NURALY MOHAMED JIWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) AT ARUSHA (PC) CIVIL APPEAL NO.25 OF 2023 (Originating from Civil Appeal No. 38 of2022, District Court of Arusha, Arising from Probate and Administration Cause No. 191 of 2012 Arusha Urban Primary Court) NURALY MOHAMED JIWA..................................... ..APPELLANT VERSUS NAZIMA MOHAMED DAMANI............................... RESPONDENT JUDGMENT 16/04 & 30/05/2024. KIWONDE, J. This is the second appeal. The appellant was dissatisfied with the decision of the first appellate court, the District Court of Arusha in Civil Appeal No. 38 of 2022 dated 23rd May 2023. He has appealed to this court based on nine (9) grounds of namely: - 1. That, the District Court erred in law for failure to accord the appellant the right to a fair trial and legal aid. 2. That, the District Court erred in law by failure to accord the appellant with right to be heard in as far as prayer for co- administrator is concerned. 3. That, the District Court erred in law by granting or acting out of or beyond prayers and grounds of appeal presented before it by the respondent above. 4. That, the District Court erred in law for failure to rule that the respondent's act of petitioning for letters of administration of the estates of the late Ngasaka Jumbe is an abuse of court process. 5. That, the District Court erred in law and fact for failure to uphold the sound decision of the primary court that the appellant has greater interests than the respondent in consideration of form No.I filled on 9th August 2012. 6. That, the District Court erred in law and fact for appointing the respondent while she failed to state reasons for late petition for letters of administration since the demise of Ngasaka Jumbe. 7. That, the District Court erred in law and fact for appointing the respondent for want of interest (sic) while, there is ample and undisputed evidence on record that the sole property left behind by the late Ngasaka Jumbe has been already passed to other persons. 8. That, the District Court erred in law and fact when it ruled that the appellant and the respondent can work together as co- administrators without considering their standing (sic) in as far as the sole property left behind by the late Ngasaka Jumbe differs upstairs (sic). 9. That, the District Court erred in law for failure to order the respondent to institute land case for claim of ownership since she claimed for evasive procedures towards transfer of ownership. The appellant prayed this court to allow the appeal, quash the judgment, set aside the decree and proceedings of the first appellate court, instead, uphold the decision of the trial primary court. During hearing of the appeal, the appellant was represented by Mr. Salehe Salehe, advocate, while the respondent enjoyed the legal service of Mr. Elibariki Maeda, learned counsel. From the petition of appeal, lower courts records and oral submissions, the main issue for determination is whether the appeal has been merited or otherwise. I have closely considered the submissions of the counsels of the parties which now I turn to expound in relation to the presented grounds of appeal. However, the appellant has raised new grounds of appeal which did not surface and or dealt with by the first appellate court, save the fifth one. In law, the second appellate court cannot entertain new grounds of appeal which were not raised and canvassed by the first appellate court unless they are based on point (s) of law which led to miscarriage of justice. This was a position in Jacob Mayani Versus Republic, Criminal Appeal No. 558 of 2016 [2020] TZCA (24th August 2020) TanzLii. Besides that, it is settled legal principle that the second appellate court will rarely interfere with the concurrent findings of the two lower courts below but only if there was misdirection or misapprehension of evidence or violation of law on procedure which occasioned into injustice. This was held in the Director of Public Prosecutions V. Jaffari Mfaume Kawawa [1981] T. L. R 149 and Mussa Mwaikunda V. R [2006] T. L. R 387. For that matter, the 3rd, 4th, 6th, 7th, 8th and 9th grounds of appeal which are new grounds on matters of facts cannot be entertained. The 1st and 2nd grounds which are also, new, but are based on points of law, will be determined and also, the 5th ground for it was raised in the first appellate court too and decided. As to the first and second grounds of appeal, the appellant complained of unfair trial for he was not availed time to seek legal aid (assistance) and deprived of his right to be heard on the prayer to appoint co- administrator. However, the record is clear that on 3rd October 2022, the appellant, who was the respondent, informed the court that the appeal be argued orally for his inability to engage and or pay an advocate. He did not ask before the court for the alleged legal aid or assistance. The appellant, willingly, requested the oral hearing of the appeal and he was heard. Thus, the first ground of appeal is devoid of merits and it is dismissed. On the issue of appointment of the co-administrator, the appellant said he was not heard on such prayer. When I went through the first appellate court grounds of appeal and proceedings, it came to my knowledge that the issue of appointing a co-administrator of the deceased estates was not among the grounds of appeal. The prayer was made by the counsel for the appellant during his rejoinder submissions. The appellant had no opportunity to respondent to it. Yet, the first appellate court appointed the respondent, Nazima Mohamed Damani as co-administratrix of the estates of the late Ngasaka Jumbe on reason that they are relatives. It is therefore, apparent that the appellant was deprived of his right to be heard on the aspect of appointment of the co-administrator. The first appellate court rightly held that the appointing court has powers to appoint more than one person (co-administrators of the deceased estates) as need arises, under rule 2 (a) of the Fifth Schedule to the Magistrates' Courts Act, Cap 11 (R. E 2022). However, this is the domain of the appointing court after hearing evidence and assessing circumstances of appointing co-administrators. Therefore, it was wrong to deprive the appellant the right to be heard, which right is fundamental. This violated the principle of natural justice. The proceedings of the first appellate court, judgment and decree were thus, a nullity. The second ground of appeal finds merits and it is allowed. In so far, this ground of appeal suffices to dispose of the entire appeal, I find no need to go discussing the rest 5th ground of appeal. Consequently, the proceedings of the first appellate court from 21st March 2023 to 23rd May 2023 are hereby nullified, the judgment in appeal is quashed and the decree thereto is set aside. The records be remitted back to the first appellate court for the appeal to be heard and determined by a different Resident Magistrate with competent jurisdiction. J// / F. H. KIWONDE JUDGE 30/05/2024