hadija maghinde others vs reward philipo maghinde others 2008 tzhc 342 6 march 2008

IN THE HIGH COURT OF TANZANIA AT MOSHI CIVIL CASE NO. 7 OF 2004 1. HADIJA MAGHINDE a.k.a. ZAHARAI ABDALLA MAGHINDE } 2. KAMBENI INVESTMENT LTD }— PLAINTIFFS 3. ZAINA MAGHINDE } 4. KIONDO ABDALLAH a.k.a. MAGHINDE } VERSUS 1. REWARD PHILIPO MAGHINDE (Legal Representative of ABDALAH MAGHINDE, Deceased } MUSA ELIFARIJI MSHANA (Legal Representative of ZAITUNI MFINANGA }— DEFENDANTS 2. ESTHER ELIFARIJI (Deceased ) } RULING: HON. JUNDU, J. The Plaintiffs’ case against the Defendants jointly and severally, is that the Defendants, using and acting behind an alleged fraudulent Will are purporting to divest the Plaintiffs o f their legitimate interests and or rights in various properties. In the Amended Plaint, the Plaintiffs are seeking interalia to have the alleged purported Will declared null and void on various grounds as listed in para. 19 of the Amended Plaint. On the other hand, the Defendants, in their Written Statement of Defence have raised the following preliminary objections on points o f law:- (1)That the validity o f the Will cannot be re-opened in this suit. (2) That there is misjoinder o f causes of action. This Ruling determines the above named preliminary objections. Mrs. Minde, learned counsel is advocating for the Defendants and Mr. Kamara, learned counsel is advocating for the Plaintiffs. On 2/8/2002, by consent, this court ordered the parties to argue the aforesaid preliminary objections by way of written submissions. The parties havefully complied thereof. In the first preliminary objection, the Defendants contend that the validity of the Will of the late Abdallah Athumani Maghinde cannot be re-opened in this suit. In her submission Mrs. Minde, learned counsel for the Defendants contends that upon the death o f Abdallah Athumani Maghinde, Probate No. 70/2003 over his estate was filed at Same Primary Court and that during the hearing the Plaintiffs were present as SM.4, SM.5 and SM.6 respectively but none o f them objected the existence or at all the contents o f the said Will. Instead all o f them, she contends, consented on the appointment o f the 1st Defendant as the Administrator of the Estate of the said Abdallah Athumani Maghinde. She further contends that since then the estate has been distributed as per the terms o f the Will and cannot therefore be re-opened in this suit. Mrs. Minde, learned counsel for the Defendants, in her submission, therefore, contends that the complaint by the Plaintiffs on the Will of the late Abdallah Athumani Maghinde as stated in the Amended Plaint is coming too late in the day. She further contends that the Plaintiffs in their amended Reply to Written Statement o f Defence, paragraph 1 have conceded to the preliminary objections hence she contends that they are deemed to have waived their right to object to the validity o f the said Will. She cited the case o f Celestina Paulo Vs. Mohamed Hussein [1983] TLR 291, where this court (Mushi, J.) held: (i) Where there is an ascertained will the same must be respected in letter and spirit notwithstanding the difference o f religion between the deceased and the appointed administrator. (ii) Where personal property is bequeathed the person bequeathing the property has an absolute right to chose an administrator of her own choice and the clan has no right to interfere with the same. Mrs. Minde, therefore, in her submission contends that the hands of the court as far as the said Will is concerned are also tied. On the other part, Mr. Kamara, learned counsel for the Plaintiffs, in his submission, has strongly opposed, the said preliminary objection including the submission o f the Defendants thereon. He has distinguished the case o f Celestina Paulo (supra) as being different from the facts o f the present case. Though Mrs. Minde tried to impose the holding o f the named case to the present case, my careful reading o f the facts and holding of the said case vividly shows that they are not the same. I am o f the considered view that whether the validity of the Will of the late Abdallah Athumani Maghinde can or cannot be re-opened in the present suit is a matter o f adduction o f evidence by the parties. Indeed, I go along with the submission of Mr. Kamara that wills can be invalidated, revoked or declared null and void on various grounds such as fraud and concealment, false statements made per-incuriam and supervening defect of operation o f grants. It is obvious that all such grounds are subject to the evidence to be adduced by the parties during trial. Mrs. Minde, in her submission, contended that some o