20130423 TZHC Dar es Salaam

1 r 1 IN THE HIGH COURT OF 1. ANZANIA .J AT DAR ES SALAAlM ·c MISC. CIVIL APPLICATION NO. :99 OF 2010 KARIM MSOFE (Applying as a next friend of OTTOMAN JOHN CHINGO and ANTHONIA JOHN CHINGO . . . . . . . . . . APPLICANTS Vs. MODEST A. CHINGO . . . . . . . . . . . . . RESPONDENT Date of last order- 10/4/2013 Date of Ruling - 23/ 4/ 2013 RULING Shangwa, J. This is an application for revision of the orders of the District Court of Kinondoni and its decision given on 28 th June, 2010 in Probate and Administration Cause No. 67 of 2004. The Applicant Karim Msofe is recorded as a next friend of Ottoman John Chingo :3-nd Anthonia John .· ,. Chingo. r; In its ruling delivered on 9 th ApriI, 2009, the District Court of Kinondoni ordered that the occupants of house 2 No. KJM/BWN - 325 Plot 45 'C' Kijitonyama, Kinondoni District, Dar es Slaam Region be evic:ted from therein as they are not the children or tenant,s of the late John i Chingo who owned it. On 28 th June, 2010, the same court issued an order for their eviction. The purpose of the order for evicting the aforesaid occupants from the aforesaid house was to enable the Administrator of the estate of the late John Chingo to ( I administer his estate without any· hindrance. The .1 I! aforesaid occupants were the relatives of the late -~ Lucy/ Lucky Chingo who was the wt.fe of the deceased l and the Applicant himself who was the friend of the . l deceased. The eviction order appears to have excluded ' the children of the late John Chingo namely Ottoman and Anthonia who were residing in the house in issue with the relatives of the late Lucy /Lucky Chingo and the ~ Applicant. The late John Chingo died intestate at the age of 55 l '' at Mwananyamala Hospital, Kinondqni District, Dar· es ' 'I" 3 Salaam Region. He died on 15th June, 2003. The Administrator of the afore said ~state 1s the 1 st ; Respondent Modest A. Chingo. In this application, the Applicanti prays this court to i annul the appointment of the 1st Re~pondent Modest A. / Chingo and appoint him in his place and reverse the orders of the District Court. The reasons as to why the Applicant wishes this court to revise the ruling of the f District Court of ~ Kinondoni and reverse the orders theriein are as follows:- 1. That he is the cousin and next friend of Ottoman ! John Chingo and Anthonia John Chingo who are the ' beneficiaries to the estate in issue namely House No. KJM/BWN - 325 Plot 45 'CJ Kijitonyama. 2. That the children and himself are living in the above mentioned house. 3. That he has been caring for the, aforesaid children :c r· ever since the death of their paren*s. ' 4 4. That the 1st Respondent who was appointed to administer the estate in issue ha~ not been caring for the aforesaid· children and. that~ he does not even think about them. 5. That the 1st Respondent has appl~ed in the trial court for execution praying for evictio~ order against the occupants of the house in issue including the deceased's children and that his intention is to sell the same in pretext that he intends to correctly administer the deceased's estate. i 6. That the children have no other o;ltemative residence and that their school fees come }rom the rent of the < house in issue. ' i 7. That an auctioneer named Comrade Auction Mart ; l Company Ltd (2 nd Respondent) has already been appointed by the trial court to evict them. 8. That the trial District Court gav~ two contradictory t, orders, the first one is dated 9 th April, 2009 and the ) t second one is dated 28th June, 2010 and that the trial 5 District Court was functus officio in giving the second order. 