Stephen Mafimbo Madwary v. Udugu Hamidu Mgeni & another Civ no 123 of 2008

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL  APPLICATION  NO. 123A OF 2008

STEPHEN MAFIMBO MADWARY………………………………. APPLICANT

VERSUS

UDUGU HAMIDU MGENI ………………..………………1^ST  RESPONDENT

MWINYIHAMISI HAMIDU MGENI ……………………..2^nd RESPONDENT

(Application for Extension of time to file revision from the decision  of the High Court of Tanzania at Dar es Salaam)

(Ihema, J)

Dated 6^th day of August, 2003

in

Civil Revision No. 49 of 1998

RULING

1^th  & 24^th December , 2008

LUANDA, J. A:

         This is an application for extension of time to file an application for revision.  The application has been made under Rule 8 of the Court of Appeal Rules, Cap.141 (subsidiary Legislation).

        Briefly, the background to the application is to this effect:  On 2^nd July, 1992 the High Court (Rubama, J.) approved the appointment of MWINYIHAMISI HAMIDU MGENI the (2^nd   Respondent) as administrator of the estate of the late HAMIDU MGENI.  The 1^st respondent was dissatisfied with that appointment.  In 1998 he filed in the High Court Civil Revision No 49 of 1998 so that the decision handed down by Rubama, J. be revised.  Ihema, J dismissed the application for being time barred and that the house, the estate of the deceased which was the target of the application for revision, had already been sold.  Indeed, the purchaser as per the affidavit in support of the application were the applicant and his late wife one Sekii Kiyoko.  And the house was transferred in their personal names.  The two got a title.  The title is dated 27/8/1996.  The decision of Ihema, J is dated 20/9/2001.

        But on 6/8/2003 Ihema, J. gave an exparte order upon an application made by the 1^st respondent in respect of the same subject matter.  He said the following, I quote:-

“Upon hearing Mr. Udugu Hamidu Mgeni [the 1^st respondent] the applicant exparte due to  the  non appearance of the respondent Hamisi (sic) Hamidu Mgeni duly served I am satisfied that the application has merit and in line with this court’s order (the late Rubama J,) dated 2^nd July, 1992 directing that the administrator of the estate of Hamidu Mgeni deceased proceed to sell the house by public auction and the divide what is obtained in accordance with the dictates of the Holy Quaran.  Any of the….”

Ultimately, the house was again sold to some people other than the applicant after the 1^st respondent was appointed as administrator of the deceased estate by the court of the Resident Magistrate of Dar es Salaam.  The applicant became aware of that sale in February, 2004.  He  thus filed an application for revision in this Court vide Civil Application No. 27 of 2004.

Since the application was filed after the expiry of sixty days and without leave, the Court dismissed the application, hence this application.

        In this application Mr. Nyange learned counsel represented the applicant; whereas the 1^st respondent was advocated for Mr. Kariwa.

        It  is Mr. Nyange’s submission that the applicant, who  is a bona fide purchaser for value, was not a party to those proceedings nor was he summoned to appear.  The applicant who had an interest in the house was condemned unheard.  That goes contrary to one of the principles of natural justice-audi altern partem.   That asunder the High Court (Ihema, J.) grossly erred in law when it granted the second order of sale while the house had already been sold to his client.  And the one who sold it is the 1^st respondent upon appointment as administrator of the  deceased estate by the Court of the Resident Magistrate of Dar es Salaam at Kisutu and who is very much aware that the 2^nd respondent’s appointment was valid and it was not revoked.  Mr. Nyange concluded by saying that so long as a question of law is involved, that is enough for the court to grant extension of time.  He cited [Etienne’s Hotel v National Housing Corporation Civil Reference No. 32 of 2005 CAT (unreported).]

        Mr. Kiriwa on the otherhand opposed the application.  Basically he submitted to the effect that the reasons advanced do not fall under the ambit of sufficient reason.  The reasons for the delay after the dismissal of the application were not disclosed.  Further, the property had already changed hands to the third party.

        In rejoinder Mr. Nyange conceded as to failure to disclose.  But he added that the applicant tried to settle out of court.  That statement  came from the bar; it is not admissible.

        The issue for determination and decision is whether the applicant has given sufficient reason for the Court to grant the prayer sought.

        I have gone through the application.  There is no doubt at all that there are serious legal irregularities which if not addressed will occasion injustice especially on the part of the applicant who was not a part to subsequent proceedings both in the High Court and the Court of the Resident Magistrate of Dar es Salaam.  That constitute sufficient reason.

        In Principal Secretary, Ministry of Defence and National Service V Devram Valambhia [1992] TLR 185 this court held inter alia, I quote:-

“We think that where, as here, the point of law at issue is illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute “sufficient reason” within the meaning of rule 8 of the Rules for extending time.  To hold otherwise would amount to permitting a decision which in law might not exist to stand…”

In the upshot, the application is granted.  Costs in the cause.

Order accordingly.

DATED at DAR ES SALAAM this 18th day of December, 2008.

B. M. LUANDA

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

P.B.KHADAY

DEPUTY REGISTRAR

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