mahuza joseph mbiso vs eglah george makasi 2016 tzhc 2160 4 october 2016

fN THE HIG H COURT OF T A N Z A N IA AT D O D O M A (PC) Probate A ppeal No. 4 of 2015 (Arising from the decision of the District Court o f D o d o m a im P robate A p p e a l No. 1 o f 2015 a n d O riginal P ro b ate C a u s e No. 28 of 2012 a t C h a m w in o Primary Court) MAHUZA JOSEPH MBISO ................................ APPELLANT VERSUS EGLAH GEORGE MAKASI ............................. RESPONDENT JUDGMENT 06/09/2016 & 04/10/201 6 SEHELJL This a p p e a l originates from C ham w ino Uraban Primary <£ourt (hereinafter referred to as "the trial court"). The facts th a t g a ve rise to the present a p p e a l are such th a t on 6tn d a y of D ecem ber, 2012, the a ppe llant, M ahuza Joseph Mbiso was a p p o in te d os adm inistrator of the estates of his late father, MT 31446 SGT M odiat Ibam bil Hodi Mwikizu w ho died on 11th d a y of O ctobe r, 2012 at Lugalo Hospital, Dar es Salaam.' On 1st d a y of D ecem ber, 2014, one of the wives of the d ecea sed , Eglah G eorge Makasi (hereinafter referred to as the respondent), invited the tria l Court to determ ine the question as to the properties and assets w hich vested in or lay in the d e ce a se d a t the tim e of his de ath . The respondent a llege d th a t the house situate at Maili Mbili was jointly acq u ire d an d she is living in the house with her eight children thus it should be vested to her. The a p p e lla n t told the trial Court th a t he considered the disputed house as a property of the d e ce a se d and it should bene fit all the heirs but the respondent d eclin e d claim ing th a t it is her house. Having heard the dispute, the trial Court ordered for the house to be sold and the m oney o b ta in e d is to be distributed am o n g the beneficiaries to avoid more conflicts. The respondent was a g g rie ve d with th a t decision and she successfully a p p e a le d to the District Court. One of the issues raised by the a p p e lla n t at the District Court was th a t the a p p e a l was out of time. The District Court found th a t the a p p e a l was out of tim e but p ro c e e d e d to determ ine it with justification th a t it “ has discretionary pow er to allow the a p p e lla n t to lo d g e her a p p e a l out of tim e upon given a reasonable ground of d e la y .” The District Court further found that the a p p e lla n t has a d v a n c e d reasonable ground because she failed to secure the c o p y of ju d g m e n t in time. The District Court, therefore, partly allow ed the a p p e a l by granting the respondent a half share in the disputed house- ^ k 2 The a p p e lla n t was not satisfied with this finding. He, through the services of Kidum age & Associates (Advocates) filed an a p p e a l to this Court with three main grounds of a p p e a l. The grounds are: 1. That, the 1st A p p e lla n t Court, having rightiy found th a t the Respondent's a p p e a l was tim e-barred, erred in law in dealing with the merits o f the same to the end w hen there ' was no a p p lica tio n for e ave to file the a p p e a l out of time, as such occasioned a m iscarriage of justice to d the A ppellant. 2. That, the l s[ A p p e lla te Court erred in fa c t a d law, having rightly found that there is no reason for annulling the appointm ent, of the A p p e lla n t as the Adm inistrator of the d e c e a s e d ’s estate of the Late MT.31446 MODIAT IBAMBILO HODI, in usurping the powers of dividing the estate of the said dece a se d to the heirs thereof. 3. That, even if it-w ere right to divide the d ecea sed 's estate am ongst the heirs, the 1st A p p e lla te Court erred in fa c t and law in applying the principles laid dow n in the case of Bl. HAWA MOHAMED V. ALLY SEFU [1983] TLR 32 to the present case as such giving the w hole of the ]/2 share of the estate to the respondent alone. At the hearing of the a p p e a l, Mr. M atim bw i a p p e a re d to argue the a p p e a l on behalf of the a p p e lla n t w hile the respondent w a present in person. Mr. M atim bw i, in arguing the first ground of a p p e a l, subm itted th a t a c c o rd in g to pages.3 an d 4 o f the ju d g m e n t, the a p p e a l was filed out of time. He subm itted since there was no a p p lica tio n for extension of tim e filed by the respondent then the District Court did not a d he re d to Section 20 (3) a nd (4) of the M agistrates’ Courts Act, C ap. 11. It was replied by the respondent th a t she d id m