michael beda moshi another vs paul ngulama tesha as the administrator of the estate of the late beda lucas moshi 2023 tzhc 23176 6 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO. 28 OF 2023 (Arising from Probate and Administration Cause No. 15 of 2021) MICHAEL BEDA MOSHI ………………………………………1ST APPLICANT PROSPER BEDA MOSHI ……………………………………..2ND APPLICANT VERSUS PAUL NGULAMA TESHA (As the Administrator of the Estate of the Late Beda Lucas Moshi) ………………..…. RESPONDENT RULING 18th October. & 6th December, 2023 A.P.KILIMI, J.: The Respondent mentioned above was appointed by this court to the administrator of the estate of the late Beda Lucas Moshi who died intestate on 31st day of May 2016. According to the joint affidavit of the applicants who are the sons of the deceased, avers that the respondent was appointed on 26th day of February 2022 and since then he is useless and inoperative because there is nothing left undistributed by the deceased for him to administer, that is why he has failed to file inventory within six (6) months from the date of his appointment as this court directed. 1 Having the above in minds and other to be discussed later in this application, the applicants have moved this court under Rule 29(1) of the Probate Rules and Section 49 (1) (b), (c), (d) (e) and (2) of the Probate and Administration of Estates Act [Cap 352 R.E 2002], Section 95 of the Civil Procedure Code, Cap 33 R.E 2019 and any other enabling provision of the Law praying for the following orders;- 1. That this Court be pleased to revoke and or annul appointment of the Respondent as administrator of estate of the late BEDA LUCAS MOSHI. 2. Costs of this application be borne by the Respondent 3. And any other order(s) that this court may deem fit to grant. The applicants also to insist their intention to extinguish respondent administration of estate, they have brought this application under certificate of urgency claiming that the Administrator is misusing his office by filing civil suits against some family members with an intention of disturbing the deceased's family peace and tranquility as he is of the knowledge that no property was left by the deceased for him to administer. When the application was tabled before me for hearing, the applicants were represented by Mr. Julius Fokasi learned advocate whereas the respondent enjoyed the service of Emmanuel Antony learned advocate. 2 It was the submission by Mr. Fokasi that upon the demised of applicant’s father in 2016, they lived in peace, it was in 2021 the respondent convened a clan meeting and therein he was appointed to petition as administrator, he was appointed on 26/2/2022 but until the filing of this application he has not yet exhibited inventory, also the counsel further said the applicants are accusing the appellant for fraud and cheating to the court when he used two purported clan minutes to be appointed as administrator. The counsel for applicants further submitted that the respondent under the said capacity has caused chaos by filing two land cases against the applicants and other heirs, thus, these acts has disturbed the peace existed between heirs before his appointment. Also, the counsel added the respondent has failed to file inventory within six months as ordered. He also submitted the respondent is redundant for having nothing to distribute and is not diligence in collecting deceased properties which are none, therefore the counsel prays his appointment be revoked since is acting contrary to his oath. To buttress his assertion the counsel referred the case of Sekunda Mbwambo vs. Rose Ramadhan (2004) TLR 439. 3 Responding to the above, Mr. Emmanuel Antony prayed this court to adopt respondent counter affidavit and further submitted that despite the fact that the applicants says the respondent is not relative, second is not faithfully, third has failed to file inventory, and fourth they have cause the family of Beda Lucas to be in turmoil and quarried, in their affidavit, they have failed to show the court whether administrator is not a creditor of the deceased, in accordance to section 33(1) (3) of Probate and Administration of Estate Act. Mr. Emmanuel further contended that the reasons for appointing respondent as administrator is stipulated at para 21 and 22 to respondent counter affidavit and the applicants did not file reply to counter affidavit to object all these, also he added applicants themselves were present on his selection to be a person to petition for Administrator as per paragraph 13 of counter affidavit shows, thus they are estopped to refuse what they did agreed on said clan meeting. In respect to the second ground that the administrator is not faithful, the counsel for the respondent contended that, there is a pending Land Case No. 10 of 2022 in this court which was filed by respondent as Administrator 4 of the deceased aiming to collect deceased estate, therefore he is executing his legal duty as administrator, thus his dishonest is premature to be determined. And since there is a pending case, he cannot file inventory and to revoke the Administrator while the case is pending will not be in the interest of justice. In respect to the claim that Administrator tried to sell the properties of the deceased, the counsel submitted that is not proved and without evidence the same cannot be substantiated. In conclusion the counsel for respondent contended that the meeting selected the respondent is a clan meeting and was not convened by him, the counsel for respondent then argued that his client is faithful and diligent in collecting the deceased estate thus, prayed for him to continue in collecting the assets of the deceased. In brief rejoinder Mr. Julius Fokas submitted that the respondent did not reject that the respondent has failed to file inventory into six months, and it is true this time may be enlarged but no any paragraph in counter affidavit which the respondent sought leave to extent, instead he has said that he has case in court which is not requirement of law. Therefore, prayed this court to see that this is failure of Administration. 