registered trustees of diocese of mbulu vs hamad omari mwarekwa 2023 tzhc 23461 14 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL NO. 30 OF 2022 (C/F Civil Revision No. 04 of 2021 before the District Court of Arusha at Arusha, Originating from Probate Cause No. 120 of 2003 before Arusha Urban Primary Court) REGISTERED TRUSTEES OF DIOCESE OF MBULU........ APPELLANT VERSUS HAMAD OMARI MWAREKWA...........................................RESPODENT JUDGMENT 10th October & 14th December, 2023 KAMUZORA, J. The Appellant herein instituted revision application before the District Court of Arusha seeking for the court to call and examine the records of the Arusha Urban primary court in Probate No. 120 of 2003 for purpose of satisfying itself as to the legality and propriety of the decision delivered thereof on 14th December, 2020 and as to the regularity of the proceedings therein and revise such proceedings. The district court dismissed the application with costs hence, this appeal which is premised on three grounds: - Page 1 of 17 1. That, the district court erred in law and in fact in holding that the court was not properly moved. 2. That, the district court erred in law and in fact in holding that no rejoinder was filed. 3. That, the district court erred in law in not revising the proceedings of the primary court in Probate No 120 of 2003 and decision delivered on 14h December 2021. When the appeal was called for hearing, Mr. Salvatory Mosha appeared representing the applicant and the Respondent was ably represented by Mrs. Kimale. Arguing in support of the first ground appeal, Mr. Mosha submitted that the district court was properly moved because the application was filed by way of chamber summons supported by the affidavit of the principal officer of the applicant. That, the application was filed under proper provision, section 22 (1) of the Magistrate Courts Act Cap. 11 RE 2019 which was also reproduced in the ruling of the district court at page 6. However, that, the district court made finding that the applicant was not supposed to file revision but an objection proceeding. Mr. Mosha was of the view that, the remedy available for any person who was not a party to the case but was affected by the decision of the court, is to file revision in court. He referred the decision of the CAT in Civil Application No.46/8/2018, Denis T. Mkasa Vs. Fadida Hamza Page 2 of 17 (Administratrix of the estate of Hanza Adam) and another, and insisted that the revision application before the district court was properly filed. He added that the district court framed issues suo motto as per page 6 of the ruling on whether the court was properly moved but parties were not given time to address that issue. He insisted that the district court was properly moved. On the second ground the counsel for Appellant submitted that the court erred in concluding that the rejoinder was not filed. He pointed out that the rejoinder was filed as so directed by the court on 11/11/2021 and a receipt was issued by the court on the same date. On the third ground, the counsel for the Appellant submitted that the district court erred in not revising the decision of the primary court while there was illegality in that decision. He explained that the Appellant was not accorded chance to be heard but the decision made affected him. That, the District court was bound to consider that the right to be heard is a fundamental right and there was a party who was not heard. The counsel for the Appellant further submitted that in its decision the primary court made decision on issue which it had no jurisdiction. That, the primary court determined issue ownership of land and declared the Respondent as rightful owner of the land and ordered the applicant and others to give vacant possession of land within 14 days. That, such Page 3 of 17 decision is contrary to the law as only land tribunal can hear and determine land disputes. He was of the view that if the Respondent had any claim over ownership of land as administrator, the same could be filed at the land tribunal. To him, the primary court's order declaring the Respondent lawful owner of the disputed land was against the decision of the High Court in Land Case No. 11 of 2014, Peter Kiulugu Vs. Hamad Omary Mwerekwa and 2 others. He added that in another case before DLHT of Arusha, Misc. Application No. 235 of 2013, Registered Trustees of Diocese of Mbulu Vs Ibrahim Swalehe and Others, the said land was declared as the property of the Appellant herein. In considering those irregularities, the Appellant prayed for this court to find that the 3rd ground of appeal has merit and declare that the district court erred in not revising the decision of the primary court. He urged this court to allow the appeal with costs. In reply, Mrs. Kimale submitted for the first ground that the revision sought at the district court emanated from Probate Case No. 120 of 2003. That, in probate case, the Respondent was appointed administrator to administer 13.5 acres and other properties. That, the execution of the same resulted to a number of cases including Land Case No.79 of 2016, Ibrahim Swalehe (as administrator of the estate of Amina Omary) and another Vs. Hamad Omary Mwarekwa and another. Page 4 of 17 That, the decision was made that the administrator for the estate of Amina Omary is Hamad Mwarekwa (the Respondent herein). That, during execution, the ruling was issued directing the administrator to comply to his administration duties within one month. However, he found the land already trespassed into by people including the Appellant herein. The counsel for