f the Plaintiffs participated in Probate Cause No. 70/2003 at Same Primary Court but did not object to the appointment o f the 1st Defendant as the administrator of the estate of the late Abdallah Athumani Maghinde. Now, whether the said contention is true or not is subject to the evidence to be adduced by the parties during trial. Indeed, at this stage, I go along with the submission of Mr. Kamara that though the Plaintiffs did not object to the appointment of the 1st Defendant to be the administrator of the estate of the late Abdallah Athumani Maghinde, that did not mean they had endorsed and or conceded to the validity o f the said Will. They had to concede to the said appointment so that they could have a proper person to sue once he purported to execute the said Will. Mrs. Minde, in her submission contended that it is now too late for the Plaintiffs to question the validity o f the said Will because the estate had already been distributed as per the said Will. Again, in my considered view, the said contention is subject to adduction of evidence by the parties. In any event, I go along with the submission o f Mr. Kamara that the contention of Mrs. Minde that the estate had already been distributed could be contemptuous in view of the order of this court on 29/5/2006 to the 1st Defendant to preserve the said estate. Mrs. Minde, in her submission contended that the Plaintiffs vide para. 1 of their Reply to Written Statement of Defence had conceded to the two preliminary objections raised by the Defendants. However, my careful reading of the said paragraph o f the Reply o f the Plaintiffs to WSD shows me as submitted by Mr. Kamara that what is meant is that the Plaintiffs had taken up the opposite side or contrary view to the points of preliminary objections raised by the Defendants and not that they had conceded to the said preliminary objections as contended by Mrs. Minde in her submission. Now, in my considered view, the issue o f validity o f the Will of the late Abdallah Athumani Maghinde cannot be determined by preliminary objections without adduction of evidence o f the parties. As it may be gathered from the Amended Plaint, the Plaintiffs’ case against the Defendants, jointly and severally is that the Defendants, using and acting behind an alleged fraudulent Will are allegedly purporting to divest the Plaintiffs o f their legitimate interests and or rights in various properties. As can be further gathered in the Amended Plaint, the Plaintiffs are seeking interalia to have the alleged Will declared null and void on various grounds stated in paragraph 19 o f the Amended Plaint. This being the position, the entire matter can only be resolved by adduction o f the evidence by the parties and not by way o f preliminary objections. How and against whom can the Plaintiffs move against? I am in agreement with the submission of Mr. Kamara that there was no other way on the part of the Plaintiff except to take legal action in the nature o f the suit instituted by them in this court against the Defendants and among them it is only the 1st Defendant who has the requisite locus stand to defend the alleged Will. Therefore, his appointment as the administrator of the estate of the late Abdallah Athumani Maghinde was a sinequa-non for the suit to be instituted in this court hence it would have been absurd if the Plaintiffs in Probate Cause No. 70/2003 at Same Primary Court had opposed the appointment o f 1st Defendant. In the upshot, I hold that the first preliminary objection has no merit. In the second preliminary objection, the Defendants contend that there is misjoinder o f causes o f action. Mrs. Minde, learned counsel for the Defendants in her submission contends that it is clear from the Amended Plaint that the purported interests and or properties claimed by the Plaintiffs are o f different categories namely company properties and matrimonial assets. She contends that the two sets of interests constitute different causes of action, that is company properties and matrimonial assets hence in her view the Plaintiffs ought to have filed separate suits. She has cited the case of Ibrahim Kusaga Vs. Emmanuel Mwita [1986] TLR 26 where this court (Kapoor, Ag. J.) held that there may be cases where the property of a deceased person may be in dispute, in such cases, all those interested in determination o f the dispute or establishing ownership may institute proceedings against the administrator or the administrator may sue to establish claim of deceased property. But where right to the relief claimed does not arise from the satire act or transaction or if there be no common question o