20140801 TZHC Dar es Salaam

:1,

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM PC CIVIL APPEAL .NO. 42 OF 2013 . I ( Originating from Civil Appeal NO. 33 of 2012 in the District Court'of Kinondoni District) ' . -SHAMSA SALUM ........................... ~ .............................. APPE.LLANT MO HAM ED MACKBEL ................... . vi""f ••••.•.•..••••.•• . -••.• •••• RESPONDENT - . Date of last Order 15/7/2014 . Date of Judgment 1/8/2014

JUDGMENT A.Shangwa, J This appeal arises from the decision of the District Court of Kinondoni delivered on 4 th July,- 2013 in c'(vit,-.. ·~ - Appeal NO. ~3 of 2012 which ortginate~ from the decision of the Primary Court· of Kinondoni 1n.: Probate and . Administration Cause NO. 55 of 2008. Jn its deci.sion, the Distri~t Court of Kinondoni M~kabwa-, · R. M dismissed· the . .I I ·•• I • l I ' ~'. ~- ;~~:t 2 Appellant's . appeal. on grounds that the matter before him had already been decided by the High Court Prof Juma, J as he then was in P.C Civil Appeal NO. 88 of 2010. In hi~ petition of appeal, counsel for the Appellant Mr, Dennis Msafiri raised two grounds of appeal na~ely:- 1. That the District court of Kinondoni grossly erred in law in abdicating its judicial duty to consider and decide the appeal on merit for reasons of and on a . pretext that the matter at issue before it had already been decided by the High Court in another appeal.~. ·...

2. That the District Court of Kinondoni erred in law and fact in not appreciating that the appeal before it was on ·matters a.i-1d gro1_1nds wholly and completely diffe_rent from those. that ~rere decided by the High Court Juma~. Jin (PC) Civil"Appeal NO. 88 of 2010 . . I ·\ ·-~·· 3 He prayed this Court to step into the shoes of the District Court and decide the matter that was before it on merit or remit the case file to the District Court with directions that a decision on merit be made. At page one of his written submissions in support of this appeal, Mr. Dennis Msafiri pointed out that the matter before the primary Court was on appointment of Administrators of the e·state of the late Salum Aklan Abdallah, and that the Primary Court appointed two Administrators as joint Administrators namely Alhaji Mohamed Mackbel; the Respondent in. this appeal and Shamsa Salum, the Appellant in·this appeal and gave a limit to properties that can be collected by Administrators and determined ownership of those _properties. ' . .. . ... ,, ;.. 4 Mr. Dennis Msafiri further submitted that the District Court of Kinondoni was ·called upon to decide as to whether or not the Primary Court of Kinondoni was correct in ente_rtaining and determining issues of ownership and · .whether or not the said Court was correct in holding that the deceased (Salum Aklan Abdallah) had no property of his own except

a share from the estate of his deceased mother one Zuena Salum, and whether or not the said court was correct . in_ appointing the Respondent namely Mohamed Mackbel who had a conflict of interest in the deceased's estate. He said, the Distric~ Court never decided any of those issues on pretext that the matter had been decided by the Hig~ Court .. . , . Juma('1--.as he then .vvas in .PC Civil· Appeal NO. 88 of 2010 · v✓hereas the ·matter which .·was · decided by Juma,J is . .· . completely _differen_t.· He· said, the Appellant's grounds of . appeal in the- District court were different fron1 her grounds of appeal in High Court PC:-· Civil Appeal ·NO. 88 of 2010. He· • I 5 said, in the case before the High Court, the Appellant preferred four grounds of appeal against the decision of the District Court namely that the Principal Resident Magistrate erred in law in entertaining an application for review that was filed under the Civil Procedure Code and in entertaining revision proceedings whose effect was to determine Land ownership whereas the Land Disputes Courts Act, 2002 has ousted the jurisdiction of District Courts from Land Matters and by quashing orders of the Primary Court without ass1gn1ng reasons. . - Counsel for the R~sponqent Mr. Rutabingwa_ submitted that Makabwa, RM correctly held that he was b_ound by the decision of the High Court in PC. Civil Appeal NO. 88

_2010 (Hon. Juma, J) where _the decision of the Primary Court in Probate NO. 55 of 2008 at Kinondoni that Salum Aklan Abdallah (deceased) has no .property of his own was not ,, ,,.. 6 interf~red with and· where Mr. Justice Juma directed the distribution of the estate of Zuena Salum and that of Salum Aklan Abdallah to the beneficiaries and gave a time frame of concluding both probate matters. He contended ~hat it would . have been prop~r . for the. Appellant. to appeal against . ' . Mr. Justice Juma's decision instead of lodging this appeal. . He said, -what was decided by Mr. Justice Juma, J was in order and that the Court had exercised both Appellate and ·revision al powers and gave orders/ directions which assisted .. . the parties. Finally,· he'.. prayed this court to dismiss this appeal. I have gone thro-qgh the . decision of this Court in . PC·. Civil Appeal NO. 88 of 2010 which ½TaS: given by my.learned. · . ·brother profess(>r Juma,J ' . ~s he then was.· After doing so, . .I· . . have come to the c_onclusion that the. appeal befor.e this Court was quite unnecessary. . . ' . In fact, as I shall soon show, . . : . 7 the Magistrate in the District Cou.rt of Kinondoni did not err in declining to determine.'lhe aJpeal before it on .grounds that he was bound by the decision of the High Court Juma, Jin PC Civil Appeal NO. 88 of 2010. · Although in PC Civil Appeali NO 88of 2010,

