Salum Abdallah Ligagabile vs Hassara Said Pazi (Civil Appeal No. 613 of 2022) [2025] TZCA 880 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. 3.A.. MASOUP, 3.A. And AGATHQ, J.A^ CIVIL APPEAL NO. 613 OF 2022 SALUM ABPALLAH LIGAGABILE (ADMINISTRATOR) ....................... APPELLANT VERSUS HASSARA SAIP PAZI.................................... ................. RESPONOENT (Appeal from the Judgment of the High Court of Tanzania at Oar es Salaam) (Mlacha, 3.) dated the 4th day of February, 2021 in PC Civil Appeal No. 27 of 2020 JUDGMENT OF THE COURT 30th July & 27th August, 2025 LILA. 3.A.: Appointment of an administrator and administration of the estate of the late Zakia Suleiman Msumi sometimes referred to as Zakia Selemani Madenge who died on 30/03/2016 is still an issue to date. The appellant, Salum Abdailah Ligagabile, and the respondent, Hassara Said Pazi who were appointed to jointly administrator that estate by Mbagaia Primary Court (the trial court) in Probate Cause No. 358 of 2017 on 13/02/2018 are

now litigating against each other instead of jointly administering the estate. In the proceedings leading to such appointment, one Isike and Kingochi participated as assessors. The appointment of the parties as joint administrators appears not to have been an issue to the appellant who appealed to Temeke District Court in Civil Appeal No. 67 of 2019 fronting three grounds against other consequential orders issued by Mbagala Primary Court: ”1. That the trial court erred in iaw and fact by failure to determine the suit by directing Bakwata (sic) to determine the essential ingredient of the said probate while knowing that it was against the iaw. 2. That the trial court erred in iaw and in fact by considering the respondent side as one o f the deceased relatives while they have no any relations. 3. That the trial court erred in iaw and in fact by failure to comply to the order o f Temeke District Court in Civii Appeal No. 108 o f 2016 which ordered the retrial of the probate case related to Zakia Seiemani Msumi." In his judgement, while resolving ground three (3) above which is, as shall be shown later, the crux in this appeal before the Court, the first appellate magistrate had this to say: 2

"Frankly speaking, I have also passed through the court records and read the said Civil Appeal No. 108 o f 2016. The same originated from Probate Cause No. 222 o f 2016 from Mbagala Primary Court which challenged that the trial court had considered the will left by the deceased, the trial court appointed the administrator who was not proposed by the dan meetingi f that the trial court mislead itself by directing the matter to Bakwata and that the judgment did not give reasons for. In my findings, I have discovered that the decision of the primary court which is Probate Cause No. 222 o f 2016 was presided by Hon. Ahazia. When the appellants challenged the decision delivered by her in Civil Appeal No. 108 o f 2016 before Hon. Batualaine, In that appeal, the magistrate quashed the decision and revoked the letters o f probate. Instead, she ordered the parties, that is, the appellants and respondent, to sit in a family meeting appoint the administrator who would file a fresh case before another magistrate and assessors. From the circumstances given above, it is not disputed that the order which was issued in Civil Appeal No. 108 Of 2016 was fui/y complied as the 3

parties to that case did sit in a family meeting and proposed the appellant and respondent the administrators o f the estates of the deceased. The matter was heard by another magistrate who is Hon. R. TAMAMBELE - PCM. By appointing the administrators who are the parties to this matter it is true that the trial magistrate met the requirement of the Fifth Schedule , Rule 2 of the Magistrates Courts Act." Dissatisfied, the appellant placed the same complaint for consideration before the High Court in PC Civil Appeal No. 27 of 2020 which appeared as ground three (3) of appeal and read thus: "3 . That the 1 st appellate court erred in law and fact by upholding the decision of Mbagala Primary Court despite the fact that it violated the court order which up-to-date is valid." After hearing the parties, the learned Judge of High Court pronounced his finding, in part, that: "...It is alleged that there was an earlier decision of the district court which had ordered retrial before another magistrate and different set o f assessors but one of the earlier assessors took part in the new

proceedings. I have perused the record but could not see a copy of the decision o f the district court. That makes the complaint baseless which is dismissed." The appeal was thereby dismissed leading to the present appeal raising the same point as the sole complaint or issue in these words: "1. That the High Court Judge erred in law to dismiss the appellant's appeal without considering that the District Court of Temeke order in Civil Appeal No. 108 of 2016, which nullified the proceeding o f Probate Cause No. 222 of 2016 and ordered retrial de novo before another magistrate and new set of assessors was violated by having a new probate cause being determined by another magistrate but the issues o f assessors were not considered without any justification for non- compliance to the order, but this court has dismissed the appeal without considering such legalposition." While referring to the Temeke District Court order in Civil Appeal No. 108 of 2016 dated 10/03/2017 located at page 36 of the record of appeal, the contention by Mr. Alex Enock, learned advocate who represented the appellant, was that one of the assessors one Isike who together with one

