Laila Godfrey vs Nargis Ally Yusuph Mpore and Another (Civil Application No. 194/17 of 2023) [2024] TZCA 1102 (14 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. GALEBA. J.A. And ISMAIL, J.A.^ CIVIL APPLICATION NO. 194/17 OF 2023 LAILA GODFREY .......................................................................... APPLICANT VERSUS NARGIS ALLY YUSUPH MPORE...............................................1st RESPONDENT IBRAHIM ALLY YUSUPH MPORE........................... .............2n d RESPONDENT [Application for Revision of the Decision of the High Court of Tanzania Dar es Salaam Sub Registry, at Dar es salaam] (Mqonva, J.) dated the 20th day of March, 2020 in PC Civil Appeal No. 52 of 2017 RULING OF THE COURT 2$hOctober & 14th November, 2024 GALEBA, 3.A.: This is an application for revision. Laila Godfrey the applicant, (Laila) is challenging a decision of the High Court which revoked her appointment as the administratrix of the estate of her late husband, one Ally Yusuph Mpore (the deceased or Ally). That order was made in PC Civil Appeal No. 52 of 2017, to which matter she alleges to have not been a party. It is on record that, until Ally's death on 2n d March, 2005, the couple, that is Laila and Ally, had in the course of their marriage, been blessed with 8 children. Ally too, had been married to another woman called Rahmat Ahmad Juma, (Rahmat) who, at the

time of his death, had with him 2 children named Yusuph Aliy Mpore and Nargis Ally Yusuph Mpore, the first respondent in this matter (Nargis). It appears that Ibrahim Ally Yusuph Mpore, the second respondent (Ibrahim), is one of Ally's sons that survived him. The litigation constituting the background to this revision is quite eventful, and its stay in the courts spans to almost two decades. Anyway, after Ally's demise in 2005, Ibrahim was appointed administrator of the estate of his deceased father by the Primary Court of Buguruni, in Probate and Administration Cause No. 102 of 2005. However, upon a caveat which was lodged at the same Primary Court by Rahmat (Nargis' mother), on 7th November, 2007, Ibrahim's appointment was revoked. It appears that in the place of Ibrahim, the Primary Court appointed Ally's wives, that is, Laila and Rahmat to be administratrices of the late Ally's estate. Consequent to his revocation, Ibrahim was aggrieved and therefore lodged Civil Revision No. 2 of 2008 at the District Court of Ilala at Samora Avenue, impleading Laila and Rahmat, as the respondents. On 17th January, 2014, the District Court at Samora Avenue, (Luhwago RM) made the following order, in that matter: "For these reasons; I hereby revoke the grant o f Letters o f Administration o f the estate o f the iate Ally Yusuph Mpore to the first and second respondents. In their piacef

I hereby re-appoint and reinstate Ibrahim Ally Mpore to be the administrator o f the deceased's estate." Ibrahim therefore, once again took up administration of the estate of his father. Nonetheless, it did not take long before Nargis lodged Miscellaneous Application No. 134 of 2014, complaining that Ibrahim was mismanaging the estate of their father. In determination of that application, on 20th October, 2016, the District Court at Samora, this time (Mkasiwa SRM) made the following order: ".../ have seen that it is not appropriate to revoke the grant o f letters o f administration o f Ibrahim Ally Yusuph Mporer since the same [were] granted by this court, but it is appropriate and for the interest o fjustice to [appoint] Nargis Ally Yusuph Mpore and re-appoint Lai/a Godfrey, the widow o f the iate Ally Yusuph Mpore administratrices o f the deceased estate, so as they can jointly administer well the estate. By the above order, Nargis was brought on board as a joint administratrix of his father's estate, and Laila was re-appointed in the same capacity. Both were to join Ibrahim in administration of the late Ally's estate. However, Ibrahim was not pleased by the appointment of Nargis and Laila to join him, so, he lodged PC Civil Appeal No. 52 of 2017 before the High

Court, complaining in ground three of the appeal, that the District Court erred in law, for appointing Nargis and re-appointing Laila without there being an application to that effect. Relevant to this revision, is that parties to that appeal were only Ibrahim and Nargis, as appellant and respondent, respectively. Laila was not made a party to the appeal, although her appointment, like that of Nargis, had been revoked in the same decision that was being challenged. In that appeal, although there is no clear decision on that point, but the High Court agreed with Ibrahim that it was erroneous for the District Court to appoint Nargis and Laila, as additional administratrices of the estate, without there being any application to that effect. Based on that argument, the appeal was allowed in its entirety. By that decision of the High Court, the appointment not only of Nargis, but also that of Laila, was in effect, revoked. In view of the above revocation, Laila is before us, maintaining that the decision of the High Court is a nullity having revoked her appointment as an administratrix of the estate of her late husband, without availing her a right to be heard. And that is the only ground of revision upon which the whole of this application is grounded. At the hearing of this application, the applicant was represented by Mr. Sabry Salehe Kizigha learned advocate, while the second respondent had the

