SAMSON KISHOSHA GABBA v CHARLES KINGONGO GABBA 1990 TLR 133 (HC)

 

SAMSON KISHOSHA GABBA v CHARLES KINGONGO GABBA 1990 TLR 133 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

23 November, 1990

Flynote

Administration of Estates - Appointment of Administrator - Whether the court has

power to distribute property. E

Civil Practice and Procedure - Appeal out of time - Whether reasons for delay sole

ground for granting leave.

-Headnote

The appellant filed an application at Kakoro Primary Court, in Ngudu, for him to be

appointed administrator of F estate of his deceased father Gabba Mpondamali. In his

application he claimed that the two houses on plots No. 125 and No. 33 Block A, in

Ngudu Township belonged to him (applicant) and not the deceased, though the said

plots were in the name of the deceased. The respondent on behalf of other members

of the family filed on objection G in court against the appointment of the appellant

as administrator. The trial court was satisfied and found candidate unfit for the job

and instead the court appointed the Ward Secretary of the area to be the

administrator of the estate. In addition the court did two things: First, it held that the

houses on plots No. 125 and No. 33 block A in H Ngudu township belonged to the

deceased and not the appellant. Second the Court distributed the property of the

deceased to his children. The appellant, after his attempt to file an appeal out of time

was rejected, filed on application for leave to appeal to the District Court out of time.

The District Court rejected the application on the I ground that no reasonable

ground for the delay was shown. He appealed to the High Court.

1990 TLR p134

MWALUSANYA J

A Held: (i) In determining whether or not to allow an application for leave to

appeal out of time the court has to consider reasons for the delay as well as the

likelihood of success of the intended appeal;

(ii) the appeal has good chances of success because the decision of the trial

court has some conspicuous errors B including the court's erroneous distribution of

the deceased property to his children, deciding the ownership of the houses on plots

No. 125 and No.33 Block A, when the administrator had yet to distribute them.

Case Information

C Appeal allowed.

[zJDz]Judgment

Mwalusanya, J.: The appellant Samson Kishosha Gabba filed an application at Kakoro

Primary Court in Ngudu District, for him to be appointed an administrator of the

estate of his deceased father Gabba Mpondamali. He D stated in the application that

he was a suitable candidate for the post of the administrator of the estate of the

deceased because two properties viz. houses on Plots No. 125 and No.33 Block A, in

Ngudu Township belong to him (applicant) and not to the deceased, though the said

plots are all in the name of the deceased.

The respondent Charles Kingongo Gabba was appointed by other children of the

deceased as well as the E deceased's wife, to file an objection in court against the

appointment of the appellant as the administrator of the estate of the deceased.

Evidence was given as to why appellant was unfit to be appointed administrator of

the F deceased's estate. And it was vigorously contended that the two houses on

plots No. 125 and No. 33 Block A, in Ngudu Township belonged to the deceased and

not to the appellant.

The trial court found the appellant to be unfit to be appointed as an administrator of

the estate of the deceased because he claimed to own part of the estate of the

deceased. And also its was found that he was at loggerheads G with other children of

the deceased. And so the appellant's application was dismissed. And instead the trial

court appointed the Ward Secretary of the area as the administrator of the deceased

estate.

H The trial court did decide two other things, which I think was mistakenly done.

First the trial court held that the house on Plots No. 125 and No. 33 Block A, Ngudu

Township belonged to the deceased and not the appellant. Secondly the trial court

usurped the powers of the administrator of the deceased's estate by distributing all the

property to the children of the deceased including the appellant.

I The appellant decided to appeal against the judgment of the Primary Court which

was delivered on 5/7/1988. The appellant presented his

1990 TLR p135

MWALUSANYA J

petition of Appeal to Kwimba district Court on 11/2/1989 and was told he was out of

time and so on 14/2/1989, A he filed an application for leave to appeal to the District

Court out of time. He said in the affidavit that he was late to appeal because he had

gone to see the District Registrar in Mwanza so that he appoints another District

Magistrate to hear his intended appeal other than the incumbent Mr. M.R. Mlawa.

