CIVIL APPEAL NO 397 OF 2022 TUMSIFU GABRIEL MMARI VS EXAUD GABRIEL MMARI

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MKUYE. 3.A.. RUMANYIKA. J.A. And MDEMU, J.A.^ CIVIL APPEAL NO. 397 OF 2022 Reference No. 20220907000446432 TUMSIFU GABRIEL MMARI.................................................. APPELLANT VERSUS EXAUD GABRIEL MMARI (Administrator of the Estate of the Late Silipa Yetro Lema).................... ................................RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Arusha) fTiaanqa, J.T Dated the 6th day of May, 2022 in Misc. Civil Application No. 80 of 2021 RULING OF THE COURT 25th February & 13th March, 2025 RUMANYIKA. 3.A.: This appeal is fairly interesting because it has a chequered history. It involves sons and daughters of the same deceased parents of a monogamous marriage. All began with the respondent, Exaud Gabriel Mmari. He applied for letters of administration in respect of the estate of the late mother, one Silipa Yethro Lema who died intestate on 10/06/2019 at Arusha Lutheran Medical Center. We think it is of no harm, at this juncture also to state that, their father one Gabriel Mmari died few years previously. The respondent, for that matter instituted Probate Cause No. 18 of 2020 before Maji ya Chai Primary Court, in Arumeru District. However, it was alleged that, upon publication of the respective citation, the appellant successfully lodged a caveat to challenge the intended grant of the letters. And that, before the matter was resolved, the appellant successfully applied for its transfer to the District Court of Arumeru vide Misc. Probate Application No. 11 of 2020. It was granted on 15th September, 2020. The said matter apart, the respondent, vide Probate Cause No. 23 of 2020 before the High Court of Tanzania, at Arusha, sought and obtained letters of administration on the same estate on 7th September, 2021. He was ordered to file inventory and the statements of account within six and twelve months respectively. However, upon being aware of that decision, the appellant approached the High Court vide Misc. Civil Application No. 80 of 2021 for revocation of the letters so granted to the respondent. He challenged the said letters for being fraudulently obtained as Probate Cause No. 11 of 2020 was sub judice in respect of the same estate. The High Court Judge ruled that, its power to strike out the matter which is res sub judice did not extend to nullifying a matter which has been conclusively determined by court of competent jurisdiction. Moreover, the learned Judge advised whoever aggrieved, either to file review, appeal or revision should the need arise. 2 As such, he declined to revoke the respondent's letters of administration. Dissatisfied, the appellant has fronted three grounds to assail that decision. However, for the reasons that will come out shortly, we shall not reproduce those points of grievance. At the scheduled hearing of the appeal, Msses. Jenipher John and Ednah Mndeme, learned counsel appeared representing the appellant and the respondent respectively. Before we embarked on the merit of the appeal, as required by practice, we had to determine a preliminary objection which was raised formally on 19th February, 2025 by the respondent's counsel. It concerned competence of the appeal as the appellant did not serve memorandum and the record of appeal on the respondent. On that basis, Ms. Mndeme beseeched us to strike out the appeal as the said omission contravened rule 97 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). Replying, Ms. John contended that, the respondent's preliminary objection is misplaced and it has to be overruled for two main reasons: one, rule 22 (b) of the Rules allowed application of provisions of the Civil Procedure Code, Cap. 33 R.E. 2019 regarding service of documents. That, in this case, the appellant attempted to serve memorandum and the record of appeal but failed. Two, the application of rule 97(1) of the Rules is conditional upon the appellant complying with rule 86A of the Rules. Tlie rule required that, upon serving notice of appeal on the respondent, the respondent shall supply the appellant with his address of service, which he did not in the present case. Further, Ms. John argued that, the respondent's failure to supply the address apart, the appellant attempted to serve the documents through advocate vainly for want of instructions. She added that, even where they opted to serve him through Court process server, one Zacharia Melaiya, still the respondent refused it. The learned counsel presented copy of the respective affidavit accompanied with copy of the returned summons to exhibit the alleged futile service. Moreover, she asserted that, should the respondent's counsel question the efficacy of the appellant's efforts hence need of evidential