the Respondent argued that the law requires any person claiming right over the property of the deceased at the time of execution to file objection proceedings to object the execution. To her, filing revision before the district court was not proper and could not be the way to determine the issue raised by the Appellant. She added that, the Appellant was claiming five acres which is part of 13.5 acres which the Respondent was supposed to distribute to the beneficiaries. That, the Respondent was never heard in evidence anywhere to prove that he had any ownership right over 5 acres which is part of 13.5 acres. That, Case No. 235 of 2013 mentioned was between the Appellant and Ibrahim Swalehe. That, the same Ibrahim filed case before this court No. 79 of 2016 and the decision was not his favour as he was found to have no right to administer the estate and no appeal was preferred therefrom. That, the Respondent was never sued by Appellant herein to prove that the Appellant was allocated five acres of land which is part of 13.5 acres. Page 5 of 17 On the argument that the district court erred for failure to revise the decision of the primary court, the counsel for the Respondent submitted that it is not true that the revision was not made. She explained that, the ruling of the district court by Hon. Ngoka was made upon perusing the trial court records, meaning revising, and the result of that revision was correct. The district court made correct reasoning that the Appellant was not supposed to file revision application as the matter originated from probate matter and not normal civil suit. To her, the court correctly held that the Appellant was supposed to file objection proceedings for him to prove how he got the five acres. On the case of Denis T. Mkasa Vs. Fadida Hamza (Administratrix of the estate of Hanza Adam) (supra) referred to by the counsel for the Appellant, Mrs. Kimale submitted that this case is irrelevant where the matter is at execution stage. That, it is only relevant where the administrator is appointed but at the execution stage, the proper way is to file objection proceedings so that the objector may be heard by the court issuing execution order. On the second ground on failure to file rejoinder, the counsel for the Respondent submitted that even if rejoinder was considered, the same could not change the conclusion reached due to the forum preferred by the Appellant before the district court. Page 6 of 17 On the third ground, the counsel for the Respondent submitted that the district court determined revision application filed before it and revised the decision of the primary court delivered on 14/12/2020 and the proceedings thereto. That, the district court was however satisfied that the issue complained of could not make the decision be altered because there was no any claim over five acres in the decision of the primary court. That, the five acres were mentioned in the submission by the Appellant before the district court but no explanation thus, the district court could not be in a position to make decision on issue that was never determined by the primary court. For her, there was revision and the decision dismissing the application was proper. Mrs. Kimale agreed that the decision of the primary court ordered for anyone in the land to vacate the land within 14 days. She was of the view that the said order was correct because 14 days was proper time for whoever was not satisfied to approach the same court and not to file case in another court as no appeal can be preferred against execution order. On the issue of illegality, Mrs. Kimale submitted that there is no illegality because the primary court did not hear or determine any land matter. That, the court only gave directives on the procedure to be followed by the administrator and those who were in occupation of land Page 7 of 17 illegally. For the above reasons, he prayed for this appeal to be dismissed with costs. In rejoinder, Mr. Mosha added that it is not true that the Respondent has execution right through Case No. 79 of 2016. That, in that case, the dispute was on two plots No's 55 and 56 and the decision was not based on 13.5 acres as so claimed by the counsel for the Respondent. On the argument that the Appellant was supposed to file objection proceedings and not revision, he submitted that in the circumstances of this case, objection proceedings was not the only remedy for the Appellant. That, the law allows parties to file revision or even a fresh suit as no provision was mentioned by the district court or the counsel for the Respondent forcing the Appellant to file objection proceedings. On the argument that the Appellant was not a party in Misc Application No. 235 of 2013, Mr. Mosha submitted that the Respondent in that application is the Respondent herein. That, while the case was in process, he was revoked by the primary court and after being revoked, Ibrahim Swalehe and Amina Swalehe were appointed but, they were also revoked and Hamad was restored and no appeal was preferred against that decision. That, the dispute in that matter was on 13.5 acres thus, the claim that the Respondent was never sued is not correct. Page 8 of 17 On the 2nd ground, the Respondent's counsel insisted that the district court disregard of the rejoinder submission was not proper. He believes that if considered, the district court would have reached decision in favour of the Appellant. On the third ground Mr. Mosha insisted that there were illegalities as pointed in the submission in-chief which if considered, the decision would have been made in favour of the Appellant. On the prayer