Kurasini Fumigations and Co. Ltd vs Mdigwa Shaban Simba (PC Civil Appeal No. 26 of 2000) [2000] TZHC 136 (23 October 2000)

D .,. t - IN <lffiE HIGH COURT OF "!'ANZ-A.NIA. AT DAR ES SALAAM, PC. CIVIL APPBAL NO. 26 OF 2000 . KURASINI FUMIGATIONS & co, LTDooooe11APfiELLANT VERSUS MDIGWA SHABAN SHIBA•.• • o ~ o •• ~ o • o o o • • RESPONJilENT· :[UJ)G_EJ'1EJ'lT-,. .. I Tftis· is wi appeal origintti,p.g f1::onr the decision of Ilala Distt-ict Court t confiFming the prihly :CO;t decii:-i'6: hai the house in dispute is the p:i:'operty _ .. ,_ r ~~e _ 7 ,:spor.?,,El: • /-t~-- dsi_c:t. c~~f\ i~~~~~~~- /--e--~~PP-a.:l:.=.{ tl}.:-f-ellant and ~t rud ta. ~~~ hou.s~ iμ ~~~Bit~ i.~ th~ 9-tfY pf tlie tPOf198. thPtll 'l;he .. rsponqimt w~ -:;rdfQ. tq Pc/ii.;' 'cprqppaH'PP f9f th F8.tlOYf>:HOPS fiO(.rl;e by the . -appellarit:, :Both" 0 lawe; .. Qota it]ig tht th~ -oue i~ i,ss11J ts iri anunurvyeli · area · h~.S - been - ------- '·-·'"'----·-'"- .-,,.,:_ --, __ :_ . -_ . · -- . · · .,·: · .: ·-. . : - · ~~'!•at-•<it::.c:::,rll&JE;e.J./-- Par.t.·.,,"{;-tc1e surveyed.μlots. The. appella.i1t fe.lt'"ag:fived ·. · . b; the decision of the district court (Ilal~) d ~~ he apea'ierf ;before this court··:· ' . . .,- ~ •. having :f:tl~& thft', grounds .. o.f. appeal namelyz ·t1) Tfi&t the distritt·magistrate erre in iaw and on evidence by not considering th~ capacity of ie parties }O the proceedings in the ioi-,er estirt particularly the status of the respondeht then .the plaintJ.f.f and the de.fend?-- whe,tJwr -there WcIB' 1-egai'-'- capacity to sue and whether a papty was sued. (2) The learned district masistrate e:cred in law and practice and :;__ . procedure by not considering the written suli}sio-u9 filed --,.~ ...... -, •. -··: .. and on behalf of both parties and especialy /he refere,Rc,e· to the finding of ~he High Court in Probate 1:.um'&x- 59/90 by. -~q.eir for lordships Bahati J. and Mkude, J. copies of·vhich were submitted · in the district court as annextures A.Band C to thG written submissi 011s. •

(3) 'The learned district magistr2-te erl'ed in law and in evidence by ordering coμipehsation for the development done by the appellant whereas thnt :fa:& of development as upheld clearly cfirrri.the cwner:ship.of the propery by the appellant·and not the res)ondeht .who decided to hle . . the suit in the primary court after the death of his father and after extensive repai.m and· motlifications were done on the property~ Before I preed with the appeal, I would like to briefly state the facts of the case in that, there was-a person known by the name of Dr. Kasenene. That docto:e died without living behind a child. Dr. Kasenene had initiated and started his private nursing training institution at a place called X-Dayas, Bl\guru...-i. He operated the institution in the name of Kurasini Emrmigation. After his death, the appellant applied and was appointe administrator of the estate of Kasenene. The.said Dr. Kasenene had approached the father of the respondent, the late simba for a pJ.a,e.e to conduct his nursing train;nig and it happened that the late Simba had his bangalow in the u..llSurveyed place_and he freely offered. it for use by the late Dr. Kasenene for his nursing training. When Dr. Kasenene , ' died a.TJ.d the applicant having been appointed the admi!1istrator of the estate of .. . Dr. Kasenene, he made sane renovatio!'l in the bungalow which was formerly being used as a training place into a residential house. The respondent, thir with the consent of his father instituted the civil proceedings at Ilala Prima1;y Gourt for the recovery of that bur1galow or house. · '1.'he rrimary Court jou..11d as a fact that the said house/but:alow belonged to Simba, who he.d already died at the time of • the judgement" The appellant had alleged that house· was part if the estate of the late Kasenene, a fact he could not prove. Then the P:r::-imary Court entered judgement for the plaintiff. The appellant appealed to Ila1:a. district c:mrt where the appeal was dismissed, but with the compensation order made for te benefit of the appellant. The appellant believed that the district court was w.oong, so .. he engaged the serviaes fo an advcate who preferred the above stated grounds of appeal and mae submissions on behalf of the appella11t before this 9ourl' The respondent was not represented. Going by the order of the memoraridum of appeal, Mr. Rutabingwa, learned consel· for submitted that the respondent Mdingwa Shabani Simba has no letters of administration for the estate of his late father, so that he haQ no appa.city to

