MAGRETG KOMU1 Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB- REGISTRY) AT DAR ES SALAAM CIVIL CASE NO 16994 OF 2024 MAGRETH PAUL KOMU ……….………..………………1ST PLAINTIFF LUCY PAUL KOMU………………………..……………..2ND PLAINTIFF THADEI PAUL KOMU………………………….………..3RD PLAINTIFF VERSUS MICHAEL PAUL KOMU ….…………………………..……..DEFENDANT RULING MKWIZU,J: The plaintiffs are adult siblings residing in Dar es Salaam, children of the late Paulo John and Basila Paul Sirito, who passed away intestate on 3rd June 2005. In 2016, the defendant-initiated Probate and Administration Cause No. 273/2016 at Kawe Primary Court to become their father's estate administrator. After being appointed on 11 January 2017, the defendant allegedly acted without his siblings' consent, submitting an inventory and accounts the plaintiffs claim were misleading and favoured him. The plaintiffs felt distressed. They have now approached the court for damages against the Defendant, seeking an order for the Defendant to rectify the losses incurred. Specifically, I am requesting a fair evaluation of the estate's assets by a mutually agreed licensed valuer and a refund 1 of the amounts due to them based on proper asset distribution. Alternatively, they seek an order for the Defendant to retrieve misallocated assets and redistribute them fairly among the rightful heirs and the costs of the suit. The defendant denies all the allegations. Together with his written statement of Defence, he filed a Notice of preliminary objection containing two points: 1. The Court has no Jurisdiction to entertain the suit; and 2. That the suit is Res Judicata and the Court is Funtus Officio in accordance with section 9 of the Civil Procedure Code, Cap.33 (R.E. 2019) On 10 December 2024, the Court ordered that the preliminary objection be argued through written submissions. Defendant was directed to file its submissions in support of the preliminary objection by 17 December 2024, with Plaintiff's reply due by 27 December 2024 and Defendant's rejoinder, if any, by 3 January 2025. I wish to acknowledge both parties for their compliance with the scheduling orders. In support of the second objection, the Defendant’s counsel argues that this action is barred by res judicata, as noted in Section 9 of the Civil 2 Procedure Code, Cap 33 (R.E. 2019). He cited Magreth Paul Komu vs. Michael Paul Komu, Probate Appeal No. 6/2022, TZHC 15324 (August 28, 2022), where the High Court (Justice OPIYO) assessed allegations regarding inheritance rights and the distribution of Paul John Sirito's estate, explaining that both cases arise from identical grounds: the equitable distribution of the deceased's estate and the alleged unlawful eviction from property in Mbezi Beach. Therefore, it is unjust for parties to pursue differing legal theories for rights that have already been settled in a competent court. He also mentioned other cases that previously determined the identical relief sought, including Magreth Paul Komu and Lucy Paul Komu v. Michael Paul Komu, Civil Revision No. 40 of 2019, Misc. Civil Application No. 149 of 2018, in which the plaintiffs withdrew their application, acknowledging that the matters before the court had become moot due to intervening circumstances; Thadei Paul Komu, Margareth Paul Komu and Lucy Paul Komu v. Michael Paul Komu, Misc. Civil Application No. 519 of 2017, in which the court dismissed the plaintiffs' claims due to their inability to substantiate the requisite elements, asserting that the claims in the present suit are intrinsically related to the prior suits, centring upon allegations of nefarious misappropriation and unfair distribution regarding 3 the estate of the late father, specifically concerning the inheritance of the Mbezi Beach property. He contended that the parties involved in the suits above are the same as those in the current case, all of whom share a mutual interest in the matters litigated. The courts determining the previous instances were competent to render decisions, including the High Court at Temeke, which adjudicated related matters under probate law. He respectfully urged the Court to reaffirm the applicability of the doctrine of res judicata in this matter . On the first objection, he believed that since the matter is res judicata, this court automatically lacks jurisdiction to entertain the same. He relied on the Tanzania Revenue Authority vs. JSC Atomredmetzoloto ARMZ, quoted with approval in Michael Joachim Tumaini Ngalo v. Jitesh Jayantilal Ladwa, Civil case no. 18/202123(unreported) beseeching the court sustain the preliminary objection and dismiss the main suit with costs. In response to the preliminary objections raised by the defendant, the counsel for the plaintiffs submitted that the present suit before the court does not constitute res judicata, contrary to the Defendant's claims. While 4 conceding to the principles of res-judicata as prescribed by section 9 of the Civil Procedure Code, Cap 33 and interpreted in Peniel Lotta Gabriel Tanaki and 2 Others v. Civil Appeal No. 61 of 1999( unreported), the plaintiff's counsel contends that their claims arise from the defendant's alleged abuse of power while acting as the administrator of their late father's estate. He said that Probate Case No. 273 of 2016, about their father’s estate, was closed on April 19, 2017, and that the only remedy to seek redress after the closure of the probate case is by suing the former administrator or any other person wrongfully allocated their rights. They relied on Ahmed Mohamed Almaar v. Fatuma Bakari and Asha Bakari, Civil Appeal No. 