20051027 TZHC Moshi

IN THE .HIGH COURT OF TANZANI \ AT MOS~n . (PC) Cii!IL APP'3..\L NO o 53 0,Jt 2003 ✓·· I ( C/F CIVIL RBVISION NOo 5/2003 D/C IvIOs:u ) ( ORICINAL CIVIL CA.SJ;; N0.35/2003. MDSHI URBAN ') ( PRIMARY .CbURT ). ABED .S.\LIMU o o • o ~ :. ~ o ., O' e- o o o o J.J o o o o o o o " .APPELLANI' VER$US CH11ISTOWELU EZSKiA o. o •• ,. o o • ., ••• ," ••• RE$.roNDBN'l' The bac:ltground of this appeal is well ::-c:taU~1 in the submission of the Appellant vide his learn.ad ~ounsel Prof,Itemba. In 2002, the Appellant fil,ed an application in Moshi Urban Primary Court cited as Application No.120 of 2002 seeking to b-e .appointed administrator of the estate of· his late ex wife one Salma Ramadhani. He was so appointed on 7th, November,2002. In 2003, as the administrator of the estate of the · late Salma, the present Appellant sued the Respondent in Moshi Urban Primary Court ( Civil case No.35/2003 ) for r,:;covcry of rent on the house and on 30th April,2003, the primary Court ruled in favour of the· 1 .,. Appellant. The present Responden~ did not appeal against the said j' decision but decided to write a letj;er to the Resident Magistrate In charge of the District Court ( Ho:::1..Kitusi,RM) who proceeded to make {--., l__) a revisional Order, the subject of this appeal. In this appeal, the· Appellant seeks to set aside the revisional proceedings and order made by the District Court of Moshi on 12th May,2003g Prof.Itemba in his submis$ion $tated further that the Appellant as the husband of the late· Sa.ima Rai!iadhani were blessed with two children one Frida Abeid and another Salman Abeid and that by the time of Salma. 1 s death in 1997, the Appellant had (Hvorc,;:l Salma and that among the properties she left behind was a house at Majengo Moshi and . shs.500,000/= in a bank account. Salma had died intestate and the said properties remained in the hands of her relatives. He contended further in his submission that in the year 2000, the present Appellant sued one Justine Rama.dhani his brother in law, for the recovery of the estate of h:LJs late ex wife $alma Ramadhani in Moshi Urban Primary Court Civil cas1 No.32/2002. His argument was that as the father of the two children and their trustee he. was entitled t-0· the house and the money on bc~half of the children. · He won in the said ~&9 but the ~id brother in ~ appealed ; the . Distri-ct .court of Moshi ( Civil !.ppe~ doi75/200d ) but uns,1l.c.ces.sfttlly. I • t ' • The .so.id brother in lal.J, ±.hat is.:...rlis't:in H~dhani.~ to this cOtlrl in PC Civil . Appeal No. .. 68 of 2001 but. . . agp.irt ,g~r~ly uns~Lllly . ' ~ e after a review cl! ~he histofy 1£ the matter this Court { Munuo.J as she ttten .wae- ) found and held that ~fter the di'Vorc:e;. the marriage and apC-1.loal.. relationship. 1fad eh~ed ~ t~.l:itdr,;;.. the Appellant di:;u1d not simply claim to repossess the :prd~!'.ti~s of his late di,rorced wife. This Court. in its_ juiigemeut delivered cfo. 5/6/2002 had first advised that f 1··· . .. () Lhe -said- hr.other in J;llll Justin .Rama.dbani .should speeificaliy apply to cldcinistor the estate of Salma Rdma.d:ha.ni for the benefit of the two ' . chilck~ and.,grd-er;Jd hiti to r;.;m;:(i:l in :i~-:••;:: ·.r:,,fon of -Saln::-. 1" ?lo.jen':!'.o house until he or another relativ,e applies to be appointed administrator of the estate of the late $alma. Ramadhani. The grounds of appeal as listed in the Petition of appeal ar.e as follows: 1. That the learned Resident Magistrate erred on the law when he exercised revisional jurisdiction in the matter. } . He ought to have advised the complainant tb file an appeal and thereby give the present Appellant an ( . .., . - opportunity to be hearde 2. The learned Re~ident Magistrate misdirected himself dn the facts when h~ £durtds and held that this Honourable Court · in PC Civiil\. Appeai No.68 of 2001 dis.,;rtialified the present Appellant from administering the estate of the late Salma Ramadbani or that Justini namadhani 1'?,s directed to apply to be appointed administrator of the estate. 