bakari mohamedi rwambo vs raiya nassoro another 2014 tzhc 2162 22 july 2014

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM PC CIVIL APPEAL NO. 55 OF 2013 Origin civil Revision NO. 1 of 2011 at the District Court of Rufiji BAKARI MOHAMEDI RWAMBO............................... APPLICANT V RAIYA NASSORO & ANOTHER............................. RESPONDENT Date of last Order 6/5/2014 Date of Judgment 22/7/2014 JUDGMENT A.Shangwa, J This is an appeal against the judgment and decree of the District Court of Rufiji delivered by Matitu PDM in Civil Revision N ol of 2013 which originated from probate cause No 2 of 2011 of Utete Primary Court. In its decision, the District Court of Rufiji reinstated Nazmin Mohamed Rwambo as Adiministratrix of the 2 estate of the late Mohamed Shaweji Rwambo and held that the house under Residence Licence No KNDO 18457 at Mikocheni ‘A’ Area belongs to Mwamini Mudi Juma and that the house under Ref. No KH/MKI/NO 433/40 at Hanasifu Area, Kinondoni Municipality belongs to Raiya Nasoro and that therefore those houses should be excluded from the estate of the late Mohamed Shaweji Rwambo hereinafter to he referred to as the deceased. The appeal is based on three grounds which are as follows:- 1. That the District Court erred in law and fact by revoking the Letters of Administration granted to the Appellant while the District Court is not vested with any jurisdiction to do so. 3 2. That the District Court erred in law and fact by revoking the Letters of Administration granted to the Appellant without looking at and evaluating the evidence afresh and come to its own conclusion and thereby completely misapprehending the substance, nature and quality of the matters of facts and law before itself, resulting in unfair findings and miscarriage of justice on the part of the Appellant. 3. That the District Court erred in law and fact in distributing the deceased's estate namely the property under Residence Licence NO KNDO 18457 at Mikocheni ‘A' Area and the property under Reference NO KH/MKI/NO 433/40, Hananasifu Area, Kinondoni Municipality respectively while the District Court was time barred and without any jurisdiction to entertain such appeal. On 12th February, 2014, I ordered that the appeal should be argued by way of written submissions. Both sides to this appeal did file their written submissions within the time schedule fixed by the Court. There was no rejoinder submission from the Appellant. On the first ground of appeal, counsel for the Appellant Mr. Dominic Kashumbugu contended that as the Appellant was appointed by the Primary Court as Administrator of the deceased’s estate, the District Court had no jurisdiction to revoke his appointment and that in doing so the District Magistrate exercised jurisdiction which he did not have. At page 2 and 3 of their written submissions, the 5 Respondents submitted on the first ground of appeal that the District Court of Rufiji had jurisdiction to revoke the Letters of Administration of the deceased’s estate which had been granted to the Appellant and one Mzee Rwambo by the Primary Court of Utete. In support of their submission, they referred the Court to sections 22 (1) and 21 (1) (b) of the Magistrates' Courts Act cap i 1 R.E 2002 which provides as follows and I quote:- “S. 22 (1) A District Court may call fo r and examine the record o f any proceedings in the Primary Court established fo r the District fo r which it is itself established and m,ay examine the records and registers thereof fo r the purposes of satisfying itself as to the 6 correctness, legality or propriety o f any decision or order o f the Primary Court and as to the regularity o f any proceedings therein, and may revise any such proceedings” “S. 21 (1) In the exercise o f its appellate jurisdiction a district Court shall have pow er - (b) ... to confirm, reverse, amend or vary in any manner the decision or order appealed against i i In my view, the above quoted provisions of law show very clearly that the District Court has revisional and appellate jurisdiction over the proceedings, decisions or orders passed by the Primary Court. Therefore, I do not- agree with Mr. Kashambugu for the Appellant that the District Court of Rufiji had no jurisdiction to revoke the Letters of Administration granted to the Appellant and one Mzee Rwambo by the Primary Court of Utete and to reinstate Nasmin Mohamed Rwambo as Administratix of the deceased’s estate and to hold that the property under Residence Licence NO KNDO 18457 at Mikocheni ‘A ’ Area Dar es Salaam belongs to Mwamini Mudi Juma and that the property under Reference NO KH /MKI /NO 433/40 Hananasifu Area, Kinondoni, Dar es Salaam belongs to Raiya Nasoro and that both properties should not be included in the deceased’s estate. I