20101220 TZHC Dar es Salaam

,.. • • I .- ... • IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM PC CIVIL APPEAL NO. 2 OF 2008 (FROM ORIGINAL CIVIL CAS NO. 62/2000 KINONDONI PRIMARY COURT AND CIVIL APPEAL NO. 61 OF 2004 KINONDONI DISTRICT COURT) ALLY MOHAMED HANIU Legal Personal Representative of HIDAYA JUMA HANIU ••••••••••••••••••••••••■■ a APPELLANT VERSUS SALIM OMARI SALIM and ZUBERI MBWENI - legal Personal Representatives of MARIAM SELEMANI & 2 OTHERS RESPONDENTS Date of last Order .. 8/10/2010 Date of Judgment .. 14/12/2010 JUDGMENT Shangwa, J. The Appellant in this case Ally Mohamed Haniu is a Legal personal Representative of Hidaya Juma Haniu. The Respondents Salim Omari Salim and Zuberi Mbweni are Legal Personal Representatives of Mariam Selemani 2 and 2 others. There are four grounds of appeal against the decision of the District Court of Kinondoni in Civil Appeal No. 61 of 2004 which this court has been called upon to consider and determine. They are as follows:-· 1. That, the learned Magistrate erred in law and fact in upholding that the matter was time barred to be entertained. 2. That, the learned Magistrate erred in law and fact in failing to distinguish objection proceedings from original proceedings. 3. That, the learned Magistrate erred in law and fact in citing and treating the case as an appeal instead of a revision. 4. That/ the learned Magistrate erred in law and fact in failing to see the implications of the subject matters in dispute. This appeal was argued by way of written submissions. In his written submissions, learned counsel for the Appellant Mr. Maftah did not make any submission concerning grounds 2, 3 and 4 listed above. He only submitted on ground 1. This means that the rest of the grounds were abandoned by him. From page 1 to 2 of his written submissions, Mr. Maftah briefly stated the facts of this case to be as follows: 3 That Mariam Selemani (1st Respondent) was awarded judgment nd rd against 2 and 3 Respondents in the Primary Court of Kinondoni Civil Case No. 62 of 2000. That there was an order for execution of the aforesaid judgment against the 2nd and 3rd Respondents but the court broker went to the Appellant on 1st April, 2006, and served him notice. That on 10th April, 2006, the Appellant as a legal personal representative filed an application in the District Court objecting to the execution of the judgment which was against the 2nd and 3rd Respondents. That the application for objection was dismissed for being time barred. That the Appeal is against the dismissal of the objection on grounds that it is time barred. Mr. Maftah submitted that the notice for execution was served on the Appellant on 1st April, 2006 and that the Appellant filed his appl_ication on 10th April, 2006. He contended that as the notice for execution was served on the Appellant on 1st April, 2006, time should run from 1st April, 2006. In reply, Mrs. Washokera submitted that the objection was time barred. She did not explain as to why she thinks that the objection was 4 time barred. After submitting that the objection was time barred, she remarked as follows and I quote: ' " The Application we know is the application under S. 22 of Magistrates' Courts Act;. 1984 which Ruling was time barred. " Apart from so remarking, she did not cite the Application which she says was brought under S. 22 of the Magistrates' Courts Act, 1984 and she missed the point by saying that the Ruling was time barred. This is because a Ruling cannot be time barred. Perhaps by so saying, she meant the Application which she did not cite any way. In my view, as Mrs. Washokera for the Respondents did not explain as to why she thinks that the objection was time barred, the first ground of appeal stands unopposed. I would therefore agree with Mr. Maftah for the Appellant that as the notice of execution was served on the Appellant on 1st April, 2006 and as he filed his application objecting to the execution on 10th April, 2006, time should run from 1st April, 2006. I hold therefore that the objection to execution was not time barred. 5 In the interest of justice, I quash the proceedings and the Ruling of the District Court of Kinondoni in Civil Appeal No. 61 of 2004 and order that the Kinondoni Primary Court case file in Civil Case No. 62 of 2000 should be remitted to the said court henceforth ~o that it may consider the Appellant's objection against the attachment of House No. 57 located at Kinondoni Shamba in execution of the judgment and decree which was awarded against the 2nd and 3rd Respondent/ defendants by the said Court in Civil Case No. 62 of 2000 to which he was not a party. For this reason, I allow this appeal. Each party to bear its own Costs. A. Shangwa JUDGE 20/12/2010 " • C . 6 Delivered in open court this 20th day of December, 2010 in the presence of Mr. Maftah for the Appellant and in the presence of the 1st Respondent. JUDGE 20/12/2010