SHEMA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (K I G O M A S U B -R E G I S T R Y )

ATKIGOMA PC. PROBATE APPEAL NO. 4 OF 2023 MALI ETA KA YANDA SH EMA 1st APPELLANT BLAITON STANSLAUS 2"d APPELLANT

V E R SU S

WILBARD STANSLAUS R ES PO N DEN T (Appeal from the Ruling and drawn order of the District Court of Kigoma at Kigoma) (H . M . M a m b a , P R M ) Dated 24th day of August 2023 In (Civil Review No. 1 of 2022)

JU D GM ENT Date: 16 & 17/05/2024 NKWABI, J.: Under the provisions of section 22 (1) of the Magistrates' Courts Act, Cap. 11 R. E. 2019 and any other enabling provision of the laws, the district court, through a review application, was moved to revise the judgment and orders of the trial court in Probate and Administration Cause No. 6 of 2022. The respondent too, in collaboration of one Paskali Stanslaus, requested the district court to grant them costs and any other remedy as the court deems fit to grant. The review application was resisted by the appellants. 1 After entert aining the review application, the district court, on 30/03/2023 adjourn ed fo r "ruling on review to be delivered on 14/04/2023. , Truly, the ✓ 2nd order sought according to the chamber summons was to "... revise the same., ✓ The deceased one Stanslaus Emmanuel Lunigangwe (Stanislaus s/o Runigangwe Kanige) passed away in the year 1995 but the date and month when he passed on is still in dispute between the parties. One copy of a th certificate of death indicates that the deceased died on 15 February 1995 th while another indicates that he passed away on 5 March 1995. Nevertheless, the probate and administration cause was lodged in the trial court in the year 2022. Then the trial court appointed the appellants as administratrix and administrator respectively, of the estate of the deceased on 29/08/2022.

There was no any objection to the application. Four witnesses testified to support the appointment application of administratrix and administrator of the estate. Currently, one of the grounds of appeal by the appellants is that the district court was in error to entertain the application for review while it had no jurisdiction. 2 The respondent replied that the district court had pow ers to review the m atters arising from prim ary court under the law . During the hearing w hich w as conducted by oral subm issions, M r. Sogom ba contended that a review is done by the court that decided the m atter. H e said they oppose Pro bate Review N o. 1 of 2022. He added that it w as w rong to call it a review . The district court ought to have been m oved by w ay of revision, pressed M r. Sogom ba. It was his view that the decision of the District Court therefore is flawed. The respondent, who appeared in person, unrepresented, retorted that the district court had jurisdiction to entertain the review application because it had the power to supervise the trial court. He added that the in-charge of the district court told him that the review was the only way to solve the problem. The respondent pointed out that the trial court had no power to entertain Christian probate matter. It was correct, therefore, the district court to review the decision of the trial court, the respondent

stressed. In rejoinder submission, Mr. Sogomba accentuated that the objection ought to be filed in the trial court. He beefed up that the respondent had not objected in the trial court the appointment of the administrator of the estate. 3 N o do ubt, this m atter shall not get m e bogg ed do w n . T he re is sup erabu nda nce o f autho ritie s in this co untry th at a review has to be entertain ed by the ve ry co urt that decid ed the im p ug n ed decision . I co mm e nd the case of Mohamed Enterprises (T) Limited v. Masoud Mohamed Naseer, Civil Application No. 33 of 2012, CAT (unreported) where it was underscored that: "Once judgement and decree are issued by a given court, judges (magistrates) of that court becomes ''functus officio" in so far as that matter is concerned Should a new fact arise/ which should have been brought to the attention ofthe court during trial, then Cap. 33 provides for procedures for review (Order XUI) where appropriate/ revision before a higher Court; I.e. this Court (section 4 of the Cap. 141)." ':.4 consent decree can be set aside on any ground which would invalidate an agreement such as misrepresentation fraud or mistake. This can be done only by a suit and consent decree cannot be set aside by an appeal, review or by a rule obtained on motion. But the court in its inherent 4 jurisdiction/ may set aside an interlocutory consent order which is not