proof, then the respondent's concern will cease to be a preliminary objection worth the name. To fortify her point, Ms. John cited our decision in Ikizu Secondary School v. Sarawe Village Council (Civil Appeal No. 163 of 2016) [2018] TZCA 387 (14 December 2018; TanzLII). She stressed that, the preliminary objection is unfounded and that it has to be overruled. Rejoining, Ms. Mndeme contended that rule 22 (6) of the Rules cited by Ms. John is misconceived for three main reasons: one, it applies for service of summons and not the documents at issue. Two, the said affidavit concerned only a matter which was before the Resident Magistrate's Court. Three, with exception of the appellant's counsel, neither the respondent's counsel nor the Court was seized with the said affidavit. Four, as was required of the practice then, the alleged service had to be done by Court broker and not the Court clerk. Further, Ms. John contended that, it defeated logic and common sense, if the respondent was duly served with notice of appeal but he could not be reached to be served with the memorandum and record of appeal for want of contact address. While pressing reliance on our decision in Shara Media Group v. Simbanet Tanzania Ltd. (Civil Appeal No. 65 of 2020) [2023] 17479 (9 August 2023; TanzLII), Ms. Mndeme urged us to strike out the appeal for being incompetent, as the respondent was not served with the said two crucial documents. Upon hearing the contending oral submissions of the learned counsel, and reviewing the record of appeal, the central issue for our determination has now become easier. That issue is whether the appellant served memorandum and record of appeal on the respondent as required under rule 97 (1) of the Rules. For ease of reference and clarity, rule 97(1) reads: "The appellant shall before or within seven days after lodging the memorandum o f appeal and record o f appeal in the appropriate registry, serve copies o f them on each respondent who has complied with the requirement o f rule 86". From the rule cited above, at least the time frame for service of the two documents on the respondent is seven clear days of their lodgment. For the instant appeal, the appellant's efforts to serve the respondent may have been fruitless as alleged, for want of address thus, failure to trace and serve him. Let alone the alleged refusal of service by the respondent. Nonetheless, all required proof. It is common knowledge that, in any judicial proceedings, refusal or acceptance of service of documents cannot be exhibited casually. It has to be demonstrated by the respective Process Server by his endorsement on the allegedly refused document, in this case the memorandum and record of appeal. However, this was not done. Therefore, we decline to accept Ms. John's assertions for two main reasons: one, none of the alleged refused copies of memorandum and record of appeal was presented before the Court to establish that, efforts were made but the respondent refused service. Two, copies of the returned summons and associated affidavit did not form part of the record of appeal to substantiate assertions Ms. John. As such that affidavit should have not been presented from the bar in the first place. We are aware that the Rules do not provide for the consequences of non-compliance of rule 97(1) of the Rules and the way forward. Nevertheless, we need not to emphasise that, its effect is incurable as it renders the respective appeal incompetent thus, liable to be struck out. We have taken this stance on a number of occasions such as in Bi Asha Seif and Another v. Ranjeet Gokal Damji (Civil Appeal No. 50 of 2012 [2012] TZCA 150 (13 December 2012; TanzLII) where, incidentally, like here, the appeal involved such a contentious probate matter. Also, see Sahara Media Group (supra). As alluded to earlier on, we wish to stress that, by logically, the omission to serve memorandum and record of appeal is tantamount to failure to take such an essential step towards appealing. In the result, and for the reason that the appellant contravened rule 97 (1) of the Rules for not serving the respondent with memorandum and the record of appeal at all, we sustain the preliminary objection. As such, the appeal is incompetent which we are constrained to strike out, as hereby do. For the purpose of promoting the seemingly dwindling harmony between the parties who are blood-tied little and elder brothers, we make no order as to costs. DATED at DAR ES SALAAM this 6th day of March, 2025. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 13th day of March, 2025 in the presence of Ms. Jenipher John, learned counsel for the Appellant and Ms. Ednah Mndeme, learned counsel for the Respondent vide video link from the High Court of Tanzania at Arusha, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL