instead of an appeal against Matrimonial Cause No. 1 of2021... " He stated that applying the above legal stance in the present suit, the appeal by the appellant is incompetent as it emanates from the incompetent revision application before the District Court of Tabora. The incompetence of the said appeal is grounded on the following facts as reflected in the primary court record of proceedings; One, following her objection to the petition for letters of administration of the estate of the late Paul Kapaya Kanijo, the Appellant was a party in the proceedings of the Isevya Primary Court. This is reflected on page 1 of the typed copy of the judgment where it was observed that; "Wapingaji katika mirath/ hii ni wawili ambao ni Magdalena M. Chawala ambae ni mjane wa marehem u na Domitiia Kapaya ambae ni mtoto wa marehem u" Again, if that is not enough, on page 3 of the typed copy of the judgment the Court further observed that; "Mpingaji wa kwanza katika mirathi hii ambae ni mjane wa marehemu, alipinga mdogo huyo wa marehemu kuwa (sic) msimamizi wa mirathi kwa vile hawana maeiewano mazuri." The court went further and ordered as reflected on page 4 of the typed copy of the judgment that; "Mahakama imewateua Bi. Magdalena Mwila Chawala (sic) (mjane wa marehemu) kuwa msimamizi wa mirathi na Bi. 4 Pendo Paul Kapaya kuwa msimamizi wa pili wa mirathi hii." From the above quotations, the appellant was a party to the proceedings of the Isevya Primary Court. She was therefore required to appeal against the decision of the Primary Court instead of filing an application for revision as she did. Even the reasons which necessitated the appellant to apply for revision suffice to be the grounds for appeal instead of an application for revision. The Appellant through her advocate had submitted in support of her application for revision as reflected on page 3 of the typed copy of the ruling of the District Court that; "The Applicant has been aggrieved with the decision of the court so she filed revision before this court. The reason the applicant J objected to the appointment of the 3rd respondent as the administratrix of the deceased estate is that the 3rd respondent has 4 no proof to prove that she is the child of the deceased." Two; despite such irregular conduct of the appellant, the learned Magistrate did not direct her mind to such irregularity which omission goes to the root of the case and also affects the jurisdiction of the District Court. If the learned Magistrate could have directed her mind to the above- mentioned principles outlined in the above-cited cases, she could have not proceeded to entertain the appellant's application while she (the Appellant) had a right to appeal. By doing so the learned Magistrate had acted in the matter which she had no jurisdiction. Based on the preceding submission he invited this court to invoke its powers under section 31(2) of the Magistrates Courts Act, Cap. 11 [R. E 2019] and therefore, quash the ruling and proceedings of the District Court 5 as they emanate from the incompetent revision application by the Appellant and this court to dismiss the appeal with costs. Opposing the objection, the appellant contended that it was right to prefer a revision under Section 22(1) of the Magistrates Courts Act, Cap. 11 [R. E 2019] before Tabora District Court because the Primary Court had no jurisdiction to determine probate matters of Christian marriage in nature typically because the jurisdiction of the court is a creature of statute and is conferred and prescribed by the law and not otherwise. Defining the term "Jurisdiction" the court of appeal in Yobana Balole v Anna Benjamine Malongo, Civil Appeal No. 18 of 2020 (Unreported). It was further contended that, since it is on the records of the primary court that the deceased and the appellant had contracted a Christian marriage, then, the primary court automatically lacked jurisdiction to determine the petition for its mandate is only limited to Islamic and Customary laws; this is in accordance to Section 18 (1) (a) (i) and under the fifth schedule paragraph (1) (1) of the Magistrates Courts Act, Cap. 11 [RE 2019) which stipulates that: "A primary court shall have and exercise jurisdiction in all proceedings of a civil nature- where the law applicable is customary law or Islamic law: Provided that no primary court shall have jurisdiction in any proceedings of a civil nature relating to land. The jurisdiction of a primary court in the administration of the deceased's estates, where the law applicable to the administration or distribution or the succession to, the estate is customary law or Islamic law, may be exercised in cases where the deceased at the time of his death, had a fixed place of abode within the local limits of the court's jurisdiction." 6 It is clear from the above provisions of the law that the jurisdiction of the primary court on the administration of the deceased estate is limited to customary and Islamic law; hence the appellant was right to pursue the remedy of revision before Tabora district court because the judgment delivered by Isevya primary court was illegal on the basis that, the primary court had no jurisdiction to handle the matter before it. Having heard the submissions from both parties, the issue is whether it was proper to file a revision instead of an appeal. It is a settled law that where there is a right of appeal, the party cannot resort to its revision jurisdiction unless there are exceptional circumstances shown by the i party applying for revision. In other words, revision is not an alternative to an appeal. Revision is a remedy for a person who was not a party to the proceedings. The issue of illegality does not constitute sufficient reason to resort to revision. Therefore, it was wise for the applicant to file an appeal to challenge the decision of the trial court. As correctly contended by the counsel for the respondent, the decision of the trial court led to a Civil Misc. Civil Application No. 6 /2019 before the District Court is appealable the position to which I subscribe. Therefore, the question to ask is whether it was correct to file a revision case instead of an appeal. The court was guided by the numerous decisions of the Court of Appeal of Tanzania in the case of Transport Equipment LTD V Devram Valambia [1995] TLR 161 where it held that; "77/e appellate jurisdiction and revisionai jurisdiction of the court of appeal of Tanzania are, in most cases mutually exclusive; if there is a right of appeal then the right has to be pursued and 7 except for sufficient reason amounting to exceptional circumstances there cannot be resort to the revisionai jurisdiction of the court of appeal." Also in the case of Dismas Chekemba v Issa Tanditse , Civil Application No 2 of 2010 CAT at Tabora ( unreported), the court held that; "Under the circumstances, the revision is incompetent in that the appellant had the right of appeal but he chose not to appeal. This fundamental defect is sufficient to dispose of the revision". Guided by the above principle and the matter at hand, I subscribe to the respondent's submission that the district court did not notice this defect and went ono to determine the merits of such incompetent revision following the reasons enumerated by the respondent. In her reply, the applicant has tried to convince this court of the jurisdiction which I find has no base. Following that, the court is of the considered view that it was improper to file civil revision in the District Court of Tabora instead of an appeal against the Probate Administration Cause No. 6/2021 Isevya Primary court findings being appealable one., That being the case, even the appeal emanates from the incompetent revision proceedings and judgment emanating from incompetent revision proceedings and judgment is not valid before this court. Therefore, this objection is sustained and the PO raised by the respondent has merit; consequently, the appeal is hereby dismissed. Court: Ruling delivered in presence of both parties. A. BAHATI SALEMA JUDGE 4/8/2023 Right of Appeal fully explained. A. BAHATI SALEMA JUDGE 4/8/2023 9