IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAAM SUB REGISTRY)

AT DAR ES SALAAM

CIVIL REVIEW NO. 5 OF 2023

(Originating from Probate Administration and Administrating Cause No. 20 of2003,

ADOLPHINA MASSABA (as administratix and beneficiary of the Estate

VERSUS

HENRY SATO MASSABA (as an administrator

Ku/wa Sato Massaba) ..............., RESPONDENT

RULING

S. M. MAGHIMBI, J:

This application has been under the provision’s of Section 78 and

Order XLII Rule 1 and 3 of the Civil Procedure Code ;Cap. 33 R. E. 2019]

("CPC") whereby the applicant is moving this court to review its order for

closure of Probate Cause No. 20 of 2003 on the grounds that the

Honorable Court erred in fact and law when it ordered the closure of

Probate Cause No. 20 of 2003 without filing Accounts on the same. Her

complaint was that the said act led the Respondent to bequeath to himself

all the properties of the Estate of the deceased without the knowledge

and consent of the Applicant and other beneficiaries. On that ground, the

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applicant made subsequent prayers moving this court to make the
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following orders: -

1. Re opening of the said closed probate cause and that the

Applicant's application for a review be heard on merit;

3. An order that the Respondent pay the Costs of and

incidental to application and

4. Any other order as the Honourable Court may deem fit to

grant.

In this court, the applicant was represented by Mr. George Masoud,

learned Advocate while the respondent was represented by Mr. Shalom

Msaki, learned Advocate. Hearing of the application was by way of written

submission a prayer that was not objected by Counsel for the applicant.
In his submissions to support the application, Lr. Masoud started

by a prayer that the Memorandum of Review be adopted to form part of

this submissions. He then generally submitted that the applicant is moving

the court to vacate its previous order which cosed Probate and

Administration Cause No. 20 of 2003 and allow the Respondent and the

Applicant (Co Administrator) to file the proper inventory and accounts in

respect of the afore mention Estate of the Late Justice Kulwa Massaba for

the interest of all the beneficiaries.

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 He elaborated that this application was raised after the applicant

realised the respondent, being an advocate by profession, had, without

the knowledge of other beneficiaries fraudulently, bequeathed to himself

all the properties of the Estate of the deceased and closed the

aforementioned Probate Cause sometimes in 2013 without filing accounts

of the same and in absence of knowledge of other beneficiaries.

It was furthered averred that among properties :hat the respondent

bequeathed to himself was a landed property situated at Visiga-Kibaha

which is a matrimonial home where the applicant' resides. That the

respondent is alleged to have used the said property as collateral in

securing a loan from CRDB Bank whereas he failed. Afterwards it is alleged

that the respondent has sold the said property to one M/S Dominick

Logistics (Tanzania) Ltd. That sometime in 2021 or 2022, the applicant

was served with a notice from an agent from CRDB to vacate the premises

for the same had been auctioned to M/S Dominick Logistics (Tanzania)

Ltd.

Mr. Masoud went on submitting that being dissatisfied by the

conduct of the respondent, the applicant made a close follow up and

perusal of the Court file and discovered that the respondent had already

closed the said probate and administration Cause without her knowledge

hence this application for review. He emphasized that the said Probate

Cause is tainted with illegalities on the face of records as the same was

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closed without consent and knowledge of the app Scant and that the

reason of illegality is sufficient enough to grant the application.

In reply, Mr. Msakyi opposed the application for a reason that the

same is erroneous for lacking sufficient grounds for review. His argument

was that the application does not meet the requirement for warranting

review as provided under section 78 and Order XLII Rule 1 and 3 of the

Civil Procedure Code. That the ground for review as it appears in the

Memorandum of Review is stated to be an error in law and facts which

will require a long process of legal argument of what law or legal provision

was erred upon, and proof to ascertain the alleged facts directed to the

respondent.

Mr. Msaki went on submitting that the applicant has mentioned the

Court to have erred in law such matter is disqualified for review since such

matter does not require assessment of law or legal errors. The case of

Issa Hassani Uki vs The Republic Criminal Appeal No. 122/07 of

2018, CA was cited as it was reflected that whereby His Lordship

Mwandambo, JA cited the decision of Chandrakant Joshubhai Patel

vs Republic [2004] TLR 218 where it was held at page 7:

"An error warranting review must be both obvious and patent

mistake and not something which can be established by dram

process of reasoning and points which there mav conceivably be no

opinions. The Court made it explicitly that:

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 That a decision is erroneous in law is no ground for ordering

review. Thus, the ingredient of an operative errors is that first,

there ought to be an error, second, the error has to be manifest on

the face of the record and third the error must have resulted in

miscarriage ofjustice"

He then submitted that in the current application, the applicant is

seeking for review of an incumbent decision of Probate and Administration

Cause No. 20 of 2003 on errs of law and fact and has not pleaded or cited

any errors in the face of record causing her injustice as stated in the case

of Issa Haasan Uki.

It was the respondent's Counsel submission that on the allegation

of the respondent fraudulently bequeathing himself with all the Estate of

the deceased without consent or inclusion of other he rs and that he took

a loan from CRDB Bank, all these facts are not manifested in the record

and in the decision to be reviewed, these facts attract a long-drawn

argument and call for evidence therefore disqualifying the application to

attract a review. That a close look at the submission shows that Counsel

for the applicant has tabled serious allegations and introduced new

persons being CRDB Bank and M/S Logistics Ltd who were never part of

the Probate and Administration Cause aforementioned. He referred to

occasions where the Court has barred parties from bringing review on

account of fresh new facts and allegation. And supported this line of

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argument by citing the case of Haystead vs Commissioner of

Taxation [1926]AC 155 a case which cited Chemi Cotex Industries

Ltd vs Lakshmi Narayan Rathi Review Application No.08 of 2023.