The application for leave to appeal out of B time was dismissed by Mr. M. R. Mlawa

D.M. It is against that dismissal that appellant has appealed to this court.

The reasons which appellant presented in the memorandum of appeal as cause of the

delay are frivolous and C patently untenable. One is at a loss, if it is indeed true that

the appellant was a magistrate during the colonial times, as to why he pleads

ignorance of the law as the cause of the delay for his to appeal. He concedes that he

should be have filed the appeal by 11.9.1988, but said that he could not do so because

he was consulting the District magistrate to hear the appeal. He said that because he

lodged the complaint to the District Registrar before D 11/9/1988 then it should be

taken that he was not out of time.

The argument by the appellant that because he had lodged his complaint of change of

magistrates to the District Registrar in time, then it should have been taken that he

had not been time barred, is naïve as it is preposterous. E Apparently he is ignorant

of the law despite the fact that he was a magistrate. He should have filed the appeal

by 11/9/1988 and then should have started to pursue his wish to have appeal. There

was no iota of good reason as to why he should not have filed the appeal in time. If

this was the only materials to consider I would have dismissed the F appeal.

The learned District Magistrate should note that one of the most important points to

consider whether or not to allow an appeal out of time is the likelihood of success of

the intended appeal. The points raised in the intended memorandum of appeal, as

well as the judgment of the trial court have to be considered to see if the intended G

appeal has any chances of success. While reason for the delay in appealing in time are

relevant, yet those are not the only material consideration in these matters. In this

case, the learned District Magistrate, erred in not considering the chances of success

of the intended appeal. H

After considering the judgment of the trial court, I am of the view that the intended

appeal has good chances of success and it will be in the interest of justice if part of the

judgment of the trial court is reversed. I say so because the decision of the trial court

has some conspicuous errors. The appointment of the Wards Secretary as the I

administrator of the deceased estate was quite correct. However the trial court had no

power

1990 TLR p136

MWALUSANYA J

A to distribute the estate of a deceased person to the respective heirs: that power of

distribution is given to the administrator of the deceased estate. So the trial court

usurped the power it does not have under the law. Again it is the administrator of

deceased estates who knows the property of the deceased and distributes it. If any of

the B property is alleged not to belong to the deceased, then the person to be used in

court is the administrator of the deceased estate. In this case the trial court was wrong

to decide the ownership of the houses on plots No. 125 and No. 33 Block A, when the

administrator had yet to distribute them.

C If the District Magistrate had considered those above mentioned fundamental it

would have granted leave to appeal out of time, despite the fact that the appellant had

delayed. After all the delay was not very long, but only five months. And so I will

allow this appeal so that the appeal is filed within 30 days from today. Among other

D things the District Court should consider setting aside the illegal orders of the

primary court of distributing the estate of the deceased to the heirs; as well as setting

aside the premature order that the two houses belonged to the deceased. As there are

now two District Magistrates at Kwimba District Court, then the appeal to be filed, be

E heard by a magistrate other than Mr. M.R. Mlawa.

The respondent during the hearing of appeal raised complaint as to why the decree of

the Primary Court was not executed. He wondered as to whether the Senior Resident

Magistrate Mr. E.P. Mtui had power to order stay of F execution by a letter ref No.

82/323 of 27/21/89 when there was no court order He said that he was even

imprisoned in a criminal case for disobeying a lawful order i.e the said letter of the

S.R.M. He wondered if that was not an abuse of power. All I can say is that, the

complaint raised is not relevant to the appeal under discussion. My observation is the

letter which is not backed up by a court order cannot have the effect of stay of

execution pending G appeal. In any cause in this particular case no appeal of any

kind had been lodged and up to now no appeal has been filed. If the respondent feels

that there has been a case of abuse of power, he may pursue his remedy

administratively or by filing a case in court for redress.

H Be that as it may, this appeal succeeds. I allow the appeal. The appellant should

file his appeal at Kwimba District Court within 30 days from today. In view of the

nature of my decision. I order that each party will bear its own costs of this appeal.

I Order accordingly.

1990 TLR p137

A