Abdulrahman Mohamed Said vs Lara Felicity Asmussen Said (Civil Appeal No. 1174 of 2025) [2026] TZCA 410 (14 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL, J.A., MGONYA. J.A. And KHAMIS, 3.A.) CIVIL APPEAL NO. 1174 OF 2025 ABDULRAHMAN MOHAMED SAID ....................................... APPELLANT VERSUS LARA FELICITY ASMUSSEN SAID............................................. RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania Temeke Sub Registry, One Stop Judicial Centre at Temeke, Dar es Salaam) (BarthyJL) dated the 6th day of November, 2024 in Miscellaneous Probate and Administration Cause No. 22628 of 2024 JUDGMENT OF THE COURT 23rd February, &14th April, 2026 SEHEL. J.A.: This appeal arises from the decision of the High Court of Tanzania, Temeke Sub-Registry, One Stop Judicial Centre at Temeke, Dar es Salaam (the High Court), which dismissed the appellant's application for annulment and revocation of a resealing order dated 4th June 2024, on grounds of lack of merit and want of proper forum. The brief facts giving rise to the present appeal are as follows: upon the demise of the late Hassan Mohamed Said, who died intestate on 18th August 2013 in South Africa, the respondent, Lara Felicity Asmussen Said, petitioned for a grant of probate before the Master of the High Court in Johannesburg in Estate No. 029954 of 2023. She was subsequently appointed executrix of the deceased's estate on 7th December, 2023. Since the deceased held interests in various properties located in South Africa and Tanzania, the respondent sought to have her executorship resealed in Tanzania pursuant to sections 94 and 95 of the Probate and Administration of Estates Act (PAEA) and rules 97 and 98 of the Probate Rules, G.N. No. 10 of 1963 (the Probate Rules). Following citation and in the absence of any caveat, the High Court granted the application and resealed the respondent's executorship. On the other hand, the appellant, Abdulrahman Mohamed Said, the brother of the late Hassan Mohamed Said, applied for and was granted letters of administration by the High Court of Zanzibar. He thereafter applied before the High Court of Tanzania for the resealing of his letters of administration. In the course of those proceedings, however, he discovered that an order of resealing had already been issued by the High Court on 4th June 2024. Consequently, he filed an application seeking annulment and revocation of the respondent's resealed executrix on the following grounds: first, that the respondent was not the lawful wife of the 2 deceased, as the two had divorced prior to his demise; second, that the respondent had misrepresented the true account of the deceased's estate and heirs; and third, that the respondent had submitted forged documents in the resealing proceedings. The respondent vigorously opposed the application, contending that the ex parte divorce proceedings were invalid as she had not been properly served with the notice of hearing. She therefore maintained that she remained the lawful wife of the deceased and had a legitimate interest in his estate. The respondent further argued that the appellant had failed to substantiate allegations of fraudulent misrepresentation or concealment sufficient to warrant revocation or annulment of her executorship. It was also submitted that the appellant was barred from challenging properly conducted resealing proceedings, having failed to lodge a caveat. In conclusion, the respondent prayed for the dismissal of the application with costs. Having heard the parties' submissions and in the process of composing the ruling, the High Court raised the issue of jurisdiction on its own motion. It wondered whether it had jurisdiction to hear and determine the appellant's application for revocation/annulment of the respondent's executorship. For clarity, we wish to let the record, at pages 369-340 of the record of appeal, speak for itself: "The applicant now seeks revocation o f the respondent's appointment under section 49 o f the PAEA. However, in this context ; it is pertinent to note that the original grant o f probate and appointment o f the respondent as executrix was issued by the Master o f the High Court, Johannesburg. The Jurisdiction to challenge the validity o f that appointment on grounds of procedural defect lies with the original issuing court, not this one. This court, having solely administered the resealing > lacks jurisdiction to revoke the respondent's appointment based on claims o f substantive procedural defects in the initial grant proceedings. In essence, section 49 o f PAEA is solely addresses the circumstances that may warrant the removal or revocation o f the executor or administrator. It does not apply to orders that have resealed foreign probate or administration