fadhili adam selemani vs said adam selemani and another 2021 tzhc 7565 11 november 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHi DISTRICT REGISTRY

AT AAOSHI MISCELLANEOUS CIVIL APPLICATION NO. 11 OF 2021 (Originating from Probate and Administration Cause No. 9 of 2018) FADHILI ADAM SULEMANI ............-.......... — — - APPLICANT

VERSUS SAID ADAM SELEMANI — -.— — - — 1st RESPONDENT FATUMA ADAM SELEMANI ---- — - - - — — 2 nd RESPONDENT

RULING MUTUNGI J . The applicant has brought this application under Rule 29 (1) (2) of the Probate Rules and section 49 (1) (e) of the Probate and Administration of Estate Act, Cap 352 R.E. 2002 (now 2019) seeking for a revocation order of the letters of administration granted to the respondents on 29th March, 2019 in respect of the late Adam Selemani. He also prays this Court makes orders against the respondents and their agents, workmen or any authorized person working on their behalf from selling the deceased estates. Page 1 of 17 The brief facts leading to this application are to the effect that, the late Adamu Selemani passed away on 7th July 1988. He was survived by two wives, Sofia Adamu Selemani, (the 1st wife) and Fatuma Adam Selemani, (the 2nd wife] and each wife was blessed with four children. In 1989, the 1st respondent being the eldest son of the deceased from the 1st wife successfully applied for letters of administration vide Probate and Administration Cause No. 61 of 1989 before Moshi urban Primary Court. The 1st respondent herein again filed Probate and Administration Cause No. 7 of 1989 with the High Court at Arusha for the reason that there was in place no High Court Registry in Moshi at the time. While at Arusha a number of subsequent applications were filed. These included Miscellaneous Application No. 136 of 1989 whereby the second respondent [by then

objector) was praying for an interim order for maintenance together with that of her children and a restraint order from disposing of the deceased estate. The same was followed by Miscellaneous Application No. 134/1990 where the second respondent (the objector) was praying Ms. Ndamallya and Company certified Page 2 of 17 Accountants and Authorized Auditors be appointed receiver. There was further intervention by the Government machinery to have the estate distributed fairly and amicably. While all these were in progress in 2018 the case file was again transferred back to this registry following the Court’s observation that the parties reside in Moshi Municipality hence Probate and Administration Cause No. 9 of 2018 before Fikirini, J. On 29th March, 2019, the court appointed the respondents to jointly administer the deceased estate since no proper and lawful appointment of the estate had been made. They were ordered to file an inventory of the deceased estate within six months from their appointment (i.e. 28.9.2019). According to this Court records, if was informed on 30/9/2019 that the 1st respondent did not cooperate with the 2nd respondent in distributing the deceased’s estate to the rightful beneficiaries. There were also concerns on 10/10/2019 that the 1st respondent had been misappropriating the deceased estates, had not given all beneficiaries their right and that, the

actual values of the properties as seen in the inventory so filed were unrealistic. In view thereof the 1st Page 3 of 17 respondent was ordered to file an inventory written in Swahili for ease of reference. The same was dully filed and the 2nd respondent prayed for time to go through the same. This Court on 9/1/2020 ordered the administrators to consult government valuers for actual values of the deceased landed properties. When the matter came for mention on 6/5/2020 the administrators were given time to file an inventory and final Accounts reflecting the real value of the deceased's properties. Thereafter the parties went into a spree of consultations. It was agreed an inventory be filed to the extent agreed on 27/8/2020 that the same reflects the ones in possession of the already distributed estate. The administrators in the company of their respective advocates appeared before the court on several sessions promising to make vigorous efforts to have the inventory and final accounts filed in court. The court on 22/2/2021 made an order the inventory be filed by 9/3/2021. On 8th March 2021 an inventory was filed in this court dully signed by the 1st respondent. On 301h March, 2021, the applicant who is the deceased’s son from the 2nd wife (2nd respondent) filed this application Page 4 of 17 praying for the already stated revocation orders. In his affidavit he deponed, the 1st

respondent has not been acting prudently and faithfully in administration of the deceased’s estate by filing a number of applications which intend to stall the distribution of the estate to the rightful heirs. The respondents disputed the application and filed their respective counter affidavits. The 2nd respondent in essence was in all fours with the applicant’s affidavit. The hearing of the application proceeded by way of written submissions, the applicant was represented by Mr. Henry Simon Katunzi, learned advocate whereas both respondents appeared in person and unrepresented. Supporting the application, Mr. Katunzi submitted, the 1st respondent started to administer the deceased estate (of the late Adam Selemani) since 1989 while he was not properly appointed by the Court as administrator of the deceased estate. It was until 29th March, 2019 in Probate and Administration Cause No. 09 of 2018 when Fikirini, J. (as she then was) appointed the respondents to co-administer the deceased estate. They were ordered to file an inventory and provide information on the status of the deceased estate Page 5 of 17 within six (6) months from the day of their appointment i.e. by 28th September, 2019. However, it was not until 8th March, 2021 when the l si respondent purported to file the inventory without first seeking for extension of time. More so, the said inventory had no valuation,

