Nicomedi Peter Fulgence vs Protus Fulgence Neema (Civil Appeal No. 428 of 2021) [2025] TZCA 1151 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: LILA. J.A.. FIKIRINI J.A. And RUMANYIKA. J.A.^ CIVIL APPEAL NO. 428 OF 2021 NICOMEDI PETER FULGENCE .................................................... APPELLANT VERSUS PROTUS FULGENCE N EEM A .................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Arusha Sub-Registry, at Arusha) (Mwenempazi, J.^ Dated the 10th day of June, 2020 in (P O Civil Appeal No. 04 of 2019 JUDGMENT OF THE COURT 7th & 17th October, 2025 LILA, J.A: In a Probate and Administration Cause No. 37 of 2017 of the primary court of Karatu, the appellant lodged an objection against the administrator of the deceased estate and prayed for his appointment being revoked. He was a losing party before all courts below. This is his third appeal. Briefly, this appeal rises out of an objection by the appellant NICOMED PETER FULGENCE against the respondent PROTUS FULGENCE NEEMA proceeding with the administration of the estate of the late Stanslaus Fulgence who died on 14/8/2017. The deceased was not blessed with a child and, until his death, he lived with a child Antonia Nicomedi, the appellant's daughter. The appellant and the respondent are siblings. The respondent was appointed administrator of the deceased estate on 24/10/2017 after he was proposed to the said primary court in a family meeting to be so appointed. The said objection was raised before the primary court of Karatu at the time when the respondent was still in the process of collecting the deceased's assets ready for distribution to the rightful heirs. The gist of the objection was that the respondent was squandering the deceased's assets and had failed to distribute them to the child Antonia Nicomedi who, the respondent alleged, the deceased had verbally (oral will) declared to be the only rightful heir for whom the assets should be applied to cater for her education costs until she reaches university level, an allegation which was seriously resisted by the respondent. On that account, the appellant sought for an order revoking the respondent's appointment as administrator of the deceased estate. On the whole of the evidence by the parties on the objection, all courts below found as established fact that no such oral will existed and they allowed the respondent to proceed with administration of the deceased's estate. They were therefore concurrent that no good cause was shown by the appellant to warrant grant of the order sought. Still aggrieved, the appellant appealed to the High Court, Arusha Registry. In its judgment rendered on 21/05/2020 (Mwenempazi, J.), the appellant was, again, unsuccessful. Undaunted, he sought to have the last word from the Court. He lodged a notice of appeal on 17/6/2021. Since the matter originated from the primary court, he was properly guided that it is a legal requirement under section 5(2)(c) of the Appellate Jurisdiction Act, Chapter 141 (the AJA) that, an intending appellant should, before lodging an appeal to the Court, first seek and be granted certificate on points of law worth being considered by the Court. He had to follow the procedure. Such certificate is issued by either the High Court or the Resident Magistrates' court with extended jurisdiction which heard and determined the decision sought to be impugned before the Court. In compliance, the appellant applied and was granted the certificate by the High Court (Masara, J.) on 28/5/2021. Two points met the threshold and a certificate to that effect was issued. Ultimately, he lodged the instant appeal on 28/6/2021. Before the Court, the appellant, as the law requires, fronted the two points certified by the High Court as his grounds of appeal. We shall not bother to cite them here given the course taken in disposing the appeal. Suffice it to state that the appeal was not heard and determined on merit. On the date scheduled for the hearing of the appeal, Mr. Charles Mwanganyi, learned advocate, who represented the respondent, sought leave of the Court to bring to the attention of the Court a pertinent legal 3 issue touching on the competency of the appeal before the Court, a prayer which was not resisted by the appellant. Accorded by the Court the sought leave, he informed the Court that the appeal before the Court was incompetent on account of the notice of appeal being lodged beyond the statutorily stipulated time. Amplifying it, he argued that, the record of appeal bears out at page 76 that the appeal sought to be challenged was delivered on 21/05/2020 