LAND CASE NO 1 OF 2022 SALEHE RAJABU UKWAJU VS MARWA WAMBURA OGUNYA

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT - LAND DIVISION (MUSOMA SUB REGISTRY AT MUSOMA) LAND CASE No. 1 OF 2022 1. SALEHE RAJABU UKWAJU {Administrator of the Estates of the Late \ Rajabu Abdallah Ukwaju\ 2. HAJI RAJABU UKWAJU \ {Administrator of the Estates of the Late ............... PLAINTIFFS Rajabu Abdallah Ukwaju\ / 3. ABDALLAH RAJABU UKWAJU I {Administrator of the Estates of the Late I Rajabu Abdallah Ukwaju\ J Versus 1. MARWA WAMBURA OGUNYa\ 2. KAMARA JUMANNE UKWAJU^........................ DEFENDANTS RULING 30.04.2024 & 30. 04.2024 Mtulya, J.: On the 6th September 2023, this court had framed, in consultation with the parties, a total of five (5) issues to be resolved in the judgment after hearing of the parties and moved further to order hearing of the case on 11th December 2023 at 08:00 hours. On the indicated date, the case was adjourned to let criminal sessions cases hearing to take their courses. The case was then scheduled for hearing on 6th February 2024 at 08:00 hours. However, on the i scheduled date, the case could not proceed as the plaintiffs' learned counsel, Mr. Feran Kweka did not appear for reasons of attending the Court of Appeal Sessions in Mwanza Region. However, Mr. Kweka had declined to register any materials in cause list or summons to substantiate his allegation on the appearance before the Court of Appeal (the Court). The case hearing was then adjourned and this court had ordered hearing to take its passage on 14th March 2024. However, before this court had issued the order, Mr. Wambura Kisika, learned counsel for the first defendant had complained that the case hearing was deliberately delayed by the first plaintiff. In his complaint, Mr. Kisika submitted that the case twisted backlog on 5th February 2024 as it was filed on 6th February 2022. This court then noted the submission and found that the complaint is valid. This court then had issued an order which is crucial in today's decision of this court. The order reads that: parties to come with all of their witnesses for hearing purposes [on 14h March 2024], The order was issued as part of necessary measures to hear the parties and resolve the matter to the finality without any further delay. On 14th March 2024, the first plaintiff had appeared himself without the second and third plaintiffs, and since lodging of the case the dual had declined their appearance in this court. However, the 2 first plaintiff on the day had summoned another witness called Ms. Mwamvua Ukwaju as a material witness to corroborate the plaintiffs' case. On the other hand, the first defendant had marshalled a total of three (3) witnesses and was ready to proceed with the case hearing. However, Mr. Kisika was concerned on the absence of the second and third plaintiffs and prayed the suit be dismissed for want of all plaintiffs. In his opinion, the plaintiffs are one office of administrators of the deceased, Mr. Rajabu Abdallah Ukwaju, and in the absence of one of the administrators means the deceased is absent for hearing of the case. According to Mr. Kisika, if this court proceeds with the hearing, it will proceed with the nullity proceedings and may produce two conflicting decisions of the same court on the same subject. In substantiating his statement, Mr. Kisika cited the decision of this court in Sale he Rajabu Ukwaju [As administrator of the Estates of Rajabu Abdallah Ukwaju]v. Marwa Wambura Ogunya, Land Case No. 20 of 2021, where this court had struck out the case for want of all three (3) plaintiffs to constitute locus standi in the case. According to Mr. Kisika, in the case this court had issued an advice to the first plaintiff to invite and use Order I Rule 8 of the Civil Procedure Code [Cap. 33 R.E. 2022] (the Civil Code) to seek consent of the other plaintiffs. 3 In replying the submission, Mr. Kweka conceded the point and supported the move to call the other two plaintiff for proper record of the court. He submitted further that he is representing the first plaintiff only and unable to summon the second and third plaintiffs as he had no any instruction from them. In his submission, Mr. Kweka also prayed for this court to summon the other plaintiffs to prosecute their case. As part of cherishing the right to be heard and justice to the parties, this court had invoked section 95 of the Civil Code and issued summons to the second and third plaintiffs. Finally, this court ordered all plaintiffs and their witnesses to appear for hearing on 4th April 2024. On 4th April 2024, the second and third plaintiffs had declined appearance and no reasons were produced. However, the first plaintiff insisted that he can produce materials during the hearing stage on behalf of other two plaintiffs. In order to substantiate his position, he declined Mr. Kweka and marshalled Mr. Anold Katunzi, learned counsel to persuade this court to proceed with the case hearing in absence of the second and third plaintiffs. According to Mr. Katunzi, the dual plaintiffs are not necessary to be brought in this court to produce their evidences during the case hearing as the first defendant cannot direct the plaintiff which species of witnesses to be summoned in court. 