20150520 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 48 OF 2013 ADAM WAZIRI MTAMBULO ........................... APPELANT V KIBWANA MADABA ................................... RESPONDENT

JUDGMENT Date of last Order 27/4/2015 Date of Judgment 20/5/2015 A. Shangwa. J The Appellant Adam Waziri Mtambulo was aggrieved by the decision of Ilala District Court dated 30 th May, 2013 in Civil Appeal NO 44 of 2011 which arose from the decision of the primary Court of Buguruni in probate Cause NO. 182 of 2002. 2 In its decision, the District Court of Ilala allowed the Appeal filed by Kibwana Madaba who is the Respondent in this case and set aside the Primary Court's decision in which Kibwana Madaba's appointment as Administrator of the estate of the late Sauli Salum Akida was revoked on grounds that he is not related to Sauli Salum Akida (deceased) and instead Adam Waziri Mtambulo (Appellant) was appointed as new Administrator of the estate of the late Sauli Salum Akida. The said deceased died at Dar- es Salaam on 1st November, 1998. Before this Court, the Appellant was not represented by an Advocate. The Respondent was represented by Mr. Mbamba, Advocate. There are two 3 major grounds of appeal. First, that the District Court Magistrate erred in law and in fact when it entertained the matter which was time barred. Second, that District Court Magistrate erred in law and in fact -when she delivered judgment and set aside the decision of the Primary Court Magistrate for not recording the opinions of assessors. On the first ground of appeal, the Court is called upon to decide

as to whether or not the Appeal before the District Court was time barred. It was submitted by the Appellant in his written submissions that the Appeal was time barred and that it was filed without leave of the District Court. He said that the judgment was delivered by the Primary Court of Buguruni on ' t l 4 10 th May, 2011 and that the Appellant filed his appeal on 23 rd June, 2011 which was thirteen days out of time. In support of his submissions, he cited S. 20 (3) of the Magistrates Courts Act cap 11 R.E. 2002 which provides as follows:- "S. 20 (3) Every appeal to a district Court shall be by way of petition and be filed in the District Court within thirty days after the date of the decision or order against which the appeal is brought". He contended that as the appeal from the primary Court to the District Court was filed out of time this 5 Court should correct the error and dismiss this appeal with costs. On the other side, counsel for the Respondent submitted that the appeal from the District Court to the High Court was time barred. He referred the Court to S.25 (1) (b) of the Magistrates Courts Act Cap 11 R.E. 2002 which provides as follows:- "25- (1) Save as hereinafter provided (b) In any other proceedings any party, if aggrieved by the decision or order of a district Court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the

date of the decision or order, appeal therefrom _ _ _ _ _ _ _t_o_th_e_H~igh Court, and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired". He said that the District Court passed its decision on 30 th May, 2013 and the present appeal was filed on 2 nd August, 2013 which was sixty two days out of time. He contended that as the appeal from the decision of the District Court to the High Court was filed out of time, it should be dismissed with costs. \.l '\ 7 He further submitted that the appeal from the decision of the Primary Court to the District Court was not time barred because the . copies of proceedings and judgment of the Primary Court were obtained after the expiration of the appeal period of thirty days after the date of the decision. He said it was proper for the District Court to take into consideration of the period when the Appellant obtained the said copies. He cited S. 19 (1) of the law of Limitation Act Cap 89 R.E. 2002 which provides as follows:- "S. 19 (1) in computing theperiod of limitation for any proceeding, the day from which such period is to be computed shall be excluded". .. 8 I agree with learned counsel for the Respondent that the appeal from the decision of the Primary Court to the District Court which is alleged by the Appellant to be time barred by thirteen days was not time barred as

the time requisite for obtaining copies of proceedings and judgment had to be excluded in computing the period of limitation just as per the requirement of S. 19 (1) of the law of limitation Act Cap 89 R.E. 2002 of whose provisions have been quoted above. As there was no cross- appeal, it is of no use to consider as to whether or not the appeal from the decision of the District Court to the High Court was 9 time barred by 62 days. This disposes of the first ground of appeal which fails. On the second ground of appeal, the Court is called upon to decide as to whether or not the District .Court was wrong for setting aside the decision of the Primary Court for not recording the opinions of assessors and for not ordering a re-trial. In my opinion, the District Court of Ilala did not err in any way when it set aside the decision of the Primary Court of Buguruni for not recording the opinions of assessors and for not ordering a re- trial. As the matter of procedure, the opinions of assessors ought to have been recorded by the Buguruni Primary • ♦ 10 Court Magistrate in Probate Cause No 182 of 2002. However, the record does not show that the Court assessors' opinions were recorded before judgment. This was an error on the part of the Primary Court Magistrate. So, the District Court did not err in setting aside the Primary Court Magistrate's decision for her failure to record opinions

of assessors who sat with her in determining the probate cause before it as per the requirement of S.7 (1) and (2) of the Magistrates Courts Act Cap 11 R.E 2002. Also, the District Court did not err by not ordering a re-trial after setting aside the primary Court's decision for not recording the opinions of assessors. In my view, even if the Primary Court Magistrate had • 11 to record the opinions of assessors, so long as she was not legally bound by their opinions, her failure to record their opinions could not form the basis of ordering a re- trial. This disposes of the Second ground of appeal which fails. For the· avoidance of doubt, I agree with the decision of the District Court that Kibwana Madaba's appointment by the Primary Court of Buguruni as Administrator of the estate of the late Sauli Salum Akida was irregularly revoked by the same Court without any sufficient cause. Therefore, Kibwana Madaba, the Respondent herein remains to be the lawful Administrator of the estate of the late Sauli Salum Akida composed of two • • • 12 houses one situated at Ilala, the other situated at Magomeni Dar es Salaam. For these reasons, I dismiss this appeal with costs. ~ A.Shangwa

JUDGE 20/5/2015 the presence of the parties. A.Shangwa

JUDGE 20/5/2015