and the appellant lodged the notice of appeal on 17/6/2021 as reflected on page 98. While referring the Court to rule 83 (2) of the Tanzania Court of Appeal Rules, 2009 (henceforth the Rules), he argued, the appellant ought to have filed his notice of appeal within thirty (30) days from the date the decision was delivered which was latest 20/6/2020. By the mere fact that the appellant lodged the notice of appeal on 17/6/2021, almost a year later, he was late and ought to have sought and granted extension of time before doing so, he maintained. Regarding the appellant spending time seeking for leave to appeal before lodging the notice of appeal, Mr. Mwanganyi referred the Court to Rule 46(1) of the Rules which, in effect, requires the notice of appeal be lodged before seeking and being granted leave to appeal. He implored the Court to strike out the appeal for being incompetent. The appellant, a layperson and who appeared in person and unrepresented, confidently put up arguments which are logically sound but 4 not supported by law. It could not occur to him that he could file a notice of appeal prior to being granted leave to appeal. He therefore pegged the period of thirty (30) days within which he was supposed to lodge the notice of appeal from 28/5/2021 when he was granted leave to appeal and was firm that by lodging the notice of appeal on 17/6/2021, he was within the stipulated period of thirty (30) days. He altogether threw blames to an undisclosed counsel who guided him so and prepared the documents for him to file. He maintained complying with law and he filed the notice of appeal against the decision of the High Court (Mwenempazi, J.) within time and urged the hearing to proceed particularly blaming Mr. Mwanganyi for, again, raising a matter which was conversed and resolved on the previous sitting of the Court when he was also ordered to lodge a supplementary record of appeal. Given the nature of the submission by the appellant which, in essence amounted to a concession, Mr. Mwanganyi had nothing to rejoin. With respect to the appellant, we are certain that Mr. Mwanganyi's submission on this point is valid. The wording of Rule 83(1) and (2) of the Rules are clear that a notice of appeal must be in writing and in terms of Rule 83(2) it should be lodged within thirty (30) days of the delivery of the decision a subject of an appeal. For clarity, they provide: "83 (1) Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the Court. (2) every notice shall\ subject to the provisions of Rules 91 and 93, be so lodged within thirty days of the date the decision against which it is desired to appeal." Given the above stance of the law, the appellant was obligated to lodge the notice of appeal against the decision of the High Court (Mwenempazi, J.) delivered on 21/05/2020, within thirty (30) days reckoned from 21/5/2020. As rightly argued by Mr. Mwanganyi, the appellant belatedly lodged the notice of appeal on 17/6/2021. Otherwise, he ought to have sought and be granted extension of time prior to lodging the notice of appeal. It is plainly clear from the record of appeal that he did not. We cannot accept as proper, the view taken by the appellant that he could not lodge the notice of appeal prior to applying and being granted leave to appeal to the Court. That would definitely be a contravention of the provisions of Rule 46(1) of the Rules which imperatively requires application for a certificate or for leave to appeal be preceded by lodgment of notice of appeal. It is worded thus: "46(1) Where an application for a certificate of for leave is necessary, it shall be made after the notice of appeal is lodged." For these reasons, we agree with the submission made by Mr. Mwanganyi that the notice of appeal was lodged beyond the prescribed period of thirty days. Whether or not the delay was occasioned by a wrong advice from an undisclosed counsel, it cannot be an excuse to warrant circumventing the law. In fine, the appeal is hereby struck out. Mr. Mwanganyi did not press for cost probably because the matter is an administration cause and the parties in this appeal are blood related hence a need to promote harmony within the family. We refrain, for the same reasons, from awarding costs. Each party shall therefore bear its own costs. DATED at ARUSHA this 16th day of September, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 17thday of October, 2025 in the presence of both parties in person and Ms. Jasmin Kazi, Court Clerk; is hereby certified as a true copy of the original D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL