20190628 TZHC Dar es Salaam1

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR-ES-SALAAM MISC. CIVIL APPLICATION NO. 714 OF 2017 { Arising from Probate Administration Cause No. 29 Of 2009) IN THE MATTER OF INSPECTION OF THE FINAL ACCOUNT OF THE STATE OF THE LATE TWAHIL SELEMAN KUSUNDWA BY ASHA TWAHIL KUSUNDWA ......................•........... 1 st APPLICANT MUSTAFA TWAHIL KUSUNDWA ........................... 2No APPLICANT VERSUS IBRAHIM TWAHIL KUSUNDWA (AS AN ADMINISTRATOR OF THE ESTATE OF THE LATE TWAHIL SELEMAN KUSUNDWA ........·.......................... RESPONDENT RULING MASABO, J.: The applicants have moved this court through an application made under section 107 (5) of the Probate and Administration of Estates Act [Cap 352 RE 2002] and section 95 of the Civil Procedure Code [Cap 33 RE 2002]. Their main prayer is that this court be pleased to inspect and/or revoke the _· Final Account of the estate of the late Twahil Selemani Kusundwa filed before this court by the Administrator of the estate one Ibrahim Twahil Kusundwa. They are also _praying that this court be pleased to order the 1 Respondent to file a proper final account with full account of the income collected from the estate. In support of this application is a joint affidavit, deponed by both applicants which gives a detailed account of the background to the application. In snapshot, the applicants and the Respondent are all children and rightful heirs of the estate of Twahili Seleman Kusundwa who died in interstate on 18th May 2008. Following the death of the said Twahili Selemani Kusundwa, the Applicants petitioned for letters of administration. On 1ih June 2010 they were appointed as joint administrator of the estate of the late Twahil Selemani Kusundwa. On 25 th May 2011 their appointment was revoked due to failure to file an inventory within six months. Following this revocation, the Respondent was on 28 th March 2013 appointed the new administrator of the estate. After carrying on his administration roles in 11 th October 2013 he filed an inventory but the same was contested through Misc. Civil Application No. 14 of 2014 filed in court on lih January 2014. As the application was still pending, the Respondent filed a final account on 2ih May 2014. The affidavit further deposes that the main area of contestation in the final account is that the Respondent being the administrator has appropriated all the properties of the estate including landed properties and bank accounts into his own use to the exclusion of other beneficiaries of the estate. Further, it 1s deposed that the Respondent has contravened the law by failing to account for the rental fees collected from the landed properties 2 and for appropriating the same to his personal use in exclusion of the other beneficiaries. In reply the Respondent sternly disputed all the averments. With leave of this court, the application was argued in writing. Mr. Shabaan Nsato Marjani, counsel for the Applicant opened the floor. He assailed the inventory on four grounds. First, that the final account is general in that the expenditure part does not disclose the specific liabilities against the estate. Consequently, the beneficiaries cannot asses and understand the status and welfare of the estate. Second, that five years have already lapsed since the first inventory and the final account was filed. Therefore, considering that the estate involves landed property whose value tend to appreciate with time, it is obvious the value has changed hence it is imperative to have a new account filed. Third that, the bank accounts forming part of the estate have not been verified and that the amount in the said accounts is therefore not known. Also, that there have been disputes over the landed property of which the beneficiaries have no better particulars, including the Miscellaneous Land Application No 629 of 2017 between Ibrahim Twahi/ Kusundwa and The Administrator of the Estate of the Late Twahili Twahi/ Se/emani Kusundwa v CRDB Bank PLC, MEM Auctioneers and General Brooker Ktd and 2 others, Land Case No, 10 of 2016 and Land Case No. 18 of 2016. These matters have not been captured in the final account. Four, that the final account is misleading in that it indicates that the monies have been dully paid to the beneficiaries while in essence the monies are yet to be remitted to the beneficiaries. The Applicant further faults the finally inventory for its heavily reliance on 3 ' 1 Islamic law. He submitted that Islamic law is applied in probate causes heard in the primary courts pursuant to section 19 of the Magistrate Courts Act, Cap 11 RE read together with Rule 1(1) of the 5th Schedule to this Act. He cited the case of Hadija Said Matika v Awesa Said Matika PC Civil Appeal No. 2016 (HC at Mtwara) (unreported). He argued further that an administrator of estate is endowed with vast powers and discretion over the administration of