PC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA PC PROBATE AND ADMINISTRATION APPEAL NO. 30528 OF 2024 (Arising from Probate and Administration Appeal No. 22120 of2024 from the District Court of Mtwara at Mtwara and Originating from Probate Cause No. 01 of2024 of Mtwara Urban Primary Court) ASIA MUSSA KAMBUTU............................................................. 1st APPELLANT MWAJIBU KALANJE KANDURU................................................. 2nd APPELLANT

VERSUS OLGA NIKOLAEVNA MPONDA......................................................... RESPONDENT

JUDGMENT 11th March & 3d April, 2025 MPAZE, J.: Following the demise of Omari Kalanje Mponda, his wife, Olga Nikolaevna Mponda, and his sister, Mwajabu Kalanje Kanduru (the respondent and 2nd appellant, respectively), successfully petitioned for the letters of administration before the Mtwara Urban Primary Court (the trial court) through Probate Cause No. 01 of 2024. Upon their appointment, they commenced their responsibilities in administering the deceased's estate. i As directed by the trial court and required by the law, on 16th May, 2024 the appointed administrators submitted to the court a list of properties left by the deceased in Form No. V. Upon perusal, on 23rd May, 2024 Asia Mussa Kambutu (the 1st appellant) filed an objection against Form No. V, alleging that her property, House No. 69, located at Naliendele Pachoto B, was wrongly included in the assets of the deceased. Thus, the court summoned the administratrix and scheduled a date for a hearing on 13th June, 2024. However, before the hearing date arrived, on 27th May, 2024 the respondent herein filed a complaint that the 1st appellant's children, Saidi Omary Mponda and Kanduru Omary Mponda, were required to undergo a DNA test to confirm whether they were the children of the deceased. As usual, the party being complained about must be given the right to be heard, so the trial court ordered the 1st appellant along

with her children and the other administrator, the 2nd appellant, to be summoned and appear before the court on the same date scheduled for hearing the previous objection. 2 Upon hearing, the trial court held that it had no jurisdiction to entertain the dispute regarding House No. 69 at Pachoto B and thus ordered it to be removed from Form V until the dispute was determined by the proper tribunal. However, it found that the DNA test was not necessary and confirmed that the children belonged to the deceased. The ruling regarding House No. 69 at Pachoto B did not amuse the respondent, hence, she appealed to the District Court of Mtwara at Mtwara (the first appellate court) on the following grounds; 1. That the trial court erred in law and fact by expunging the house located at Pachoto B Naliendele in Mtwara Region which is part and parcel of the deceased property.

2. That, the primary court had no jurisdiction to entertain the cases or objection based on ownership of the Land. The first appellate court, after hearing this appeal, upheld the trial court's decision. However, it did not confine its discussion to the two grounds of appeal as presented but instead delved into the issue of the DNA test, which was not raised by any party. This led to the appellants being 3 dissatisfied with the decision hence decided to approach this court on the following grounds; 1. That the district court, being an appellate court, had no jurisdiction to issue an order to the trial court to direct parties to go to appropriate authority for DNA test, while the issue of DNA was neither a ground for an appeal, nor the parties were given chance to address it.

2. That the district court erred in law by issuing a directive order for conducting DNA test of which by its implication, it revised the decision of the Primary court's decision dated 05.08.2024, before Hon. Robert, A.K- RM, which was delivered in favour of 1st appellant's children. When the matter was called for hearing on 11th March, 2025 the 1st appellant and the respondent appeared in person, unrepresented. The 2nd appellant did not show appearance, hence, the matter proceeded ex parte against her. The appeal was argued orally. Submitting in support of the appeal, the 1st appellant argued very briefly and generally that the trial court erred in deciding that the children should undergo a DNA test, while this issue was not among the grounds of appeal. She insisted that, the DNA issue had already been discussed at the primary 4 court, where the respondent herself withdrew it; that's why even in her appeal to the district court, the DNA issue was not raised as one of the grounds of appeal. Thus, she was surprised as to where the trial magistrate came up with the findings on DNA. In reply, the respondent had little to submit, other than stating that the DNA verdict was justified due to the ongoing dispute regarding the children. She questioned how the matter could proceed with the distribution of the estate if the children had not undergone a DNA test. In a rejoinder, the 1st

