habibu abdallah kangeadministrator of the estate of the late abdallah issa kange versus juma shabani kizeru 6 others 2023 tzhclandd 17297 29 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE N0.300 OF 2023 HABIBU ABDALLAH KANGE(Adniinstrator of the Estate of the late Abdallah Issa Kange) PLAINTIFF VERSUS JUMA SHABANI KIZERU 1"^ DEFENDANT RASHID MKILALU 2"° DEFENDANT MOHAMED JUMA OTHMAN 3^ DEFENDANT HASSAN MAKAME HASSAN 4^" DEFENDANT FATUMA BAKARI MPEULA 5™ DEFENDANT RAHMA RASHID ALI 6^" DEFENDANT ABBAS MASHAKA KABU31 7^" DEFENDANT RULING Date ofLast Order: 13.11.2023 Date ofRuling: 29.11.2023 T.N.MWENEGOHA -3 The defendant above named has raised two preliminary objections on point of law that; - 1. The plaintiff lacks locus standl to sue in absence of the Adminstrator General as a co-Adminstrator. 1 2. The suit is an abuse of court process for the failure to join the Adminstrator General. The objections were heard through written submissions, Advocate Steven Sangawe, appeared for the defendant, while the plaintiff was represented by Delphinus C. Penessls. Arguing for both and 2"*^ objections, Mr. Sangawe maintained that, the plaintiff being a co-Administrator cannot sue alone in this suit. He lacks the capacity to sue the defendants himself. That, there is no way the matter can be determined effectively without the presence of the other Administrator. The Decree if issued will not be executed effectively. This suit contravenes the mandatory provisions of section 7(2) of the Administrator General (Powers and Functions), Act, Cap 27 and also the case of Zacharia Omari (Administrator of Estate of Mkandwa Hamis versus Hamis Mkandwa, Land Case No. 110 of 2018 at page 4. In reply, the counsel for the plaintiff, insisted that, the objections have no merits, and they need evidence. That, the fact that the l^^efendant is worried if the Administrator General is aware of the case or not, does not make this Objection to be a point of law. That, his worries need to be presented during hearing. He was of the view that this Objection is therefore not on point of law rather on factual issues as stated in Karata Ernest & Others versus Attorney General, Civil Revision No. of 2020,{2010},Court of Appeal of Tanzania(unreported). He went on to argue that, after ail, there is no law that requires joint Administrator to file a suit on behalf of the estate jointly, as stated in Zacharia Omari (Administrator of Estate of Mkandwa Hamis (supra). That, above all, the plaintiff is suing under section 100 of the Probate and Administrator of Estates Act, Cap 352 R.E 2019. In a rejoinder the 1®^ defendant's counsel reiterated his submissions in chief and insisted that, the law is clear, when there is more than one Administrator, they will be governed by both, the Administrator General(Powers and Functions), Act,Cap 27 and the Probate and Administrator of Estates Act, Cap 352 R.E 2019, Having gone through the submissions of parties for and against the objections, the issue for determination is whether the objections have merits or not. In dealing with preliminary objections, we are guided by the land mark case of Mukisa Biscuits Manufacturing Company Limited versus Westend Distributors Ltd (1969) E.A 696. The rules are that, the Objection should be on point of law. Unfortunately, what I have before me, as objections, are not points of law, rather, factual issues that need arguments and presentation of evidence, see Karata Ernest & Others versus Attorney General(supra). Clearly, the law under section 7(2) of the Administrator General (Powers and Functions), Act, Cap 27, gives powers to the Administrator General to maintain suits or proceedings on behalf of the Estate to which is under the administration of his office. However, at this stage it will require evidence to prove whether the requirements have been met or otherwise. I am of the view that this issue can be raised during hearing so that both parties can adduce facts and evidence on the issue. For these reasons, I find both objections to be devoid of merits and the same are overruled accordingly. Costs to follow the event. Ordered accordingly. WENEGOHA JUDGE 29/11/2023