hold that the District Court of Rufiji had jurisdiction to do so. Thus I will not interfere with its decision. In fact, it is very unfortunate that the Appellant has lost respect to both Raiya Nasoro (1st Respondent) who 8 is his mother and Mwamini Mudi Juma (2nd Respondent) who is his step mother. Both of them became angry with him after he was appointed as Administrator of the deceased's estate because of his desire to include the aforesaid properties/ houses in the deceased's estate for the purposes of selling them. Both the 1st and 2nd Respondents strenuously argue that those properties are exclusively theirs and do not form part of the deceased's estate. In their arguments, the Respondents are greatly supported by the rest of the deceased's heirs who are the Appellant's own sisters and brothers. This disposes of the first ground of appeal which fails. On the second ground of appeal, counsel for the Appellant argues that the District Court of Rufiji did not evaluate the evidence on the record of the Primary Court of Utete which appointed the Appellant to be the 9 Administrator of the deceased's estate after finding him fit to be so appointed. He said that had the District Magistrate evaluated the evidence on record, he would have found that there was no reason to revoke the Appellant's appointment. On the other side, the Respondents submitted that the District Court was correct in law and in fact when it nullified the appointment . of the Appellant as Administrator of the deceased’s estate because other heirs were not in agreement with what he was doing in his role to administer the deceased's estate and distribute the same to them. For me, I agree with the Respondents that the District Court of Rufiji did evaluate the evidence on record and found that the Appellant had no integrity in 10 the administration of the deceased's estate and revised the Primary Court's decision which appointed him. I hold therefore that the second ground of appeal has no merit and it fails. On the 3rd ground of appeal; Counsel for the Appellant submitted inter - alia that the Appeal before the District Court of Rufiji was time barred and that the said Court had no jurisdiction to distribute the deceased's properties or decide the ownership of those properties. He said that the appeal was supposed to be filed within thirty days of the decision. He said the decision which appointed the Appellant was made on 13/3/ 2012 and the appeal was made in 2013 which was out of time. On whether or not the District Court of Rufiji committed an error for distributing the deceased’s estate, I do not agree with counsel for the Appellant that there exists such error on the face of the said Court’s record. The holding by the said Court that the property under Resdence Licence NO KNDO 18457 at Mikocheni A ’ Area and the house under Reference NO KH/MKI /NO 433/40 at Hananasifu Area belongs to the 2nd and 1st Respondents respectively did not amount to distribution of the deceased’s estate as they do not form part of it. So far, the deceased’s properties remain undistributed. On whether or not the appeal from the decision of the Primary Court of Utete to the District Court of Rufiji was time barred, I have examined the record of the Primary Court of Utete and found that it passed its 12 decision on 13/ 3/ 2012 as pointed out by counsel for the Appellant. I have also examined the record of the District Court of Rufiji and found that the Appeal from the decision of the Primary Court of Utete was filed in March 2013 as pointed out by counsel for the Appellant. As correctly pointed out by him appeals from the decisions of the Primary Court to the District Court have to be made within 30 (thirty days) of the decision. However, as correctly pointed out by the Respondents, the case was determined by the District Court of Rufiji as a revision and not as an appeal. Therefore, for the purposes of limitation section 22 (4) of the Magistrates’ Courts Act Cap 11 R.E 2002 cited by the Respondents has to apply. This section provides as follows and I quote:- 13 “S. 22 (4) No proceedings shall be revised under this section after the expiration o f twelve months from the termination o f such proceedings in the Primary Court and no proceedings shall be further revised under this section in respect o f any matter arising thereon which has previously been the subject o f a revisional order under this section”. In this case, the Primary Court of Utete terminated its proceedings on 13/12/2013 by appointing the Appellant and one Mzee Rwambo to be the Administrators of the deceased’s estate after resignation of Nasmin Mohamed Rwambo from the office of administering the deceased's estate. The Respondents filed their appeal to the District Court of Rufiji against