SHABANI ALLY IBRAHIM AND 3 OTHERS V

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI PC PROBATE APPEAL NO. 12612 OF 2024 (C/F Civil Revision No. 09 of 2023 of Moshi District Court, Original Probate and Administration Cause No. 74 of 2021 of Moshi Urban Primary Court) SHABANI ALLY IBRAHIM …………....…………… 1ST APPELLANT MARIAM ALLY IBRAHIM ………………………….. 2ND APPELLANT MWAJUMA ALLY IBRAHIM ……………………….. 3RD APPELLANT MWANAISHA HAJI SHABANI …………………….. 4TH APPELLANT VERSUS HALIMA ALLY MOSE ...........…............................. RESPONDENT JUDGMENT 04/02/2025 & 09/04/2025 SIMFUKWE, J. 1 This is an appeal against the decision of Moshi district court in Civil Revision No. 09 of 2023, in which the appellants herein implored the district court to revise the decision of the primary court in Probate and Administration Cause No. 74 of 2021 which was dismissed for want of prosecution. The historical background of the matter tells that, being the adopted daughter of the late Saum Salim Mose, the respondent herein was appointed to administer the estate of her deceased mother on 16th August 2021. Then, one Julius Albert Mwase appealed before the district court against the appointment of the respondent. The said appeal was withdrawn on 21/10/2021. After the withdrawal of the appeal, one Hawa Bakari Kazembe complained before Moshi Urban primary court about the mischief being done by Halima Ally Mose, the administratrix of the estate of the late Saum Salim Mose. In addition, she applied to be appointed as co-administratrix. The court upon determination of the complaint on 12/07/2022, the said Hawa Bakari Kazembe was appointed to be co- administratrix of the estate of the late Saum Salim Mose. Thereafter, on 22/09/2022 when the matter was called for orders, the co-administrators informed the court that they were not certain who were real beneficiaries of the estate of the late Saum Salim Mose. The 2 trial court ruled that the estate of the deceased should be distributed to one Halima Abdallah Muleda the mother of the deceased only. Hawa Bakari Kazembe was dissatisfied with the said order. She appealed before the district court vide Probate Appeal No. 16 of 2022. In its decision, the district court revoked the appointment of Hawa Bakari Kazembe leaving Halima Ally Mose, the respondent herein as sole administratrix of the estate of the late Saum Salim Mose. Moreover, the district court quashed the order directing the administratrix to distribute the estate of the late Saum Salim Mose to the sole beneficiary, one Halima Abdallah Muleda. It was such decision which prompted the appellants herein to object before the trial court the distribution of the estate. Their objection was dismissed for want of prosecution. Aggrieved by the said dismissal order, they moved the district court under section 22(1) and (2) of the Magistrates’ Courts Act, Cap 11 R.E 2019, seeking inter alia the following orders: (i) That, the district court be pleased to call and examine the propriety, regularity and legality of the records of proceedings, ruling and orders made vide Probate Cause No. 74 of 2021 on 3 17/08/2023 dismissing their objection without affording them an opportunity of being heard. (ii) That, the court be pleased to revise, quash and set aside the proceedings, ruling and orders made in favour of the respondent therein. (iii) The court to order the objection to be determined on merit before another trial magistrate. After considering arguments of both parties, the district court found that the appellants herein had deliberately refused to prosecute their case. Thus, the dismissal order was justified. On the issue whether the order of the trial court could be revised, it was decided that pursuant to rule 28 of the Primary Court Civil Procedure the appellants herein were supposed either to file a fresh suit or apply for an order to set aside the dismissal order. Consequently, the application for revision was struck out. Still aggrieved by the decision of the district court, the appellants preferred the instant appeal on the following grounds: 1. That, the District Court erred in law for failure to consider that the revision application was proper remedy for the appellants against the decision entered by the trial primary court on 17th August 2023. 4 2. That, the District Court erred in law for failure to take into account that the trial Primary Court wrongly dismissed the objections (caveat) under wrong provision of the law in the presence of the appellants. 