final ruling BEATA NGANDANGU1 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB-REGISTRY

AT MOSHI PROBATE AND ADMINISTRATION OF ESTATE CAUSE NO. 02 OF 2023 In the Matter of the Estate of the late

EMIL PETER SABBAS And In the Matter of the Application for a Grant of Letters of Administration By BEATA NGANDAKU EMILIUS……………………1ST ADMINISTRATOR PAUL SABAS SHAYO………………………………2ND ADMINISTRATOR And In the Matter of Objection of the Inventory and Accounts of Estate by TECLA GEMMA REMMY……………………………………...OBJECTOR

RULING 29th August & 23rd September 2024 A.P. KILIMI, J. In this matter administrators named hereinabove after being appointed by this court, they commenced with administration of the estate of the deceased and in the process, they filed inventory. After the inventory was filed in court the Objector filed a notice of intention to challenge the inventory filed. This is a ruling related to preliminary objection raised by the Plaintiffs on the point of law to the effect that: 1 The filed affidavit is bad in law for contravening Rule 105 of the Probate Rules and Order XLIII Rule 2 of the Civil Procedure Code [Cap 33 R.E 2019]. When this objection was placed before me for hearing, the administrators were represented by Mr. Philip Njau, learned advocate whereas the objector named above enjoyed the service of Mr. Desderius Hekwe, learned advocate. It was Mr. Njau’s submission in support of the objection that, the filed affidavit is bad in law as it contravenes Rule 105 of Probate rules and Order XLIII Rule 2 of the Civil Procedure Code Cap 33 R.E 2019. He said according to these provisions it is directed an application shall be by way of chamber summons supported by an affidavit and giving full particulars of the reliefs sought and direction sought. He argued that in the present matter the affidavit filed by defendant is naked and does not support anything or giving out what direction

the court should grant as the law provides. Therefore, the court is not moved properly to grant any order. Mr. Njau further contended that since chamber summons is missing there is no application in the eyes of the law. Explaining further he said, based on the affidavit it appears that the respondent is seeking for the court orders to remove some properties filed in inventory but there is no 2 chamber summons which should contain such prayers. In the circumstance, he submitted that the Affidavit has no value as it supports nothing. He thus prayed for this court to make a finding that since there is no chamber summons filed so the affidavit is naked and the same should be dismissed. Responding back, Mr. Hekwe argued that the application before this court is effective as it complied with the law and orders of this court. He argued that the preliminary objection is misconceived and overtaken by several events on the following reason. First, the matter was introduced in court through a letter filed on 24/07/2024 by Mr. Baraka learned counsel. He said the letter contained an objection to the inventory filed in this court particularly on the issue of moveable properties. He further submitted that this court asked parties to give their remarks on the said letter and they both did and thereafter ordered parties to file affidavit so as to get substantive information on which it could

give proper directives. It was Mr. Hekwe’s submission that the matter of filing inventory ought to abide with Rule 105 of Probate Rules, which allows any anybody to seek directive of the court. Thus, the learned counsel argued that this affidavit was not 3 brought by personal decision rather it was brought by virtue of this court directives as there was a need to get further substantive information. On the second reason, Mr. Hekwe submitted that the misconception of the raised Preliminary objection proceeded to extend to provision of Order XLIII Rule 2 of Civil Procedure Code. He contended that, this provision speaks res ipsa loquitor. He said that this Court after it was served with a letter by the defendant, it made an order based on the said proviso. It was Mr. Hekwe’s submission that the proviso provides that the court may consider the circumstances, therefore he said, this court was correct to order filing of affidavit, because it was consequential, and that under overriding objectives, this court should proceed and give proper directives. On the third reason he submitted that, the matter is within competence of the court so the argument that this affidavit is naked is frivolous. In the end the learned counsel prayed for the objection to be overruled with costs. In his brief rejoinder Mr. Njau submitted that the suit in hand is a probate and is regulated by Probate Act and

Probate Rules. He argued that since the Advocate for defendant prayed to file Affidavit, so he was required to file proper application in court so that court can give its 4 decision via what was adduced in that affidavit. So he was of the view that, if we agree to be moved by Rule 105 of Probate Rules the same require an application to be by way of chamber summons supported by an affidavit. He further submitted that the chamber summons seeks directive of the court, and thus affidavit support nothing, so it was Mr. Njau’s submission that, the affidavit is bad in law for contravening the provision cited above. I have considered the rival submissions above, one issue appears relevant for disposition of this dispute and this is nothing but whether the objection lodged has merit or not. In determining this issue my first guidance was at Rule 105 of the Probate Rules and Order XLIII Rule 2 of the Civil Procedure Code. The cited rule pertains to Directions to Executors or Administrators and the Order provides for the manner of instituting applications. This is what the provisions states: Rule 105 of the Probate Rules provides; “An application to the court for directions to an executor or administrator in regard to the estate or in regard to the administration thereof shall be by chamber summons supported by an affidavit giving full particulars of the directions sought and reasons for

