Hamis Selemani vs Kondo Selemani and Another ((PC) Civil Appeal No. 111 of 1997) [1998] TZHC 2145 (13 November 1998)

I ·)' IN THE HIGH CDURT OF TANZANIA AT DAR ES SALAAM RAMIS SELE.l.1ANI KONDO SELEY1ANI) NUWIA SELEMANI) e o o coo o o o •o o o o o o o o o o a o o o o o.• • • o VERSUS APPELLANT One Selemani having expired an application for the grant of letters of . ad.ministration in respect of his estate was f{led at the Kadhis Court. A • file in that regard, DNE Noi122/62, Kad.hi 1 s Court Misc. ·-case No. 89/63 was opened. Three people were app ♦ ihted to administer that estate for the benefit cf the minor children of the deceased. Those appointed were Ramadhani bin Kondo, Fatu binti Naser• and Mwabaya binti Hamza. The Kadhi 1 s court directed . . I how'· the estate was to be distributed among the heneficaries. Kondo Selemani got 2/5, Nuiia binti S_elemani got 1/5 and Hamisi Selemani got 2/5. A house on plot _No.32 •n Maneno street, Temeke in Dar es Salaam.was part of that estate~ · The administrators bound themselves to be faithful in the diecharge of their duty and that they were to hand over the house to the beneficiaries <' when they became of age. According to Islamic rites the deceased 1 s widow WM entitld to-1/8 of the estate. After repeated demands for her share were made by the widow without being lleeded she decided to press for her rights before _the Temeke Primary Court which used a duplicate file with the same numbers as that Qf the Kadhi 1 s court. There was evidence before the Primary Court that Ramadhani Kondo ) transferred the house to himself. The Priary Court, after considering the frafraudulent disposition of the house, directed that it be sold and the ' proceeds be distributed to the beneficaries. This decision was reached after the trial primary- court was satisfied that the house belonged· to the estate of his late father. So he appealed .to the District Court at Temeke, contending that the trial court•erred both in law and in fact in deciding that the house in question belonged. __ to the Jeceased, Selemani Kondo, when . . .(. . r : there was no evidence to ,that effect. That was the first ground • .\ I.

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2 It is alleged in the second. ground that the trial court erred in refusing to record and·or admit the evidence and documents tendered by pert.a1ning - the appellant .' / to the house situate on Plot No •. ·32, Block ,.gi Temeke Area. Thirdly, that the trial magistrate erred in ordering the said house to be sold and witnessing the sale·. The appeal was dismissed by the appellate District Court"holding that .the appellant was only entitled to appeal against the decision of the Kadhi 1 s court because all that the Primary Court at Temeke was doing was li11ited to the execution of the decision of the Kadhi ts Court. Thus the learned appelate District Magistrate held that the appellant slept on his rights from 1963, hence an appeal against the Kadhis court's decision was time - barred. The appfal was accordingly diGmissed. Hence the instant appeal. There are six grounds i the instant appeal. I will, first of all deal with the first two grounds which relate to limitation of time. It is contended in the first ground that the appellate District Court totally misdirected itself in law in upholding the respondent's objectiop as to the limitation of tim8within which to appeal. It is the appellant's case in the second ground that the learnect·appellate magistrate ought to have . ' . found that the purported execution of the decision of the Kdhi's court made on May 25th 196, was wrong in law in that it was time - barred under the Law of Limitation Act, presumably of 1971, and under the Civil Procedure Code. By and large, Mr. Cha.'11riho' s submissions are a ref le ct ion of the first two grounds of appeal. He emphosizes that t6 execute an order passed 33 y0ars ago is an execution that is clearly time - barred. That ·may as well be soo On his part Mr. Mlanzi contends that the trial court's jurisdiction was·propcrly excercised when it considered and decided the execution of the decision of the Kadhi's Court. It seems to m~ after gcing through the records of proceedings. before courto the two lower , / . thc::.t appellant is h3:,rbouring under a misapprehension of the factso It would appcc:.r that he still believes that the estate of h . 1 t ,, tl ,. d .. t ., Well "f .i..i.:: t . th · is a e .1.D .1er 11as no a annis ral,or. / ,i t..ua is so · en he 1s obviously wrong. The administration of the deceased 1 s estate was decided by the Kadhi's court. It was that court that heard and determined issues relatine; to what constituted the estateo If anyone was aggrieved by that deci.sion he had a right to appeal again.Gt it within the time limit set down by law. It is in this connection that I hold that the learned appellate District Magistrate was right when he held that objections to what constituted the este.te was tirnc - barred.

3 It is contended in the third ground of appeal that the house that is rncntioned in the letters of administration·waG not pa.rt of the estate. That issue can.not be re-opened now, thirty-three years after the grant of letters of administration was madeo Even if the matter was to be re-opened, the appellant ha.s not proved his :itle to the house. He therefore has no locus standi. The appeal wquld,. therefore, fail. There is one matter which was raised as an objection by Mr. Mlanzi, ai::l that is that the appeal is incompetent because it was filed in contravention of Order !IX rule l of the Civj_l Procedure Code which requires that a memorandum of appeal shall be accompanied by the decree from which it is appealedo No doubt the objection is misconceired. Order :;QQ{_g applies to appeals from original decrees of th,2 District Courts and from courts of . . . . courts Resident Mniistrates. Appeals ongJ.riab.ng from primary / are regulated by Ptlrt III ( c) of the Magistrates Courts Act, 1984,· which does not impose such a requirement., And whereas an appeal :from an original decree of a District Court or from a court of Resident Magistrate is instituted by a memorandum of appeal, an e.ppeal originating from a primary court will be instituted by a petition. The difference is not for nothing. By reason of the foregoing considerationG the appeal is dismissed , with costs. Delivered. ,, • .• I --\ Mro Chamriho, Advocate: Mr, Mgole: Advocate, For Appellant (Absent) For Respondent 13/11/98