grants, as reseating is a distinct process aimed at recognizing foreign probate grants within the local jurisdiction. Thus, the power to revoke letters o f administration under section 49 is not 4 intended to affect the validity o f reseating orders issued by the court. "[Emphasis added] Undaunted, the appellant herein lodged the present appeal advancing the following four (4) grounds of appeal: 1. That ■ the learned trial Judge erred in law and in fact by failure to annul and revoke its Order made on 4h June, 2024 in respect o f the probate o f the late Hassan Mohamed Said to Lara Felicity Asmussen Said (the respondent) by the Master o f the High Court, Johannesburg in Probate and Administration Cause No. 4901 o f2024, 2. That, the learned trial Judge erred in law by failure to consider all the provisions o f iaw invoked by the appellant in seeking for revocation o f its Order made on 4h June, 2024 in respect of the probate o f the late Hassan Mohamed Said to Lara Felicity Asmussen (the respondent). 3. That, the learned trial Judge erred in law and in fact by considering only the provision o f section 49 o f Probate and Administration o f Estates Act and held that the trial court lacked jurisdiction to revoke its Order made on 4h June, 2024 in respect o f the probate o f the Hassan Mohamed Said to Lara Felicity Asmussen (the respondent) while the trial court had requisite jurisdiction to entertain the application for annulment or revocation o f the reseated probate and letters o f administration under the provisions o f section 95 o f the Civil 5 Procedure Code which was invoked by the appellant in his application. 4. That) the learned trial Judge erred in law and fact to determine the application for revocation o f resealing o f the probate o f the Hassan Mohamed Said and rule in favour o f Lara Felicity Asmussen (the respondent) on extraneous reason (issue o f jurisdiction) that was not before the court and/or pleaded in the application and/or submitted by the parties during hearing. At the hearing of the appeal, the appellant was represented by Messrs. Simon Barlow Lyimo and Thomas Mathias, both learned counsel, while, the respondent had legal services of Mr. Issac Mutashobya, also learned counsel. They both, prayed to adopt the written submissions which were lodged earlier on in terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules. When given a floor to argue the appeal, Mr. Mathias prayed to adopt the written submissions without more, while, Mr. Mutashobya elaborated on the second and third grounds of appeal, conjunctively as, in his written submissions, the appellant argued them together. We propose to begin with the fourth ground of appeal, which is premised on the error allegedly committed by the learned trial Judge in composing the ruling. 6 In the written submissions, it was argued that when the trial court composed its ruling, it raised the issue of jurisdiction suo motu, without affording the parties an opportunity to be heard. The issue had neither been pleaded nor canvassed during the hearing. Counsel stressed that the right to be heard is so basic and fundamental that the trial court ought to have invited the parties to address the question before reaching any decision. It was further emphasized that the right to be heard, encapsulated in the doctrine of audi alteram partem, is a constitutional guarantee that cannot be disregarded, even where the court considers the issue to be purely legal or one that touches on jurisdiction. To bolster, his submission, Mr. Mathias referred us to the case of Inviolata Rwelamira Itatio v. Times Radio FM Ltd [2025] TZCA 280, where the Court held that it was improper for the Labour Court to raise and determine in its own motion, without affording the parties, a right to be heard. With that brief submission, Mr. Mathias implored the Court to allow the appeal, quash and set aside the decision of the trial court. The respondent opposed the appeal, contending that the issue of jurisdiction is so fundamental and indispensable that no court can validly hear or determine any matter without first being satisfied that it has jurisdiction. In that regard, Mr. Mutashobya firmly maintained that the trial court acted correctly in examining the jurisdictional question suo motu, as this was necessary to ensure that the proceedings were lawful and that the rights of the parties were protected, particularly in probate matters which involve fundamental interests. In support of his submission, he cited the cases of Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & Others [1995] T.L.R. 155; Republic v. The Registrar of Titles, Ex-parte Fadhili Mbarak Shabani [1992] T.L.R. 198 and Nyambo v. Tanzania Breweries Ltd [1988] T.L.R. 251 for the preposition that a court cannot