MUSSA SHABANI ZORAWANGA vs HALIMA HASHIMU ZORAWANGA Tanzilii

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO 28036 OF 2024 (Originating from Land Case No. 11 of 2023) MUSSA SHABANI ZOROWANGA (Suing as Administrator of the estate of the late SHABANI MUSSA ZORAWANGA) .................................................................................. APPLICANT VERSUS HALIMA HASHIMU ZOROWANGA (Suing as Administratrix of the estate of the late HASHIMU MUSSA ZOROWANGA) ............................................................................... RESPONDENT RULING 06/03/2025 & 08/04/2025 1 SIMFUKWE, J. The applicant herein moved this court under sections 68(e) and 95 of the Civil Procedure Code [CAP 33 R.E. 2019] and any enabling provisions of the law, praying for the following orders: 1. That, the honourable Court be pleased to order that an escrow account be opened in the joint names of the applicant and the respondent, to be used for deposit of rental proceeds arising from the disputed land located at Same bus stand, pending determination of the main suit. 2. Costs of this application be borne by the respondent. 3. Any other order(s) that the honourable Court may deem fit and just to grant. The application was supported by an affidavit sworn by Ms. Fay Grace Sadallah, learned counsel for the applicant which was contested by the counter affidavit of the respondent. The gist of the application is that the applicant and the respondent are the administrators of the estates of the late Shabani Mussa Zorowanga and Hashimu Mussa Zorowanga, respectively, who were siblings. It is alleged that the deceased operated a joint business during their lifetimes. 2 Consequently, the applicant is requesting this court to order the opening of an escrow account, which will be under administrators’ supervision until final determination of Land Case No. 11 of 2023, which is currently pending before this court. While the respondent in his counter affidavit agrees that the deceased were siblings, he disputes the claim that they jointly owned a business. Additionally, the respondent opposes the prayer for opening of an escrow account. At the hearing of the application, the applicant was represented by Mr. Denis Maro learned counsel whereas the respondent was represented by Ms. Ms Aisha Ahmed Sengasu, learned counsel. Mr. Denis, prayed to adopt the affidavit in support of the chamber summons to form part of his submission in chief. He submitted that the application seeks an order to open an escrow account which will be temporarily used to deposit money pending determination of the main suit. That, the account should be opened in the names of both parties for depositing rent. The disputed property is located at Same Bus stand, and the same is not disputed. 3 The application has been triggered by the respondent's act of collecting rent from the disputed house, which is rented to different people, for her own use while there is a pending main case. The applicant believes that he has right over that land. Mr. Denis prayed the order sought be granted so that the account may be opened. He reiterated that the same will be used to deposit rent until the final determination of the main suit. In rebuttal, first, Ms. Aisha prayed to adopt the counter affidavit of the respondent. In her reply, she believed that there were insufficient reasons to grant the application. She acknowledged that both parties are administrators of the estates of the late Shabani Mussa and Hashim Mussa, and that the disputed property is located at Same bus stand. However, she argued that the fact that the deceased were siblings does not justify the opening of an escrow account. Ms. Aisha refuted the applicant's allegation that the respondent has been collecting rent for her own benefit, stating that no document has been presented to prove that fact. She emphasized that it is trite law that the burden of proof lies with the one who alleges. In that regard, there is no evidence to substantiate the claim. 4 She further noted that the respondent is the administrator of the estate of the deceased Hashim Mussa Zorowanga and that the disputed property is part of the deceased's estate. She informed the court that there is a pending case before Same District Court regarding division of the deceased's properties. That is Civil Appeal No. 396 of 2025, which indicates that the estate of the deceased has not been divided. Thus, as per the Probate and Administration Act, the respondent cannot collect properties for her own use as alleged. Regarding the second issue, Ms. Aisha acknowledged that the main suit has not been finalized. However, she reiterated that there is no documentary proof that the disputed property belonged to the late Shabani Mussa Zorowanga. She pointed out that this matter has taken so long, almost four years, and rent was previously being collected from the disputed property. That, since the main case was set for defence hearing, there is no reason for opening an escrow account. Ms. Aisha concluded by asserting that the respondent believes that the applicant has no right over the disputed property and prayed that the application should be disregarded. She urged the court not to order the 5 opening of an escrow account until the final determination of the main suit. In rejoinder, Mr. Denis maintained his prayer of opening an escrow account regardless of who is collecting rent. In respect of proof of ownership, Mr. Denis submitted that the issue of ownership has been raised prematurely as the same will be determined in the main suit. He emphasized that the court has power to grant the application pending determination of the main suit, so that the collected rent should not benefit the collector only. Responding to the last issue that the applicant has no right, Mr. Denis submitted that it’s the court which is in the position to determine whether the applicant has right over the disputed property or not. After considering affidavits and submissions of both parties, the issue for determination is whether the application is meritorious. According to the arguments of both parties and their affidavits, the following facts are undisputed: First, the applicant and the respondent are administrators of the estates of the late Shabani Mussa Zorowanga and Hashimu Mussa Zorowanga, respectively. Second, the disputed 6 property is located at Same Bus Stand; and third, the main suit regarding ownership of the disputed property is still pending. However, the fact that the deceased owned a business jointly, is disputed. Also, it is disputed that the respondent is collecting rent for personal use. The learned counsel for the respondent argued that no evidence has been adduced to prove that the respondent collects rent. The Applicant has moved this Court under sections 68(e) and 95 of the Civil Procedure Code (supra). Generally, these provisions confer upon the Court the discretion to issue orders in the interest of justice. This Court is of the view that the issue of ownership of the disputed property is the subject of a pending main suit before this Court. The applicant has asserted ownership over the said property, which generates income through rental payments. I am of the opinion that in the absence of an interim measure, the financial interests at stake may be adversely affected, thereby necessitating the preservation of rental income. Depositing rent in an escrow account will ensure the preservation of funds until ownership of the disputed property is determined. The escrow 7 arrangement serves solely as a precaution, preventing either party from accessing or utilizing the funds until a final determination is reached. Notably, the escrow account does not confer any immediate benefit to either party, as the deposited funds remain undisturbed until ownership is conclusively established. Escrow account is often used to hold money, securities, funds or any other kind of asset, providing protection for the benefit of both parties. As a matter of reference, Black’s Law Dictionary, 8th Edition, defines an escrow account as a bank account typically held in the names of both the depositor and an escrow agent. The funds in such an account are either returnable to the depositor or payable to a third party upon the fulfillment of specified conditions. I our case, no matter who wins the main case, the deposited money will be safe. In light of the foregoing, the Court finds merit in the application and accordingly grants it as sought. It is hereby ordered that escrow account be opened in the joint names of both the applicant and the respondent. All rental income derived from the disputed property shall be deposited into the said account until the final determination of Land Case No. 11 of 2023. 8 No order as to costs. It is so ordered. Dated and delivered at Moshi this 08th day of April 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 08/04/2025 9