LEAH Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA

AT MWANZA MISC. CIVIL APPLICATION NO. 27135 OF 2024 (Arising from Misc. Civil Appication No. 29 of 2022, original Probate and Adminiatration Cause No. 08 of 2022) LEAH BENARD SAWERU………………………………..….. 1ST APPLICANT PAUL BERNARD SAWERU……………………………..…….2ND APPLICANT

VERSUS PATRIS BERNARD SAWERU………………………......…..…RESPONDENT

RULING 6 February & 4 March 2025 th th CHUMA, J. By this application, the court is being moved to penalize the respondent for disobeying the court’s order dated 2/5/2023 for failure to hand over the estates of the late Angela Bernard Saweru to the appointed receivers. The application faced a point of preliminary objection that the applicant has no locus standi to bring this application. To appreciate the gist of this point of preliminary objection, I will narrate a brief background of this matter. Following the demise of Angela Bernard Saweru (the deceased), the applicants herein applied for letters of administration of her estates vide probate and administration Cause No. 29 of 2022 which is pending before this court. It appears that the applicants and other siblings Julias Bernard 1 Saweru, Mariana Bernard Saweru, Bernard Saweru, and Isidory Bernard Saweru successfully filed before this court Misc. Civil Application No. 29 of 2022 for appointment of receivers pending grant of letters of administration. This court on 11/8/2022 appointed Tadei A. Msele and Joseph Alphonce Nt’ang’ana as receivers of the estates of the deceased. The appointment was not without conditions. The appointed receivers were ordered to give security amounting to Tshs. 400,000,000/- each or their monetary equivalent. On the other hand, the respondent was ordered to surrender lease agreements of Plot No.

102 Block ‘T’ to the appointed receivers and to surrender all rental payments for the past six years. He was further ordered not to interfere with the management of the estates. It is further on record that, vide court’s proceedings dated 2/5/2023 the applicants informed this court that they have made a valuation of the deceased property and the court ordered them to hand over original title deeds and the valuation report to appointed receivers so that the law takes its course. Records also reveal that the applicants vide execution No. 30/2023 applied before this court for an order that, the respondent be ordered to surrender assets and title deed of Plot No. 102 Block ‘T’ to receivers. The 2 application was struck out. The alike application vide Execution No. 29/2023 was dismissed. Before the application before me, the applicants filed Misc. Application No. 25802/2024 which was withdrawn. During the hearing of the preliminary objection, parties were represented by Messrs. Demetius Mtete and Sijaona Revocatus for the applicants and respondent respectively. In support of the preliminary objection Mr. Sijaona submitted that the receivers were readily appointed as per paragraph six of the affidavit supporting this application hence the applicants have no locus to bring this matter rather the receivers were duly appointed. That, in law, receivers have the power and

legal responsibility to manage the estate effectively and they have the power to sue any person who tries to hinder them from performing their duties. That, no supplementary affidavit from the receivers explaining whether the respondent has failed to honor the court’s order. He referred to the case of Godbless Lema V Mussa Hamis Mkanga and two others, Civil Appeal No 47 of 2012 which dealt with the issue of locus stand. In reply, Mr. Mtete submitted that the raised preliminary objection is not on pure point of law since no law was cited in support. That, the Probate and Administration of Estates Act Cap 352 R.E 2002, does not empower the appointed receiver to sue a party who denies to hand 3 over properties to him rather the aggrieved party/beneficiaries has the power to seek redress in case the handing over is not done as ought to. In rejoinder, Mr. Sijaona reiterated his submission in chief. I have dispassionately considered the submissions of both parties. I will first explain the rationale behind the appointment of a receiver. The receivers of the estates of the deceased are appointed under section 10 of the Probate and Administration of Estates Act (supra) which reads; “Where any person dies leaving property within Tanzania, the court may, if it appears on the application of the Administrator-General or of any person claiming to be interested in such property, or having