the estate but such powers are not absolute as they can be intervened by the court pursuant to Section 107 (5) of the Probate and Administration of the Estates Act, Cap 352 as interpreted in Hadija Said Matika (supra). In reply the Respondent counsel, Mr. Eric Simo, sternly disputed all the submission. On the lack of specificity in the final account he argued that the account is full detailed on how the income was to be distributed pursuant to Islamic rites and the wishes of their late father contained in a document dated 30 th October 2003 and 5th November 2003. He submitted further that the account indicates the expected rental income, the expected expenditure, the balance and the distribution thereof. He argues that the applicants being beneficiaries were entitled to inspect the account pursuant to Section 107 (5) of the Probate Act but none of them did inspect the account. He reasoned that inspection of the inventory and the final account is meant to avail the beneficiaries room to seek further details if any and to verify what is stated in the inventory or final account. Thus, had they inspected the inventory or final account they would have been availed the lease contracts, land rent receipts, details of the status of the loan and any 4 other details they may have wished to be availed and since they forfeited this entitlement and have produced no proof that indeed there is a misappropriation, their averments lacks in merit. On the averment that the value of the landed properties has appreciated, he dismissed it for being baseless. He argued that, the same is not supported by evidence and that in fact, there are no changes on the rental fees because most of the tenants have been complaining that they are facing economic hardship. On the third point, he submitted that the Applicants are misleading the court as they are fully aware of the pendency of the cases including Land Case No. 10 of 2016 between the Respondent and African Banking Corporation Tanzania Limited to which the applicant unsuccessfully attempted to be joined. On the fourth point, he submitted that the Respondent is not misleading the court as the final account contains the full details on how the income was to be divided to the beneficiaries as per the advice of the religious leaders (Muslim) and in accordance with the wish of the deceased to which all the beneficiaries agreed to abide. He also dismissed the allegations that he has misappropriated the estate to his own advantage in the exclusion of all the beneficiaries as baseless. He reasoned that similar allegations were raised in Civil Application No. 14 of 2014 whereby this court found the allegation to be baseless they were not grounded on any proof. And that, if the applicants were disgruntled by the decision of the court, they ought to have appealed instead of reopening the matters. 5 The affidavit further deposes that the main area of contestation in the final account is that the Respondent being the administrator has appropriated all the properties of the estate including landed properties and bank accounts into his own use to the exclusion of other beneficiaries of the estate. Further, it is deposed that the Respondent has contravened the law by failing to account for the rental fees collected from the landed properties and for appropriating the same to his personal use in exclusion of the other beneficiaries. My examination of the application and the submission from the parties have revealed that the application rests on two sets of grounds. The first set is contained in the applicants' joint affidavit and is constituted of two grounds, that: the Respondent being the administrator has appropriated all the properties of the estate including landed properties and bank accounts into his own use to the exclusion of other beneficiaries of the estate; and that the Respondent has contravened the law by failing to account for the rental fees collected from the landed properties and for appropriating the same to his personal use in exclusion of the other beneficiaries. The second set is founding in the submission of the Applicant Counsel and have a total of 5 grounds. First, that the final account is general in that the expenditure part does not disclose the specific liabilities against the estate; second, that the final account is outdated and in need of updating to included changes (including the appreciation of the value of the estate and law suits pertaining to the properties of the estates) that have occurred between now and 2014 when the application was filed in court; that the 6 '' f bank accou~ts forming part of the estate have not been verified hence and the amount of cash is therefore not known; that the final account is misleading as it indicates that the monies have been dully paid to the beneficiaries while in essence the monies are yet to be remitted to the beneficiaries and that the that the inventory