Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE MISCELLENEOUS CIVIL APPLICATION NO. 14429 OF 2024 (Arising from the decision of the Probate and Administration Cause No. 238 of2022) In the Matter of Estate of the Late FELIX FAUSTIN CHUWA......................................................................... DECEASED Between In the Matter of Letters of Administration Granted to PATRICIA FELIX CHUWA, AN SI LA MAIDELI KAVISHE AND RUTH FELIX CHUWA.............................................................. ADMINISTRATRICES 4 In the Matter of Application for Revocation of Letters of Administration by PATRICIA FELIX CHUWA AND RUTH FELIX CHUWA........................ APPLICANTS And ANSILA MAIDELI KAVISHE............................................................... RESPONDENT RULING 10th July & 20th September, 2024 BARTHY, J.: This application is for the revocation of letters of administration granted to the respondent, Ms. Ansila Maideli Kavishe, who, along with the applicants, was appointed as co-administratrices of the estate of the late Felix Faustin Chuwa. The application is made under Section 49(1) and 138 i of the Probate and Administration of Estates Act, Cap 352 R.E. 2019, Rules 14(1), (2), and 29 of the Probate Rules, and Order XXXVII, Rule 1(a) and 2(1) of the Civil Procedure Code, Cap 33 R.E. 2019. The applicants sought for specific prayers as follows; 1. That this honourable court be pleased to revoke the grant of letters of administration granted to Ms. Ansiia Maideii Kavishe on 21st day ofJuly, 2023. 2. That this honourable Court be pleased to remove Ms. Ansiia Maideii Kavishe's name from the grant of letters of administration. 3. That this honourable Court be pleased to issue an order restraining Ms. Ansiia Maideii Kavishe from operating all of the deceased's businesses andhandiing proper details of the income and expenditures generated from all income-generating deceased's assets for all the time she has been overseeing them to this honourable court. 4. That this honourable Court be pleased to order Ms. Ansiia to ensure that the 8 tricycles are packed at the deceased property situated at plot No. 73, Bahari Beach in Kinondoni Municipality pending distribution of the deceased's estate. 5. Costs of this application. 6. That, any other reiief(s) this honourable court may deem fit and just to grant. — 2 The application is supported by a joint affidavit from the applicants, outlining reasons for the court to consider granting the reliefs sought. The respondent contested the application with her sworn counter-affidavit. Following the death of the late Felix Faustin Chuwa, this court appointed the applicants and the respondent as co-administratrices of the deceased's estate. The applicants have now sought to revoke the letters of administration granted to the respondent, alleging non-cooperation, concealment of documents, and misappropriation of the estate's assets. In the course of administering the estate, the applicants filed an application seeking to revoke the letters of administration granted to the respondent. During the hearing, both parties were duly represented. The applicants were represented by Ms. Joan Mwesigwa and Mr. Nshashi Nyanduga, learned advocates, while the respondent was represented by Mr. Gwamaka Mwaikugile, learned advocate. The hearing proceeded by way of written submissions, which were timely filed by both parties, save for rejoinder submission by the applicants which was not filed. Having gone through the submissions of both sides with respect to the application, before addressing the prayers sought in this matter, this court has observed that the applicants have made an omnibus prayer in their application. As the applicants are seeking to revoke the letters of administration granted to the respondent and have her name removed from the granted letters of administration of deceased estate, also, the applicants are seeking to the restraining order against the respondents in dealing with all assets of the deceased estate. Again, the applicants are seeking for an order of this court to order the respondent restore or return 8 tricycles of the deceased that formed part of the deceased estate. As the basis of this application is found under Section 49(1) and 138 of the Probate and Administration of Estates Act, Cap 352 R.E. 2019, Rules 14(1), (2), and 29 of the Probate Rules, and Order XXXVII, Rule 1(a) and 2(1) of the Civil Procedure Code, Cap 33 R.E. 2019. This court having gone through the application, before its determination learned that the application has omnibus prayers. Therefore, invited both sides to address this court on the propriety of this application for it appears that it contains unrelated or loosely connected prayers. Ms. Mwesigwa argued that, according to legal principles, any application must be submitted by way of chamber summons supported by an affidavit under Order XLIII, Rule 2 of the Civil Procedure Code, Cap 33 R.E. 2019 (CPC), unless a specific law dictates otherwise. In this case, there 4 were two specific prayers under the Probate and Administration of Estates Act. Cap 352 R.E. 2019 (PAEA) and other two prayers under the CPC, which are all interconnected and aimed at enabling the smooth administration