5 Mr. Fokas further rejoined that respondent has filed the case to collect the properties of the deceased, they don’t object, but his duty was exercised without faithful, since the deceased distributed properties were many but the Administrator has directed on properties which was distributed to applicants and other two heirs as per annexure PRV1, also respondent sent lie information that there are 34 children and four wives in PRV2, while heirs are only 30, hence for that reasons prayed this application be allowed. I have considered the rival arguments of both learned counsels, the epicenter of the dispute between the parties in this application is the appointment of the respondent as administrator be revoked for failure to file inventory and being unfaithful. The law in revocation of grants or removal of executors is very clear when it comes to the dispute as above. And for purpose of reference, I reproduce the provision of section 49 of the Probate and Administration of Estate Act Cap. 352 hereunder; “49 (1) The grant of probate and letters of administration may be revoked or annulled for any of the following reasons— (b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; 6 (c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; (d) that the grant has become useless and inoperative; (e) that the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Part XI or has exhibited under that Part an inventory or account which is untrue in a material respect. (2) Where it is satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, the High Court may suspend or remove an executor or administrator (other than the Administrator-General or the Public Trustee) and provide for the succession of another person to the office of such executor or administrator who may cease to hold office, and for the vesting in such person of any property belonging to the estate.” I have considered the above law in lieu of the stated reasons for revocation, as correctly submitted by the respondent’s counsel, the applicants have failed to prove to the satisfaction of this court that the grant to him was obtained fraudulently, or by untrue allegation or the grant is 7 useless and inoperative, I am saying this because the applicants themselves concede as argued by their counsels that they are 30 heirs of the deceased estate, ln my view logically the claim of only two heirs on above prayers cannot substantiate the support of the remaining 28 years on the said prayers if at all no affidavit from them to prove that they shoulder the same prayers. Second the applicants have considered that it is true there is a pending Land Case No. 10 of 2022 in this court which was filed by respondent, but they claimed it has aimed only to the applicants and other two heirs. I have perused the record of this court; it is true there is that case pending. The next question to be asked is whether the respondent being appointed has such power. According to section 100 of the Probate and Administration of Estate Act provides; “100. An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same powers for the recovery of debts due to him at the time of his death, as the deceased had when living.” 8 In view of this law, I am satisfied the respondent is exercising his right when he filed the case against the applicants and two others, however, since there is this case in the court of law, the claims by the applicants that the deceased distributed properties to many heirs, but the Administrator has directed on applicants properties only in my opinion should be evidenced before the filed case which is pending, to bring such claims in this case is to come up through a back door while the proper forum already created by the case already filed, thus I am settled in that regard cannot be a ground for revocation of the respondent due to the right created to them to defend their case pending above. Another issue raised which I find pertinent in this matter, the respondent’s counsel has admitted that in accordance to section 107 of Probate and Administration of Estate Act. Once letter is issued, inventory need to be filed within six months but the court can extend when it sees fit. I also I agree with the applicants’ counsel when he argued that no any paragraph in counter affidavit which the respondent sought leave to extent the said time. In my view, according to the applicants’ affidavit the respondent was appointed by this court on 26th February, 2022. There is no disputes todate 9 it is more than year the respondent has not yet exhibited an account of estate, this was proved by the respondent himself in paragraph 10 of his affidavit, but in paragraph 11 of the same affidavit the respondent avers that the delay to file inventory is due to the said land case no. 10 of 2022. According to the law it is true that inventory need to be filed within six months, but that is the general rules which have exception and for purpose of clarity I reproduce the essential part of the provision of section 107 of the Act cited above; “107 (1) An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the court which granted the probate or letters may from time to time appoint or require, exhibit in that court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character, and shall in like manner, within one year from the grant or within such further time as the court may from time to time appoint, exhibit an account of the estate, showing the assets which have come to his hands and in the manner in which they have been applied or disposed of. 10 (2) I f the adm inistration is not com pleted w ithin one year from the grant of probate or letters of adm inistration, the executor or adm inistrator shall at intervals of not m ore than six m onths, or w ithin such further tim e as the court w hich granted the probate or letters of adm inistration m ay from tim e to tim e appoint or require, and on the com pletion of the adm inistration, exhibit in the like manner an account showing the assets which have come into his hands and the manner in which they have been applied or disposed of since the last account was exhibited.” [ Emphasis added] In my interpretation of the above provision of the law, I subscribe with the contention of the applicants’ counsel that the respondent was required to inform this court what he has done and seek extension of time to proceed to collect deceased properties if any. However, according to the circumstances of this matter and having considered that the respondent is a lay person, the fact that he has stated under paragraph 11 of his countered affidavit that the delay was due to the pending case mentioned above, I am satisfied the respondent is honest, thus I believe his failure to file inventory 11 was not willfully and he has a reasonable cause not to do so. Therefore, in view thereof his failure to the requirement of the law above cannot be the grounds for his revocation, I wish to support my observation by the provision of section 49 (1) (e) of the Probate and Administration of the Estate Act (supra) which provide for failure to file inventory as grounds for revocation of appointed administrator, which provides; “49 (1) (e) that the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Part XI or has exhibited under that Part an inventory or account which is untrue in a material respect.” As said above, since I am satisfied that it was not willfully and there was a reasonable cause for the respondent not to exhibit an inventory, I am of the settled view the same cannot be ground for respondent revocation of his administration of the deceased estate. In view of what I have endeavored to discuss above, I find the application by applicants devoid of merit and is accordingly not granted. In 12 the premises and from the foregoing reasons, this application is hereby dismissed. In the circumstances I make no order as to costs. It is so ordered. DATED at MOSHI this 6th day of December 2023. X JUDGE Signed by: A. P. KILIMI 13