NYAMEHYE KARUDI

IN THE HIGH COURT OF TANZANIA (DAR ES SA LAAM SUB-REGISTRY)

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 31251 OF 2024 (Originating from Civil Case No. 30804 of 2024) NYAMEHYE KARUDI……………………………………………………….1st APPLICANT KISIMBO REMILEKU KARUDI ………………………………………….2nd APPLICANT

VERSUS PRINCE MTWA GUNGA WILLILO………………………………… 1st RESPONDENT CRISPIN RICHARD TIMBILI……………………………………….. 2nd RESPONDENT

RULING 19th & 23th December, 2024 MWANGA, J. On 19th December 2024, when this matter was heard inter parties, this court granted orders of temporary injunction as prayed for by the applicants, hence restraining the first respondent from doing anything prejudicial to the disputed property in Plot No. 2035 Block “E,” Mbezi Beach -Dar es Salaam, pending the hearing and determination of Civil Case No. 30804 pending before this court. It was decided that the reasons for the decision would follow. 1 As I begin explaining my decision, I would like to stress that this application for temporary injunction was brought under order XXXVII, Rule 1(a) and (b); section 68 and section 95 of the CPC, and supported by the joint affidavit of Nyamehye Karudi and Kisimbo Reileku Karudi, the son and wife of the deceased, respectively. Per the pleaded facts in the joint affidavit, the applicants are considered the full heirs and legatees of Ras Bupe Mkushi, who passed on 21 May 2016 at Muhimbili National Hospital. In his lifetime, the deceased owned landed properties, known as Plot Nos. 2035 and 2036 Block “E” located at Mbezi Beach-Dar es Salaam, and 1000 acres of land in the Kigoma Region. After death, his only son, who lived in the UK, was the first applicant to petition and be granted letters of administration of the deceased's estate at Magomeni Primary Court in Probate Cause No. 385 of 2016. As

he did not complete the administration of the deceased's estate, on 31 October 2024, one Ras Saburi, a descendant of the deceased residing in Plot Nos. 2035 Block E Plot was served with the eviction notice showing that the first respondent has court orders dated 23/09/2024 from Kinondoni Primary Court that vest his control over the property. The notice came about after the first respondent applied for the revocation of the 1 st applicant as administrator of the deceased estate, and the prayer was cordially granted. 2 Instead, he was appointed as the administrator of the deceased estate on the grounds of the first respondent's failure of the first applicant to administer the deceased’s estate, that he was related to the deceased and claimed from the deceased Tzs. 600,000,000/=. In the process, the court admitted the debt of Tzs. 300,000,000/=, which was now to be recouped from the estate of the deceased in Plot No. 2035, which the first respondent took over administration from the first applicant. Thus, the first respondent has now closed the probate and is in the process of changing the ownership of the property in question. The applicants, believing the right full heirs are about to lose their shares in the deceased estate, and were not involved in the process of revocation and, even not knowing the existence of the claims or debt of the first respondent against the deceased

how it arose have filed a chamber application for an interim injunction to restrain the 1st respondent, his agents, workmen, assignees or any person working on his behalf from alienating, disposing, leasing, appointing a receiver, entering into possession, mortgaging or selling or doing anything prejudicial to the interest of the applicant's estate in nature of a landed property contained in plot no 2035 Block “E” Mbezi Beach area, Kinondoni Municipality Dar es Salaam City pending determination of the main case. 3 In their joint counter affidavit, the respondents alleged that revocation was done lawfully as the first applicant was served by court process to appear during the hearing. Again, he was represented by Advocate Julius Dennis Jacob, whom the applicants refused to have given him instruction to represent them. According to the respondents, the summons was placed at the Office of Serikali ya Mtaa Mbezi Beach “A” Billboard office and on Plot No. 165/E for the applicants to appear. The applicants insist that if the temporary injunction is granted, they stand to suffer more loss than the applicants. During the hearing of this application, both counsels adopted the respective parties’ joint affidavit and counter-affidavit to form part of the court's proceedings. The counsel, Mr. Assenga, argued that granting orders of interim injunction is subject to three fundamental

