MATIKO MWITA GHATI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS LAND APPLICATION NO. 5122/2024 REFERENCE NO. 202403111000005122 BETWEEN MATIKO MWITA GHATI......................................................................... APPLICANT VERSUS ELIAKIM CHACHA MASWl.............................................................. RESPONDENT RULING OF THE COURT 28/08/2024 & 11/10/2024 Kafanabo, J.: This is an application for an extension of time within which to appeal. The application is made by the administrator of the estate of the deceased, Ezekiel Mwita Matiko. The application is made by chamber summons supported by an affidavit of Matiko Mwita Ghati, the Applicant alleging to be the administrator of the estate of the deceased. The Respondent filed a counter affidavit and a preliminary objection to the effect that: 'The application is incompetent for the applicant's failure to attach and plead a copy of the letters of administration of the estate of the deceased/ Ezekiel Mwita Matiko'. i As a matter of law, the preliminary objection had to be heard first. At the hearing, the Applicant appeared in person and the Respondent was represented by Mr. Wambura Kisika, a learned Advocate. In support of the preliminary objection, Mr. Kisika submitted that the Applicant made this application as an administrator of the estate of the deceased, Ezekiel Mwita Matiko, which means that he is suing on behalf of the deceased and he is claiming the property in dispute on behalf of the deceased. It was submitted that in the present application, there are two annexes to the affidavit, but none of them is a letter of administration of the deceased's estate. In the absence of the said letters of administration, the court cannot know that the Applicant is the administrator of the estate of the deceased, or that he has a locus standi to institute legal proceedings as an administrator of the estate. Moreover, it was argued that it is trite law that when a person sues as administrator of the estate his locus standi is verified on, or obtained from the letters of administration which should be attached to the application. Failure to plead and attach the same in the pleadings initiating the legal proceedings is a fatal irregularity and renders the application incompetent, citing the case of Ramadhani Omary Mbuguni vs Ally Ramadhani & Another (Civil Application 173 of 2021) [2022] TZCA 267 (12 May 2022). Responding to the Respondent's arguments, the Applicant submitted that he has two positions in this application. One, he is the administrator of the estate of Ezekiel Mwita Matiko, the deceased, and he is a deponent of the affidavit in support of the application. 2 The applicant further submitted that the Respondent's counsel's submission that the application before the court is incompetent of the applicant's failure to attach the letters of administration has no basis because using the word attachment in the preliminary objection, calls for this court to analyse the evidence in order to prove that the Applicant is the administrator of the estate. Therefore, it does not qualify to be a preliminary objection. The case of OTTU on behalf of PL Asenga and 106 Others v. AMMI Tanzania Ltd, Civil Application No. 325 of 2011 was cited in support of the submission. Moreover, the Applicant argued that in the counter affidavit, the Respondent did not object that the Applicant is the administrator of the estate of the deceased. In rejoinder submissions, Mr. Kisika submitted that the Court of Appeal has made it clear that it is trite law that a party must prove that he is the administrator of the deceased's estate in order to have a locus standi to sue. Moreover, the affidavit in support of the application is in itself evidence and since the affidavit does not say anything about the Applicant being the administrator of the estate the court cannot believe that the Applicant has locus standi to sue on behalf of the deceased. The Case of OTTU (supra) is distinguishable from the facts of the present case. Having heard the parties' submissions as regards the preliminary objection raised by the Respondent in this matter, in light of the said submissions and the pleadings before the Court, it is undoubtedly clear that the following matters are not in dispute: 3 i. The Applicant filed this application as an administrator of the estate of the deceased identified by the name of Ezekiel Mwita Matiko. ii. That the Applicant in his affidavit supporting the application neither pleaded nor attached the letters of administration that proves he was appointed by the court as an administrator of the estate of the deceased. Bearing in mind the above-undisputed facts, prudence requires that before determining the merits of the preliminary objection, the Applicant's argument that the preliminary objection raised does not qualify to be a preliminary objection be determined first. The Applicant submitted that the preliminary objection raised calls for analysis of evidence citing the case of OTTU supra. This Court, with respect, disagrees with the Applicant because the preliminary objection raised is on a matter of law which requires a party instituting legal proceedings to plead his appointment and attach the relevant document in that regard, the requirement which is lacking in the present application. It is also important to point out that an affidavit apart from being evidence, is also a pleading according to the law regulating civil proceedings and practice. See Order XLIII Rule 2 of the Civil Procedure Code, Cap. 33 R.E. 2019, and the case of Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003JTLR 251. Therefore, this court agrees with the Respondent's learned counsel that the case of OTTU(supra), is distinguishable from the present case as no analysis of evidence is in question at this stage, but pleadings are. 4 That being the position, it is this court's turn to determine whether the application is properly before the court in a situation where there is neither a pleading that the Applicant was appointed the administrator of the estate of the deceased, nor attachment of the letters of administration in that respect. To answer this question this Court is guided by the decision of the Court of Appeal in the case of Ramadhani Omary Mbuguni vs Ally Ramadhani & Another (supra), where it was held that: 'Letters of administration being an instrument through which the applicant traces his standing to commence the proceedings, was in our view an essential ingredient of the application in whose absence the Court cannot have any factual basis to imply the asserted representative capacity. It is now a settled law that, where, like the instant case, a party commences proceedings in representative capacity, the instrument constituting the appointment must be pleaded and attached. Failure to plead and attach the instrument is a fatal irregularity which renders the proceedings incompetent for want of the necessary standing. See for instance, Ally Ahmed Bauda (Administrator of the Estate of the Late Amina Hossein Senyange) v. Raza Hussein Ladha Damji and Others, Civil Application No. 525/17of 2016 (unreported)'. Emphasis added. In light of the above decision of the Court of Appeal, and given the undisputed facts reproduced hereinabove, it is a view of this court that the Applicant has failed to prove his locus standi to institute legal proceedings under a representative capacity for the estate of the deceased because of 5 the failure to plead his appointment as a legal personal representative, and failure to attach the letters of administration of the estate of the deceased. It follows that this application is incompetent for the reason explained above and it is hereby struck out. The Applicant, however, is at liberty to refile the application provided that he pleads and attaches the relevant letters of administration of the estate of the deceased. Given that this is a matter touching the administration of the estate and has not been suggested to be frolicsome, each party shall bear their costs. It is so ordered. Dated at Tarime this 11th day of October 2024. K. I. Kafanabo Judge The ruling was delivered in the presence of Mr. Akram Magoti h/b for Mr. Wambura Kisika, Advocate for the Respondent in attendance of Mr. Matiko Mwita Ghati, the Applicant linked via Teleconference. K. I. Kafanabo Judge 11/10/2024 6