7 of 2012 (Unreported) and section 138 of the Probate and Administration of Estates Act, Cap 352, He maintains that their current suit against Defendant has not been previously raised in any court, asserting that though they have engaged in various legal battles to reclaim their rights, they never pursued claims against Defendant in his personal capacity. In PC Probate Appeal No. 6 of 2022, the Plaintiffs sued the Defendant as the administrator of their late father’s estate, whereas in the current matter, they are suing Michael Paul Komu in his capacity. Therefore, the differing defendants in each case negate the applicability of res judicata. Furthermore, the other cases cited 5 by the Defendant do not establish res judicata, as they were not conclusively resolved. The attempts to transfer Probate No. 273 of 2016 to this Court were ultimately left undetermined due to procedural discrepancies, undermining the argument that these matters have been settled. He finally requested the court to overrule the first preliminary objection as unfounded and recognise that the second preliminary objection merely reiterates the first. In rejoinder, the defendant's counsel insisted that the claims in the present suit have been decided in the Magreth Paul Komu and another vs Michael Paul Komu (Kama Msimamizi wa Mirathi ya Marehemu Paul John Sirito), Probate Appeal No.6/2022) TZHC 15324 (28/08/2022) at High Court Temeke (One Judicial Stop Centre) therefore it is wrong for the trial court to litigate on the issue stressing that the plaintiff do not appear to be litigating bonafide terming it as an abuse court process. I have reviewed the court proceedings and the submissions from both parties involved. The primary question to consider is whether the case before this court constitutes res judicata or an abuse of the court's processes. The parties agree on the principles of the res 6 judicata doctrine, as outlined by section 9 of the CPC and several court decisions. The sole point of contention is the interpretation of the earlier proceedings by the parties involved.. The gravamen of the plaintiff's case is the assertion that the Defendant has misappropriated a significant share of the estate to his benefit, thereby unjustly enriching himself at the plaintiffs' expense. According to the records, Probate Case No. 273 of 2016, related to their father's estate, was officially closed on April 19, 2017 marking the cessation of probate proceedings and the defendant's role as the administrator. Is the plaintiffs’ claim remediable through probate proceedings after the probate matter is closed? The answer is no. Section 138 of the Probate and Administration of Estates Act, Cap 352, establishes the liability of an executor or administrator for any losses resulting from the misapplication of an estate, thereby necessitating that any claims arising from alleged misadministration be pursued against him personally rather than in his capacity as administrator. The defendant has placed considerable reliance on PC Probate Appeal No. 6 of 2022, asserting that the claims in the current suit parallel those dismissed in that appeal. While it is true that the plaintiffs have engaged 7 in multiple legal actions to assert their rights, including the appeal as mentioned above, it must be noted that the focus of those previous cases was directed toward the defendant in his administrative capacity, contrary to the current action where the plaintiffs are bringing claims against Michael Paul Komu, specifically in his capacity demonstrating that each suit raises distinct issues and involves different parties. This route finds support in case of Ahmed Mohamed Almaar v. Fatuma Bakari and Asha Bakari, ( supra), in which the court said: '”...One, if the respondents genuinely believe that the appellant acted in excess of his mandate or wasted theestate and / or subjected it to damage or occasioned any loss to it through negligence, they are free to sue him. Two, if they are also convinced that he either fraudulently converted some properties forming part of the estate, and/ or that he deliberately exhibited a false inventory or account, they are equally free to institute criminal proceedings 8 against him in accordance with the provisions of the governing laws.” This Court (Opiyo J) was aware of the above provision, which is why in PC Appeal No 6 of 2022, she expressly advised the Plaintiffs to pursue a civil suit against the Defendant, emphasising their right to seek redress for the grievances arising from the defendant's actions in administering the estate. This guidance further validates the Plaintiffs’ current legal approach. The factual and legal distinctions between the prior probate proceedings and the present suit compel this Court to support the Plaintiffs’ position, allowing them to seek justice for the alleged injustices they have endured under the defendant’s administration of their late father's estate. I am thus satisfied that the previous decision rendered by Judge Opiyo J addressed matters pertinent to the defendant’s role as the estate administrator, not as an individual, thereby affording the plaintiffs the legal basis to pursue their current claims without the hindrance of res judicata. The 1st preliminary objection is thus overruled. As the second preliminary objection relied on the affirmation of the first preliminary objection and has been overruled, it naturally follows that 9 the second preliminary objection must be overruled as I hereby do with costs. DATED at DAR ES SALAAM, this 7th MARCH 2025 E.Y. MKWIZU JUDGE 10