of the deceased's estate. She emphasized that unless there is a legal provision barring the combination of these prayers in one application, it should be allowed. This would prevent multiple applications, saving the court's time and the resources of both parties. Ms. Mwesigwa supported her argument by citing case law, including Semere Tewelde vs Republic and Mustapha Haji vs Ally Haji, which uphold that the applications with multiple prayers are permissible as long as they are related. In conclusion, she argued that the combination of the six reliefs in this case is proper, sequential, and does not contradict one another. Thus, the application is legally sound and should be considered. Mr. Gwamaka disagreed with the applicants' counsel, asserting that courts are prohibited from combining different prayers that are not related or are found under separate laws. He explained that there is a test for 5 omnibus prayers: if they are contradictory, loosely connected, or unrelated, they cannot be combined. He pointed out that, in this application the first two prayers fall under PAEA, while the third and fourth are governed by the CPC, involving injunctions and declaratory relief, which are unrelated to the probate prayers. Based on this, he argued that the prayers oppose each other and cannot be combined. Mr. Gwamaka referred to precedents, including Rutagatina C.L vs The Advocates Committee & Another (Civil Application 98 of 2010) [2011] TZCA 143, where courts struck out omnibus applications with unrelated prayers. He emphasized that in this case, the prayers are governed by different laws and must be handled separately. Furthermore, he argued that the Probate Rules already provide sufficient guidance for the revocation application process without needing the Civil Procedure Code. He dismissed the argument that the third and fourth prayers assist in estate administration, pointing to section 108 of the PAEA, which outlines administrators' duties. ----- 6 In conclusion, Mr. Gwamaka prayed for the application to be struck out for being omnibus and incompetent, as the prayers are contradictory and governed by different laws. After hearing the arguments from both sides, the central issue for determination is whether the combination of these prayers in a single application is permissible and appropriate under the circumstances. It is a well-established legal principle that an omnibus application must be carefully scrutinized to ensure that the prayers sought are interconnected and non-contradictory. In this case, the applicants seek relief under two distinct legal frameworks: the Probate and Administration of Estates Act (PAEA) and the Civil Procedure Code (CPC). The first two prayers pertain to probate matters, while the third and fourth prayers involve injunctions and specific performance, which typically fall under the CPC. The court acknowledges that case law permits the combination of prayers when they are related and aimed at a common purpose. However, it is equally well-settled that when prayers in an application are not interrelated or arise from different legal provisions, the application becomes . . incompetent. ■ ■“ (Sr (J 7 In this matter, the applicants have sought to combine a prayer for the revocation of letters of administration (which falls under the PAEA) with prayers for a restraining order and specific performance (governed by the CPC). These reliefs are distinct and require separate applications. Since they are governed by different legal regimes and do not share a sufficient connection, their inclusion in a single application is not justified. I concur with the position advanced by Mr. Gwamaka, supported by the decision in Rutagatina C.L vs The Advocates Committee & Another (supra), which establishes that omnibus applications containing unrelated prayers are improper and should not be entertained by the court. This principle has been reaffirmed in several cases, including Mohamed Salmin vs Jumanne Omary Mapesa (supra), which cited Bibie Hamad Khalid vs Mohamed Enterprises (T) Ltd; and the case of J.A. Kandonga and Hamis Khalid Othman, Civil Application No. 6 of 2011 (unreported). A similar position was reiterated in Geofrey Shoo and Another vs Mohammed Saidi Kitumbi & 2 Others (Misc. Land Case Application 109 of 2020) [2020] TZHC Land D 3916 (11 December 2020). 8 Given the position above, this court finds that the application has been improperly filed. The prayers sought are not sufficiently interrelated and are derived from different legal regimes. As a result, the inclusion of such unrelated prayers renders the application incompetent. For these reasons, the application is hereby struck out for being omnibus and incompetent. The applicants are at liberty to file fresh applications, appropriately separated according to the applicable laws. Given the fact that the issue has been raised by this court suo motu, I give no order as to costs. It is so ordered. Dated at Temeke this 20th day of September, 2024. N. BARTHY JUDGE Delivered in the pres^icej^Applicants in person, Mr. Joan Mwesigwa learned advocate for the applicants, Mr. Gwamaka Mwaikugile learned advocate for the respondent, Ms. Bernadina Tayari, RMA and in the absence of respondent in person. 9