ake an a p p lica tio n for extension of tim e and th a t is w hy her a p p e a l was heard. Mr. M atim bw i insisted th at the a p p lic a tio n ough t to have been filed a t the District Court in terms of Section 20 (3) a n d (4) of the of the M agistrates’ Courts A ct, C ap. 11. From the submission of both parties, there is c o m m o n understanding th a t the a p p e a l a t the District Court was lo d g e d out of time. The only divergent view is w hether there was an a p p lic a tio n for extension of time. The respondent subm itted th a t she did file her a p p lic a tio n for extension of tim e a t the District Court. It is. therefore p ru d e n t to a d ve rt the papers filed by the respondent a t the District Court. The respondent filed the follow ing d o c u m e n t : ^ “ KATIKA MAHAKAMA YA WILAYA DODOMA ILIYOPO DODOMA SHAURI LA RUFAA MIRATHI NO....YA 201 5 (ASILI SHAURI LA MIRATHI NO. 28/2012 TOKA MAHAKAMA YA MWANZO CHAMWINO MJINI) ; EGLAH GEORGE MAKASSI ............ - MUOMBA RUFAA ; DHIDI YA t MAHUZA JOSEPH MBISO ............ MJIBU RUFAA i t Mimi Eglah G eorge Makassi N aom bi ya rufaa nje ya m uda kutokana no uam uzi/ Hukumu iliyotolew a na M a h a k a m q ya m wanzo C ham w ino iliyosomwa tarehe 01/12/2014, nilichelew a kuleta sababu za rufaa kutokana na kuchelew a kutolew a kwa nakala ya hukumu na m a h a ka m a ya m w anzo C ham w ino. SABABU ZA RUFAA Mh. Hakimu ninayoheshim a kubw a kuleta sababu zangu za rufaa katika M ahaka m a yako tukufu. 1. Kwam ba*; Sijaridhika na m aam uzi yaliyotolew a na M ah aka m a ya M wanzo C ham w ino mjini kuam ua kuuza nyum ba ya fam ilia kwa kigezo ch a m g o g o ro w a kifamilia w a ka ti hakuna m gogoro w'owote. 2. Kw am ba; M heshim iwa Hakimu M a h a ka m a ya M wanzo C ham w ino mjini alikosea kisheria a lip o a m u a /k u to a amri ya kuuza nyum ba ya fam ilia a m b a yo ndio inasaidia k u to g j^ hudum a muhimu kwa w a to to w a m arehem u kam a afya elirriu , i chakula na malazi. j! 3. Kw am ba; M a h a ka m a ya m w anzo ch a m w in o mjini, ilikiuka j tarafibu pale ilipoam ua kugaw a mali za m arehem u bila i t kufuata tarafibu za ndoa. Kwani mimi nilikuwa mke halali \jva i n doa w a m arehem u . j i 4. Kwam ba; sikuridhika na m aam uzi ya m a h a ka m a ya m w arizo I kuwa w a to to w a ta n o w a m arehem u haw anufaiki na nyumjoa ya mailimbili w akati hiyo nyum ba ni ya fam ilia na hakujna m toto wa m arehem u yeyote aliyefukuzwa asiishi kwerjye i nyum ba hiyo. j i 5. Kw am ba; sikuridhika na m aam uzi yaliyo tole w a na mahakarjna ya m wanzo C ham w ino mjini ya kuuzwa nyum ba na kugaw cjna kwani nyum ba hiyo tu m e jen g a na rnm e w a n g u pindi tunajshi pa m o ja na w a to to w a m arehem u w a n a n u fa ika na nyumjba i i hiyo . N inaiom ba M ahaka m a yako tukufu ya W ilaya kutengua uarruzi w a M ahaka m a ya M wanzo C ham w ino mjini iliyoniamuru kuuzwa nyum ba ya maili mbili pasipo halali ila M a h a ka m a yako tukufu izingatie mali nilizoandika NATHIBITISHA: Nathibitisha yo te niliyoefezea katika kipengele ch a '1,2,3, 4, na 5 ni kweli tupu kadri ya uelew a w angu . Sgn Egalah G eorge Makassi M w o m b a Rufaa Im epokeiew a kwa kufunguiiwa leo tarehe 2 mwezi 2 2015 Sgn Karani w a M a h a ka m a NAKALA: M ahuza Joseph M biso” From the a b o ve , it is cle ar th a t the respondent asked for extension of tim e to a p p e a l out of tim e a nd also she subm itted her grounds of a p p e a l, Now the question th a t follows is w hether this is a proper procedure? My starting point will be Section 20 (3) and (4) of the M agistrates’ Courts Act, C ap. 11. These provisions provide: "Section 20 (3) Every a p p e a l to a district court shall be by w ay of petition a n d shall be filed in the district court within thirty days afte r the d a te of the decision or order against which the a p p e a l is brought. (4 ) Notwithstanding the provisions of subsection (3)- (a) the district court m a y extend the time for filing an a p p e a l either before or after such p eriod has expired; a n d + (b) if an ap p lica tio n is m a d e to the district court within the said period of thirty days or any extension thereof g ra n te d by the district court, the district court m a y perm it an a p p e lla n t to state the grounds for his a p p e a l orally a n d shall record them a n d hear the a p p e a l a c c o r d in r K /" 7 It follows then that an a p p e a l from the Primary Court to the District Court must be filed within 30 days by presenting petition