Mr. Msaki went on arguing that the applicant is misleading the Court

as she too was an administratix in the Probate Cause and was represented

by an advocate from a reputable firm being Ismail and Co. Advocates who

addressed the Court on the filing of the inventory and accounts which

were filed. It is surprising, he argued, the allegations are directed to the

respondent while the Counsel that represented the applicant acted on

instructions from the applicant herself. It is clear that an attempt to

exclude the Respondent as a co administrator is a deliberate move to

mislead the Court as to the fact pertaining to the proceedings of the

Probate Cause in question.

He then submitted that Section 107 of Probate and Administration

of Estate Act Cap. 352 provides for remedy for failure to file inventory or

accounts which the applicant has not opted to take. His argument was

that the applicant has other avenues under the Probate and

Administration Act which allow to correct such allegation instead of this

application for review. Therefore, he submitted, the applicant has resorted

to a remedy which does not solve the issue at hand whilst there are

avenues under Probate proceeding that can rectify such occurrence. His

prayer was that the court finds the application without merits.

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 Having considered the submissions, it is apparent that both the

applicant and respondent were co administrators ih administering the

Estate of the late Hon. Justice Kulwa Sato Massaba. The applicant states

that the review is sought based on an error that is on' the face of records
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whereas the Court had closed the Probate and Administration Cause No.
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20 of 2003 without her consent and knowledge. The applicant further

alleged that the respondent who is an advocate by profession has

bequeathed all the Estates of the deceased to himself denying that right
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to other beneficiaries. The respondent has opposed the application on the

ground that since the applicant states there is an error in law and facts,

this will require a long process to prove what was erred and hence this
disqualifies the quest for a review. !
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In considering the above rival averments of th^ parties I am of the

firm view that a review is creature of statute and it has aligned principles

befalling it. The application being for review for which no appeal lies, is
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governed by section 78(l)(b) and Order XLII of the Civil Procedure Code,
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[Cap. 33 R.E. 2019]. Section 78(l)(b) states that:

78. (I) Subject to any conditions and limitations prescribed

under section 77, any person considering himselfaggrieved: -

(b) by a decree or order from which no appeal is allowed by

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 which passed the decree or made the order and the court may

make such order thereon as it thinks fit."

On the other hand, Order XLII (l)(b) which expounds the

criteria/grounds for review provides that:

i. -(!) Any person considering himself agg, 'ieved-

who, from the discovery of new and important matter or

evidence which, after the exercise of due diligence, was not

within his knowledge or could not be produced by him at the

time when the decree was passed or order made, or on

account of some mistake or error apparent on the face of the

record, or for any other sufficient reason, desires to obtain a

review of the decree passed or order made against him, may

apply for a review of judgment to the court which passed the

decree or made the order.

Certainly, from the submission of both parties the ground for review

is said to be an error on the face of record where the Court is claimed to

have closed the probate case without an Accounts being filed. This has

obliged me to go an extra mile in seeking for the records of the Court in

respect of the order that had marked the Probate and Administration

Cause No. 20 of 2003 closed.

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 It is apparent in the records before this Court that the applicant has

attached the proceedings of the Court which reveal what transpired on

the 12th August, 2013 before Hon. Lila, J (as he then was). I find it not a

miss if I quote the same for ease of reference:

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

IN THE MATTER OF THE ESTATE OF THE LATE KULWA SATO

MASSABA

AND

IN THE MATTER OF AN APPLICATION FOR! LETTERS OF

ADMINISTRATION BY ADOLPHINA KABULA MASSABA

12/8/2013

Coram: S. A. Lila, J.

For Petitioner: Mr. Shirima, Advocate for

C.C. Lusajo

Mr. Shirima Advocate:

We have filed an inventory/final report and we pray the matter be marked

closed.

Court: Prayer granted. The inventory showing how the estate of the late

Justice Kulwa Sato Massaba have been managed by the joint

administrators Adolphina Kabula Massaba and Henry Sato Massaba is

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filed. It is the final Report thereof. The matter is accordingly marked

closed.

S. A. Lila

JUDGE

12/8/2013"

It is trite law that records of the Court are considered genuine for

they reflect what transpired in Court. In the case of Adam Shango vs

Republic, Criminal Appeal No. 149 B of 2020 where they also

referred the case of Alex Ndenya vs Repulic Criminal Appeal No.

207 of 2018. It was stated that: -

"That there is always a presumption that a Court recoro

accurately represents what transpired in Court"

Therefore, from the records of the Court as of 12th August 2013,1

am convinced that the Accounts that the applicant states was not filed as

from the face of record is seen not to have mentioned as the records only

speak of an inventory that was filed. Section 107 of the Probate and

Administration Act Cap. 352 require an inventory and an account to be

filed before the Closing of a Probate Cause. This error is rightly on the

face of the record for anyone that would read the proceedings of the Court

quoted above. For that reason, I find this as a clear case where review is

a proper remedy.

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 On the above findings, I find this application Jvith merits and it is

hereby allowed. The order of this court dated 12/08/2013 closing of

Probate Cause No. 20 of 2003 is hereby reviewed and set aside. The

Probate Cause is restored in records so that the parties, being co-

administrators may file an accounts of the estate of the deceased the late

Hon. Justice Kulwa Sato Massaba.

As for the allegations of the respondent bequeathing all properties

to himself, these cannot be addressed in this review a oplication, the same

shall be addressed in the proper forum which is the re-opened probate

cause.

This application having emanated from a probate and administration

cause, it is only fair that each party bear their own cost.

It is so ordered.

Dated at Par es Salaam this 13th Day of February, 2024.

. M. MAGIMBI

JUDGE

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