salama hamisi akida others vs akida hamisi akida another 2008 tzhc 339 14 february 2008

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM PC. CIVIL APPEAL NO. 57 OF 2003 SALAMA HAMISI AKIDA AND 3 OTHERS___ APPELLANTS VERSUS AKIDA HAMISI AKIDA AND ANOTHER .. . RESPONDENTS Date o f last o rd e r -3 1 /0 1 /2008 Date o f Jud g m e nt 1412/2008 - JUDGMENT . Oriyo, J. This matter originates trom the Kariakoo Primary Court in Probate and Administration Cause No. 43/1999 over the Estate of the late Matuju Kombo, who died on 14/01/1991. The deceased left behind an estate comprised of 2 houses. One house is No. 45 on Plot No. 28 Block “L” located at the junction of Nyamwezi and Muhoro Streets, Kariakoo, Dar es Salaam. The other house is No. 47 located on Plot No. 31 Block 17 Dossi Street, Magomeni Dar es Salaam. The deceased was survived by 8 children as hereunder:- (i) Salama Hamisi Akida (ii) Akida Hamisi Akida (iii) Kombo Hamisi Akida (deceased survived by 4 children) (iv) Hussein Mgaya (V) Mwazarau Madenge(deceased survived by 3 children) (Vi) Kitete Mrisho Senga (vii) Mlela Mrisho Senga (viii) Siajabu Iddi On 10/3/2000, the Primary Court granted Letters of Administration over the deceased estate to the 1st respondent, Akida Hamisi Akida. It was also ordered that the two houses be sold and the proceeds distributed to the heirs accordingly. As the beneficiaries last names show, some of them share same fathers. But the majority of the beneficiaries were not happy with the order of sale. They wanted the properties to be retained within the family. So they appealed to the District Court of llala in Civil Appeal No. 23/2000. The appeal was dismissed on 17/10/2000 (J.F. Mnengu DM). In addition to the dismissal; the court gave the appellants the option to buy out the respondents. Two years later in Civil Revision No. 29/2002 the same matter surfaced again in the District Court of llala. This time it was before the late Kabuta, RM. On 25/3/2003, the learned Resident Magistrate dismissed the application for revision. Let me dispose of the revisional proceedings first before going further. The revisional proceedings before the District Court of llala were erroneously entertained. The District Court became functus officio on 17/10/2000 when Mnengo, DM; dismissed the appeal. The District Court had no jurisdiction to sit in Revision of its own proceedings. In the event, the revisional proceedings were illegal and a nullity. In the exercise of this court’s revisional powers, I hereby quash the revisional proceedings in Civil Revision 29/2002 and set aside the ruling and any other orders therein. Again, aggrieved by the District Court’s decision (Mnengo, DM) to dismiss the appeal, the appellants came to this court for a second appeal. An amicable settlement was reached here after along protracted litigation. A consensus was reached by parties that each side submit a Valuation Report over each house as a basis tor the appellants to buy out the respondents interests. Untortunately before the intended purpose was achieved the record of appeal got misplaced/lost; sometime at the beginning of 2007. The parties were unrepresented in this court and in both courts below. So it proved very difficult to reconstruct the record. However, the record was scantily reconstructed; at least with copies of lower courts decisions. When the Valuation Reports were submitted by the parties; substantial discrepancies were noted between the appellants reports and those of the respondents. The appellants value of the Kariakoo house was put at shs.25,515,000/= while the respondents value was pegged at shs.l 63,600,000/=. For the Magomeni house, the appellants value was shs.20,650,000/= while the respondents put it at shs.56,300,000/=. Despite the discrepancies; the appellants agreed to use the Valuation Reports submitted by the respondents as a basis ot paying the latter’s due shares ot the properties. The appellants asked for a months' time to enable them firm up their financial arrangements. The respondents expressed their satisfaction with the appellants proposal and a Consent Order was entered to that effect on 26/10/2007. On 30/11/2007, when the matter came up in court, the respondents came up with a fresh proposal that their due shares from the Kariakoo house be pegged on shs. 190,000,000/= and not on the earlier Valuation figure of shs.l 63,600,000/=. The new figure of shs. 190,000,000/= was allegedly quoted to them by a certain prospective buyer known only to the respondents. This time, the respondents had in court, the services of Mr. Malamsha, learned counsel of M&N Law Associates (Advocates). The learned counsel informed the court that he was informed by the administrator of the estate, the 1st respondent, that this court had ordered the sale of the 2 houses. And in that connection, counsel was instructed to prepare a Sale Agreement and the intended distribution of sale proceeds. The appellants were vehemently opposed to the respondents tresh proposal in the tace of the consent order of 26/10/2007. They stated that they had complied with the court order and the respondents due shares were already in the bank. The appellants said that they were ready to pay the respondents and were only waiting for the necessary court order. However they cautioned that the payments ready for paying out are based on the values shown in the Valuation Reports filed by the respondents. The issue for determination here is whether the two houses should be sold as ordered by the Primary Court or as per subsequent agreement of parties reached in this court on 26/10/2007. Here it is obvious that the Administrator of the Estate lied to the learned counsel knowingly and in contravention of the Consent Order entered on 26/10/2007. Actually, even copies of the proceedings of 26/10/2007 had been availed to parties. On his part, the 1st respondent who is the estate administrator, told the court that he had allegedly misunderstood the consent order and apologized for that. This court is conscious ot the legal powers of estate administrators to sell properties of the estate. The 1st respondent had a free hand to sell the houses and distribute the proceeds thereof to the beneficiaries. But in carrying out his duties, the administrator had a duty to demonstrate diligence in so doing. The administrator here completely failed to demonstrate any diligence in the purported sale of the Kariakoo house after the consensus reached in court. In addition, in the circumstances of the appeal at hand; the administrator had no such free powers of sale until the appeal is determined and finally concluded. It is only then that the administrator has to resume his administration duties by complying with the court order accordingly. Under the foregoing circumstances; consent judgment is entered for the appellants on the terms and conditions agreed by parties and as recorded in court on 26/10/2007. The two houses shall not be sold but retained by the appellants. The respondents’ due shares from the 2 houses shall be paid by the appellants. The basis of the payments shall be determined by the relevant Valuation Reports as filed by the respondents in court. For the avoidance of doubt; the respondents due shares on the Kariakoo house shall be based on the value of shs.l 63,600,000/=. Their due shares on the Magomeni house shall be based on the value of shs.56,300,000/=. The appeal is allowed and the decisions of the two lower courts are set aside. The 1st respondent’s purported sale of the Kariakoo house, if any, is illegal and is hereby nullified. Let the matter be remitted to the originating court; the Kariakoo Primary Court for the necessary payments to be effected. On the issue of costs, this being a Probate matter; each party to bear own costs. K. K. Oriyo JUDGE