hobokela fred mwangota another vs augustino mwangota 2023 tzhc 20553 31 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR-ES-SALAAM DISTRICT REGISTRY) AT DAR-ES-SALAAM MISCELLANEOUS CIVIL CAUSE NO. 271 OF 2021 HOBOKELA FRED MWANGOTA......................................................1st APPLICANT DANSTAN FRED MWANGOTA (As legal representative of Suma Fred Mwangota)...................................... ............. ................... 2nd APPLICANT VERSUS AUGUSTINO MWANGOTA................................................................. RESPONDENT (Originating from Probate and Administration Cause No. 76 of 1990) RULING Date: 02 & 31/08/2023 NKWABI, J.: This application originates from a Probate and administration cause. The respondent was appointed to be administrator of estate of the late Fred Mwangota. It appears that most of the estate has been administered save for a house which seems to be the basis of this Application. In a ruling of this Court, the respondent was ordered to hand over the title deed to the children of the deceased. The respondent seems to have been hesitant to comply with the order in the ruling, hence this application. The applicants in this Court, however, are in expedition for the upcoming orders: i 1. That the Court be pleased to convict and sentence the respondent to one (1) year imprisonment for contempt of the court order issued by this Court (Ihema, J. as he then was) in Probate and Administration Cause No. 76 of 1990 dated 6.6.2001 for his (respondent) failure to hand over to the children of the late Fred Mwangota (the applicant inclusive) Title deed No. 23954 respecting the landed property on plot No. 2 Kawe area, Dar-es-Salaam city (the title deed). 2. The respondent be compelled to forthwith and unconditionally hand over the above-mentioned title deed under clause (a) to the applicants for and on behalf of the children of the late Fred Mwangota (the deceased). 3. Costs of this application be provided for by the respondent. 4. Any other relief(s) which the Court may deem fit and just to grant. The application is made under the provisions of section 114 A(b) of the Penal Code, Cap. 16 R.E. 2019; section 95 of the Civil Procedure Code, Cap. 33 R.E. 2019 and any other enabling provisions of the law. The application was disposed of by way of oral submissions. Mr. Francis Mgare learned counsel, appeared for the applicant. The respondent had the services of Mr. Elinihaki Kabura, also learned counsel. 2 Mr. Mgare adopted the contents of the affidavit as part of his submissions and adopted the contents of the chamber summons for the prayers. In beefing up his side's submission Mr. Mgare, was of the view that the order of the Court on hand over was very clear as to who would be handed over the properties. It is the children of the deceased. The counsel for the applicant informed this Court that the respondent appealed but withdrew the appeal. In the premisses, prayed Mr. Mgare, the respondent should tell the Court why he should not be sent to prison. It is added that the order which the respondent is relying on is a subsequent order issued by Kulita, J. Nevertheless, the respondent was not part to that case and it is challenged in the Court of Appeal. Even the hand over order does not correspond to the order of the Court, as it was handed over one year prior to the decision of Kulita, J. It is stressed that the respondent is in contempt of Court order. Mr. Mgare prayed for the application to be granted with costs. In reply submission, the counsel for the respondent adopted the contents of the counter-affidavit and supplementary counter-affidavit as part of his 3 submissions. It is contended that the submissions by the counsel for the applicants has no merit for two grounds: 1. They have been overtaken by events. 2. The applicants have failed to prove beyond reasonable doubt on the allegations raised. It is reinforced that the respondent had filed inventories in 1999 before Kalegeya J. and another before Ihema, J. Moreover, it is further contended that the plot was co-owned. Another contention of the counsel for the respondent is that in criminal cases, proof is beyond reasonable doubt for contempt allegation, there should be: 1. An order, 2. The order be communicated, 3. The order be unambiguous, 4. It should be disobeyed. Mr. Kubra urged that the applicants have failed to prove the factors narrated above. The order is too ambiguous. The application is an abuse of Court process. 4 It is further expounded that, Kulita, J. appointed another administrator and the only property to be distributed is the title in dispute. It is also pointed out that there is only a typing error in the letter which should be overlooked. It is likewise explained that the title has been handed over to the administrator and respondent is not in possession of it. So, the application has been overtaken by events. Finally, it is prayed that the application be dismissed with costs for lack of merit. In rejoinder submission. Mr. Mgare pressed that Ihema's order is so clear as to who should be handed over. If the order was not understood, maintained Mr. Mgare, the respondent ought to have sought clarification from the Court. As to co-ownership of the plot, it is the opinion of the counsel for the applicants that that has never transpired in Court and the name is only that of Fred Mwangota. Too, the inventory was filed after revocation of the respondent appointment. It is added that the claim that Fred Mwangota died before completing administration of the estate of Abdon Ulisaja Mwangota (the father of Nelusigwe) is afterthought. Else, there is no direction of Court given to safe keep the title deed, pressed Mr. Mgare. 5 It was also claimed that the applicants have proved/established all the requirement/conditions for issuing the order of contempt of Court. It is also maintained that there is no abuse of Court process. I am urged to see the supplementary affidavit. It is insisted that the application be granted with costs. I have sharply deliberated the submissions of both parties. Since the respondent avers that he has already handed over the title deed to Nelusigwe Abdon Mwangota, the subsequent administrator of the estate of the late Fred Mwangota, this application has been overtaken by events. The record of this application is clear that Nelusigwe was appointed by this Court and letters of administration was issued to her on 11th March 2022 as per annexure AMW-5 to the supplementary counter-affidavit. Otherwise, as a postscript, for guidance to parties in future similar circumstance, this application appears to be an abuse of the Court process as claimed by the respondent though on a different ground. The wrong which is the basis of the applicants to bring this application is found under the Penal Code as a substantive law. It is inconceivable that the applicants would bring a civil application under Civil Procedure Code as its procedural law. I would 6 have expected the applicants to have instituted a criminal case basing the criminal case under the Penal Code whereas its procedural law would be the Criminal Procedure Act, Cap. 20 R.E. 2022. To me, this application is a disguised application for execution which, however, would have no place in probate and administration causes. All in all, the application is wanting in merits. It is dismissed. Considering the relationship between the parties to this application, each shall bear their own costs. It is so ordered. DATED at DAR-ES-SALAAM this 31st day of August, 2023. 7