entertain a matter if it is without jurisdiction, even if no objection has been raised by the parties. He thus invited us to dismiss the appeal. From the parties' submissions, it is beyond doubt and indeed conceded by the respondent that the High Court raised and determined the issue of jurisdiction in the course of composing its ruling, without inviting the parties to address it. The court's omission is clear from the record of appeal. It is a cardinal principle of natural justice that no party should be condemned unheard, and that fair procedure demands that both sides must be afforded an opportunity to be heard. This Court has consistently held that the right to be heard is not only a cornerstone of natural justice but also a fundamental constitutional right guaranteed under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 (as amended) - see: the cases of The Director of Public Prosecutions v. Sabini Inyasi Tesha & Another [1993] T.L.R. 237, National Housing Corporation v. Tanzania Shoe Company Limited & Others [1995] T.L.R. 251, Mbeya-Rukwa Auto Parts & Transport v. Jestina Mwakyoma [2003] T.L.R. 251, Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy [2005] TZCA 105, to mention the few. For instance, in the case of Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy (supra) the Court said: "The right o f a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wit1 be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f naturaljustice." 9 Accordingly, any decision reached in contravention of this right cannot be allowed to stand, even if the same conclusion might have been reached had the party been heard. The denial of the right to be heard vitiates the proceedings and renders the resulting decision incurably defective. The reasoning behind this principle is rooted in the very essence of justice and fairness. The doctrine of audi alteram partem ensures that decisions are made based on a full and fair hearing, allowing each party to present their case, respond to opposing arguments, and provide evidence. Without this procedural safeguard, the risk of arbitrary or biased decisions increases significantly, undermining public confidence in the judicial system. Moreover, jurisdiction is a fundamental threshold issue that goes to the court's very power to adjudicate a matter. If a court were to determine jurisdiction without hearing the parties, it would effectively deny them the chance to challenge or clarify the court's authority, potentially leading to decisions that are void or unenforceable. We are compelled to underscore here that the procedural requirement to hear parties on jurisdictional issues is not a mere formality but a substantive safeguard that protects the integrity of the judicial process and the rights of litigants. As indicated earlier, in the present case, the High Court, while composing its ruling, discussed and determined the issue of jurisdiction, holding that the power to revoke or annul lay with the original court that had appointed the respondent as executrix. However, it did so without affording the parties an opportunity to be heard. Obviously, this is a clear breach of the parties' basic rights because they were not afforded a right to be heard on the question of jurisdiction. With due respect, we do not subscribe to Mr. Mutashobya's argument that the High Court acted correctly as it was satisfying itself on jurisdictional power. Our position is anchored in the settled principle of law that one of the key components of natural justice is the right to be heard, the audi alteram partem rule, which requires that no person shall be condemned unheard. That being the case, if the High Court noted that there was an issue concerning its jurisdiction, it ought to have invited the parties to address it. Given the circumstances of this appeal, we are satisfied that the High Court's failure to afford the parties the right to be heard vitiated its entire ruling, and we cannot allow it to stand. Accordingly, we find merit to the appeal. We allow it and proceed to quash and set aside the ruling of the High Court and direct that the case be remitted to the High Court for retrial by another Judge from the point when the matter was set down for ruling. Should the assigned Judge see a need to look into the question of jurisdiction, the parties should be invited to address that question. In the circumstances, we make no order as to costs. It is so ordered. DATED at DODOMA this 10th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered virtually this 14th day of April, 2026 in the presence of Mr. Thomas Mathias, learned counsel for the Appellant, Mr. Isack Mutashobya, learned counsel for the Respondent and Ms. Christina Mwanandenje, Court Clerk is hereby certified as a true copy of the original.