conditions, which the applicants have met as laid down in the famous case of ATILIO vs. MBOWE (1969) HCD 284. Fitting his arguments in the case above, the counsel outlined seven fundamental serious triable issues/questions to be raised by the applicants. One, there is a lack of proof of interest for the 1st respondent in the estate of Ras Bupe Mkushi (deceased), yet he has interfered with and intermeddled the interest of the deceased to which he does not have any blood relation. The 1st respondent has miserably failed to prove his interest 4 in the said estate. Two, while it is undisputed that 1st respondent claimed and awarded TZS =300,000,000/- million out of the estate property, he produced no evidence to prove how the figure was reached. Three, the applicants were condemned unheard in the probate and administration cause No. 385/2016 at Magomeni Primary Court. The counsel argued that the proceedings for revocation of the appointment of 1 st applicant and subsequent appointment of 1st respondent as an administrator of the estates of Ras Bupe Mkushi (deceased) were conducted exparte without the applicant’s being heard. Four more or so, the first respondent hurried closure of probate at the Primary Court without the applicants' involvement. He argued the 1st respondent was appointed on 23/09/2024 and closed probate on 31/10/2024. According to him, under the law, probate has

to subsist for at least six months or more for the administrator to file all necessary documents, complete all processes and activities associated with filing accounts, and summon beneficiaries to inspect the accounts and express their satisfaction or content. Hence, it was done contrary to the express provisions of section 107 (5) of the Probate and Administration of Estates Act (PAEA) as elaborated in the famous case of Joseph Shumbusho vs Mary Tigerwa and 2Others, Civil Appeal No. 183/2016 (Unreported -Court of Appeal of Tanzania) in which the Court said that the 5 administrator is duty bound to call all beneficiaries and ask them as to whether they accept the accounts filed. Also, in this case, the Court stated that the administrator’s duty on accounts creates a fiduciary relationship with the heirs, and the fiduciary relationship requires somebody to act in good faith, care, trust, and confidence. He said the administrator did not do this. Even hurried closure of probate by 1st respondent within one month from the date of appointment is not accounted for. Five, the 1st respondent misappropriated the estate property. In this point, he said the 1st respondent scooped a sum of 300 million from the estate of the deceased and another sum of 30 million, which is stated as administration costs are not accounted for. The 1st respondent’s taking of the lion’s share of 300 million

in the estate to which he is not among legatees leaves a lot to be desired. The property sale is based on an unlawful and undervalued valuation report. The counsel asserted that it is a requirement of law under sections 7 and 8 (3) of the Valuation and Valuations Registration Act, 2018, and its Regulations that any valuation report must be approved and certified by a chief Government Valuer for the same to be valid, the act which was not complied with. He said the 1st respondent concerted and made a valuation report that was neither approved nor certified and unlawfully lowered plots 2035 and 2036 into a meager sum of only 367,000,000/- contrary to the law—citing the case 6 of Maiko Elias Nyandindi Vs. Beno Protas Ndunguru, Land Revision No. 2 of 2020 High Court of Tanzania at Songea (Unreported), which stated that, a valid valuation report must be approved and certified by a Chief Government Valuer. Similarly, the 1st Respondent’s failure to serve applicants with a summons for appearance and defending application for revocation is another essential issue. The counsel asserted that the 1 st respondent, well knowing that the applicants are residents of the United Kingdom, instead of serving summons at the United Kingdom any instantaneous means of communication, unlawfully affixed summons at Mbezi Beach “A” Local Government offices while the applicants do not reside there. His

