20160212 TZHC Dar es Salaam

IN THE HIGH COURT Of TANZANI.t'.. (Dar es salaam District Registry) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO 14 Of 2014 (Arising from Probate and Administration Cause No 29 of 2009) IN THE MATIER OF THE ESTATE OF THE LATE TWAHilI SElEMANI KUSUNDWA JU~D IN THE MATTER OF THE APPLICATION fOR REVOCATION OF THE LETTERS OF ADMINISTRATION BY: 5 ASHA TV',JAHILI KUSUNDWA ............. "··········'··············1 T PETITIONER MUSTAFA TWAHILI KUSUNDWA ........... rn .. oc• .. ··••acoo••····;zt~D PETITIONER 03/12/2015&12/02/2016 RULING MWANDAMBO, J:~ The application giving to this ruling seeks two main orders namely; revocation of letters of administration granted on 28 March, 2013 to the Respondent and for appointment of the Administrator General as a. Receiver of the estate of the late TwahiH Selemani kusundwa. The application is made under. sections 10,49(1)(a) (e) of the Probate and Administration of Estates Act, [Cap. 352 R.E 2002] (hereinafter to be referred to as the P..ct), Rules 24,25 and 29 of the Probate Rules as well as sections 7(1)(a), 7(2) of the Administrator Genera! (Powers and functions) Act. [Cap. 27 R.E 2002]. The grounds in support of the 1 application are contained in two affidavits jointly affirmed by the App._ unusual, the Respondent resists the application through his own cot.. affidavit. The facts material to the application are as follows. Sometime on 20 March 2013, my learned sister Abood, J appointed the Respondent as the Administrator of the estate of the late Twahili Selemani Kusundwa who died intestate on 18 May 2008. At the date of his death the deceased left eight children amongst others the Applicants and Respondent herein In terms of section 107 (1) of the Act, the Respondent as an Administrator of the of the deceased had several duties including collection of the property of the deceased and debts due to him, paying his debts and distribution of the estate to the persons entitled to the same. Similarly, the Administrator had a duty to exhibit an inventory of the estate within six months from hrs appointment and file final accounts of the estate within one year from the date of grant of the letters of administration pursuant to S.107(1) of the Act. It is averred in the joint affidavits that the Respondent has failed to discharge his statutory duties such that the grant has become useless and inoperative for several grounds. One, the appointment is defective because there was no petition for letters of administration fired by the Respondent. Two, the Respondent has not exhibited any inventory within the prescribed period neither has he sought and obtained extension for doing so. Three, the Respondent has not distributed the estate to the heirs entitled to the same. Four, the Respondent has subjected the estate to a risk of disposition at the instance of a lender of a loan by reason of his failure to service a ioan secured by one of the properties namely property on Plot No. 99, Nyamwezi Street, Dar es Salaam mortgaged to CRDB Bank. Five, the Respondent is using the estate for his own benefit to the exclusion of other lawful heirs of the deceased. As indicated earner, the 2 Respondent has denied having failed and /or breached any of his duties enumerated in the Applicants' affidavit. During hearing, the Mr. Michael Chahe learned Advocate appeared for the Applicants while the Respondent had the services of Joseph Rutabingwa, learned Advocate. In his submission, Mr. Chahe amplified on the grounds in the joint affidavit urging me to grant the application because the Applicants had made out a case in favour of the orders sought in the Chamber Summons. Briefly, the learned Advocate submitted that whereas the court granted letter of Administration and appointed the Respondent as an Administrator on 28 March 2013, he failed to exhibit an inventory of the estate within six months contrary to the provision of section 107 (1) of the Act which was sufficient to revoke the appointment of the Respondent pursuant to section 49 (1) (e) of the Act. The learned Advocate argued that the purported inventory filed on 7 October, 2013 was filed beyond the prescribed period without any sanction of the court and thus had no legal effect. On the other hand, the learned Advocate submitted that the joint affidavits had sufficiently established that the Respondent has been misappropriating the estate to his benefit contrary to the provisions of section 103 (1) the Act and thus he was not a fit person to be an administrator of the said estate. The learned Advocate referred me to a decision of this court in Joseph Mn~ko and Others V. David Mahende Kichonge, Probate And Administration Cause No, 48 of 1996 (Shangwa,J) -unreported for the proposition that failure to exhibit an inventory and misappropriation of the estate are sufficient grounds to revoke the grant of letters of administration. Submitting further, Mr. Chahe argued that under section 109 (3) of the Act, the Respondent was duty bound to repay all debts owed to the estate by CRDB Bank but this has not been done as a result of which a property on plot No. 99, Nyamwezi Street, Dar es Salaam mortgaged to the said bank was in the brink of 3 being sold to recover the outstanding loan. This he submitted was sufficient to annul the appointment of the Respondent as an Administrator because the sale of the property was bound to cause irreparab!e loss to the Applicants and other lawful heirs of the deceased. For his part, Mr. Rutabingwa learned counsel for the Respondent urged the court to dismiss the application on the following grounds namely:(1) contrary to the Applicants' contentions, the Respondent had fulfilled all the statutory requirements to be appointed as an Administrator, (2) the Respondent had filed an inventory within the prescribed period reckoned from the date the court issued letters of administration to him, (3) the Respondent had filed a final account within one year as required by the law upon obtaining an order extending the time to do so and (4) there was no proof of failure to discl1arge his duties as an Administrator be it by default to service the loan to CRDB or failure to account the manner in whrch the estate has been managed or excluding other heirs from participating in the affairs of the estate. Upon hearing submissions for and against the application, I think there is no any dispute as to the consequences arising from failure by an administrator to perform his statutory