RULING POTENCE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB REGISTRY AT BUKOBA CIVIL REFFERENCE No. 21668 OF 2024 (Arising from Land Application No. 04 of 2017 of the District Land & Housing Tribunal) POTENCE MUGUMILA………………………………………………………. APPLICANT VERSUS CLEOPHAS KAIZA………………………………………………………….RESPONDENT RULING OF THE COURT Date of last Order & Ruling 25/02/2025 BEFORE: G.P. MALATA, J The applicant was appointed administrator of the estate of the late Clemence Sylvester in 2016 and has preferred the present application for reference under section 77 and Order XLI Rule (2) of the Civil Procedure Code, Cap. 33 R.E. 2019. When this application came for mention on 25/02/2025, both parties appeared in court unrepresented. This court raised two concern that, first, the application for reference was preferred under section 77 and Order XLI Rule (2) of the Civil 1 Procedure Code, Cap. 33 R.E. 2019. The cited provision is used to invoke the High court mandates to issue opinion to the subordinate court for any matter demanding for the same. However, the applicant invoked such provision erroneously wearing shoes of subordinate court, thus the application is barred in law. Second, this court noted that, the applicant was appointed administrator of the estate of the late Clemence Sylvester in 2016. He discharged the work by distributing the estate to the heirs. A dispute arose between the Cleophas Kaiza and the applicant on the distributed estate on allegation that, part of the distributed land was not part of the estate of the late Clemence Sylvester. Despite the administrator having discharged his obligation, he filed land application claiming for the land, while he is no longer administrator as his mandate ceased in 2016. This goes to the point that, the said applicant has not locus standi as it ceased upon expiry of time allocated to administrator by the court and no extension ever been sought and no property has remain edundistributed. In the event, this court raised the two points and asked the parties to submit on the same. In submission thereof, the first point of law, the applicant stated that, it is true that, the application before this court is misconceived and bad in law as it has been preferred under the mandate not vested to the parties, applicant inclusive 2 but to the solely to court. He stated further that, the applicant has no right to bring reference under the said provisions of law. As to the second point, the applicant stated, he completed distributing the estate of the late Clemence Sylvester in 2016. Since then, there is no property remained undistributed. In other words he conceded to the points of law raised and ended praying to withdraw the reference from this court without costs. The respondent raised to concern but blessed the applicant's submission. To start with, section 77 of the Civil Procedure Code, Cap. 33 R.E. 2019 provides that; “Subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court and the High Court may make such order thereon as it thinks fit”. He also cited order XLI rule 2 Civil Procedure Code, Cap. 33 R.E. 2019 “The court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision of the High Court on the point referred; but no decree or order shall be executed in any case in which such reference 3 is made until the receipt of a copy of the judgment of the High Court upon the reference”. It is evident therefore that, both the cited provisions have nothing to do with reference by the applicant. This confirms beyond sane of doubt that, the applicant missed the boat in preferring the present application by assuming mandates by the subordinate court. It is agreeable therefore that, the present application is undeniably bad in law. As to the second point of law, the applicant was appointed administrator of the estate of the late Clemence Sylvester in 2016. He discharged the administration roles by distributing the estate to the heirs in 2016. Despite the administrator having discharged his obligation, he filed land present application claiming for the land, while he is no longer administrator as his mandate ceased in 2016. This goes to the point that, the said applicant has not locus standi to appear and act on behalf of any deceased or heirs. Moreover, there is no estate of the deceased remained undistributed to date and that the applicant was given four (4) months to discharge his functions and no extension. Guided by decision in Miraji Salimu Nyangasa Versus Ramadhani Omary Sewando (As Administrator of Estate of the late Hussein Omary Sewando), Civil Appeal No. 686 of 2023 the court of appeal stated that; 4 “It is worthy stating at this stage that we don't have endless administrations in our schemes. Administration has a starting point which is the date when Form No. I was presented to the court and an end which is the date when the matter is marked closed. Equally, we don't have life administrators or people who hold the assets of the deceased on behalf of others for life. The administrator must finish his job at some time and be discharged. There is a time frame within which the administrator must accomplish his business. Rule 10 (1) of GN 49 of 1971 which states thus: Statement of assets and liabilities and accounts of the estate (1) Within four months of the grant of administration or within such further time as the liabilities court may allow, the administrator shall submit to the court a true and complete statement, in Form V, all the assets and liabilities of the deceased persons' estate and, at such intervals thereafter as the court may fix, he shall submit to the court a periodical account of the estate in Form VI showing therein all the moneys received, payments made, and property or other assets sold or otherwise transferred by him," This means that, the administrator must file his inventory in Form No. V within 4 months from the date of appointment or thereafter as the court may direct. He will thereafter submit his statement of accounts in form 5 No.VI. There is no time fixed for submitting Form No. VI which in actual practice is the forum in which the administrator is exhibiting his proposal on how, if approved by the court, the distribution should be. The practice of some magistrates has been to order both of them to be submitted within 4 months or within such further period as shall be extended by the court. We think this is a good practice which should be adopted”. The court of appeal in the case of Miraji Salimu Nyangasa supra, went on stating that, the effect of failure to accomplish the administration task within time and stated that; “In a good system of administration therefore, the court may make an order for both the inventory and the statement of account to be filed within 4 months from the date of appointment and direct that if for any reason the administrator cannot fife any of them within 4 months, he must apply for extension of time. It will also inform him of the consequences operating over and above the period of 4 months without extension. His activities will be rendered illegal. To ensure a peaceful end, the magistrate must fix a mention date at the end of 4 months to remind the administrator and all interested people that the business must be accomplished within 4 months”. 6 In the present case, the applicant confirmed to this court that; one , he was appointed was in 2016, two, he completed distributing the estate of the late Clemence Sylvester to the heirs in 2016 and that, nothing has remained undistributed, three, that the time within which discharge to accomplish the task was four months, four, he completed the assignment and reported back to the appointing authority, the Primary court in 2016, five, applicant's obligation was automatically terminated upon expiry of the time granted by the appointing authority, thence ceasing to have locus standi appear, act, represent or wear the shoes of the deceased or heirs’ interest, six, there was no extension of time sought and granted by the Primary court to the applicant. On the strength of the above position, it is evident that, the applicant has no locus standi and all what he is trying to pursue is illegal based on the principles stated in the case of Miraji Salimu Nyangasa, supra, Civil Reference No. 21668 of 2024 inclusive. That said and done, this court holds that, the applicant has no legal mandate to stand and pursue for any matter under the umbrella of being administrator of the estate of the late Clemence Sylvester. In case of any dispute by the heirs or third party, the matter is required to be pursued by the particular owner (heir) of the property in dispute against whoever claiming interest on it. 7 Based on the above shortfalls, the applicant prayed to withdraw the application, however, this court finds not appropriate to accede to prayer given the nature of point of law raised. The points of law raised suo motto by this court calls for dismissal of application. Consequently, Civil Reference No.21668 of 2024 is hereby marked dismissed with no order as to costs. ORDER ACCORDINGLY DATED at BUKOBA this 25th February, 2025. G. P. MALATA JUDGE 25/02/2025 RULING delivered at BUKOBA this 25th February, 2025 in the presence of all parties. G. P. MALATA JUDGE 25/02/2025 8