Maleckezedeck John Mallya vs Miriam John Mallya and 4 Others (Civil Application No. 67/01 of 2023) [2024] TZCA 939 (25 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO. J.A.. MAIGE. J.A. And KHAMIS. J.A.l CIVIL APPLICATION NO. 67/01 OF 2023 MALECKEZEDECK JOHN MALLYA..................................................APPLICANT VERSUS MIRIAM JOHN MALLYA.............................. . .......................... 1 st RESPONDENT BRIGHTON JOHM MALLYA..... ............ . ................................ 2 nd RESPONDENT CHARLES KASUMBAI MALLYA................. ............... ..............3 rd RESPONDENT GRACE JOHN MALLYA ...... . ....................................................4™ RESPONDENT MARIAN JOHN MALLYA.................... . ............... . .................. 5 th RESPONDENT [Application from the decision of the High Court of Tanzania at Temeke Sub Registry Dar es Salaam] (QpiXQ/JU dated the 15thday of December, 2022 in Miscellaneous Application No. 7 of 2021 RULING OF THE COURT 21st August & 25th September, .2024 MWANDAMBO, J.A.: The applicant sought to challenge the decision of the High Court (One Stop Centre) at Temeke Sub-Registry in Miscellaneous Application No. 7 of 2021 arising from Probate and Administration Cause No. 3 of 2011. That application was taken by the first, second, third and fourth respondents as applicants, henceforth, the Four respondents, who successfully challenged the grant of a probate to the fifth respondent in respect of the estate of the late John Kacheli Mallya. As the applicant

was not a party to the proceedings which have given rise to the impugned decision, he has moved the Court under section 4 (3) of the Appellate Jurisdiction Act (the AJA) for revision. The founding affidavit supporting the application provides a narrative of what transpired in the High Court and averments elaborating his grievances based on the grounds set out in the notice of motion. The first of the grounds alleges that, the High Court determined Miscellaneous Application No. 7 of 2021 on grounds not raised and argued by the parties without according them opportunity to be heard on the said ground on the other hand, it is contended in the 2n d ground that, the High Court granted a relief not prayed for whereas the 3rd ground alleges that the High Court based its decision on a non-existing law. The facts in this application can be stated briefly as follows: The deceased John Kacheli Mallya died in 2010 leaving behind several wives and a sizeable number of issues including those involved in the application. There is hardly any dispute that, the deceased left behind a will. According to annexure JKM containing the deceased's will, the deceased appears to have nominated 13 persons to be executors of the said will including the fifth respondent excluding the Four respondents. Regrettably, the path towards actualizing the wishes of the deceased has

not been smooth. His will has been subject of a protracted litigation dating back as early as 2010. After some protracted proceedings, on 23 November 2021, the High Court granted a probate to the fifth respondent in Probate and Administration Cause No. 3 of 2021. The High Court did so upon being satisfied that the petitioner therein (fifth respondent) had complied with the order for citation by publishing it in the Government Gazette and in Mwananchi Newspaper. The grant of the probate was followed by an order to the fifth respondent to file inventor/ and accounts within one month from its grant. Three weeks later; on 13 December 2021, to be exact, the Four respondents filed Miscellaneous Application No. 7 of 2021 for revocation of the grant of the probate issued to the fifth respondent. The grounds upon which the order was sought were set out in paragraph four of the joint affidavit all revolving around the validity of the will. At the end of it all, the High Court revoked the grant of probate and ordered the filing of a petition for letters of administration with the will annexed or a fresh petition for probate. By and large, the learned Judge granted the application on the basis that, the grant of the probate was defective for failure by the appointed executor to comply with the initial procedures before and after filing the petition by not informing all the lawful heirs of

the deceased of its filing regardless of the general citation. According to the learned Judge, the general citation was meant for the general public and not necessarily for the heirs. That decision triggered the applicant who is one of the children of the deceased but not a party to the proceedings giving rise to the impugned decision to file the instant application. As mentioned earlier on, the applicant has raised three grounds in support of the application contained in his affidavit. Paragraph 17 of the affidavit avers that the applicant is a beneficiary of the will who believes that the executrix (fifth respondent) had complied with the terms of the will but for the decision of the High Court violating it. On the other hand, it is averred in paragraph 18 of the affidavit that the applicant resorted to revision because he was not a party to the proceedings before the High Court from which no appeal has been preferred against the resultant decision by any of the parties thereto. The Four respondents who are represented by Mr. Sigsbert Ngemera, learned advocate have resisted the application through a joint affidavit in reply. Simultaneous with the filing of the affidavit in reply, they preferred a notice of preliminary objection on two grounds