Hadija participated in the proceedings in Probate Cause No. 358 of 2017 leading to both parties being appointed as co-administrators of the estate of the late Zakia Selemani Madenge which case was instituted after the proceedings in Probate Cause No. 222 of 2016 were nullified by the Temeke District Court in Civil Appeal No. 108 of 2016 and an order made that the probate cause to be instituted should be presided over by another magistrate and a new set of assessors. He further argued that it was a violation of the court order in Probate No. 358 of 2017 in which only the applicant applied to be appointed administrator to allow one Isike to, again, form part of the court's coram. He complained that the appellant was thereby denied the right to be heard as stipulated under Article 13(6) of the Constitution of the United Republic of Tanzania. He faulted the learned Judge for holding that he could not find the supporting documents in respect of the complaint while the same formed part in the record of the High Court at pages 95 to 97 in PC Civil Appeal No 27 of 2020. On the rival side, Mr. Hamisi Katundu, learned advocate, presented a counter argument which in effect supported the learned Judges finding. He argued that Probate Cause No. 358 of 2017 was a fresh case filed by different parties following the Temeke District Court's order although the 6

deceased was named as Zakia Suleman Madenge as opposed to the one Zakia Suleman Msumi in Probate Cause No. 222 of 2016. As both parties were appointed administrators, he argued, even if the Court is to hold otherwise, no prejudice was thereby occasioned on the part of the appellant as claimed or at all citing the Court's unreported decision in the case of Yakobo Magoiga Gichere vs Peninah Yusuph, Civil Appeal No. 55 of 2017 in bolstering his argument. To appreciate the issue before us for determination, we start by reciting the order of Temeke District Court given in Civil Appeal No. 108 of 2016 which emanated from Probate Cause No. 222 of 2016 in which the parties were the appellant (Salum Abdallah Ligagabiie), Mwazani Abdallah and Mariam Sultan while the respondent herein was the respondent. The order stated thus: " 'Moreover, this court following the findings above, I allow the appeal. The trial court orders and judgment are hereby quashed and set aside. The letters o f administration o f the deceased estate granted to the respondent is revoked. Parties are ordered to sit in the family meeting and appoint the administrator who will file a fresh case before the

court and tried by another magistrate with new set of court assessors. ^(Emphasis added) The record bears out clearly that the respondent in that appeal was Hassara Mohamed who was appointed administrator of the estate of the late Zakia Suleiman Msumi in Probate Cause No. 222 of 2016. It was not controverted by the parties before us that Hassara Mohamed is actually the respondent in this appeal as was the case with the name of the deceased Zakia Seleman Msumi in Probate No. 222 of 2016 and Zakia Selemani Madenge in Probate No. 358 of 2017. No appeal lied to the High Court against the above order of the district court. It remained valid until Probate Cause No. 358 of 2017 was filed and determined in which although only the appellant applied to be appointed administrator of the estate of the late Zakia Selemani Madenge, the court (Mbagala Primary Court), in its wisdom, appointed the parties in this appeal co-administrators. The order has not been challenged before us. First of all, we wish to start by restating the obvious legal position that court orders must be obeyed and complied with and they remain valid until varied by a higher authority through due process of law. In Olam Tanzania Limited vs Halawa Kwilabya, Civil Appeal No. 17 of 1999 8

(unreported) cited in Registered Trustees of Telesina Sisters and Ten Others vs Nassoro Thabiti Lipangile (An administrator of the estate of Rukia Lipangile) and Another, Civil Appeal No. 382 of 2021 (unreported) the court categorically stated that: "Court orders are made in order to be implemented; they must be obeyed. I f orders are made by courts are disregarded or if they are ignored, the system of justice wiii grind to a half or it will be so chaotic that everyone will decide to do oniy that which is conversant to them." Mindful of the above, we have, in the instant appeal, realized that the learned counsel of the parties' arguments presumed that the order given by Temeke District Court was a "retrial" which was not the case. Apparently, the order was faulty for, in law, where only the orders and judgments are quashed and set aside the parties' case does not cease to exist. Pleadings remain intact in court. An order of retrial is therefore issued for hearing of the case to start afresh in the same record. It thus becomes easy for a successor magistrate to note and comply with an order such as the one barring a magistrate and the assessors who took part in the previous proceedings from being parties to the new proceedings. Where an order to 9