is heavily reliant on Islamic law. I will start with determination of the first set whereby I will consolidate the two grounds as they point to one issue of misappropriation of the estate. The applicant's case is that the Respondent being the administrator has misappropriated all the properties of the estate including landed properties and bank accounts into his own use to the exclusion of other beneficiaries of the estate. They also allege in their disposition that Respondent has contravened the law by failing to account for the rental fees collected from the landed properties and for appropriating the same to his personal use. The Applicants dispositions in the joint affidavit are to the effect that the estate has four well developed commercial buildings identified as: a. A house on Plot No. 15 Block B Nyasubi area at Kahama in Shinyanga, b. A house on Plot No. 30 Block 'B' at Kahama Urban area in Shinyanga c. A one Starley house on Plot No. 12 block 54 at Aggrey Street Kariakoo area in Dar es Salaam d. A house on Plot No. 13 Block 30 at Nyamwezi street Kariakoo area in Dar es Salaam 7 and all of which have been leased on commercial lease contracts to which the Respondent has appropriated to his personal use. The Respondent's case on the other hand is that the misappropriation allegations are unfounded as they are backed with no proof. He submits that he has never misapplied or misappropriated any proceeds from the administration of the deceased's estate and that he has been administering the estate according to law and in accordance with the law. I wish to states from the outset that the executor/administrator of estates is vested with wider powers. According to Section 99 of the Probate and Administration of Estates Act, the executor or administrator of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him. He/she has the power to dispo?e of movable property, as he thinks fit, and the powers of selling, mortgaging or leasing of the immovable properties (section 101 of the Probate and Administration of Estates Act). One has to be mindful of the fact that these powers do not permit the administrator to appropriate the properties of the estate to his personal benefit. The powers of the administrator/executor although wide, are that of the care taker. As held by this court in Ritha John Makala and Ngana Mziray v Chantal Tito Mziray and Enock Andrew Mziray, Probate and Administration Cause No. 62 of 2014 (unreported), "the duty of the administrator/adminstratix is not to inherit but mainly to ensure that the deceased estate is administered and distributed to the lawful heirs of the deceased ... '~ Accordingly, his/her major task is to collect and distribute the said properties to the rightful 8 .. heirs in accordance with the law (Naftal Joseph Kalalu v Angela Mashirima PC Civil Appeal No. 145 of 2001 (HC, DSM Unreported). The law provides no room for the administrator to appropriate the properties of the estate to his personal use. In the event of misappropriation, the beneficiaries may sue the administrator and if they manage to prove that the administrator has indeed misappropriated the estate, the courts will"not hesitate to revoke the probate or letters of administration and to take other appropriate measures. In the instant application, the allegations are not supported with any proof that the Respondent has indeed misappropriated the estate. All we have is mere allegation in paragraphs 9 of the Applicant's joint affidavit backed with no proof whatsoever. The Applicant's counsel opted not to make any submission on this issue. As rightly submitted by the Respondent, this is not the first time the Applicants have raised the issue of misappropriation. In fact, this is the third time this issue had been raised and in all these occasioned the Applicants did not adduce any testimony to back up their allegations. In Misc. Civil Application No. 14 of 2014 Justice Mwandarnbo addressed this issue and made the following remark: "there is no proof of the manner in which the respondent is benefiting from the estate of the deceased to the exclusion of other heirs.... " 9 .. ', I The issue of misappropriation was once again raised in Misc. Land Application No. 18 of 2016 (HC, DSM (unreported) whereby the presiding Judge, Mkasimongwa J, having found that the applicant1s application to be joined in the suit was baseless, advised them to sue the Respondent for misappropriation if they believe that the Respondent misappropriates or wastes that estate. The fact that none of them chose to pursue this advice further impliedly indicates that they too found the allegation to be baseless. The fact that the Applicants' Counsel abandoned this point in his written submission is a further testimony that the allegations are unfounded and unworthy of further pursuit. I have also noted that contrary to the applicant's disposition about the revenue realized