20191210 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT ARES SALAAAM REGISTRY CIVIL APPEAL No. 127 OF 2017 (Originating from the Ilala District Court Decision of 20th June, 2019 before Hon. A. A Sachore R.M) ALLY ALLY MBEGU MSILU ....... ..................................... APPELANT Versus __l_UM_~i:>~_~I_ KOMBA (Administrator of the decease Estate of late Hadija Mbegu Msilu) ..................................... ~.~---~---~-~---~.-RESPONDENT- - - - JUDGEMENT 29 th September - 10th December, 2019 J. A. DE-MELLO l; At the 1st Appellate Court at Ilala dismissed the suit for Want of Prosecution, following an Appeal which emanated from the Primary Court of... Being aggrieved the Appellant preferred an Appeal to this Court armed with the following four ( 4) grounds of Appeal as hereunder; 1. That, Ilala District Court Magistrate erred in law and, in fact in granting decision without basing on the legal Probate division. 2. That, llala District Court Magistrate erred in law and, in fact in granting decision positively to the Respondent while in original the Probate Cause the Appellant was a legal heir and was excluded. 3. That, Ilala District Court Magistrate erred in law and, in fact by following th decision of the Ilala Primary Court for granting positiv cision for the Respondent while the case 1 -------- ------------- -- -- -- ,-- was previously decided twice in the Primary Court annexed the two decision. 4. That, Ilala District Court Magistrate erred in law and, in fact in granting positive decision to the Respondent basing on the date of the order pursuant to him by way of written submissions without stepping into the course of action. As an alternative the appellant prayed before this court to quash the decision of the 1st Appellate Court, with cost. In his reply, the Respondent denies all the four (4) grounds praying that the decision of the 1st appellate court be upheld as this Appeal be dismissed with cost. At the hearing of this Appeal, both parties appeared in person, though the Respondent had sought legal aid from, agreeing to opt for written submissions which the Appellant was to file his on or before 18th October, 2019, the Respondent on 8th November, 2019, while rejoinder by the Appellant on the 14th November, 2019. Legal Aid Clinic from Mwalusanya House. It is the Appellant's emphasis on the 1 st ground that he is the legal heir of the deceased's estate, one Hadija Mbegu Msilu, who died unfertile and leaving behind two houses situate at Mnyamani and, the other, at Kazimzumbwe Kisarawe but with no evidence in support of that. On the second ground, the Appellant, complained that, the Appellate Court faulted to enter judgment on favour of the Respondent without taking into consideration the provisions of the Probate and Administration Act Cap. 352 R.E 2002 on the ground that, the Respondent being the appointed administrator, failed to unite the family by distributing the estate of the late Hadija Mbegu Msilu to the right heirs including the Appellant. With regard to the 3 rd ground, he insisted that the decision of Ilala District Court was bad in law as it failed to consider that the Ilala Primary Court delivered two verdicts on the same matter which led to disband the family unit. Lastly, on the 4 th ground of appeal, he insisted that the 1st Appellate Court was in fault r dismissing the 1 st Appeal based on the minor reason which is the de of one day of filling his submission, for Want of Prosecution. 2 • Responding and, in a nutshell, the Respondent submitted that, the general disposition of the grounds of appeal by the appellant justify his attempt to escape from the apparent facts that, the Appellants' ground of appeal were extraneous and vexaticious. Further that Appellant is incompetent of knowing the contents of the two judgments as they are from two different applications of delivered on different dates. Regarding the complaint that the Appellant had been excluded in the distribution of the deceased's estate, he is of a firm stance that stated this was what the wishes of the deceased's herself expressed in her will, the wish which she repeated to enunciate in front of the family meeting prior to her death on 5 th February, 2017 in which the late Hadija Mbegu Msilu uttered publicly the reasons of dis inheriting the Appellant was out of his bad behavior and mistrea_ting the - -- - - - -·deceased.- ~e tohcluded that tfie ap-pellant- is- doi-ng -e~e-rything possible to interfere with the Respondent's efforts to execute the estate because all the facts he alleges has failed to prove as he is require by section 110 (1) of the Law Evidence Act Cap. 6 R.E 2002. To buttress the same he cited the case of Hemedi Saidi vs. Mohamed Mbilu [1984] TLR 113 It is simply the Dismissal for Want of Prosecution that the District Court order, which calls for my Court to determine other than the rest of the grounds which I find misconceived if not misplaced. Record from the lower Appellate Court evidences a delay of five (5) days that it ordered for the Appellant. This translates to two folds, first Non Compliance of Court orders and, failure to file written submissions. It is both abuse of Court process as well as Non Appearance that tantamounts to Want of Prosecution. In the case of Director of Public Prosecution vs. Saidi Seleh Alli, Criminal Appeal No. 476 of2017 (Unreported) in which pages 18 -19, the Court of Appeal had this to say; "Thus if a party fails to file his/her submissions on scheduled date it is equated as if he / she has failed to appear on t hearing date with a consequence of dismissing the matter' 3 Order IX Rule 8 of the Civil Procedure Act Cap. 33 R.E 2002, enumerates the effect of the Plaintiff/Appellant not appearing at the hearing date, (I quote) "8. Where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim ... " (emphasis is mine). The wording in the above provisions is coached on mandatory terms, such that there was no way the 1 st Appellate Court could depart from its compliance. The Respondent did and, which mandated the Appellate Court ,~-:--":---.::to-=--=p:-::cro:::---::c=--=e-=-ea-with-his-sl:lbmissionsJn_absence of the Appellant's. ~'-'rL- With that, I join hands with the findings that the 1 st Appellate Court ordered by Dismissing the Appeal for Want of Prosecution. I waive costs, considering it being a Probate matter. It is so ordered. ~ J. A. DE- MELLO JUDGE 10/12/2019 4