of a p p e a l. However, w here there is a d e la y then the a g g rie ve d party m ay m ake an a p p lica tio n for an extension of tim e before the District Court. Rule 3 of the Civil Procedure (Appeals in Proceedings O riginating in Primary Courts) Rules G.N. No. 312 of 1964 provides: “ An a pplication for leave to a p p e a l ou t o f time to a district court from a decision or order o f a primary court or to the High C ourt from a decision or order o f a district cou rt in the exercise o f its a p p e lla te or revisional jurisdiction shall be in writing, shall set out the reasons why a petition o f a p p e a l was n o t or c a n n o t be filed within thirty .days after the d a te o f the decision or order against which . it ..is desired to appeal and shall be a c c o m p a n ie d by the petition of a p p e a l or shall set out the grounds of objection to the, decision or order: Provided th a t where the ap plica tio n is to a district court, the court m a y perm it the a p p lic a n t to state his reasons orally a n d shall record the sam e.” In the nutshell the ab o ve rule requires for the a p p lic a tio n for I'eave to a p p e a l out of tim e to be in writing setting out the reasons and be a c c o m p a n ie d by the petition of a p p e a l or. set out the grounds of objectio n to the decision or order j JM- The respondent in her a p p lica tio n for extension of tim e did exactiy w h a t is provided by the law. She lo d g e d her written a p p lica tio n by setting out the reasons for the d e la y and thereafter set out the grounds of objection. The District Court, in terms# of Section 20 (4) (b) of the Magistrates' Courts Act, Cap^. 11, is required to determ ine first the issue of extension of tim e and^thereafter deal with the a p p e a l. In the m atter at present, the District determ ine d first the issue of extension of tim e and therea fter p ro c e e d e d to determ ine the a p p e a l. I therefore, find th a t the District Court c o m p lie d with the provisions of the law. This c o m p la in t has no merit. For the second ground, the Counsel subm itted th a t there is no law th a t allows the Court to distribute the d e ce a se d assets. It is the adm inistrator w ho has ..such an obligation. In support of this submission, the Counsel referred this Court to the case of Samson Kishosha G a b b a Vs. Charles Kigongo G ab b a [1990] T.L.R 133. The respondent responded th a t the District C ourt was right in dividing the assets because the function of the adm inistrator is only to adm inister the estates and th a t since the property was jointly a cq u ire d then it was corre ct for her to be given the half s h a r e ^ ^ 9 I I As correctly subm itted by the Counsel for the a p p e lla n t, caqrts have no p o w e r to distribute the estate of a jd e ceased person (spe the case of Samson Kishosha G abda (supra). The p o w e r ! for distribution is vested to the adm inistrator of the d e c e a s e d estqte • under the Probate and Adm inistration A ct, C ap. 352. Therefore, the \ District C ourt usurped the p o w e r tha t it does not have. The District I Court a fte r it found th a t the disputed house is the property of ;the t d e ce a se d then it should let the adm inistrator to perform its function. If the respondent thinks.that she is entitled to the ownership of [the disputed house then she has a rig h t'to pursue such right before Itjie c o m p e te n t Courts of law. I therefore find merit on this ground. ;j ii For the Iasi co m p la in t I agree with the C ounsel’s submission i th a t 1he District Court erred in applyin g the principles set in the case that d e a lt w ilh division of m atrim onial assets into a p ro b a te dispute. I therefore find merit on this co m p lain t. i : i 1 I J The a p p e a l is therefore partly a llow e d by quashing a nd set aside the decision of the District Court because it was m a d e on w rong premises. Since the a p p e a l is partly allow ed then e a c h party shall bear its own costs. It is so ordered. DATED at Dodom a this 4th d a y of O ctobe r, 201 10 B.M.A Sehel JUDGE Judgm ent delivered in open court at D odom a, under my hand a n d I seal of the court, this 4th d a y of O ctober, 2016 in the presence of Ms. ! M uniche, learned a d v o c a te holding brief for Mr. Kidum age learjned i I a d v o c a te for a p p e lla n t and respondent is present in person. Rigftf of i A p p e a l is fully explained. B.M.A Sehel JUDGE 4th October, 2016. ii