3. That the learned Resident Magistrate er:eed further on the facts when he ignored the fact that the preeent Appell~t · was on 7th November,2002 1 appointed administra·tor of the estate of the late Salma Ramadhani by the Moshi Urban Primary Court in :probate and Administration Cause No,12 of 20020 As I have earlier stated the Appellant in this appeal prays for the revisional proceedings and order of the lower Court to be set aside. \. j TL .., :<:1:;,,11.1n.t !w.:1. begt2 .al1ow~·:: to rroce~d exparte having served the _]Respondent by publication ri :.c ' 1 U:quty__i,: __Q:f. ~14e,d.n.e..stlayi-49tn·"~-;2~----~---c----· ___.... -.~-~-- ---a:rr-i""fa1rea-fo-appear--in-fiiii·c~~;t·--;- the hear\ng date. . In the first ground of appeal, Prof-.Itemba, the learned couns.al for the .4.ppellant contends that the learned Resident Magistrate erred on the law when he decided to r,"vise the proceedings and the judgement. of the primary Court 1)11 receiving a ].:et~ o£ .c~_plaioa.nt. .from· the .Raspondant.,.. the u.nsucc~ful' party<> in his view, the prop0r course, would have been to treat the said lettor as.an intention to appeal and advise the complai:cant to file a Petition of appeal unrler Section 1 20(1) (b) of HC.\_,19fl • So the issue is whether the learned Resident Magistrate ern:•c~ in r,.,visii."1.g the proc(~edini;s and the judgement of the primary Court, ,;'\.s r-ig;1tl~r pointed out by Prof .,Item··,a, in his submissions tho powt=:rs of rovision of a District Court are proiddad f,.r under Section () 22 (1) of the MOA,198l: anrl arc to be exercbed by the ·sa.id Courts :-5_u_o•.~~-~:':1 and that does n.o-t exclude the possibility of a Courtb being moved by a J.etter of complr¼int and that tb.e reasons for re'1'ision are stated in the said law that t>.'.:) revising Court does so in order. to ensure that the :proceedings or ordnss · in a particular primary Co;.1rt are proper,· correct and according to law. Prof oiternba cont..mds furU>er in th,3 said submission and riGhtly so in my view that it is not very clear what the co11plaint was about since theAppei.lant did not get a copy_ of that letter nor was he called upo~ by the District Court _to show cause why his appointment as administratr.r should be revoked but in his view judging from the t.,,0rdin~~ of the revisional ordar, the complai.lu.nt right have been that the App-c'!llant had won the cl.:;~ against the complainant v Howcverj Prof.Item'ba contends and J."ightly so in my considered. view tbat according to tl1e bw and even practise, a person af~grieved by a judgement in a ]Xlrticnlar Court, appeals to a higher Court and that in the course of hearing the appeal the superior Court can decide to exercise its re-,.risim1al powers wholly or in part in:' respect of the jud.g...ment .appealed against• In my considered view, the District Court )-,ad revisional powers under Section 22(1) of thd :nagistratas Courts Act,1981- but since the revisioual order made b_v the District.Court on 12/5/200:5 bad the effect of· rende ri...'12; _ the ·appointment of the· Appellant he had tha right to be call.cd. before the said Court to be given an opportunity of being heard before the sa.id rcvisional order was mo.de. This right is clearly stipulated undc.1" Section 22(3) of the l~-'.}_;:::L~0tr.Ates Courts A.ct, 1981,. \ 4/-' ..i ·As ·rightly pointed· out by Prof •.Itegiba in .his sti~inission the Appellant had been appointed as administrator of the estate of the late · Salma Ramadhani ill. p.roba ~. a.nd 1ldmtiu$t.i'.at :Lon cauae-.. :tloi- 120}2.002 • .;J'·· . < ,. • ' inMoshi Urban primary Court hence it dould rtot be argu~d that he had. no locus Standi in civil cace No"35/2003 . which the Dis-crict Court revised. Ile. was. mareiy s.u:ing .in his. .eapa.c.it:;z: .as. fha .,e.dminis.tr.ator o!.. .ti» -e.state of the la_te $alma Ramadhani having been so appointed in the mentioned Probate and !