services of Mr. Anindurrti Jonas Semu also [earned advocate. However, this matter had to proceed under rule 63 (2) of the Tanzania Court of Appeal Rules 2009, in the absence of the second respondent or her counsel. We had to proceed that way because the matter had to be heard on 22n d October, 2024, but it was adjourned to 28th October, 2024 in order to give Mr. Mashaka Ngole, time to appear for the first respondent, because we were advised by Mr. Abdul Azizi, learned advocate who held his brief that, on that day, Mr. Ngole or someone else, would appear and defend the appeal. However, no one appeared. In terms of the above facts of the case, Mr. Kizigha did not have any more arguments to make, other than insisting that a decision reached by any court without hearing both parties, if it is to affect one of them, is a nullity. Mr. Semu, told us that, it is indeed true, that the applicant was not made a party to the proceedings in PC Civil Appeal No. 52 of 2017, but she was aware of the case because, she was a party to PC Civil Appeal No. 60 of 2017. As Mr. Semu had attached the judgment of the High Court in PC Civil Appeal No. 60 of 2017 to his affidavit in reply, we inspected the same but found out that parties in that judgment were, Abdallah Ibrahim Pazi as the appellant, and the only two respondents, were Nargis and Ibrahim. Laila was, therefore, not a

party. When we asked Mr. Semu as to what he meant when he told us that Laila was a party to PC Civil Appeal No. 60 of 2017, he told us that Abdaflah Ibrahim Pazi, the appellant in that matter, was holding her power of attorney. Revisiting the judgment of the High Court in that matter, we did not see anything that would have made Laila aware of PC Civil Appeal No. 52 of 2017, in which her appointment was revoked. In view of that, with respect to Mr. Semu, we reject his argument that Laila was a party to PC Civil Appeal No. 60 of 2017. In fact, throughout that judgment, there is not a single place where Laila is mentioned. In any event, even if she could have been made a party to that other appeal (PC Civil Appeal No. 60 of 2017), that alone could not have amounted to availing her an opportunity of being heard in PC Civil Appeal No. 52 of 2017, for the simple reason that those matters were two different appeals and she was not made a party to any of them. So, we are unable to agree with Mr. Semu that existence of PC Civil Appeal No. 60 of 2017, amounted to availing, the applicant in this matter, a right to be heard in PC Civil Appeal No. 52 of 2017. This Court has held on countless occasions that, a right to be heard is a cornerstone to a credible judicial process. It is one of the constitutional principles of natural justice, in violation of which, no valid decision may be

reached. The position of this Court so far, is that any decision reached in violation of the right to be heard, is a nullity. In the case of Mary Mchome Mbwambo and Amos Mbwambo v. Mbeya Cement Company Ltd [2022] T2CA 179, this Court restated the above position in the following terms: "The violation o f the right to be heard is a breach o f the cardinal principle o f naturaljustice and an abrogation o f the constitutionalguarantee o f the basic right to be heard as enshrined underArticle 13 (6) (a) o f the Constitution o f the United Republic o f Tanzania , 1977. See: Mbeya Rukwa Auto Parts and Transport Limited v. Jestina George Mwakyoma [2003] T.L.R. 251." Other decisions in which this Court has insisted on the significance of affording the above right to parties, include Abbas Sherally and Another v. Abdul S. H. M. Fazalboy, Civil Application No. 33 of 2002 (unreported) and Alisum Properties Limited v. Salum Selenda Msangi [2022] TZCA 389. In view of the above discussion, we firmly hold that the High Court reached the decision to revoke the appointment of the applicant in PC Civil Appeal No. 52 of 2017, without affording her the right to be heard. That omission was a violation of her constitutional right. Thus, the proceedings and all orders of the High Court in PC Civil Appeal No. 52 of 2017 are hereby

nullified, and the judgment dated 20th March, 2020 in that appeal, is hereby set aside. We make no order as to costs since parties to this appeal, are members of the same family. DATED at DAR ES SALAAM this 12th day of November, 2024 G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Ruling delivered on this 4th day of November, 2024 in the presence of Mr. Mashaka Ngole for the 1s t Respondent, also holding brief for Sabri, learned counsel for the Appellant and Mr Anindumi Jonas Semu for the 2n d Respondent, is hereby certified as a true copy of the original.