from rental fees and the expenditure thereto, the final account filed in support of the application clearly states how much is obtained as revenue from the rented houses. The expenditure is also indicated. On the 2nd set, I find that the allegation against generality of the expenditure in the final account to be lacking in merit. On page 2 of the final account the Respondent clearly indicates the revenue from the four houses, and the breakdown of the expenditure whereby the total income was Tshs 482,810,000/= of which Tshs 358, 800,000/ was spent on payment of utilities, taxes, general repair and loan repayment and Tshs 124,010,000/= was divided upon the beneficiaries. There is also a loan repayment schedule appended to the final account which indicates that in 2014 a total of Tshs 228,328, 187/= was paid in resettling the mortgage. 10 ' I •• On the second ground, I agree with the contention that since 5 years have passed since this application was lodged and considering that the landed properties continue to vest in the Respondent, it would be just for the Respondent to file an up to date account which includes among other things an account of the two bank accounts, ie the NBC bank account and the CRDB Bank account whose details are neither indicated in the inventory nor the final account. On the issue that the inventory is heavily reliant on Islamic law, while I agree that Islamic law is applicable in the primary court, there is nothing in the law precluding the application of Islamic law in this court. In fact, section 92(1) (b) of the Probate and Administration of Estate Act enjoins this court to apply Islamic law in matters where the estate is not a small estate. The estate in the instant matter is not a small estate. It involves among other things 4 registered landed properties, two of which are commercial building situated in Dar es Salaam and two at Kahama District in Shinyanga and some of which are subject to a mortgage. Besides this probate is a contentious one. I have noted from the court records that it has been pending in court since 2009 and from this time there have been several subsequent applications. As alluded to earlier, the applicants in the instant application were appointed by this court as administrators in 2011. In 2013 their appointment was revoked. and the Respondent was appointed the new administrator. The Applicants did nor rest, they unsuccessfully attempt]ted to have his appointment revoked by this court vide a miscellaneous Application No. 14 of 2014. In a nutshell, the instant 11 probate involves complex issues which would have been above the jurisdiction of the primary court. It should also be recalled that this court is vested with inherent powers make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court (section 95 of the Civil Procedure Code, Cap 33 RE 2002). Therefore, even in the absence of section 92(1) (b) of the Probate and Administration of Estates Act, this court would still be justified to make the necessary orders to ensure that justice prevails in the administration of this estate. Regarding the actual payment of the monies to the beneficiaries the Respondent does not dispute that the Applicants have not received their share. He submitted that all the beneficiaries of the deceased's estate have continued to receive their share save for the Applicants who have refused to collect the same. Considering that the averment of nonpayment involves beneficiaries who are not part to this proceeding, the Applicant was duty bound to adduce some evidence in support of this allegation. Considering that the burden of proving existence of a certain facts rests on the persons who alleges the existence of such fact and that the Applicant has adduced no evidence in proof, I find the allegation in respect of the other beneficiaries baseless. As for the Applicant's case, they have adduced no satisfactory reason for their refusal to collect their share. It is not the duty of this court to compel them to collect their share. What is apparent in the depositions and submissions is discontents fueled by the revocation of the Applicant's appointment as administrators which was initiated by none other than the Respondent who is the current administrator. 12 Based on the grounds above, I am of a settled view that the Respondent had dutifully executed his role and has complied with the legal requirement of filing an inventory and final account. I will allow the application only to the extent that the Respondent file an up to date account within 14 days from today. The new account should among other things provide details of the NBC Bank account and neither the CRDB Bank account which were neither accounted for in the inventory nor the final account. -.-- DATED at DAR ES SALAAM this 28 th June 2019. J.L. MASABO JUDGE Ruling delivered this 28 th day of June 2019 in the presence of advocate ~ J.L. MASABO JUDGE 13 " r r