I ... institute· the. l.e .al ~~oceediw.!,.$ • for the estate. The primary court had found that th,e respondent had th?-t capad.ty and the respondent stated in his reply . that the proceedings at the prirnary court commenced on 16/7/97 when his father was. alive-. His late father alied on 21/10/?7 almost three months after the connhencernt of the proce-edin·,s. .l-I.e tlierefpre said that he legally represented his late father as his son~ There is no dispute as to he date of commencerrtt -of the'' proceedings at the primary court nor is there ar1y di.s,pute as to the date of th death 'of the late Simba, the father of the respondent, Then what is the-lgal :position on nepresentation in j.ud proceedings at the prmary court? In promary courts, neither public prosecutors no advocat.e.s are allowed to at on ehalf of any party. However, a relative or number of the household of an ty w Qny ~~ings of a civil na tu.re may 4P -&.l:ld -at £.or such party. See section 33 (1) (2) of the magistrates courts.Act No. 2/1984. Under the ircUJI1Staucest the respc.u.dent f'lhts equirely in.the above quoted $3,Ct.i.Qtl_.af the law. He is both ?- relative and a member of household of t ,ap")ear · · late Simba and. he had the legal capacity fo represent or/at. 1 in or at in the w:o.ad ~ 1ch;i..ch his. father wohl.d lvave been an int.erested party. :. • Seroundly, the fact that Kurasini Ft.n:·migatitm ner oxist.e-d. at the

• . o:£ .c,dnw~~nt: ,:if thfl pr<:J.c..;.Qdin2,s in the primary court does not invalidate the procedings as the appellD.i"'1t had succeeded the properties of the .Kurasi.ni Furmig,ation as the administrator as the administrator of Lhe estate of the late Dr. Kaseneue who was the director of the Kurasini Furmigation •. 'lhoever enjoys .the fruits of the late Dro Kasenene who owned Kurasirii Furmigation an . . be a party to the proceedings as the appellant appeared to defend those • intrestsd Having gone through the lader courts judgmer.ts, it cannot.be said tht ,- the district magistrate erred in not considering the High Court decisions in probate No. 59/1990. 'l'hat probate cause had nothing to do with the house in question; It was in regard· to other registBred plots., So the magistrate found it proper not to deal with issues which had no relevrus.ce to the c'ase. The issue was in regard to ha.use No 562 situated at Ilala I3ungoni X-Daya in unsurveyed plot and not plots numbers 1.20, 122 and 124 which were subject to probate No. 59/199t, .. Lastly, the learned cousel for the appellant submitted that the fact that the appellant made renovations and extensive repairs in the house No. 562 g3:ve· him a right of ownership. 'lnat I would say No. The exhansti ve evidence be.fore the primary court has shown that the house belon~ed to the late Simba aud the • , .J

II' appellant didn't even.khow how Dr. Kasenene aquired it. The evidence had shown that D:e. Kasenene was just given ri?-ht of use by the late Simba and not ownership. Thus the learned district magistrate was very fair in awarding the compensat1:on, which I am going to modify it for the inte\rest of justive. I would like to say that the appeal before the district court was properly <lismisssd and the .ap~:before this court is equally d:iswis.sed .for lack of any merits._ and th., decision of the. I1ala Primary Court. is upheld 1 with the folloing order That in payirg the compensation crrcived by the .district eourt, the rents the appellant had been recivine; from. the tenants occupying the house should be off sething the said. compensatiQil and ariy father stay by those tenants woUld iIIP-an thi..t the r.eni: should be offsething the, compensation which should be determined by the primary court after hering both parti •:)S,, It is so ord.ved, and the appellant is to pay costs of this apiJeal ancl costs in the district court. JUDGE 23/10/2000