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IN THE COURT OF APPEAL OF TAN ZANI A AT DAR ES SALAAM (CORAM: RAMADHANI, J.A, LUBUVA, J.A And LUGAK_INGIRA, J.A) CIVIL APPEAL NO. 23 OF 1999

BETWEEN HAMISI A THUMAN!. ........................ APPELLANT

AND

JUMANNE MAKAMBI KONDO MATEMBELE ........................... RESPONDENT IDOi KIWAMBWA Appeal form the order of the High Court of Tanzania at Dar es Salaam (Kileo, J.) Dated the 30 th day of July, 1997 in In Civil Appeal No.93 of 1997

JUDGMENT OF THE CASE In the aforementioned case the appellant (Hamisi Athumani) sued 3 respondent (Jumanne Makambi, Kondo Matembele, Iddi Kiwambwa) at the Primary Court at Manzense seeking to recover what he called his deceased brother's house on plot No.3/406 at Mbibo Kinondoni District at Dar es Salaam. The appellant deceased brother died on 30 th September 1991 and he was living in the disputed house at the time of his death. In this case both parties adduces their evidence before the court of law; the appellant adduces that his deceased brother (Msafiri) was living in the disputed house at the time of his death, however the on the respondent side adduces that the deceased had no house of his own but lived and died at the tenant in the disputed house which was the property of on Felix William Shayo. Therefore for the evidence adduced by both parties (appellant and respondents), the appellant lost the case in the Primary Court, as he did on the first appeal to the District Court , and his further appeal to the High Court which was summary rejected. 3 Thereafter the court appellant was aggrieved with the High Court summary rejected; hence he filed an appeal before the Court of Appeal of Dar es Salaam. The appellant was presented by his advocate Learned Counsel Ms. Washokera. In the Appeal the appellant through his Learned Counsel Ms. Washokera adduces the following legal

grounds for their appeal; 1. Whether there was valid judgment in the Primary Court since it was not signed by the assessors 2. Challenging the propriety of the summary dismissal. In the hearing of the appeal, the court lay down that apart from the absence of the assessors signature on the judgment, but also the action commenced by the appellant before he vvas appointed as an administrator of the deceased's estate, this entails that the appellant had no capacity to institute the suit. But also the court went further by stipulating that the assessors who gave opinion in the case were not the one who heard the case, this entails that even the decision made was invalid all this facts were conceded by the Learned Counsel Ms. Washokera presenting the appellant. Therefore due to the above said reasons the Court of Appeal declare that the entire proceeding were nullity and set them aside, and the parties required to bear their respective costs. 4