challenging the competence of the application, The fifth respondent took no affidavit in reply. Neither did she oppose the application. Apparently, she had complied with the court's consequential order and filed a fresh petition vide Probate and Administration Cause No. 268 of 2022. At the hearing of the application, Mr. James Andrew Bwana, learned advocate, represented the applicant during which we heard him on oral arguments in addition to the written submissions he had lodged earlier on. So, did Mr. Ngemera for the Four respondents who similarly lodged his written submissions in reply. Ordinarily, we could have determined the preliminary objections first but we elected to hear counsel on the application simultaneous with the preliminary objection to save time while well aware that, should we sustain it, that will be the end of the matter and spare us from discussing the merits of the application. That said, it will now be convenient to begin our discussion with the preliminary objection in the first ground after abandoning the 2n d ground predicated upon the competence of the application allegedly for being overtaken by events. The complaint in the remaining ground in the notice of preliminary objections is that the application is incompetent for impleading a

stranger as fifth respondent. It was contended that, the fifth respondent Marian John Mallya is a stranger since she was neither a party in Miscellaneous Application No. 7 of 2021 nor in "Probate and Administration Cause No. [3] of 2021". Mr. Ngemera sought to persuade us to sustain the objection placing reliance on Article 117 (3) of the Constitution of the United Republic of Tanzania, 1977 discussed in our unreported decision in Martha Emmanuel Shayo v. Jesca Gordon Elias Karlo and Another, Civil Application No. 171 A/1 of 2021. The learned advocate argued that, under the circumstances, she could not be validly joined in this application. According to him, impleading the fifth respondent in her name instead of her capacity as executrix of the estate of the deceased rendered the application incompetent warranting striking it out. Mr. Bwana was man enough to concede the incompleteness in the citation of the fifth respondent attributed to a slip of the pen rather than being intentional. Counsel impressed upon us to treat the omission inconsequential as no prejudice was occasioned to any of the parties. Placing reliance upon our decision in Suzana S. Waryoba v. Shija Dalawa (Civil Appeal No. 44 of 2017) [2019] TZCA 66; 10 April 2019, TANZLII), Mr. Bwana argued that, the omission to cite the fifth

respondent in her capacity as executrix was a curable irregularity which did not go to the root of the application. Not surprisingly, in his final address, Mr. Ngemera stuck to his guns urging us to treat the omission as fatal to the application. For start, we agree that, impleading a stranger to the decision sought to be challenged in an appeal or application is, with respect, an irregularity which, as we held in Martha Emmanuel Shayo (supra) may have adverse consequences to such appeal or application. The irregularity in this application is, as urged by Mr. Bwana, a result of an accidental omission. It is for that reason that, counsel sought refuge from the Court's decision in Suzana D. Warioba (supra) in which we observed, albeit in passing that, the omission to impiead a party who was an administrator before the High Court is a curable irregularity. The learned advocate urged us to find it inconsequential. We respectfully agree with that observation having been satisfied that, the omission complained of was, but a result of an accidental slip and we know no law or authority penalizing a litigant for an accidental slip. Contrary to Mr. Ngemera, our decision in Martha Emmanuel Shayo (supra) relied upon is, with respect, distinguishable.

First, unlike here, there was no mention of an accidental slip and so it is not clear what would have been the position had the applicant pleaded accidental slip as it were. Secondly, and perhaps most importantly, the Court's decision was not solely grounded on impleading strangers. It was a result of the applicant moving the Court to "revise distribution of the estate and eventually the discharge of the respondents" rather than the decision or order of the High Court. Thirdly, it is plain from that decision that, the record of revision did not include any proceedings and/or decision subject of examination and revision. For ease of reference, we shall have the Court speak for itself in that regard: "The notice o f motion seeks revision o f "the distribution o f the estate" and "eventuaiiy the discharge o f the re sp o n d e n tsT h is cannot be anything but a m isconception, in our view, because the only thing we can revise is a decision or order o f the court, and the distribution o f the estate done by an adm inistrator is not one o f them. Besides, the record before us does not in dude any proceedings and/or decision worth exam ining and revising. The argum ents by the applicant which we have earlier referred to, have 8