the central· . j . . issue between the parties which ·was earmarked by my learned brother professor Juma, J was whether the District Court can . be moved under ·the · provisi~ris of the Civil . Procedure Code to hear an application on matters which originated from a Primary Court never - the - less, he • I ! ' ·exhaustively captured the matters ,involved between the parties by exercising the revisional powers vested in this·. Court under S. 30 of . the ·Magistrates' Courts Act, Cap 11 1 R.E. 2002; In doing . .so, he· examined the, record of the Primary Court of Kinondoi1i in ·Probate Cause NO 55 of2008 I . . . and foun9- that both the Appellant and the Re~pondent who 8 were appointed as joint Administrators of the estate of the late Salum Aklan Abdallah had not complied with the directions given by A.P. Mshigwa, PCM who required them to make full account of the inventory. Al~o, he found that the record do not show to what extent the order issued by A.P. Mshigwa, PCM directing that distribution of the estate of Zuena Salum in Probate Cause . NO 442 of 2007 at Magomeni Primary Court had been complied with. After so finding, he ordered the Primary Court of · Magorneni to direct the Administrator .of the estate of Zuena Salum i.n Probate: Cause NO 442 of 2007 pending .in t:qat court to m~e,. fun account of the inventory and to sho\V how . . he has administered that estate of Zuena

Salum and to file the inventory at the Primary Court of Mago1neni within 14 · .. ,,. 7 the Magistrate in the District Court of Kinondoni did not err in declining to determine the appeal before it on grounds that he was bound by the decision of the High Court Juma, J in PC Civil Appeal NO. 88 of 2010. Although in PC Civil Appeal NO 88of 20 lQ, the central issue between the parties which wa~ earmarked by my learned brother professor Juma, J was whether the District Court can be moved under the provisions of• the Civil ·.. Procedure Code to hear an application on matters which originated frdm a Primary Court never - the ~ less, he . exhaustively captured the matters involved between the parties by exercising the revisional powers vested in this I Court under S. 30 of the Magistrates' Courts Act, Cap 11 ·R.E.

2002. In doing so, he examined the record of the . Primary Court of Kinondoni in Pro bate Cause NO 55 of 2008 , a..11d found that both the Appellant and the Respondent \7\rho ... ·, 1- 8 : were <=;lPPOinted as joint Administrators of the estate of the -. late . .~Salum Aklan Abdallah had . not complied with the . . . directions given by A.P. Mshigwa, PCM who required them to make full account of the inventory. Also, he found that the record do not show to what extent_ the order issued by A.P. Mshigwa, PCM directing that . • i· • · distribution of the estate of Zuena Salum in Probate Cause NO 442 of 2007 at IVIagomeni Primary Court had been con1plie<l with. ,... ... .., ·;. . ' . . After so (indipg: _.he ordered the_ Primary Court . of • ' > • < ·Mr-1gomeni to-direct the _Administrat{?r_of the estate of ZuenEt ' '• I · Salu.111 in Probate Cause NO 442 .of 2007 pending ip... t~at ' ' . - :,_cq·urt to rnake full accoµnt . . _of the . inventory and to sno_\v hov?.:.- . , ' . . ' . he has adn1inistered that estate of Zuena Salu1n and· to file the hrvcntory at_ .~he Primary Court of lv1agomeni within~ 14_- 9 days from the date of his judgment given on 30 th June, 2011, and to send a copy thereof to the Primary Court of Kinondoni to become part of the records of Probate Cause NO 55 of 2008 at the Primary Court of Kinondoni. Furthermore, he ordered the Primary ··court of Kinondorii to

direct the joint Administrators of the estate of . . Salum Aklan Abdallah to make full account of the inventory . ' ' . and to show how they have administered that estate within 30 days of receiving an inventory of· the estate of Zuena Salum in Probate Cause NO 442 of 2007. In this case, I agree with Mr. Rutabingwa for the Respondent that the room open for counsel-for the Apptllant .was to lodge an appeal against the decision and orders. of . Juma, J as he then was in PC Civil Appeal NO 88 of 2010 .instead of filing this appeal -ageJ1i~t the decision of the 10 .. District Court of Kinondoni in Probate and Administration cause NO 55 of 2008 which I find to be correct. The decision and orders of Juma, J in PC Civil Appeal NO 88 of 2010 were · · given on 30 th June, 2011. This appeal was lodged on 22 nd · July, 2013 without due_ regard to his decision .and orders which so far ·have not been complied v,' ith. As it was correctly 7 ' ' .pointed out by the Resident l\t1agistrate at Kinondoni in Civil Appeal NO- 33 ··of 2012,. the said orders are binding. Both the· · · · . , · · Primary Court · of l\1agorneni and the Prin1ary Court · of · . Kinondoni are duty bound to carry out those orders. :The· :Iv.Iagistrate in charge of the District Court . of Kinondoni should supervise both lower· courts above mentioned ··to n1a.k:e si.1fe . . that .those orders ·are ·complied with~-· In· ,-my opinion, those orders- are saga<~ious: Once they are complied· . · \vith the rnatter- between the parties will come to an ·t1rid: ; :: : .· . ·, . . . :. ;~ .· ,• .•. ~- .....,·. ... ., :,. . ' :; ... --~· : ; (; ·-·. . . ; ·. • 11. Finally, I dismiss this appeal. Each party should bear ~ A.Shangwa

JUDGE 1/8/2014 Delivered in open Court this 1~t day of August, 2014 in the· .. · presence of the Appellant and Mr. Rutabingwa for