AMINA RASHID v MOHINDER SINGH AND ANOTHER 1986 TLR 196 (CA)

AMINA RASHID v MOHINDER SINGH AND ANOTHER 1986 TLR 196 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mustafa JJA, Makame JJA, Omar JJA

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25th July, 1986.

CIVIL APPEAL 8 OF 1986

Flynote

D Civil Practice and Procedure - Ex-parte orders - Application to set them aside -

Appellant had deliberately absented herself from the hearing of the applications -

Whether request to set aside the orders may be acceded to.

-Headnote

The appellant deliberately absented herself from the hearing of applications before

the Court which concerned her. The E applications were heard ex-parte and orders

were issued accordingly. The appellant sought to have the orders set aside.

Held: We are satisfied that the appellant deliberately absented herself from the

hearing of the applications and therefore F her request cannot be granted.

Case Information

Order accordingly.

G No case referred to.

Rutashobya, for the appellant

D'Souza and Mrema for the respondents

[zJDz]Judgment

H Mustafa, J.A.: This matter arose from a Probate and Administration Cause No. 16

of 1983. Anand Singh died and by his will appointed one of his sons, Mohinder Singh

as his executor. Probate was granted to Mohinder Singh on 2.2.1984.

I One Amina Rashidi was apparently living with the deceased Anand Singh before

Anand Singh died. Two children were born

1986 TLR p197

MUSTAFA JJA, MAKAME JJA, OMAR JJA

A during such association, and these two children were minors, and had been

included in the list of beneficiaries to the estate along with other issue. Amina

Rashidi was not a beneficiary, but she was the guardian of the two minor children

born to her.

Sometime in May, 1985 in Miscellaneous Civil Application No. 65 of 1985 Mohinder

Singh, the executor, applied for an B injunction to issue in the High Court

restraining Amina Rashidi from intermeddling with the estate, among other prayers.

The application was successful and the court issued the necessary orders on 11.7.1985.

C Two other beneficiaries, Ardensina and Chausiku in or about November, 1984

filed an application in the High Court concerning the alleged intermeddling by

Amina Rashidi in the estate and order for of a property, a building on Plot 19, Block

G, Area F, Arusha was made as a result by the High Court.

D The said plot 19 was duly sold to one Alwi Shariff for Shs. 450,000/= and the

proceeds were distributed or to be distributed to the beneficiaries under the will. The

sale to Alwi Shariff was sanctioned by High Court.

It appears that Amina Rashidi was occupying the building on Plot 19 purchased by

Alwi Shariff. Alwi in Miscellaneous Civil Application No. 66 of 1985 sought and

obtained an eviction order in the High Court against Amina Rashid, and E Amina

was duly evicted. The eviction order was dated 11.7.85.

Then it would seem that Amina Rashidi had filed an application supported by an

affidavit on or about 10.7.85 to set aside the sale of Plot 19 and for permission for her

to purchase on a re-sale. That application Miscellaneous Civil Application F No. 67

of 1985 is still pending.

Amina Rashidi has filed an appeal, in fact two appeals which apparently were

consolidated, into one. It is a vague appeal, and is not clear so far as the grounds of

appeal are concerned. It would seem that Amina Rashidi was seeking a G reversal of

the order of the High Court granted to the executor Mohinder Singh on 11.7.85. It

was an application restraining Amina Rashidi from intermeddling with the estate.

The other prayer would appear to be for a reversal of the H order of the High Court

confirming the sale of the building on Plot 19 to Alwi Shariff. The grounds advanced

were that the High Court had made the orders in the absence of Amina Rashid, after

the advocate representing her had withdrawn with leave of the court. The other

ground was that Amina Rashidi was not notified of the sale of Plot 19. I

1986 TLR p198

MUSTAFA JJA, MAKAME JJA, OMAR JJA

A Now the orders of the High Court Amina Rashidi seeks to overturn were made on

11.7.85.

Mr. D'Souza and Mr. Mrema for the respondents Mohinder Singh and Alwi Shariff

have filed preliminary objections. Mr. D'Souza submitted that the notices of appeal

were filed out of time, in fact filed after 42 days instead of 14 days in B terms of Rule

76 of the Court of Appeal Rules. To that Mr. Rutashobya for Amina stated that

Amina knew of the High Court order on 9th August, 1985, and had filed the notice of

appeal on 23rd August, 1985 in time. There is no affidavit filed by Amina that she

had come to know of the High Court order on 9th August, 1985; that statement was

merely C contained in the notice of appeal itself.

Mr. D'Souza's second objection was that the certificate under rule 83 (1) of the Court

of Appeal Rules concerning the time taken for preparation and delivery of the copy of

proceedings was ineffective as the provisions in Rule 83(1) and D Rule 83(2) were

not complied with. To that objection Mr. Rutashobya submitted that Amina Rashidi

was not legally represented and that she had been improperly abandoned by her

advocate, one Mr. Kinabo. After the abandonment Amina Rashidi was seeking the

aid of the Law Society and the Dar es Salaam University Legal Aid Committee, which

E rendered help to her.

Another objection was that leave to appeal in terms of Section 5(1) (c) of the

Appellate Jurisdiction Act from the High Court was not sought or obtained. Without

such leave the appeal is incompetent. Mr. Rutashobya trotted out the same excuse as

before, that Amina Rashidi was abandoned by her counsel. He could not explain why

no application was F made to obtain such a certificate out of time after legal aid was

given to Amina Rashidi on or about 23.8.85.