while other properties were left out and unaccounted. In the advocate’s opinion the 1st respondent’s acts were contrary to the legal procedures. Cementing this argument Mr. Katunzi cited the cases of Tabitha Maro Vs. Roddy Fibre Solution Ltd, Civil Case No. 214 of 2018, High Court of Tanzania at Par es Salaam funreportedy and that of Mobrama Gold Corporation Ltd Vs. The Minister for Energy and Minerals & Other H9?8y TLR 425 which emphasized on the observance of court rules and orders. In that regard, since both respondents did not comply with Court Orders, more so now that the 1st respondent has been misappropriating the deceased properties, both of their appointments deserve to be revoked or rather, they have through their acts disqualified themselves as administrators of the deceased estate. To support this argument, Mr. Katunzi cited the cases of Mwaiina Abdul Maquno Vs. Mwanahawa Page 6 of 17 Maquno, Civil Appeal No, 74 of 2004 and that of Sekunda Mbwambo Vs. Rose Ramadhani [20041 TLR 439 stating down, administrators may be revoked when they administer the deceased estate unfaithfully or in a discriminatory manner. He finally prayed that the respondents be revoked having failed to give an account of the deceased estate. In reply the 1st respondent submitted, he had always complied with orders of the court but the same is not the case with the 2nd respondent. He argued, he

was appointed by the Moshi Urban Primary Court in 1989 to be the administrator of the deceased assets. He dully executed his duty by distributing the said assets fairly and equally to all the rightful beneficiaries. However, the 2nd respondent has always been nagging him on other assets which were perishables such as old motor vehicles which have since been worn off. The only remaining assets are landed assets which this Court ordered them to be accounted for by filing an inventory. The 1st respondent added, when he prepared an inventory, the 2nd respondent as co-administrator rejected it and refused to sign the same todate. He was baffled when the Page 7 of 17 applicant tiled this application which is nothing but an abuse of the court process. He strongly submitted he has been faithful and accordingly discharged his duty including distributing the houses to all heirs one of which the applicant resides in as part of his father’s inheritance and that which the second respondent lives in. Be as it may, the 1st respondent argued, apart from the fact that he was appointed by the Moshi Urban Primary Court, this Court deemed it fit to add him the 2nd administrator so as to wind up the probate matter. In his settled view the 2nd respondent’s appointment has led to the stagnation of the whole process by filing endless applications with ill motives to halt the administration to its

completion. Henceforth, the 2nd respondent is the one to be revoked as she has been doing nothing but blocking him from finalising the administration process timely and as required by law. Since the record shows he has filed inventories twice and even paid for them but the 2nd respondent refused to sign them, thus, this application is by all standards an abuse of the court process. The same is engineered by the second respondent (the applicant’s biological mother). Needless to say his Page 8 of 17 appointment was blessed by the clan elders without any reservations. In 2nd respondent’s reply she averred, since the 1st respondent’s appointment in 1989 by the Moshi Urban Primary Court he simply did nothing until this Court decided to add her to assist him on 29th September, 2019. However, since then, the 1st respondent never offered her any co- operation and on 16th October, 2019, he filed an inventory without consulting her, a gesture of unfaithfulness. More so, since his appointment in 1989, the 1st respondent had been misappropriating the deceased estate for his personal gains. She finally joined hands with the applicant that, this Court revokes their administration and makes other orders as it deems fit since they have failed to discharge their duties. In his rejoinder, Mr. Katunzi reiterated his earlier submission and added, the motor vehicles are not perishable assets

and have to be accounted for. He insisted since the respondents have failed to discharge their duties to date, their appointment must be revoked and prayed that the applicant be appointed to administer the deceased estate. Page 9 of 17 After I have gone through the records and parties’ submission, the only point of determination is whether the respondents’ administration appointment of the deceased estate deserves to be revoked. After this Court Hon. Fikirini, J. (as she then was) appointed the respondents to be the administrators of the deceased estate, she made the following remarks; “The appointed administrators have to make sure that within 6 (six) months from the date of ruling which should be the 28th September, 2019, to file the inventory listing all the deceased properties he left as part of his estate at the time of his death. To list all the incomes generated from the business linked to the deceased estates, such as rentals of the two house, and others of the like; money in all bank accounts at the time of the deceased’s death and subsequently. To list of the debts he was owed and he owed regardless of whether they have been paid or not And provide information an the current Page 10 of 17 status of the estate to-date. If is so ordered (Emphasis added) From the above extract, it is clear, the respondents were given six months to file an inventory accounting for all

the deceased estate including all that they managed to collect during their time as administrators. I took the liberty of perusing the records and found that the 2nc' respondent appeared in court on Monday, 30th September, 2019 claiming that she had failed to prepare the inventory as ordered by the court due to lack of co-operation from the 1ST respondent. The record further reveals, the 1st respondent was summoned and on the following scheduled date i.e. 10th October, 2019 he appeared and in answering the allegations against him, he also claimed to have lacked co-operation from the 2nd respondent but he had already discharged his duty by distributing the deceased assets to the rightful heirs. The Court then ordered him to file an inventory in Kiswahili and on 17th October, 2019, the Court marked the same to have been filed and the 2nd respondent prayed to be given time to go through the same. Since then, the matter had been adjourned occasionally on the ground that some of the Page 11 of 17 assets had not been accounted for or left out while other properties had not been valued. The court then ordered all the landed properties to be valued by the land valuers and finally on 8th March, 2021 the 2nd inventory was filed. In the circumstances therefore, it is not true that the respondents failed to file the inventory timely, since the day they were to file the same i.e. 28th