4 Mr. Katunzi submitted further that he is in possession of a bundle precedents regulating the subject and prayed for a leave to register relevant materials and precedents on the contest. This court then granted the first plaintiff twenty-six (26) days leave in search of the materials and produce the same in this court on 30th April 2024 at 14:00 hours. Today, 30th April 2024, Mr. Katunzi appeared in this court carrying one (1) decision of this court in Elimbora Ashendumi Nkya v. Mariam Amir Masaki [The Administratix of the Estate of the Late Friback Onasia Shoo], Land Appeal No. 317 of 2023, arguing that if there is no any caveat from the co-plaintiffs, the case may proceed with either of the plaintiffs and deliver justice. Replying the submission, Mr. Kisika submitted that the indicated precedent is similar to the position resolved in precedent of Simon Ngatola Woisso v. Priva Simon Woisso & Another, Misc. Civil Application No. 308 of 2019, which interpreted section 104 of the Probate and Administration of Estates Act [Cap. 352 of 2019] (the Probate Act) on powers of co-executors. According to Mr. Kisika, the circumstances of the indicated precedents are distinct from the present case as in the precedents, there were no caveat and only one (1) of the executors who had initiated proceedings, whereas in the present case all three (3) 5 plaintiffs were drafted in the plaint and registered their signature to consent the plaint, but declined appearance since the beginning of the case. In the opinion of Mr. Kisika, all plaintiffs have consented the suit and must appear to register evidence as a single plaintiff who constitute the deceased, and in absence of one (1) of them, the proceedings are nullity. In order to support his move, Mr. Kisika had produced three (3) more decisions regulating the area of contest, namely: Philip Mlay [As Administrator of the Estates of the Late Anna Focus Miay] v. Stanbic Bank Tanzania Limited & Two Others, Land Case No. 201 of 2020; Abdul Kamuanda Rwenza v. Sakina Wanjiru Rwenza Misc. Civil Application No. 107 of 2018; and May Mgaya v. Salimu Saidi [The Administrator of the Estate of the Late Saidi Saiehe] & Another, Civil Appeal No. 264 of 2017. I have had perused and scanned all the seven (7) registered decisions of this court and Court of Appeal (the Court) on the subject, and persuaded by the course preferred by the Court at page 10 of the Judgment in May Mgaya v. Salimu Saidi [The Administrator of the Estate of the Late Saidi Saiehe] & Another (supra) which shows that: ...co-administrators are responsible jointly and together for everything in respect of the administration of the estates of the deceased. 6 The Court then advised that, if at all, any administrator who wishes to have the appointment of either of the administrators to be revoked, the administrator may prefer an application for revocation of co-administrator. The Court at page 11 of the Judgment had issued the reasoning of taking the course and thought, briefly, that: both administrators are supposed to face the same consequences [and that] an order of single-outing co-administrators is discriminatory and breaches article 13 of the Constitution on equality of all human beings before the law. Having the decision of the Court regulating the subject and since Mr. Katunzi had declined to produce similar decision on the subject, I am inclined to hold that the first plaintiff cannot appear and prosecute the case alone without the second and third plaintiffs. As the first plaintiff was issued last order on 6th February 2024, to call the second and third plaintiffs for hearing purposes and declined the court's order, I am moved by the submission of Mr. Wambura to strike out the case for want of all three (3) administrators as directed by the Court in the precedent of May Mgaya v. Salimu Saidi [The Administrator of the Estate of the Late Saidi Saiehe] & Another (supra). I do so without costs as plaintiffs have lodged the case in good faith in search of the deceased's properties. The plaintiff, if so wish 7 to contest the deceased's properties, he may wish to do so in accordance to the law and directives of courts (see: Simon Ngatola Woisso v. Priva Simon Woisso & Another (supra); Salehe Rajabu Ukwaju [ As administrator of the Estates of Rajabu Abdallah Ukwaju] v. Marwa Wambura Ogunya L(supra); Abdul Kamuanda Rwenza v. Sakina Wanjiru Rwenza (supra); and May Mgaya v. Salimu Saidi [The Administrator of the Estate of the Late Saidi Salehe] & Another (supra). It is so ordered. Thi^Rfifi^was delivered in Chambers under the Seal of this court in the presence of the first plaintiff, Mr. Salehe Rajabu Ukwaju, and his learned counsel, Mr. Anold Katunzi and in the presence of the first defendant, Mr. Marwa Wambura Ogunya and his learned counsel, Mr. Wambura Marwa Kisika. Judge 30.04.2024 8