9. That the 1st Respondent is not fit to administer the J ) estate of the late John Chingo lJecause of his bad , intention to sell the house in issue~ In his reply submissions, th1e 1 st Respondent submitted that the Applicant is neitper the cousin nor guardian of Ottoman John Chingo ~nd Anthonia John l 1 Chingo. That the Applicant's allegation that he does not care or think about the said children is ,, not true but that ' the said children are the ones . who /'. do not like to ,- associate with him. That the Applicatj.t lives in the house in issue free of rent. That the intended sale of the house in issue is not for his own benefits but it is for the I benefits of all children who are the heirs of the late John Chingo. In this case, it is not in dispute that the 1 st Respondent is the brother of the latv John Chingo and t- that he is the Administrator of the estate of the late John ] 6 Chingo. It is not in dispute also that ~he applicant is not related in any way to the late John Chingo but he is the next friend of Ottoman John Chingo and Anthonia John ! \ Chingo who are the deceased's childr~n. Apart from the ,'~ /· said children, the late John Chingo :had other children ~ I namely George John Chingo and~ Emmanuel John Chingo who have not been joined in tijis application. I Now if the Applicant is not at all related to the late John Chingo and if George John CHingo and Emanuel John Chingo were not joined in this application, how can 1 . this Court declare the appointment o(1 the 1st Respondent . ?: who is related to the late John Chin~o ., as a nullity and t appoint him in his place to adminisV~r the estate of the late John Chingo? I am sorry to ~ay that this court cannot do so. The Applicant submitted inter,-alia that the 1st Respondent is not fit to administer the estate of the late John Chingo because he has no-~ been caring for ; 1 Ottoman John Chingo and Anthonil John Chingo and , i·'. i 7 that he does not even think about the,m. In my view, the ! question as to whether or not the '1 st Respondent has 'I been taking care of Ottoman John Chingo and Anthonia 1 John Chingo is immaterial so long as he recognizes them I . t as some of the beneficiaries to the est~te of the late John t t Chingo. I have no doubt in my r;_hind that he does ' f recognize them so and that upon the sale by the 2 nd Respondent of house No. KJM/BWN. - 355 Plot 45 'C ' Kijitonyama which sale is inevitable e,ach of them will be given his share by the 1st Respondent from the proceeds of sale. I say that the sale is inevitable because the late John Chingo left behind four children who have equal shares in it. According to the 1 st Reltspondent, Ottoman ~ i John Chingo and Anthonia John Chingo have not been . \ bothering about him and that they have been disassociating themselves from him because their minds have been poisoned by the Applicant., I think it is unfair 1 therefore for the Applicant to blame him for not caring for them. At the moment these children are grown ups. I' 8 Let me now consider the validity of the Applicant's submission that the trial District Court gave contradictory orders on 9 th April, 2009 ; and 28 th June, 2010 respectively and that it was functus officio when it gave the second order on 28 th June, 2()10. r!' t I have examined the orders whidh were given by the :/ l trial District Court on 9 th April, 20P9 and 28 th June, l 2010 respectively and found that the Applicant's submission is not valid. The trial c~urt's record clearly show that on 9 th April, 2009 Mchaur_u, RM ordered that ! i the relatives of the late Lucy/ Lucky Chingo who are residing in the house in issue should ~vacate from therein ' ~ as they are not the deceased's childr;en or tenants. ~ . He µ, ' observed that it was necessary for the)relatives of the late }I Lucy /Lucky to vacate from therein lin order to let the ' deceased's children to enjoy their · deceased parent's ) property fully and to allow the Administrator of the estate I of their deceased parent administer; it smoothly. On •• 9 l 28 thJune, 2010, Rusema, PRM issued an exparte order for eviction. In my opinion, the order of the trial court given on 28 th June, 2010 does not contradict the order of the same court given on 9 th April, 2009. Both orders are ! similar in the sense that they requirei the relatives of the . ~ ~ late Lucy /Lucky Chingo who are not'_1the children of the I late John Chingo and the Applicant ito vacate from the . house 1n issue. By issuing the eviction order on 28 th June, 2010, the trial District Magistrate of Kinondoni i was not functus officio as no such order had earlier before been given or refused to be given by it. t\ For these reasons I dismiss· this application. ,. However, each party should bear his dwn costs. 10 Delivered in open court this 23 rd day qf April, 2013 in the presence of the parties. ,. ~UDGE ·23/4/2013 .. ,·.-. 1, ..