a final order orjudgment '' There is the decision of this Court in Ursula Massawe & Others v. Makiidi Village, Civil Review No. 11/1998 (HC) at Moshi (Unreported) E.N. Munuo, Judge, as she then was, stated that: The application for review is dismissed with costs for there has been no: ''... discovery of a new important matter or evidence which . . . was not within the knowledge or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record ... " to justify granting the revie~ under Order XLIII Rule 3 of the Ovi! Procedure Code. For those reasons the application for review is dismissed with costs. " I am aware that the Civil Procedure Code is inapplicable for matters that originate from the primary court. In the case of Julius Petrov. Cosmas Raphael [1983] T.L.R. 346 Mwalusanya J., as he then was, held that: (iii) the Civil Procedure Code Act No. 498 of 1966 does not apply to the High Court when hearing appeals originating 5 from Primary Courts. It applies to the High Court, Resident Magistrates' Court and District Courts when they exercise original civil jurisdiction and also applies when the High Court hears appeals originating from the District Court or Resident Magistrates' Court; " However, the bottom line here is that a review is not in the purview of any superior court. The

review that was conducted by the district court which gives rise to this appeal, was predicated on a provision of law that provides for revision, but the application itself was intended to be a review. The district court treated the matter before it as a review because even the proceedings on 30/03/2023 which I have already quoted above refer it as a review. Even the ruling of the learned Principal Resident Magistrate who entertained the matter indicates it is a ruling over a review. In the premises, I have no whit of doubt that the district court entertained a review. That being the position, the district court had no jurisdiction to entertain that review application of a decision which was delivered by an inferior court to it. Thus, the proceedings and ruling of the district court are a nullity. 6 The respondent im pressed upon me to uphold (bless) the pro ceedings and ruling of the district court because the trial court, in his view , had no jurisdiction to entertain the matter. I am of a settled mind that even if the trial court had no jurisdiction to entertain the matter, a party aggrieved ought to fo llow the proper avenue available to them. As pearls of wisdom go, ''Revenge is not the answer." and "Two wrongs dorrt make a right'~ So, I should not react by doing som ething bad because I would add a third wro ng, if indeed, the trial court had no jurisdiction to entertain

the matter. Next, I consider the lam entations in respect of the 2nd, 5th and 6th grounds of appeal. It was the view of the counsel fo r the appellants that the decision of the district court is illegal because the applicants in the district court were W ilbard Stanslaus and Paschal Stanslaus but the decision cam e w ith different parties. Mr. Sogom ba does not know why the magistrate changed parties. He said, the decision of the District Court is thus illegal w hile parroting Salim Amour Diwani v. The Vice Chancellor Nelson Mandela Institute of Science and Technology, Civil Application No 116/01/2021, CAT. He added that no reason or leave of the court to withdraw a party was sought and granted. The decision of the District Court is a nullity for changing parties, belaboured Mr. Sogomba. 7 The respondent, against the above gro unds of appeal replied that the district court did not rem ove the nam e of Paschal Stanslaus. He pointed out that the ruling was delivered when he was alone and Paschal had his decision read over to him on another day. Stressing his stand view , Mr. Sogom ba rejoined that, in respect of the change of nam es, the respondent has failed to address it. He stated that it appears that the respondent does not know how the court delivers judgm ents. He em phasized his prayer that the appeal be allowed. I have considered the perspectives held by both parties. I

think that the com plaint made by the counsel for the appellant is not grave as Mr. Sogom ba paints it. Further, the case of Diwani (supra) is distinguishable w ith the current case. In the Diwani's case, the om ission was caused by the party (applicant) while in this case the om ission was caused by the court, w ho knows, it may be inadvertently. In such circum stance, there is a room for rectification of a clerical error or a ro om review. It is unnotew orthy law that mistakes of officers of the Court should not make a party to suffer. I am obligated to follow the decision in William Getari Kagege v. Equity Bank & Another, Civil Appeal No. 24/08 of 2019 CAT it was stated: 8 •~ litigant should not be allowed to suffer through the mistakes of an officer of the court connected with the administration ofjustice ... " I have already held that the district court had no jurisdiction to entertain the review application. To that end, I cannot delve into discussion of the appeal on merit as indicated in the 3rd ground of appeal which is about erroring in relying on the documentary evidence that were attached to the application while the same were not tendered as exhibit and in the 4th ground of appeal about the failure by the district court to scrutinize the evidence. Consequently, the appeal of the appellants is allowed. The proceedings and the ruling of the district court are quashed. The orders handed out by the district court are hereby set aside. Each party shall bear their own costs on the account that the probate matter involves family members. It is so ordered. J . F. N K W A B I

JUD GE 9