duties under sections 107(1) and 108(1) of the Act as highlighted earlier. This means that a party who wishes to have the court exercise its power under section 49 of the Act has a duty to prove that al! or some of the reasons prescribed therein exist and thus order for revocation of the letters of admini.stration ought to be issued. The application before this court wiH succeed subject to the Applicant surmounting that hurdle. With that caveat, let me now consider each of the grounds canvassed by the Applicants. First and foremost the ground premised on section 49(1) (a) of the Act need not detain me. It is glaringly dear from the record and submission by the 4 Respondent's learned Advocate that the grant of letters of administration to the Respondent was made with consent from the Respondent following filing of a petition in Probate And Administration Cause No. 29 of 2009 in Court on 10 December 2012. That petition was granted by my sister, Abood, J on 28 March 2013 upon being satisfied of the compliance of the law. Happily, Mr. Chahe had nothing in rejoinder on this ground and accordingly, I see no merit in this ground for this court revoking the letters of administration on the alleged defect in the proceedings to obtain the grant under section 49(1)(a) of the Act. The second ground relates to the failure to exhibit an inventory or account within the prescribed period in terms of section 107 (1) the Act. Mr. Chahe contends that the inventory ought to have been filed six months from 28 March 2013 because that was the date the grant was made and not from 11 April 2013 when the Registrar signed the letters of administration. On that basis the court was invited to find that the inventory was of no effect and thus on the authority of Joseph Mniko & Others V. Daud Mahende Kkhonde (supra) I shou[d revoke the letters of Administration. To start with, the court's power to revoke letters of administration under section 49 of the Act is discretional. The court is not obliged to exercise that power in each and every case there is an application for doing so having regard to the spirit of the law under section 53 (1) of the Interpretation of Laws Act [Cap. 1 R.E. 2002] . Of course that discretion must exercise judicially on the basis of the prevailing circumstances. There is no dispute in this application that the Respondent did obtain a copy of the letters of Administration until when the same was signed by the Registrar on 11 April 2013. It is equally not in dispute that the inventory was filed on 10 October 2013 which was a period of twelve (12) days beyond the date the same should have been fired countered from 28 March 2013. Ideally, the Respondent should have made an application for 5 extension of time to file the inventory upon expiry of six· months but I do not treat that failure to be fatal given the fact that the Respondent appears to have been laboring under a mistake as to the effective date from which six months started running. This is because unlike in Robert Mniko & Others V. Daudi Kichonde Mahende case (Supra) the delay here was, as it were, a technical delay of just twelve days compared to a delay of 9 1/2 years on the basis of which this court found it fit to revoke the letters of administration since the Administrator in that case had completely failed to discharge his statutory duties which is not the same position in the instant application. In any event, the filing • of the inventory was noted by my brother (Ula, J -as he then was) on 3 March 2014 following which there was a consent order for filing an account which was granted on 25 March 2014. It seems to me that despite filing an application for revocation of letters of administration on grounds, amongst others, failure to exhibit an inventory, the Applicants no longer wished to pursue that ground upon the court drawing to their Advocate of the existence of the inventory. Otherwise, there is no reason why the Applicants had to consent to an order for extension of filing an account when no inventory had been filed in the first place. In the upshot, I am constrained to hold as I do that the ground for revocation of letters of administration on account of failure to exhibit an inventory within six months has no merit and in any case it has been over taken by the events. In effect, having endorsed that an inventory had been filed and acknowledged as such by the Applicants through counsel of their choice the court is now functus officio to reopen the issue at this stage. Accordingly, in the exercise of the court's discretion under section 49 (1) (e) of the Act, I am constrained to reject that ground. Next I move to consider the rest of the grounds together because as I see it that they are interrelated falling under section 49 (1) (d), (2) of the Act. 6 The said grounds are enumerated under paras 11 (a) - (d) of the joint affidavit. Upon examination of the said grounds and the submission made before me, I am constrained to agree with Mr. Ratabingwa, learned Advocate for the Respondent that none of them have been proved to exist. On the contrary, what I gather from the record is general complaints. For instance, no particulars have been furnished to establish the extent of the loan as compared with the extent of default to service it by the Respondent and if so whether there has been any notice of default from the Bank for realization of the security by way of sale of the mortgaged property. Similarly, 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 nor is there evidence of the use of state organs to deter the Applicants from benefiting from the estate of the deceased. As the record will show, on 27 May 2014 the Respondent filed a fina! account with leave of the court by its order made on 29 April, 2014 with knowledge and consent of the Applicants' eistwhile Advocates. That being the case, it seems to me that the Applicants' new counsel who, on 14 May 2015 applied for time to peruse the file should have discovered the existence of the final account in the record addressing some of the queries raised in the affidavit. Had that been so, the appropriate course of action would have been to challenge the final accounts ~ rather than proceeding in the manner the Applicants have proceeded, All in all, I find no merit in any of the grounds and the same are hereby rejected. In the final analysis the application is found to be devoid of merit and is hereby dismissed in its entirety with no order as to costs . .J. WA - DGE 12/02/2016 7