file a fresh case is issued, as did the Temeke District Court, the successor magistrate treats it as a new case having no any restriction. In the circumstances, no valid blames may be directed to the magistrate who presided over Probate Cause No. 358 of 2017 for not complying with the order given in respect of those who presided over Probate Cause No. 222 of 2016. Secondly, we have found the appellant's complaint before us untenable in law. As it was correctly pointed out, Probate Cause No. 358 of 2017 was a completely new case. It is trite law propounded in numerous decisions of the Court that orders or decisions of the court binds only parties to the case. They do not bind the whole world. The High Court pronounced so in the case of Isack Nguvumali vs Petro Bikulake (substituted by Mtalikwa Bikulake) [1972] HCD no. 139 which decision was cited with approval by the Court as good law in Jacqueline Jonathan Mkonyi and Another vs Gausal Properties Limited, Civil Appeal No. 311 of 2020 (unreported). We have taken pain to recount in detail the background to show the obvious that parties in Probate Cause No. 222 of 2016 and those in Probate 10

Cause No. 358 of 2017 were different as was correctly submitted by Mr. Katundu. The learned counsel of the parties, in the course of their respective submissions, made reference to the parties featuring in Probate No. 222 of 2016 and Probate Cause No 358 of 2017. It was vivid that the parties were different. Since the order by Temeke District Court in Civil Appeal Case No. 108 of 2016 was in respect of Salum Abdallah Ligagabile (the appellant), Mwazani Abdallah and Mariam Sultan on the one hand as appellants and the respondent, on the other hand as respondent, the order of the court bound only these parties. In Probate Cause No. 358 of 2017 in which only the respondent was a party as applicant, the court was not bound by the order in Civil Appeal No. 108 of 2016 as parties were not the same as those in Probate Cause No. 222 of 2016. Having disposed of the crucial issue relating to the parties in the two Probate Causes, it behooves us now to canvass the germane complaint that the learned Judge, in his judgment (PC Civil Appeal No. 27 of 2020), wrongly dismissed the appellant's appeal due to his failure to appreciate that the Temeke District Court did not appreciate the fact that it did not li

satisfy itself that an assessor who formed a Coram in Probate Cause No. 222 of 2016 and were disqualified by Temeke District Court in Civil Appeal No. 108 of 2016 formed a Coram in Probate Cause No. 358 of 2017. As recited above, the learned Judge said he was unable to see the alleged order. Mr. Enock disagrees with him contending that the order was in the record. Mr. Katundu simply supported the judge's observation. TTie complaint as we understand it is that there was an oversight on the part of the learned Judge. That, he failed to properly peruse the record in which the order was located at pages 95 to 97. As we have endeavored to demonstrate above, the record at page 126 shows, PC Civil Appeal No. 27 of 2020 arose from Civil Appeal No. 67 of 2019 which, in turn, emanated from Probate Cause No. 358 of 2017. The record in respect of Probate Cause No. 222 of 2016 and Civil Appeal No. 108 of 2016 was not therefore necessary and might have been not included in appeal record before the learned Judge. The possibility that the learned Judge did not see it cannot therefore be easily overruled. Presence or absence of a document in a High Court appeal record is a factual issue which should have been canvassed and determined by the High Court first

before being placed before us in terms of section 4 (1) of the Appellate Jurisdiction Act, cap. 141 of our laws. Otherwise, we are settled in our minds that, if the situation was different that the document was in the appeal record, it was then within the mandate and the issue would definitely first be decided by the High Court in an application for review in terms of Order XLII Rules 1 and 2 of the Civil Procedure Act, Cap. 33 of our Revised Laws which permits the court to reconsider its position and correct it after consideration of a fact which, through an oversight, it had not. We are convinced that had Mr. Enock properly directed his mind, he would have not tempted to raise the issue at this stage as there is no finding of the High Court on the dispute whether or not the order existed in the record before the learned Judge. In the end, we see no reason to fault the learned Judge's finding. Consequently, the appointment of the parties to this appeal by Mbagala Primary Court in Probate Cause No. 358 of 2017 as co-administrators of the estate of the late Zakia Sulemani Msumi or Zakia Sulemani Madenge, is stili valid and remains undisturbed. 13

In view of the above, we find ourselves constrained to hold that the appeal is without merit and hereby dismiss it with costs. DATED at DODOMA this 21s t day of August, 2025. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 27th day of August, 2025 in the presence of Mr. Alex Enock, learned counsel for the Appellant and Mr. Hamis Katundu, learned counsel for the Respondent via virtual Court; is hereby certified as a true copy of the original. 14