aluahassan vs amini marango 2010 tzhc 288 24 august 2010

IN THE HIGH COURT OF TANZANIA

AT DODOMA (PC) CIVIL APPEAL NO. 45 OF 2002 (Originating from the District Court of Oodoma at Dodoma Civil Appeal NO. 77/2001, Original Probate and Administration Cause No. 86/1998 in the Dodoma Urban Primary Court) ALUAHASSAN ...........................APPELLANT

VERSUS AMINI MARANGO..................... RESPONDENT (As adm inistrator of the estate o f Joyce Marango)

JUDGMENT 03/6/2010 & 24/8/2010. KWARIKO, J: Originally, one MOHAMED TOFIKI MARANGO hadapplied to be appointed administrator of the estate of his deceased fatherone TOFIKI OMARY MARANGO. The application was granted and letters of administration of the deceased’s estate were granted to MOHAMED TOFIKI MARANGO. Later on the appellant herein and JOYCE MARANGO whose estate is being administered by the respondent herein filed objections against the appointment of *7. MOHAMED TOFIKI MARANGO. At the end of the hearing of the objection proceedings it was decided that JOYCE MARANGO was the rightful administratrix of the estate of TOFIKI OMARY MARANGO. l The appellant herein unsuccesfully appealed against the decision of the trial court. Still undaunted the appellant filed this appeal on 11/6/2002 through Njulumi & Co. Advocates. The appeal was heard by way of written submissions which were duly filed.. However, when I was set to prepare this judgment, I discovered two fatal legal irregularities hence this appeal will not be decided on merits. It is very unfortunate that the irregularities were not raised by the parties especially the respondent for such a long time; Apparently, because is a layperson and the court will not just close its eye and let it go. Firstly, this appeal was filed out of time. The judgment of the first appellate court was delivered on 29/4/2001 whereas this

appeal was filed on 11/6/2002. This was well outside thirty (30) days as provided in law under section 25 (i) (b) of the Magistrates’ Courts Act, Cap. 11 Vol. 1 of the Laws, Revised Edition 2002, which says; “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 to the High Court, and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired”. Thus, the appellant who is represented by an advocate ought to have applied for extension of time before she filed this appeal as the law provides. There is no any order of the court found in the court record to show that the appellant was allowed to file the appeal out of time. For this reason this appeal is incompetent before this court and it is subject to dismissal. But also, this appeal was filed directly to the High Court contrary to section 25 (3) of the Magistrates’ Courts Act, (Supra) which provides; “Every appeal to the High Court shall be by way of petition and shall be filed in the district court from the decision or order in respect of which the appeal is brought”. Therefore, this appeal ought to have been filed in the district court which gave the decision appealed against. It is

further provided under sub-section (4) of the cited section 25 (supra) as follows; “Upon receipt of a petition under this section the district court shall forthwith dispatch the petition , together with the record of the proceedings in the primary court and the district court, to the High court”. Also, before the petition is forwarded to the High Court it should be endorsed with the date of filing, (See Rule 5 (3) of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules), GN no. 312 of 1964. The afore-mentioned provisions contain mandatory legal requirements which cannot be done away with. These legal requirements were not included in the statutes for the purposes of adding colour to them but for being adhered to by the users. For the foregoing, this appeal is found incompetent before the court and it is hereby dismissed with costs. —I qn hnlri Court: Rights of Appeal fullv explained.

JUDGE 24/8/2010 AT DODOMA. 24/ 8/ 2010 . Appellant: Absent/ Mr Kidumage Advocate. Respondent: Present. C/c: Mr Emanuel. (M. A. KWARIKO)

JUDGE 24/8/2010