19970520 TZHC Dar es Salaam

.. IN THE HIG!-I coutn OF TANZ1\NIA DAR ES SALAAr" DiSTRICT REGISTRY rn D •\ ·,-, -;, .·, '"AL A AV A ~f:"::/~~j2....i2... ./;'i..t"U.. PC. CIVIL APPEAL E() ~ 70 OF 1995 lVlWANAIDI RASHIDI o O O 0 • • • • • • • APPELLANT V'JRSUS 0 0 0 0 • • • RESPONDENT .i.L..Y..J2. G E h E N T BUBESij)_,.__.Q:.; The appellant 1•iwana5.. .:li Rashidi has filed this appeal to challenge the decision of the FriJ:1.ary Court delivered on 15/2/9L which included trL:: house situate at No.004 Tandale in Kinonondoni District as forming part of the estate of Mohamed Rashid who died en 14/4/92 Respc,ndent was served but did not appear to defend the appeal. It rray·be i~portant to give a brief account o:f what transpired during proceedings at the lower court. On 15/2/94 the Primary Court l"agistrate of hago1r:eni declared one Mwashabani d/~ hohamecl to be the aclrrinistrator of the estate of JV:ohq.rr.ed Rashid. The deceased was a brother of the appellant. The :trial rnagistrate also declared that the house (it was not specifically identified) be valued and proceeds divided a~ongst the berEfinaries. · Then on 22/1/95 - before a defferent trial magistrate and in abs~nce of parties 1 the appellarubbjected to the house which she clain,s belongs to her father nowalso deceased being included,' in her 1ate brother's estate. It is not clear whether ttlis was a fresh clairr/ suit and if it is so who was the defendant. Since the adrninistrator of the estate had been arrJointed the appellant ought to have sued the administrator oi' the estate and not:the beneficiaries. Again on further study of the proceedings there is no proof that publication of the citation was n,ade. However, since the appellant is not challenging the appointrrent of the adr.ini.strator, the only issue 2 for determination is whether there was a proper suit filed in the lower court for purposes of deterrrining the issue of ownership of the hous,e in dispute. Unlike the district court, I hold that the proceedings before Heri PCff; were not concerned with the appointment of the adrr.inistrator but ownership of the house in dispute at Tandale. I would however, agree with the District Court that what the appellant ought to have done is for her to sue the adrrinistrator of the estate, and bring evidence to prove her clairr. In the prerr>isesl) I hold that the proceedings before Heri, PCJ/! though they concerned the house at No .1004 Tandale were a rulJ.i ty in the sense that there was no defendant to the claim(.. I therefore order for the pr.oceedings to cornrrence a fresh before another trial magistrate. To that extent appeal succeeds. i ·' .. ,, -;,{ -c.; / :,, . ,.:x... A. G. BU BE SHI -- JUDGE 20/S/97 Delivered in presence of appellant and in absence of the Respondent