response to the presence of a court process server who affixed a summons to the local government is irrelevant as applicants do not reside in Tanzania. Indeed, respondents have not procured or obtained a separate affidavit of the said court process server in their counter-affidavit. He said it is hearsay, as stated in paragraph 4 of the respondent’s counter-affidavit. On the same footing, the counsel said that the person whom the respondent purports to be the applicant’s advocate, Julius Didas Dennis, is not an advocate. In their joint affidavit, the applicant denies having ever engaged such a person, let alone knowing him. The Respondents who allege that such an advocate does exist have miserably failed to file an independent 7 affidavit in their counter affidavit to substantiate their mere allegations. Hence, it concludes that 1st respondent’s appointment as administrator was obtained by deceit, fraud, and misrepresentation; thus, it is invalid, and an interim injunction must be issued to arrest such illegalities. Arguing on another element established in the case of Atilio Mbowe, Mr. Assenga said the court’s interference is necessary to protect the plaintiff from the kind of injury that may be irreparable before his legal right is established. He said, the 1st respondent is a man of meager and unknown resources, and even his residence is unknown; it is prudent that an

injunctive order is issued to restrain respondents from doing anything so that the applicant's rights of estate in the disputed property can be guaranteed. If the injunction is not granted, applicants will suffer an irreparable loss since they are lawful owners and legatees of the deceased. On the balance of convenience, he said there would be greater hardship and mischief suffered by the plaintiff from withholding the injunction than will be sustained by the defendant from granting it. To him, prudence requires that a preservative order in nature of interim injunction be given for the property to be preserved for either party who shall be a winner in the main case. He, therefore, prayed that an interim injunction order be granted with costs. 8 Per contra, the learned counsel, Mr. Lusajo, submitted that he does not dispute the conditions for interim injunction as set in the case of Atilio vs Mbowe (supra). However, he contended that applicants had not met the said conditions. He insisted that the main Case No. 30804, in which the injunction is sought, is not mentioned in the chamber summons and affidavit. He said the records from CMS show that the main case was filed on 05/12/2024, but the joint affidavit was sworn on 29/11/2024, which is earlier than this case. He, therefore, said that the supporting affidavit does not support anything. He called upon the court to hold that

this court shall find untruth statements that cannot be acted upon. The counsel cited the case of Ignazio Messina Vs Willow Ntumba Invements, Tanzli case. Apart from that, the cousel raised two other arguments. One, Julius Dennis Jacob, is a duly registered and practicing advocate representing the applicants in the revocation process. Two, PAEA is not applicable in this case as the matter originated in the Primary Court; so relevant is the 5 th Schedule to the Magistrates Courts Act (MCA) Rule 10, which states that probate shall be closed within 4 months. Therefore, if the first respondent closed the probate within one month, it would not be irregular. Consequently, he prayed that the application would not be granted. 9 In rejoinder, Mr. Assenga, asserted that, the issue of filing the main case and chamber application need not be detain the court. He said, the provisions of Order XXXVII rule 1 of the CPC are clear, free from any interpolation, that there must be a main case as a condition precedent for filing an interim injunction. He submitted that, the main case was filed earlier on 04/12/2024, while the chamber application was filed on 11/12/2024, a week later. Hence, the premises provisions of Order XXXVII rule 1 CPC are well complied with as it is the main case filed first before chamber application. He contended that, the law is silent on the date an affidavit has to be

sworn. Furthermore, the affidavit sworn earlier on 29/11/2024 is a Statement from the bar that is not well raised in the counter affidavit. Supporting his contention, the counsel cited the case of The Registered Trustees of the Archdiocese of Dar Es Salaam vs. the Chairman Bunju Village Government And 11 Others, stating that submissions are not evidence but elaborations or explanations on evidence already tendered and cannot be a substitute for proof. That being said, the counsel insisted that the untruthfulness of the affidavit becomes irrelevant. The same contention is also supported by the case of Sandra Weiler (Executor Of Elifadili Wilson Msuya) Vs. Lightness Mlay, Civil Application No. 499/05 of 2024, 10 Court of Appeal of Tanzania at Moshi held that, to resolve the complaint of untruth averments in paragraphs 2 and 4 of the founding affidavit takes us back to the decision in Mukisa Biscuit (supra) that a preliminary objection on the point of law should be such of disposing of the suit without evidential proof by facts or evidence. Similarly, the counsel relied on the provisions of section 3A (1) of the Civil Procedure Code as amended by the 2019 amendments, which brought in the oxygen principle and cautioned courts not to be tied by technicalities but to uphold substantive justice. He also referred to Article 107A of the Constitution of the United Republic of Tanzania,