G Another objection raised was that the provisions of Rule 83(1) (c) and (d) were

breached in that no court fees were paid or security for costs furnished and no

exemption was applied for or granted in terms of Rule 122 of the Court of Appeal

Rules. Mr. Rutashobya could not explain this away except again on the ground that

Amina Rashidi was unrepresented. H

Mr. D'Souza submitted that the appeal before us is premature because there is an

application being Miscellaneous Civil Application No. 67 of 1985 filed by Amina

Rashidi and pending before the High Court. That application 67 of 1985 is for the

setting aside of the sale of Plot 19 to Alwi Shariff, the same point for which the appeal

is before this Court. I

1986 TLR p199

MUSTAFA JJA, MAKAME JJA, OMAR JJA

A On this Mr. Rutashobya made a startling submission. He submitted, on the

instruction of Amina Rashid, that Amina Rashidi did not authorize that application

67/85 to be filed, and that while Amina knew of the contents of the affidavit in

general terms, she had not signed the said affidavit nor sworn to it before a

commissioner for oaths. He alleged that Mr. B Kinabo had acted without authority

in filing that application and Mr. Ojare, the Commissioner for Oaths had given a false

statement that Amina had signed in his presence. Amina alleged that the signature on

the affidavit was not hers. In fact she alleged that both Mr. Kinabo and Mr. Ojare,

both practicing advocates and therefore officers of the court, had perjured themselves.

C

We are surprised that Mr. Rutashobya has made these serious and criminal allegations

before us, without having first obtained an affidavit from Amina Rashidi to that

effect. We would have thought that before Mr. Rutashobya would make D these

allegations, albeit on behalf of Amina Rashidi, he would have thoroughly investigated

the matter to ascertain how true they could be, and certainly not without a

supporting affidavit from Amina Rashidi.

Mr. Rutashobya has claimed that Civil Application No. 67 of 1985 was in fact not

before the court, as Amina Rashidi was not concerned with it. E

Mr. Rutashobya conceded that an essential document, the court order in

Miscellaneous Civil Application No. 66 of 1985 in an application by Alwi Shariff for

an order of possession of Plot 19 and for the eviction of Amina Rashidi therefrom was

absent from the record, but sought to excuse it on the ground that Amina had been

abandoned by her advocate and F was unrepresented - that was an infringement of

the provisions of Rule 89 (1)(g).

The Memorandum of Appeal was filed on 2nd April, 1986 and was objected to by Mr.

D'Souza as being vague and imprecise, which it is. Mr. Rutashobya has put forward

the general argument that Amina Rashidi was unrepresented. He G also submitted

that Mr. Kinabo who had at some stage represented Amina Rashidi, had deliberately

and improperly let her down. There was the incident concerning the Miscellaneous

Civil Application No. 67 of 1985 already referred to. H Mr. Rutashobya alleged that

on 11.7.85 before Chua, J. Mr. Kinabo misinformed the court on an important matter.

Mr. Kinabo was recorded as saying in court:

I have been trying to communicate with my client (Amina Rashidi) but have

failed. I have informed her this morning I

1986 TLR p200

MUSTAFA JJA, MAKAME JJA, OMAR JJA

A that I intend to withdraw from the case. She was present in person in this

Court today but after I told her that I intended to withdraw from the case she left the

court precincts. She did so despite the fact that I told her to appear in person. Under

the circumstances I pray for leave to withdraw from this matter.

B The court granted Mr. Kinabo leave to withdraw and proceeded to here the

application 65/85 and Miscellaneous Civil Application No. 66/85 ex parte, applications

by Mohinder Singh and Alwi Shariff.

C Mr. Rutashobya submitted that what Mr. Kinabo told the court was a lie, that

Amina Rashidi knew nothing about the matter and suggested that the proper step the

High Court should have taken was to have adjourned the hearing of the applications

and to have summoned Amina Rashidi. He implied that the judge should have

disbelieved Mr. Kinabo. We D find Mr. Rutashobya's submission somewhat

startling. Again he has made this serious allegation without a supporting affidavit,

and it does not appear to us that he has seriously looked into the veracity or otherwise

of this incident as narrated to him allegedly by Amina Rashidi.

E We are of the view that the High Court judge was perfectly entitled to accept the

word of Mr. Kinabo given from the Bar at its face value and to have acted in the way

the judge did.

The whole thrust of the appeal would appear to be that as the sale of the building on

plot No. 19 and the order to Amina F Rashidi not to intermeddle with the estate

were made in the absence of Amina Rashidi, such orders should be set aside to allow

Amina to be heard on those applications.

We are satisfied that Amina Rashidi deliberately absented herself from the hearing of

the applications after she was G informed by Mr. Kinabo that the latter was going to

withdraw. We see no reason for acceding to her request.

We think it pertinent to point out that on page 63 of the record filed, paragraph VIII

of the affidavit sworn to by Amina Rashid would give the lie to her allegation that she

knew nothing of the filing and institution of Miscellaneous Civil H Application No.

67 of 1985. That affidavit was sworn by Amina Rashidi on 24.6.85.

The objections raised by Mr. D'Souza to the competency of the appeal are well

founded and substantial. In terms of Rule 82 of the court of Appeal Rules we hold

that no appeal lies and we strike off the appeal as incompetent. I

1986 TLR p201

A As the appellant is on legal aid, we make no order as to costs.

Appeal dismissed.

1986 TLR p201

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