the same.” 5 And Order XLIII Rule 2 of the Civil Procedure Code provides: “Every application to the Court made under this Code shall, unless otherwise provided, be made by a chamber summons supported by affidavit: Provided that, the Court may where it considers fit to do so, entertain an application made orally or, where all the parties to a suit consent to the order applied for being made, by a memorandum in writing signed by all the parties or their advocates, or in such other mode as may be appropriate having regard to all the circumstances under which the application is made.” Examining the two provisions above the law is very clear as it provides for modes of application before this court. Starting with Rule 105 it requires for all the applications to the court for directions to the executor or administrator in regard to administration thereof to be made through filing of chamber summons supported by an affidavit. On the second provision that is Order XLIII Rule 2 the law still directs that all applications to be made by filing chamber summons supported by an affidavit. On this provision however the law further directs on the proviso 6 that the court may where it considers fit to do so, entertain an application made orally or in such other mode as may be appropriate. In the present matter as explained earlier, after the administrators filled inventory in court the objector

wrote a letter to this court titled “Notice to Challenge Inventories” in which she informed this court and the administrators that she was dissatisfied with the inventories filed and that she was intending to challenge the same when the case is set for final determination on the date to be scheduled. Having noted so, this court summoned parties to address the issue. And it is true on 24th July 2024 when the matter was called for mention, Mr. Philip Njau who represented the administrators informed this court that they had received information that the respondent/ objector was intending to challenge the inventory but did not file grounds under which they intended to challenge the same. Mr. Baraka Massawe who represented the objector/ defendant told the court that they intended to bring a formal application to object some of the inventory filed. Having noted so, this court ordered parties to file affidavits and hearing was scheduled to be on 29th August 2024. Both parties filed their affidavits and in the process the administrators through Mr. Njau filed a notice of 7 preliminary objection on point of law that the affidavit filed by the objector is bad in law as it contravenes the above cited provisions as submitted above. I have considered the provisions above and the reasoning of Mr. Njau, I partly agree with him, also I may say it is true, that the law above specifically in

Civil Procedure Code has given this court discretion to entertain an application made to it orally or in any other mode as it shall consider appropriate. In the present matter since the parties have already explained orally to the court their intention in challenging the inventory filed, this court found it proper to direct them to file affidavit in that regard so as to enable this court and the other party to be aware of the grounds for challenging the inventory filed so the court can give its proper directives on the concerned dispute. However, having revisited above laws, probate law is specific law which provides for such requirements, and I think the intention of the legislature was for any applicant to state his/her prayer and claims with reason through affidavit, then by doing so the respondent will have a chance to know the case against him and also reply through counter 8 affidavit, thus I am settled that to do otherwise will prejudice the respondent, since he will be taken by surprise. Since there is probate rules as referred above which specifically provides for procedure, it has come to my mind an important legal principle on legislative applications in this land, which provides that where there is a specific law guiding on some matters, then such matters must be exclusively governed by such specific law and not by the general law, unless the specific law is silent and there is need for resorting to the general law. (See Erasto Ngailo vs Blastus Allen Mgimwa [2022] TZHC 14824 (TANZLII) Victor Vedasto Rugemalila vs Regina Leonard Urio, Civil Revision No. 17 of 2015, HC, at Dsm. (unreported) and Zabron vs Amon (1971) HCD n.

95. Having considered the above endeavors, this specific law cited is very clear that an application has to be by way of chamber summons supported by an affidavit unless the court directs otherwise. I am aware affidavits have alreadybeen filed, but due to the reasons stated above which also in my view may minimize the scope of contest as alluded above. In my considered view that the application for objection before this court is improper for missing a chamber summons. 9 Henceforth in the spirit of the overriding objective principle, I find that the situation can be rescued by this court taking necessary action since the previous order was on procedure of filling necessary documents to be used to reach justice of this matter, thus did not give justice/right to any party, therefore nobody will be prejudiced by the said order if it is varied. Consequently, I vacate my previous order of filing affidavit, thus I hereby expunge the affidavit initially filed in this court forthwith. In the circumstance, I order the objector to file a formal application as the law directs above within fourteen days. Order accordingly. DATED at MOSHI this 23rd day of September, 2024.

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JUDGE Signed by: A. P. KILIMI 10 Court: Ruling delivered today on 23th day of September, 2024 in the presence of Mr. Philip Njau learned counsel for the Plaintiff and Mr. Deusderius Hekwe for the defendant. Also in the presence of Second Plaintiff and others absent. Sgd; A. P. KILIMI

JUDGE 23/09/2024 11