IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
MUSOMA DISTRICT REGISTRY
AT MUSOMA
PC PROBATE APPEAL NO. 11 OF 2021
(Arising from the Ruling of the District Court of Serengeti at
Mugumu in Probate Appeal No. 2 of 2021)
BETWEEN
ELIZABETH MATINDE...................................................... APPELLANT
VERSUS
CHACHA MWITA MWITA........................................1st RESPONDENT
PAUL WANCHOKE MWITA..................................... 2nd RESPONDENT
JUDGMENT
A.A. MBAGWA, J.
This is an appeal against the ruling and order of the District Court of
Serengeti at Mugumu in Probate Appeal No. 2 of 2021 where the court
ruled out that the appeal was time barred.
Briefly, the appellant Elizabeth Matinde filed an objection before the
Primary Court of Mugumu Urban challenging the appointment of the
respondents, Chacha Mwita Mwita and Paul Wanchoke Mwita as the
administrators of the estates of the late Daniel Mwita Gesase based on
the invalid will. On 5th July, 2021 the Primary Court delivered the ruling in
which it declared the will in dispute void abnitio. However, the court did
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not revoke the appointment of the respondents. Instead, it ordered the
respondents to proceed administering the deceased estates and distribute
the properties in accordance with the deceased will which already it had
declared invalid.
The decision of Mugumu Primary displeased the appellant hence she
appealed to the District Court of Serengeti in Probate Appeal No. 2 of
2021 through a petition of appeal filed on 4th August, 2021. Before hearing
of the appeal, the respondents raised a preliminary objection on a point
of law that the appeal was time barred. The respondents lamented that
the petition of appeal was filed out of prescribed period of thirty (30) days.
The District Court (Hon. A.C. Mzalifu-RM) upheld the preliminary objection
and went on to strike out the appeal with costs.
Again, the appellant was dissatisfied with the decision of the District Court
in Probate Appeal No. 2 of 2021 hence she decided to lodge this appeal
with two grounds namely;
1. That, the 1st appellate court grossly erred in law to hold that the
Appeal No. 2 of 2021 is time barred.
2. That, the 1st appellate court decision of awarding costs to the
respondents in the Appeal No. 2 of 2021 overrules many decisions
of the Apex Courts of the land that bar costs in probate matters.
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During of the hearing of the appeal the appellant was represented by Ms.
Vicky Mbunde, on the one hand and, on the other hand, the respondents
had the services of Mr. Msafiri Henge assisted by Masanja Ngofilo, learned
advocates.
When taking the floor, Ms. Vicky prayed to abandon the second ground
of appeal. Submitting on the first ground, she argued that the District
Court Magistrate held that the appeal was time barred as per section 20
(3) of the Magistrate Courts Act, but the appeal was within the time as
provided by the law. Ms. Vicky further argued that, the ruling of the
Primary Court of Mugumu Urban was delivered on 5th July, 2021 and the
appeal was lodged on 4th August, 2021. Referring section 19 (1) and (2)
of the Law of Limitation Act which provides that the day on which the
impugned decision was delivered is excluded in computing the period, Ms.
Vicky was of the view that the appeal was filed within 30 days as the day
the ruling was delivered i.e., 5th July, 2021 was not supposed to be
included. The computation ought to start from 6th day of July, 2021, Ms
Vicky argued.
On the basis of her submissions, the appellant's counsel prayed the Court
to quash the ruling of the first appellate court and order the matter to be
reheard before another magistrate.
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Replying, the respondents' counsel submitted that the appeal was time
barred for one day. The counsel argued that, as per the record, the ruling
of Primary Court was delivered on 5th July, 2021 and the petition of appeal
is dated 5th August, 2021. Thus, upon computation it becomes 31 days,
the respondents' counsel submitted.
Relying on the case of Christopher Leonard and Six Others vs
Khebhanz Marketing Company Limited, Misc. Land Application No.
10 of 2019, HC Mbeya (Mongella J), the respondents' counsel was of the
view that since the time within which the appeal was supposed to be
lodged has lapsed, the option is to apply for extension of time.
The respondents' counsel invited this Court to find the appeal meritless
and consequently dismiss it.
In rejoinder, the appellant's counsel reiterated her submission in chief.
Having considered the submissions advanced by both parties, the duty of
this Court lies to consider whether or not the Probate Appeal No. 2 of 2021
filed before the District Court of Serengeti was time barred.
In determining the issue at hand, I found the relevant question for
consideration is when was the Probate Appeal No. 2 of 2021 filed before the
District Court of Serengeti. There is no dispute that the ruling of Mugumu
Primary Court in Probate Cause No. 25 of 2021 subject to Probate Appeal
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No. 2 of 2021 was delivered in 5th July, 2021. However, regarding the issue
as to when the Probate Appeal No. 2 of 2021 was filed before the District
Court, each party argued its own date. The appellant argued that the appeal
was filed on 4th August, 2021 whilst the respondent's counsel argued that
the appeal was filed on 5th August, 2021.
I took time to go through the record of District Court of Serengeti and I
found that in the ruling of the court in Probate Appeal No. 2 of 2021, the
court mentioned at page 2 in first paragraph that the appeal was filed on 4th
August, 2021. Though the petition of appeal dated 5th August, 2021 as the
date for filing in registry of Serengeti District Court, the payment receipt
indicates that the payment was effected on 4th August, 2021. That means
the appeal was file on 4th August, 2021.
It is a trite law that document is deemed to be filed in court when payment
is done and the proof thereof is payment of fees exhibited by the
Exchequer Receipt. In John Chuwa vs. Anthony Ciza [1992] TLR ,233,
the Court of Appeal, Ramadhani, CJ (as he then was) stated:
" ...the date of filing the application is the date of the
payment of the fees and not that of the receipt of the
relevant documents in the registry."
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To cut a story short, I am in full agreement with the appellant counsel that
the Probate Appeal No. 2 of 2021 was filed on 4th August, 2021. Thus, in
terms of provisions of section 19 (1) and (2) of the Law of Limitation Act, it
is certainly clear that the countdown started on 6th July, 2021. In this regard,
by 4th August, 2021 when the appeal was filed in the District Court of
Serengeti, it was the 30th day from when the impugned ruling was delivered
by the Primary Court of Mugumu. As such, the appeal was filed within the
time.
In view thereof, I find the appeal has merit and consequently I allow it. I
further order that the Probate Appeal No. 2 of 2021 should proceed before
another magistrate from where it had reached prior to raising the preliminary
objection. Owing to the nature of the matter, each party should bear its own
costs.
It is so ordered.
Right of appeal is explained.
A.A Mbagwa
// / JUDGE
06/10/2022
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Court: Judgment has been delivered in the presence Msafiri Henga and
Masanja Ngofilo for the respondents and Veronica Daniel (the
appellant's daughter) this 6th day of October, 2022.
A.A. Mbagwa
JUDGE
06/10/2022
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