appellant maintained that the 1st appellate court was wrong to order a DNA test, as it was not among the grounds of appeal. Having carefully considered the submissions of the 1st appellant and respondent, along with the grounds of appeal and the record of the lower court, I am now tasked with determining the merit of this appeal. In disposing of the appeal, I will address the two grounds together, as they are both related to the same central issue; that the first appellate court erred by ordering the trial court to direct the parties to undergo a DNA test, despite the DNA issue not being raised as a ground of appeal and the parties not being given the opportunity to address it. 5 After reviewing the record of the first appellate court, I have noted that once the first appellate court magistrate completed determining the grounds of appeal, he stated; 1 My perusal of the trial court records and proceedings led to discover the issue for DNA on the first respondent children. Since the matter was raised in the court by the appellant therein, I find it is important for clearing any doubts for DNA to be conducted I thus order the trial court to direct parties to go to appropriate authority for DNA result of the first respondent children.' Looking at the grounds of appeal filed at the first appellate court, as rightly argued by the 1st appellant, the DNA issue was not raised as a

ground of appeal, nor were the parties given the opportunity to address it before the learned magistrate determined it in his judgment. Therefore, the first appellate court erred in considering and making a decision on the DNA issue, as it was not part of the grounds presented for appeal, nor were the parties afforded the chance to submit their arguments on this matter. It is a well-established principle that the right to be heard is the foundation of a fair trial, and all courts are obliged to ensure that this right is properly executed to fulfill the spirit of natural justice. 6 In numerous decisions, the Court of Appeal has emphasized that a party should be heard before an adverse action or decision is taken against him/her. For instance, in the case of Kastan Mining Pic v. Tanzania Mortgage Company Limited t/a T-Mortqaqe (Civil Application No. 53/01 of 2020) [2025] TZCA 173 (4 March 2025), the Court re-affirmed its previous decision in the case of Raza Somji v. Amina Salum [1993] T.L.R. 208, where it emphasized the need for the court to invite parties to address it, upon raising an issue suo motu before resting its decision in the spirit of the right to be heard in line with the rules of natural justice. See also; M.S Sky Packaging (T) Ltd v. M.S Banji Logistics Ltd (Civil Appeal No. 268 of 2022) [2024] TZCA 1267 (12 December 2024), CRDB Bank PLC v. The Registered Trustees

of Kaqera Farmers Trust Fund & Others (Civil Appeal No. 496 of 2021) [2024] TZCA 94 (23 February 2024) and Elizabeth Mpoki & Others v. Maf Europe Dodoma (Civil Application 436 of 2016) [2020] TZCA 379 (30 July 2020). This being the position, in the circumstances where the parties were not given the right to be heard before the decision was made, there is no other remedy than to nullify the said decision as it violated the law. In the 7 case of Kastan Mining Pic vs Tanzania Mortgage Company Limited t/a T-Mortgage (supra), the Court held that; 'we find that the effect of failure to afford the parties the right to be heard in any judicial proceedings undermined the entire process, rendering it a nullity.' Again, in the case of John Morris Mpaki v. NBC Ltd and Ngalagila Nqonyani, Civil Appeal No. 95 of 2013 (unreported), the Court of Appeal held that; '... it is trite law that any decision affecting the rights or interests of any person arrived at without hearing the affected party is a nullity, even if the same decision would have been arrived at had the affected party been heard..' Based on the decision cited above, it is my settled view that the first appellate court erred to raise the issue of DNA test suo moto during the composition of its judgment without according the parties' right to be heard on that issue. Consequently, I find merit in this appeal. Therefore, I hereby quash and set aside the order of the first appellate court regarding the DNA test for being nullity. No orders as to the costs. It is so ordered. 8 Dated at Mtwara this 3rd April, 2025 yf M.B. Mpaze Judge Court: The judgment is delivered today in the presence of the 1st appellant, 9