3. That, the District Court erred in law for failure to take into account that the appellants’ prayer for objecting the trial magistrate (to disqualify himself from the conduct of the matter) on the material day was not considered by the same trial magistrate. The appellants prayed that the appeal be allowed by quashing and setting aside the ruling and orders of the District Court. The appeal was heard by way of written submissions. The appellants had no representation while Advocate Nicodemus Mbugha resisted the appeal for the respondent. On the first ground of appeal, the learned counsel for the appellants submitted among other things that the appellants were denied their right to be heard and right to legal representation. It was explained that the appellants could not proceed without their Advocate and the trial court did not ask them why they could not proceed or given the chance to prepare for the hearing or the chance to find another advocate. Reference was made to the cases of Ndesamburo v. Attorney General (1977) 5 TLR 137 and Kulava Daudi v. Rebecca Stephen [1985] TLR 223. Further reference was made to the case of Lucas Gisland v. R, Criminal Appeal No. 89 of 2021 [2023] TZCA 17465, in which the Court held that: “Certainly, the right to be defended by an advocate. Indeed, the right to legal representation which applies to both civil and criminal proceedings is fundamental as stated in various cases of this Court.” The appellants were of the firm opinion that legal representation is important component for a fair trial. They believed that a decision arrived without a party getting an adequate opportunity to be heard is a nullity even if the same decision would have been arrived had the affected party been heard. They sought inspiration from the cases of DPP v Rajabu Mjema Ramadhani, Criminal Appeal No. 223 of 2020 [2023 TZCA 45, Mbeya-Rukwa Auto Parts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R 251; and Article 13 (6) (a) of the Constitution of the United Republic of Tanzania. Mr. Nicodemus Mbugha for the respondent replied inter alia that the filed objection was set for hearing on several dates in vain as the adjournments were caused by the objectors/appellants herein. That’s when the trial magistrate ordered the matter to be heard when both parties appeared. The learned counsel submitted further that the District 6 Court correctly decided that revision was not a proper remedy for the appellants. He insisted that even this appeal lacks merit. I acknowledge that right to be heard and right to legal representation are among constitutional rights in our jurisdiction. The appellants are of the view that the said constitutional rights have been infringed. It is settled that there is no right without obligation. In her findings the learned Resident district magistrate stated that a party cannot refuse to prosecute her case just because her advocate is absent. She said it should be noted that cases do not belong to advocates but rather to parties. (page 10 of the ruling). Apart from that, at page 6 of the proceedings of the trial court dated 17/08/2023, the learned trial magistrate stated inter alia that: “……. Na kwa kuwa wakili wao hahudhurii mahakamani bila sababu za msingi lakini na kwa kuwa wapingaji wameelezwa kuendelea na kesi yao lakini badala ya kuendelea na kesi wanakuja na hoja kuwa hawana imani na mimi bado nasisitiza kuwa sababu zao siyo za msingi na badala yake ni dhahiri hawataki kuendelea na kusikilizwa pingamizi lao kwa makusudi. 7 Na kwa sababu hiyo basi naondoa pingamizi hili kwa sababu wapingaji wamekataa kuendelea na pingamizi lao hivyo ni sawa na hawapo mahakamani kwa Mujibu wa Kanuni ya 24 ya Kanuni za Utaratibu wa Madai katika Mahakama za Mwanzo ikisomwa pamoja na kanuni ya 6(2) na (3) za Kanuni za Mawakili na Waendesha Mashitaka katika Mahakama za Mwanzo za mwaka 2023, Tangazo la Serikali No. 168 la tarehe 10/03/2023.” The quoted excerpt is self-explanatory. The learned trial magistrate reasoned very well in his dismissal order. We cannot deliver justice timely if parties and their counsels are left to conduct proceedings, the way they wish. Adjournments of cases are not absolute; they are to be controlled by courts pursuant to the law. In the case of NSK Oil & Gas Limited & Another vs National Microfinance Bank PLC (Civil Application No. 148/02 of 2024) [2024] TZCA 857 (4 September 2024) at page 3 and 4, it was stated that: “For the interest of justice, the prayer is untenable for three main reasons: one, it has not met the test in a long-established legal principle that, any matter which is set for hearing, as is in this instance, it has to be heard unless some cogent reasons to the contrary worth to be recorded by the Court are given 8 and recorded. On my part, I find no ground to record upon which to adjourn the hearing;” Emphasis mine In the instant case, before dismissing the objections, the trial magistrate adjourned the matter for some hours so that both parties could