which echoes the same spirit. I have dutifully and carefully considered the rival submissions by learned Counsel to this application, the averments in the affidavit and counter affidavit, and have this to say: One, the granting or refusal of a temporary injunction, which is an interlocutory order, is an exercise of judicial discretion which must be exercised judiciously. (See: Sargent vs Patel (1949) 16 E.A.C.A 63). Two, the purpose of a temporary injunction is to preserve the status quo. (See: Noor Mohamed Hanmohamed vs Kassamali Virji Madhani (1953) 20 EACA 8 and Garden Cottage Food Limited vs Milk Marketing Board [1984] A.C 130. Three, the 11 conditions for the grant of an interlocutory injunction are now well settled in Tanzania in the case of Atilio Mbowe(Supra):- a) There must be a serious question to be tried on the facts alleged. b) The court’s interference is necessary to protect the plaintiff from any injury that may be irreparable before his legal right is established; an c) That on the balance, there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction that will be sustained by the defendant from the granting of it; Given the general principles, I now turn to the facts of the present application. About what stands out clearly from the applicant's joint affidavits in support of the application, the joint

counter-affidavits of the respondents, and the oral submissions of the learned counsel representing the parties, I have concluded that the facts disclose bona fide serious issues to be investigated or tried by the Court. In other words, there is an arguable case. (See: American Cyanamid Co vs Ethicon Ltd [1975] 1 All ER 504). My attention is placed on the facts pleaded, that the first applicant is the son of the deceased, Ras Bupe Mkushi, and the 2 nd applicant, the deceased wife. He was appointed, at first instance, administrator of the estate of his late father by the primary court of Magomeni in Probate Cause No. 385 of 2016. Subsequently, he was revoked by the court based on the first 12 respondent's application, who is not blood-related to the deceased. More or so, the revocation was done exparte. Whether the first respondent is interested in the deceased's estate is not an issue. However, how the first applicant was revoked leaves much to be desired. The applicant resides in the UK, but the respondents served them at Ofisi ya Serikali ya Mtaa, Mbezi Beach- Dra es salaam. Under such circumstances, where the respondents knew that the applicants lived in the UK, it raises serious questions to be tried. Again, the first respondent was appointed administrator of the deceased's estate only because he has claims of Tzs. 600,000,000/=, but the court granted him Tzs 300,000,000/=,

the facts which the applicant’s dispute. Given the above, the issues raised are fundamental to awaiting any process relating to the deceased estate pending the hearing of the main suit. I am mindful that, at this stage, I must refrain from making any determination on the main suit. A decision on the merits or demerits of the case must await the substantive consideration of the facts and applicable law after a full hearing. All of the above facts prove that the averments in the joint affidavit of the applicants have raised serious questions of facts to be tried. Hence, the 13 court’s interference is necessary to protect the plaintiff from any injury that may be irreparable before his legal right is established. Lastly, on the balance of convenience, there will be more significant hardship and mischief suffered by the applicants that will be sustained than the respondents for not granting the injunction. Similarly, the Court’s intervention is necessary to protect the applicants from irreparable injury that damages cannot compensate if the application is refused. This is because there is a controversy about the advocate who represented the applicants in the revocation proceedings, and no affidavit of such an advocate was filed to discredit the applicants' assertions. That being said and done, this court grants the orders of the temporary injunction, that is to say, the 1st

respondent, his agents, workmen, assignees or any person working on his behalf are restrained from alienating, disposing, leasing, appointing a receiver, entering into possession, mortgaging or selling or doing anything prejudicial to the interest of the applicant's estate in nature of a landed property contained in plot no 2035 Block “E” Mbezi Beach area, Kinondoni Municipality Dar es Salaam City pending determination of the main case. Costs to follow the event. It is so ordered accordingly. 14

MWANGA JUDGE. 23/12/2024 COURT: Judgment delivered at Dar es Salaam today, on 23rd December 2024, in the presence of Ms. Joseph Asenga, Advocate for the Applicants, and Lusajo Mwakasege, advocate for the Respondents.

MWANGA

JUDGE 23/12/2024 15