September, 2019 was Saturday hence the 2nd respondent appeared in court on Monday, 30th September, 2019 and reported on the lack of co-operation. This Court set out new orders that the inventory should be filed on the following scheduled date and the 1st respondent dully complied. This not only shows promptness and adherence to court orders by the 1st respondent but also the Court blessings as it gave out new orders due the hiccups that the respondents faced that made them fail to file a joint inventory on the initially scheduled date. More so, since then there has been ongoing arrangements and consultations between the respondents which all aim at making sure that the deceased estates is distributed fairly. This has made them in and out of this Court on different occasions to date. It also caught my attention that, of all the Page 12 of 17 two inventories filed, the 2nd respondent has not signed any of them despite the court orders, literary begging her to do so in order to finalize this matter. In that regard, it would not be wise to pin down the 1st respondent for the failure to file a joint inventory once he has done so as evidenced in the court record. The applicant has also argued that the 1st respondent has misappropriated and squandered the deceased’s properties. Upon reflection and reacting from Hon. Fikirini's ruling the first respondent was appointed after the

court found the deceased estate had been administered and distributed from way back in 1989 by him. Further the court found at some time therein between there was interference by the Government machinery, hence out of the control of the administrator. The court would have expected the applicant to lead evidence to that effect. The same notwithstanding. If at all this is true then the law is clear they can sue him in his capacity as the administrator rather than objecting his appointment. This position was fortified in the case of Ahmed Mohamed Al Lamaar Vs. Fafuma Bakari and Asha Bakari Civil Appeal No. 71 of 2002 CAT Tanaa Page 13of 17 [UnreportecO and that of Safiniel Cleopa Vs. John Kadeghe H 984 TIR 1981 where the court held that: - “ij The sale of property at below the market value and failure to account for the whereabouts of H other properties in the custody of the administrator amounts to misapplication of the estate; (Hj An administrator who misapplies the estate of the deceased or subjects it to a loss or damage is liable to make good such loss or damage” The foregoing notwithstanding, the applicant prays to be appointed the administrator of the deceased estate through his rejoinder which I find is an afterthought. This prayer was neither pleaded in his affidavit nor thoroughly argued in his submission in chief. In the circumstances, assuming that the court grants his

prayer by revoking the respondents’ letters of administration without proof of who or whether the applicant can administer the deceased estate, will only be more chaotic to the beneficiaries. To put salt to the wound, the court considers the time taken in court i.e. 33 years, amount of properties that will be at stake and the ongoing family feuds, and proceed to find the applicant’s prayer baseless. Page 14 of 17 Be as it may, the court is mindful that the deceased had several children from two wives, but for some unknown reasons these do not feature in the picture nor have they made claims reflecting any unfaithfulness or misappropriation of the estate. It would seem the applicant’s application is made with some hidden motives calculated to disrupt the estate. Apart from the aforegoing findings, I have taken time to go through the applicable law. It is clear that the scheme of procedure under the Probate and Administration of Estates Act, Cap 352 R.E. 2019 and the Probate Rules made thereunder, in respect of proceedings relating to the administration of estates of deceased persons, is obvious the legislature intended to allow the Court be guided by substantive justice rather than be constrained by technicalities of procedure. In due thereof the fundamental requirements of Article 117A of the Constitution of the United Republic of Tanzania, 1977 as amended from time to

time, Rule 115A of the Probate Rules vests the Court with powers to make orders that are obviously within the spirit of Article 117A of the Constitution. In the circumstances, failure of the Page 15 of 17 respondents to seek tor extension of time to file the inventory but appeared in court on the day they were needed to do so and explained the difficulties they faced moving the Court to give alternative orders of filing the inventory is explainable in the given circumstances. Much so the 1st respondent complied with the court orders hence this is not fatal. In lieu of the analysis and reasons stated above, this court finds no need to revoke the respondents' appointments as they have not abstained from their duties as suggested by the authorities cited by the applicant’s advocate. I hereby proceed to order they continue with finalization of the probate matter, by filing the inventory so that the estate turmoils can be settled once and for all. This was the essence of appointing the first respondent who had the clan blessings and adding on the second respondent to facilitate the process. This application therefore, lacks merit and is hereby dismissed. Due to its nature, I make no orders as to costs. B. R. MUTUNGI

JUDGE 11/ 11/2021 Page 16 of 17 Ruling read this day of 11/ T 1/2021 in presence of the applicant and both respondents. Y— ------ * B. R. MUTUNG1

JUDGE 11/ 11/2021 RIGHT OF APPEAL EXPLAINED. Ip------------- -------- ^ . B. R. MUTUNGI

JUDGE 11/11/2021 Page 17 of 17