the custody or control thereof at the time of the death of the deceased, or being at such time an attorney of the deceased, that there is danger that such property may be wasted, appoint the Administrator-General or such other person as the court thinks fit, to be a receiver of such property pending a grant of probate or letters of administration.” (emphasis added) Therefore, when the properties are placed in the receiver’s hand, the court is settled that the properties are safe in the hands of such receiver pending a grant of probate or letters of administration. To ensure that such a receiver never misappropriates the deceased estates, he is 4 required to furnish security. As I have said this court ordered the appointed receivers to give security amounting to Tshs. 400,000,000/=. It is further my considered view that, once the receiver is appointed, the rights and interests of beneficiaries of the estates of the deceased are placed in the hands of that receiver and he will be accountable to the beneficiaries and the court on how he has managed the entrusted properties. Further, the form of appointment of a receiver, Probate Form No. 7 requires the appointed receiver to furnish accounts of the property received by him within a given time. Having considered the position of a receiver pending grant of probate or administration, I am in disagreement with Mr. Mtete that

the receiver had no mandate to sue rather the beneficiaries because, one, once appointed, the receiver becomes a trustee of the estates of the deceased, he is therefore required to ensure the deceased’s estates are not misappropriated; two, the receiver must furnish proper accounts of the properties placed under his receivership; three, once appointed, the receiver becomes independent he is duty bound to take action by himself concerning his receivership office, he need not to depend on others to sue or make follow-up on his behalf otherwise he will turn himself to be a 5 puppet or place himself in position of administrator of his own wrong in disguise. I have not come across with provision of law regarding the powers of a receiver under probate and administration laws. However, I borrowed the wisdom of my brother Mambi J. in the case Balvinder Singh Virdi t/a Thaker Singh V Premalt Limited and others, Land Case No. 9 of 2021 (unreported) at page 8 when discussing the power of receiver under the Companies Act No. 12 of 2002 he said; “when the company is undergoing receivership and the receiver has been appointed the powers of suing or defending a case in the courts of law automatically shift to the receiver or an administrator of that particular company…In a persuasive decision of the court of Kenya in Queensway Trustees supra cited by the counsel for the 1st defendant the

court held; ''Where a receiver is appointed out of court, as Mr. Birnie was by the Debenture Stockholders on July 5, 1978, the management and control of the Company's assets are taken out of the hands of the directors and the secretary of the company" (emphasis added) In this matter, at hand, it appears that the applicants who are yet to be appointed as administrators are performing the duties of the receivers who they recommended their names and the court appointed 6 them. I have also noted that, no proof as to whether the conditional precedent imposed to receivers regarding security was met and no proof as to whether they have started performing their duties. All proceedings of this court pointed out above have no trace of the duties (if any) already performed by the appointed receivers. In other words, from the circumstances of this matter, applicants are in a better position to seek redress against the receivers who were entrusted with the deceased estates and they have failed to perform their obligation. By the way, I have also noted that the court’s order dated 2/5/2023 mentioned in the chamber summons on which the applicants are moving this court to penalize the respondent was the order issued by this court against the same applicants, not the respondent. On that date, only the applicant appeared and their counsel Mr. Mtete notified the court that they had conducted a

valuation and they had original Title Deed. Following such deliberation, this court ordered that; “Upon the petitioners furnishing the original title deeds and the valuation report, it is ordered that the said documents be surrendered to the appointed receivers so that the law takes its course” Now the question arises if the original title deed and the valuation reports were in the hands of the applicants and the court ordered them 7 to hand them into the receivers’ hand, why the applicants are now moving the court to penalize the respondent for an order which was given against themselves? In the end result the raised preliminary objection is meritorious. The applicants have no locus standi to initiate this application rather the receivers. I therefore proceed to dismiss the application. This application being an offspring of probate matter, I desist from ordering costs. I so order. DATED at MWANZA this 4th day of March 2025. W. M. CHUMA

JUDGE 8 Ruling delivered in court virtually in attendance of Mr. Mtete and Mr. Sijaona both advocates for applicant and respondent respectively this 4th day of March 2025. C. KISONGO

DEPUTY REGISTRAR 9