~dministration Cause, It co1.,11d :be that the said appointment .in terma of the j.udg.eme.n±. of this. Court. ..in. PC .cuil. A ~ .Na...68 of 2001 was. ll-0.t val.id. or .eilective h~ still the Appellant had to be given an · opportunity to be heard by the District Ctiurt before making the revisional.. ----- order which had the effect of revoking his appointment as the a.sministrator . of ta-a -es.tate o-r- 'the late. .sa1,JDa. R,t:l,rnadbai:d by v:ir~.e P,:,oba-te and C) · l'.dministration cause No~ 120 of 2002 of Moshi Urban Primary Court... So I find and hold that the learned Residan£ Magistrate had erred. in issui..'1.g the said revisional order. However, I .am ver; m:in.iHul of the clear sta.nd made by this · Court in PC Civil Appeal Noo68 of 2001 that one Justin.i namadhani 11 should remain in possession of Salma• s Majengo house until he or another close relative of Salma. Rama.dhani applies to be appointed the administrator of Salma Ramadhani estateo Any rent generated from SaJJnals Majengo house should be deposited in her CR.DB Bank account for the benefit of Salma • s two children namely Faridi and Sa.lima:'. Could it be said that the f,ppellant was a close relative of ,;,·'" ! ) · Salma Ramadbani as stated by this Court in the said judgement such '-- that he could apply to be administrator of the estate of the late Salma Ramadha.ni, his ex-wife, as he did in the Probate and ldrninistration cause Noo120 of 2002 of the Moshi Urban Primary Court? This Court in its judgement ( Munuo,J as she then was) clearly stated that after divorcing the late Salma Rama.dhani in 1991, the marriage and spousal relationship between the Appellant and the late Sa.lrna Rama.dhruli had endedo How could it then happen that the /,ppellant was still a close relative of the late Salma Rama.dhani to enable the Appellant to apply to be appointed as administrator of the estate of the late Salma Ramadhani if the only relationship that had tied them together had ended as clearly stated by this Court -:, Another question demandin,g .for an answer is whether i~ppellant had involved the said Justini Ramadhani when the instituted Probate and Administration Cause Noo120 of 2002 in M8shi Urban Primar7 Court taking into account that this Court in its J 11 dgement in PC cicil f~pPeal Noo68 ' ' to be appointed as an administrator of the estate of the late Salma Ramad..½.ani 0 was the Appellant not circumventing the clear stand of the prisit ion of this Court in the said Judgement one by way or the other by ctpplying· to be appointed as an administrator of .the estate of the late Salma Ramadhani? I .have raised all the aforesaid concern because the legality of the procecdin,1s of Probate and Administration Cause No.120 of 2002 need to be clearly assert.iined in view of the jud.r;ement of this Court in PC ~vil Appeal No.6f~ of 2001. In my considered viewv the learne,l Resident Magistrate shou1.d .have called the record of the Probate and Administration Cause No .120 of 2002 from Moshi Urban Primary Court to examine it hand in hand with the record of Civil Case No.3'5 of 200~ if the revisional proceedings conducted by him were to be meaningful in view of the judgement of this Court in PC Civil Appeal No.6G of 2001. In the final result, the appeal has merit and it is hereby allowed. I h,:areby quash and set asid(, the revisional order made by the District Court of Moshi. on 12/5/2003 in Civil Revisional ffoo5 of 2003. However, acting under Section l.1.li (1) (a) of the Magistrate Courts Act, 1984 I h0reby direct the District Court of Moshi to call the records of Probate and Administration Cause No.120 of 2002 of No.shi Urban Primary Court and Civil Case Noo35 of 2003 of Moshi Urban Primary Court to inspect and examine them as against the Judc;ement of this Court in PC Civil Appeal Noo6S of 2001 and ma.l:~'e apropriate determinate according to lawo · ThE:? /\ppcllant, the Respondent and one Justini Ramadhani who ( -; was the Appellant in PG Civil /\.ppeal No.;35 of 2001 should all be summoned and be given an opportunity to be hAard in the said matter as all of them one \1ay of the other have been involved. In the meantime, the Appellant, until a determinate has been m9.de by the District Court as. aforesaid is h,~reby restrained from making execution process or otherwise in the estate of the late, Salma Ramadhani either under Civil Case No.35 of 2003 or under Probate and Administration Cause No.120 of 2002 or otherwise, No order as to costs .. It is so ordered. JUDG:S, 27/10/2005 Right of Appeal explained. r~3r~~- Forr.~u, '· ' JUDGE, 27./10/2005 DATE: 27/10/2005 CORAM: F oAoRo JUNl)U - J 0 FOR TH:E: APPELL/\.Nri': Prof.rtemba, Ldvocate FOR TIIE RESPOND:iNT: 1'. bsent CC: KIMARIO 99.~~: Judgement delivered in the presence of Prof .rtembai learned counsel for the Appellant ·and in'the a'.Jsent:e of the Respondent. ,JUDGE, 27/10/2005 .'.\T MOSHI • ......