prepare themselves for the hearing. At about 11:00hrs the court resumed. However, the appellants were not ready to proceed. Guided by the legal principle in the above cited authority, the objections of the appellants were rightly dismissed for want of prosecution. Regarding the question whether revision was proper remedy against the dismissal order, at page 11 of her ruling, the learned magistrate referred rule 28 of the Primary Court Civil procedure which prescribes institution of a fresh proceeding or application to set aside the dismissal order as remedies for a suit dismissed for want of prosecution. Indeed, that is the position of the law as correctly argued by the learned counsel for the respondent. On the second ground of appeal, the appellants faulted the district court for failure to take into account that the primary court wrongly dismissed the objections (caveat) under wrong provision of the law in the presence of the appellants. 9 The learned counsel for the respondent supported the findings of the district court at page 10 of the ruling. I am of considered opinion that in order to justify the complaint, the appellants should have cited the proper provision which should have been applied by the learned trial magistrate. Otherwise, it is settled that failure to prosecute your case is as good as being absent before the court. Rule 6(2) and (3) of GN No. 168 of 2023 which was used to dismiss the objections of the appellants provides that: “(2) Wakili au mwendesha mashtaka kuhudhuria katika mahakama nyingine au baraza haitakuwa sababu ya kuahirisha shauri. (3) Endapo wakili au mwendesha mashtaka ameshindwa kuhudhuria mahakamani kwa sababu ya kuhudhuria kwake katika mahakama nyingine au baraza, mahakama itamtaka mhusika kuendelea na shauri yeye mwenyewe na akikataa kuendelea au kama hayupo, mahakama itachukulia kwamba mhusika huyo ameshindwa kuhudhuria mahakamani na madhara ya kutokuhudhuria yatatumika.” Emphasis mine 10 The quoted provision directs that if the advocate or prosecutor has failed to appear on the reason that he appears before another court or tribunal, the court shall order the party to proceed to prosecute his/her case or if he refuses or is absent, it shall be considered that the party has failed to appear before the court and consequences of non-appearance shall apply. In that sense, the learned trial Magistrate did not err by dismissing the objections under the quoted provision. Concerning the complaint that the trial magistrate did not consider the prayer to recuse himself; the appellants submitted that the trial magistrate did not hear them on the issue raised. Hence, fundamental justice was breached. Mr. Nicodemus replied that the principle of right to be heard is a constitutional right which does not operate blindly and requires parties to play their role. He was of the view that appellants abused court process and caused inconvenience to the respondent. With due respect to the appellants, the third ground of appeal is frivolous as their prayer requiring the trial magistrate to recuse was considered. The record is very clear at page 6 of the proceedings of the trial court dated 17/08/2023. The record reads: 11 “Mahakama: Uamuzi wa hoja waliyoirudia wapingaji ulishatolewa na kuamuliwa kuendelea na kesi yao kwa kuwa wakili wao hayupo lakini badala yake bado wapingaji wanasisitiza hawana imani na mimi kwa sababu hiyo ni wazi wanatumia kigezo cha kuwa hawana imani na mimi ili pingamizi lao lisikilizwe na kesi iahirishwe tena ili kumsubiri wakili wao. …na kwa kuwa wapingaji wameelezwa kuendelea na kesi yao lakini badala ya kuendelea na kesi wanakuja na hoja kuwa hawana imani na mimi bado nasisitiza kuwa sababu zao siyo za msingi na badala yake ni dhahiri hawataki kuendelea na kusikilizwa pingamizi lao makusudi. ……” It should be noted that where the trial magistrate or presiding judge has been urged to disqualify himself, he has the right to proceed with the matter provided he gives reasons for doing so or where the advanced reasons are frivolous. I subscribe to the words of B. D. CHIPETA in his book MAGISTRATES MANUAL at page 236-237, that: “In other words, if your disqualification on the ground of real likelihood of bias is urged on unsubstantial and flimsy grounds, you need not heed it. It is only in cases of real likelihood of bias should a judge or magistrate be disqualified or 12 disqualify himself on the ground of interest or judicial bias.” Emphasis added That said and done, all the grounds of appeal are devoid of merit and I hereby dismiss this appeal for being frivolous and vexatious. No order as to costs. It is so ordered. DATED and DELIVERED at Moshi this 09th day of April 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 09/04/2025 13