for this court to disregard the decision of Denis Mkasa (supra), the counsel for the Appellant submitted that the facts of the case at page 4 to 5 shows that it resulted from execution therefore, not true that the decision is irrelevant. He was of the view that the above case is a fit case in the circumstance of this case. He reiterated the prayers that the appeal be allowed with costs. I have considered the records, grounds of appeal and submissions by counsel for the parties. The record of the district court shows that the Appellant invited the court to examine the proceedings of the primary court and ruling thereto and assess its correctness, legality and propriety of the same. The basis for such prayer was that the primary court made decision determining ownership of five acres of land in a matter which the Appellant was not a party and without giving the Appellant right to be heard. Parties made their submission in relation to matters raised, however, in her deliberation, the magistrate raised issue on whether the Page 9 of 17 court was properly moved. It is from that issue she made conclusion that the district court was not properly moved as the Appellant ought to have filed objection proceedings and not revision application. It is unfortunate that such issue was raised suo motto as well pointed out by the counsel for the Appellant and the proceedings does not show if parties were called upon to address the court on the same. It is settled principle that parties are entitled to be heard before any decision is made by the court, see the court of appeal decision in Mbeya-Rukwa Autoparts and Transport Ltd V. Jestina George Mwakyoma, [2003] T.L.R. 251. In Margwe Erro, Benjamin Margwe & Pater Marwe Vs. Moshi Bahalulu, Civil Appeal No. Ill OF 2014, the Court of appeal stated: - "The parties were denied the right to be heard on the question the learned judge had raised and we are satisfied that in the circumstances of this case the denial of the right to be heard on the question of time bar vitiated the whole judgement and decree of the High Court." The above decision was also adopted by the same court in Civil Appeal No. 161 of 2016, Wegesa Joseph M. Nyamaisa Vs. Chacha Muhogo where at page 12 it held; "In the instant appeal we are minded to re-assert the centrality of the right to be heard guaranteed to the parties where courts, while composing their decision, discover new issues with jurisdictional Page 10 of 17 implications. The way the first appellate court raised two jurisdictional matters suo motu and determined them without affording the parties an opportunity to be heard, has made the entire proceedings and thejudgment of the High Court a nullity, and we hereby declare so." In the circumstance of this case where the magistrate raised issue which was not prior raised or argued by parties, she was bound to call upon parties and direct them over the matter before seeking them to address the court on whether the matter was competently filed before it. It does not matter if the conclusion will be same reached by court, what matters is that parties were given chance to address issue affecting their rights before the court could make decision over the same. The district court erred in raising issue suo motto and adjudicating the same without giving right of hearing to the parties. It was contended by the Respondent that the district court was correct as nothing arising from execution can be challenged by way of revision. I do not think that the matter before the primary court was execution proceedings. The same was probate proceedings as the administrator was reporting on his administration duties and issue that hindered him from completing his administration duties. He was therefore seeking the court assistance so that he could complete his duties as administrator. The primary court accepted his prayer and directed anyone Page 11 of 17 in occupation of the property forming part of the estate of Naina Omari to give vacant possession for the administrator to perform his administration duties. The ruling issued therefrom affected the right of the Appellant herein and since he was not a party to the probate proceedings, he preferred revision application. In my view, revision was a proper option in the circumstance of this case for the dispute regarding the suit property was already determined and that will be demonstrated in my discussion to the rest of the grounds of appeal. In respect of this ground, I find that the conclusion by the district court that it was not properly moved was erroneous. I therefore find merit in the first ground of appeal and hold that the district court was properly moved to determine revision application. On other grounds, I agree that the district court was bound to consider the rejoinder submission and give reason for not considering it even if not changing its decision. I also agree with the Appellant's counsel that the district court was bound to assess the legality of the ruling of the primary court. But since the district court abrogated its duty of assessing the correctness and legality of the primary court's proceedings and ruling thereto in relation to the matter complained and instead, raised new issue suo motto, this court finds it prudent and for interest of justice to assess the correctness of such decision. Page 12 of 17 In the outset, I do not find validity in the findings of the district court and I will demonstrate why I formed that opinion. From the record, 13.5 land was originally owned by Fatuma Mbaruku now the deceased. When Fatuma Mbaruku died, Amina Omari was appointed administratrix of the