f law or fact the causes of action cannot all be joined in one suit; joinder of it will render the action multifarious. On the other hand, Mr. Kamara, learned counsel for the Plaintiffs in his submission has strongly opposed the said second preliminary objection as well as the submission of the Defendants thereon. Is there any misjonder of causes of action? Mrs. Minde, in her submission has tried to persuade this court that there are two interests in the suit namely company properties and matrimonial assets hence the Plaintiffs should have instituted two different suits as there are two different causes o f action. However, my careful reading o f Order 1 Rules 1, 3 and 5 of the Civil Procedure Code, Cap. 33 R.E. 2002 shows me that it permits joinder of parties and causes o f action in one suit where the causes o f action arise from the same act or transaction and a common question o f law or fact is involved as contended by Mr. Kamara, in his submission. Para. 12 and 19 of the Amended Plaint shows that the cause of action for each of the Plaintiffs as against the Defendants jointly and severally, arises out of the alleged Will and nothing else hence it is from the same act and or transaction. Similarly, the issue that is central and common in the suit is the validity or otherwise o f that alleged Will hence it is only through one and said suit that one can avoid a multiplicity o f suit and the risk of conflicting decisions on the validity or otherwise o f the alleged Will as contended by Mr. Kamara in his submission. Indeed, the case of Ibrahim Kusaga VS Emmanuel Mwita (supra) in my considered view supports the submission of the Plaintiffs. In terms o f Order 1 Rules 1, 3 and 5 o f the Civil Procedure Act, Cap. 33 R.E. 2 0 0 2 ,1 hold that there is no misjonder of causes of action in the present suit contrary to what Mrs. Minde has argued in her submission. The said provision of law provides as follows: “ 1. All persons may join in one suit as Plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series o f acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits any common question of law or fact would arise. 3. All persons may be joined as defendants against whom any right to relief in respect o f or arising out of the same act or transaction is alleged to exist, whether jointly, severally or in the alternative, where if separate suits were brought against such persons any common question o f law or fat would arise. 5. It shall not be necessary that every defendant shall be interested as to all the reliefs claimed in any suit against him”. In my considered view, it is clear from the aforesaid provisions o f law that the law permits joinder o f parties and causes of action in one suit where the causes of j action arise from the same act or transaction and a common question of law or fact is involved. Therefore, in the present suit, I have already shown that para. 12 and 19 of the Amended Plaint show that the cause o f action for each of the Plaintiffs as against the Defendants, jointly and generally, arises out o f the alleged Will of the late Abdallah Athumani Maghinde and nothing else hence same act and or transaction. Further, the issue that is central and common in the suit is the validity or otherwise o f the said Will. As submitted by Mr. Kamara in his submission, it is only through one and same suit that one can avoid a multiplicity o f suits and the risk of conflicting decisions of the court on the validity or otherwise of the suit. Having held that there is no misjonder of causes o f action, I further hold that the second preliminary objection raised by the Defendants has no merit. In the upshot, the preliminary objections raised by the Defendants are hereby dismissed with costs. The suit filed by the Plaintiffs against the Defendants in this court will proceed accordingly. It is so ordered. F.A.R. JUNDU JUDGE 6/3/2008 Right o f Appeal Explained. F.A.R. JUNDU JUDGE 6/3/2008 6.3.2008 Coram: F.A.R. Jundu, J. For the Plaintiffs: Miss Neema Mtayangulwa, Advocate For the Defendants: Mr. Maruma/Mrs. Minde, Advocate. C/C: Ramla Court: Ruling delivered in the presence of Miss Neema Mtayangulwa, learned counsel for the Plaintiffs and in the presence of Mr. Maruma, learned counsel holding brief for Mrs. Minde, learned counsel for the Defendants. F.A.R. JUNDU JUDGE 6/3/2008 AT MOSHI Miss Neema Mtayangulwa: My Lord, we pray for mention date with a view to fixing a Scheduling Order. Mr. Maruma: My Lord, I have no objection. Order: Mention on 3/4/2008 with a view to install a Scheduling Order. Mr. Maruma to notify Mrs. Minde. Parties to attend. F.A.R. JUNDU JUDGE \ • \ 6/3/2008