never been raised anywhere before the High Court so there is no decision on them for us to revise. We aiso take note that this application for revision has been preferred against the respondents in their personal capacities and not as adm inistrators o f the estate. There is therefore no nexus between the present application and Probate and Adm inistration Cause No. 28 o f2005 where they stood as adm inistrators o f the estate o f the deceased. In the circum stances, we cannot pretend to revise orders made in that cause by im pleading strangers, as it has been done by the applicant in the instant m atter... ” [a t page 5 and 6 ]. In our view, in the context of the circumstances, it was justifiable to make reference to Article 117 (3) of the Constitution that the Court cannot sit as a court of first instance since the arguments canvassed by the applicant in her written submissions did not feature before the High Court and a decision made thereon. With respect, it is now clear that, Mr. Ngemera read that decision out of context when he insisted, as he did, on Article 117 (3) of the Constitution. In the upshot, we are hesitant to hold the omission to implead the fifth respondent in her capacity as Executrix of the deceased's estate as a fatal irregularity tantamount to

impleading a stranger as contended by Mr. Ngemera. We thus overrule the objection. Having overruled the objection, we now turn our attention to the substance of the application. As hinted earlier on, the applicant has preferred this application as a beneficiary of the deceased's will because he was not a party to the proceedings before the High Court. Mr. Bwana justified the course of action taken by the applicant by referring to the Court's decision in Arcopar (O. M.) S. A. v. Harbert Marwa and Family Investments Co. Ltd & 3 Others, Civil Application No. 94 of 2013 (unreported). He thus argued that, the impugned decision revoking the grant in the probate had the effect of prejudicing the applicant's interest in the will and the probate. From that premise, Mr. Bwana made several arguments anchored on the propriety of the decision of the High Court, that is to say: the determination of Miscellaneous Application No. 7 of 2021 was based on a ground not raised in the said application neither argued by the parties; granting a relief not prayed for and; basing the decision on a non existing law. Counsel placed before us several decisions to reinforce his submissions which we need not cite them now until such time such need 10

will avail itself. It was thus prayed that, the irregularities pointed out were sufficient to grant the application and reverse the impugned decision by setting aside the order revoking the grant of the probate to the fifth respondent and allow the probate to proceed to its conclusion. We pause here with a remark that, this prayer appears to be partly misconceived. It is plain from the record that, Probate & Administration Cause No. 3 of 2021 was finally and conclusively determined by Mwaseba, J. who granted it and appointed the fifth respondent as executrix. Consequential to the grant, the learned judge ordered her to file inventory and accounts within 30 days from the date of the grant which she did. Mr. Ngemera supported the impugned decision as correctly made in the light of the grievances before it. At any rate, it was argued that since the fifth respondent did not challenge the revocation of his grant and instead complied with the order and refiled a fresh petition in Probate and Administration Cause No. 268 of 2022, it was not open for the applicant to lodge this application. In his oral submission, Mr. Ngemera contended that the applicant had no locus standi to lodge the application branding it as a disguised appeal by the fifth respondent through the li

applicant. He urged the Court to dismiss the application for lacking in merit. We shall begin our discussion by reiterating the law on applications for revision. Settled law holds that revision is only available to a litigant in fitting circumstances for, unlike appeals, there is no statutory right to apply for revision it being a discretionary remedy neither an alternative to an appeal. We have said so in Moses J. Mwakibete v. The Editor Uhuru, Shirika la Magazeti ya Chama and Another [1995] T.L.R 134 and reiterated in many other decisions such as, Hallais Pro- Chemie v. Wella A.G. [1996] T.L.R. 269. Needless to say, it is settled from case law including Arcopar cited to us by Mr. Bwana that, a third party to the proceedings before the High Court may seek revision if the resultant decision has the effect of affecting his interest since, that person has no right of appeal. It is remarkable that, interest is what gives that third party locus standi to apply for revision. According to the Black's Law Dictionary, 7th Edition, at page 952, locus standi is defined to mean: "The right to bring an action or to be heard in a given forum". 12

The term was succinctly explained by Samatta, JK (as he then was) in Lujuna Shubi Ballonzi, Senior v. Registered Trustees of Chama cha Mapinduzi [1996] T.L.R. 203 thus: In this country, focus standi is governed by common law. According to that taw, in order to m aintain proceedings successfully, a p la in tiff or an applicant m ust show not only that the court has pow er to determ ine the issue but also that he is entitled to bring the m atter before the court... Courts do not have pow er to determ ine issues o f general interest... They can only accord protection to interests which are regarded as being entitled to legal recognition. They w ill thus not make any determ ination o f any issue that is academic, hypothetical, prem ature o f dead. Because a court is a court o f ju stice and not an academ y o f law, to m aintain an action... a litig an t m ust assert interference with or deprivation of, or threat o f interference with or deprivation o f a right or interest which the law takes cognizance of. Since court w ill protect only enforceable interests, nebulous or shadow interests do not suffice for the purpose o f suing or making an application..." (at page 208.] 13