estate of Fatuma Mbaruku vide probate No. 42 of 1998. Before she could complete her execution duties, she passed away and Hawa Issa was then appointed in a position of Amina Omary to administer the estate of Fatuma Mbaruku. In her position as administratrix, Hawa sold five acres of which was part of 13.5 to the Appellant herein. In another case, Hamad Omari Mwerekwa (the Respondent herein) was appointed to administer the estate of Amina Omari in Probate No. 120 of 2003. He claimed that 13.5 acres belonged to the late Amina Omari and not Fatuma Mbaruku. However, Mwerekwa's appointment was revoke and two other administrators were appointed in his position; Ibrahim Swalehe and Amina Swalehe. The two administrators instituted land application No 1 of 2007 before the DLHT claiming that 13.5 acres belonged to the estate of the late Amina Omari. The said application was dismissed and the subsequent application for execution No. 212 of 2013 was nullified by this court in its decision in Land Case No. 11 of 2014. However, there was another application filed before the DLHT by the Appellant herein and another person, Franciscan Missionary Sisters of Page 13 of 17 Christ, Misc. Application No. 235 of 2013. After the decision of this court in Land Case No. 11 of 2014 was delivered on 19/11/2015, the two administrators of the estate of Amina Omari did not raise any objection against the claim by the Appellant herein in Misc. Application No. 235 of 2013 before the DLHT. On 09/09/2016, the DLHT passed a ruling that the Appellant herein together with another person by the name Franciscan Missionary Sisters of Christ were lawful owners of five acres of land and appeal was preferred therefrom. Sometimes later, Ibrahim Swalehe and Amina Swalehe who were administrators of the estate of Amina Omary were revoked and the Respondent herein Hamad Omari Mwarekwa was re-appointed to administer the estate of Amina Omari. In 2020, Mwarekwa moved the primary court in Probate No. 120 of 2003 seeking for order of vacant possession of property of the deceased Amina Omari so that he could effect administration duties. The question arose as which properties formed estate of Amina Omari to be administered by Mwarekwa. In its decision, the Primary court ruled out that 13.5 acres was party of the estate of Amina Omary and ordered everyone in occupation of land which is part of 13.5 acres to give vacant possession for proper administration of the same. Since the Appellant herein owned 5 acres which was part fo 13.5 acres allegedly declared the property of the late Amina Omary, he Page 14 of 17 filed revision application praying for the district court to revise the decision of the primary court as it went against the decision of this court in Land Case No 11 of 2014 which declared 13.5 acres the property of Fatuma Mbaruku and the decision of the DLHT in Misc. Application No. 235 of 2013 which declared the Appellant rightful owner of five acres which is part of 13.5 acres. It is clear that the primary court made interpretation of this court decision in Land Case No. 11 of 2014. In that case, one Peter Kiuluku claimed to have purchased two acres which part of 13.5 acres from the administrator of the estate of Fatuma Mbaruku one Hawa Issa. The Respondent herein one Hamadi Mwarekwa together with two other parties were defendants in which Mwarekwa claimed that the two acres was part of the 13.5 acres belonging to the estate of Amina Omari. The primary court made interpretation of the decision of this court and concluded that 13.3 acres of land was declared by this court as part of the estate of Amina Omari. I will reproduce the relevant part of page 9 for easy reference; "The evidence shows that PW1 applied for letters of administration in 2006 and on 12/7/2006 she filed a list of the deceased estates (Fatuma Mbaruku's estates) and that list included 13.5 acres ofland. On the other side, exhibit DI show that DW1 had already been appointed as the administrator of the estate of the deceased since Page 15 of 17 2004, then why DW1 didn't enter caveat in Probate Cause No 42/1998 if at all the 13.5 acres did not form part of the estate of Fatuma Mbaruku? Or even appealing against the decision ofArusha Urban Primary court in Probate Cause No. 42/1998 which granted a letter of administration to PW1 and allowed her to distribute the 13.5 acres of land if the said property did not form part of the estate of Fatuma Mbaruku? Basing on the evidence of PW1, exhibit PEI and PE2, this court is satisfied that the suit property formed part of 13.5 acres which belonged to the deceased Fatuma Mbaruku and upon distribution of the deceased's estate, the suit land was allocated to PW1 and the deceased Amina Omary's share was two (2) acres which were allocated to her grandchildren." From the wording of the above decision, it is clear that the primary court misinterpreted the decision of this court as nothing shows that 13.5 acres was declared the property of the late Amina Omary. To the contrary, the decision was clear that 13.5 acres belonged to the late Fatuma Maruku. On the basis of the above discussion, I find that the Respondent if aggrieved, could have challenged the decision of this court which gave right of 13.5 acres to Fatuma Mbaruku and the decision of the DLHT which gave right of 5 acres out 13.5 acres to the Appellant herein. The decision of the primary court giving right to the Respondent to administer 13.5 Page 16 of 17 acres in the estate of Amina Omary is hereby nullified. The appeal is therefore allowed with costs. DATED at ARUSHA this 14th Day of December, 2023. D.C. MUZORA JUDGE Page 17 of 17