kwamtili estate ltd vs kassim abdallah liku 2007 tzhc 384 2 august 2007

IN THE HIGH COURT OP TANZANIA AT TANGA MISC. CIVIL APPL. NO. 13 OF 2006 (Originating from Probate Cause No. 2 of 2005 of High court of Tanga KWAMTILI ESTATE LTD............................... APPLICANT VERSUS: 1. iCA^SXM ABDA LLA H LIKIJ 2. SHABANI KINGWABA 3- DIAMOND RA1ABU.......................... RESPONDENTS MKWAVyA, Jh; RULING (N.B.: LAST ORDER MAY 28, 2007 AND RULING ON JULY 13, 2007) Th^ instant matter has its genesis in Probate and Ad mini strjati o n Cause No. 2 of 2005 which is in respect of the late J.E. Tame. Iiji essence the Applicant, namely, KWAMTILI ESTATE LIMITED :are seeking fur a court's order to restrain the three Respondents, that is, KASSIM ABDALLAH LIKU, SHABANI KINGWABACHORO and DIAMOND RAJAB who are the executors/administrators of the estate of the late J.E. TAME from acquiring and/or including its properties as part of the deceased's estate. The application now at hand is supported by an affidavit deponed by the Applicant's Managing Director, that is, one ENNIS MARTIN FIELDER. It is p^lain from the written submissions of Mr. Koga, learned advocate for the Respondents that the deceased was a Managing Director and share holder of a Company known as W J . TAME LIMITED; apd that the latter was a shareholder and/or subscriber of the Applicant's Company (KWAMTILI ESTATE LIMITED. It is on the basis of the foregoing that Mr. Koga contends that since the late JANE EVELIN TAME, the Managing Director of W J. TAME LTD., was one of the subscriber? And /or shareholder of KWAMTILI ESTATE LTD, the instant Respondents being the executors/administrators of the estate of the late JANE EVELYN have power to include some of the company's properties to the estate of the said deceased. / Mr. MrSmba, learned counsel for the Applicant, in rebuttal contends that as the Respondents did not mention in any of their counter-affidavits that the deceased had a company by the name of W.J. TAME LTD., and that it had shares in KWAMTILI ESTATE Lthey can not now be heard to make the aforestated assertions (supra). I have read-arid carefully considered the rival submissions by both leariied counsel in this application. I wish to limit myself to observing the following One, that the Respondents upon being granted and/or issued with the probate and administration of the said deceased's estate it is their duty to collect all the properties of the deceased and eventually file an inventory. Two, that some of the properties listed in the inventory submitted by the Respondents are registered in the name of KWAMTILI ESTATE LTD. It is on the basis of the foregoing that both commonsense and equity dictate that the competing parties should now sit down and amicably resolve their competing ownership's assertion/rivalies rather than resort'to the law of the jungle if I may be permitted to say so. In the upshot, for the reasons I have forestated, that the parties in these proceedings are hereby enjoined to formally sought out what belongs to the deceased's estate. In otherwords to find out if the deceased in question personally owned any properties and/or shares in KWAMTILI ESTATE LIMITED. In the> light of the foregoing, for the reasons I have forestated, I hope at no more than reasonable length, I hereby direct the desired legal proceedings be commenced within a period of sixty (60) days from the prqnouncement of this Ruling/Order. In the meantime the status quci be maintained. Costs to be costs in the cause. It is so i i ordered. ! ii DAT^D at TANGA on this 13th day of July, 2007, this Ruling is written andl signed pursuant to the powers given to me under the land and cllpar provisions of Article 110 (4) of the Republican Constitutiorji, 1977. Sgd: 3 J . MKWAWA JUDGE (RTD) I hereby certify that this is a true copy of the original. DISTRICT REGISTRAR TANGA 2/8/2007 I Coram: W.jE. LEMA, DR. I Applicant- pbsent - duly served Respondents - All present i Koga - Advocate for I B/C - SaraH I I I I ! Court: I Ruling (delivered this 2nd day of August, 2007 in the absence of the applicant and his counsel duly served, and in the presence of the Respondent fend their counsel.