With respect, the above is a correct statement of the law in this country. Subjecting it to this application, can it be said that the applicant has satisfied the Court of his interest and locus standi in the application? Upon our examination of the facts from the founding affidavit and the annexures thereto in the light of the grounds in the notice of motion, we respectfully endorse Mr. Ngemera's submission. Neither in the notice of motion nor in the affidavit has the applicant shown how his interest in the deceased's will has been deprived irrespective of the order of the High Court revoking the grant of the probate made by that court earlier on. In our view, the grounds in the notice of motion appear to be largely in the form of complaints by an aggrieved party to a decision on appeal and not in an application for revision by a third party to the impugned decision. It is even more striking in this application considering that, the party (fifth respondent) against whom the order was made did not seek to challenge the decision. Instead, she complied with the order of the High Court by filing a fresh petition which, according to Mr. Mbuga, has been stayed pending determination of this application. That the application is, but a disguised appeal by the fifth respondent through the 14

applicant, can easily be discerned from the fifth respondent's stance through her advocate supporting the application when it was called on for hearing regardless of her election not to challenge the impugned decision. On the whole, we are satisfied that, the applicant has not met the threshold test of maintaining an application for revision for lack of locus standi in the circumstances obtaining in this application. That renders the application incompetent warranting an order striking it out. However, before making our final order, we wish to make a remark in the impugned decision in relation to the reason behind the revocation of the grant of the probate. It is plain from page 30 of the record of revision, Mwaseba, J. granted the petition for probate in Probate and Administration Cause No. 3 of 2021 after being satisfied that the petitioner (fifth respondent) had complied with the order for the citation. Consequently, a grant for the probate was made to the fifth applicant as the executrix of the deceased's estate. Yet, Opiyo, J revoked the grant solely on the alleged non-compliance with the so-called initial procedures before and after the citation. There is no dearth of authority for the proposition that, once a court has made a decision rightly or otherwise, that decision becomes final unless it is subsequently reversed on appeal or revision by a 15

superior court or by way of review before the same court. Short of that, the court making the decision becomes functus officio. There is no authority for the same court be it by the same or a different judicial officer to go behind the decision and reverse it in the manner did by the learned Judge in the impugned decision. Doing so, was, with respect, tantamount to the court sitting on appeal from its own decision to the extent it relates to the compliance of the order for citation. There can be no doubt from the above that, what was done by Opiyo, J. was, with respect, improper. So was the order, subject of the application. In Tanzania Heart Institute v. The Board of Trustees of National Social Security Fund [2008] T.L.R 359. The Court found the application for revision incompetent and liable to be struck out. However, it declined taking path on account of the illegalities in the decision from which the application emanated. The Court stated: "Having sustained the prelim inary objection , on this ground, it would follow that the application before us is to be struck o u t However, the decision to strike out the application has engaged our m inds considerably. This is fo r the reason that we are seized o f the record o f the High Court in Land Case No. 158 o f 2007. Upon a dose 16

perusal o f the record as a whole, apart from the subm issions made by the learned counsel for both parties in the application which we have held to be incom petent, we are increasingly o f the view that the eviction order is fraught with irregularities, ille g a lity and im propriety. For this reason, we are constrained not to strike out the application in order to retain the record fo r the purpose o f correcting the ille g a lity and or im propriety. Otherwise, it would take a long tim e to start it a ii over which is not in the interest o f justice, "[a t page 365]. See also: Chama cha Walimu Tanzania v. The Attorney General [2008] T.L.R91. In view of the apparent illegality in the decision, subject of the application as pointed out above, we are constrained to take a similar path. Instead of striking out the application, we shall retain the record of revision and suo motu revise Opiyo, J's decision by quashing it and setting aside the orders from it for being illegal. It is striking that, the Misc. Application No. 7 of 2021 was determined on a ground raised by the court quite distinct from the grounds set out in the supporting 17

affidavit. Going forward, we direct that the application be determined on merit before another judge. Owing to the nature of the proceedings from which the impugned decision has emanated, make no order as to costs. DATED at DAR ES SALAAM this 23rd day of September, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 25th day of September, 2024 in the presence of Mr. James Bwana, learned counsel for the applicant and Mr. Sigsbert Ngemera, learned counsel for the 1st and 4th respondent and Mr. Hans Mrindoko, learned counsel holding brief for Mr. Jonathan Mbuga, learned counsel for the 5th respondent, is hereby certified as a true copy of the oriainal. £\ J. J. KAMALA £ DEPUTY REGISTRAR w ) COURT OF APPEAL 18