shafii mahamudu vs ismail kumbangu alli 2023 tzhc 22720 10 november 2023

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOROGORO DISTRICT REGISTRY ATMOROGORO LAND CASE NO.6 OF 2023 SALUM MUSTAPHA KILUMBU (Administrator of the estate of the late HALID HASSAN KILUMBI) PLAINTIFF VERSUS KIYONGWILE PRIMARY SCHOOL DEFENDANT IFAKARA TOWN COUNCIL 2^° DEFENDANT ATTORNEY GENERAL 3^° DEFENDANT RULING Date of last Order: 03/10/2023 Date of ruling: 20/10/2023 BEFORE: G. P. MALATA. J The plaintiff Salum Mustapha Kilumbu (Administrator of the estate of the iate Halid Hassan Kilumbu, who passed away 23/04/1983 filed the present suit against the Defendants for trespass over one and haif acre (1.5) Page 1 of 15 of land which was customarily owned by the deceased and inherited by his surviving family. In other words, the land is being owned by the deceased's family. The plaintiff was appointed administrator of the deceased estate in 2021 just for the purposes of claiming for the land alleged to have been trespassed by the defendants herein. Upon being served with copy of plaint, the defendants filed Written Statement of Defence together with two preliminary objections. On 03/10/2023 the matter came for hearing of preliminary objections, however, the defendants withdrew one preliminary objection and proceeded with one which provides that; That, the plaintiffbeing an administrator ofthe estate ofthe iate Haiid Hassan Kiiumbu has no iocusstandi to sue. The parties appeared represented. The plaintiffs appeared through Ms. Stumai Moshi learned counsel whereas the defendants appeared through Ms. Lightness Tarimo and Ms. Emma Ambonisye learned State Attorneys. Advancing arguments in support of the preliminary objection, Ms. Lightness Tarimo submitted that, the plaintiff was appointed administrator of the late Page 2 of 15 Halid Hassan Kilumbu by Ifakara Primary Court on 30/4/2021. The suit was filed on 30/5/2023. The time within which to discharge his roie as administrator has passed since he was required to accomplish the task within 4 months. She made her reliance on Rule 10 of the Primary Court (Administration of Estate) Rules, GN 49/1971. Further, Ms. Lightness cemented her submission in the case of Mazigo Biseko Vs Wegoro Timbira (Msimamizi wa Mirathi ya marehemu Matai Matete), Land appeal No. 8/2022, High court Musoma at page 7-8 of the judgement where the court stated settled that, administration of estate is nota life time butiimited by law. She also cited the case Beatrice Brighton Kamanga and Amanda Brighton Kamanga Vs Ziada William Kamanga, Civil Revision No. 13/2020 at page 23 line II. "There is no endless administration or life administrator in our laws" Finally, she prayed that, the suit be dismissed with costs. In reply.thereof, Ms Moshi learned counsel submitted that, paragraph 11 the plaint indicates that, the plaintiff was granted letter Of administration on Page 3 of 15 30/4/2021. The plaintiff was appointed for the purposes of pursuing the Estate of the late Halid Hassani Kilumbu. The Defendants made reliance on Rule 10 of the Primary Court Rules in that since he was appointed two years ago and decided to institute the present after two years, that is to say in May, 2023. Ms. Moshi submitted that, the cited Rule 10 does not limit that every function must be done and accomplished within four (4) months. The plaintiff applied for extension of time within which pursue for the rights in the existing dispute. She finally prayed for dismissal of the preliminary objection with costs for want of merits. By way of rejoinder Ms. Emma,State Attorney submitted that, the cited Rule 10 It covers all situations, including the one at hand. If the administrator fails to accomplish the task within time, then he has to apply for extension of time. It is true that he was granted extension 9/10/2021. Extension administration duties not for this case. She thus pressed for dismissal of suit for want locus standi. Page 4 of 15 To start with/1 shall quote paragraphs of the plaint to assist me In the deliberation, of the matter at hand Paragraphs 6, 7, 8,9 and 10 of the plaint which that; 6. "That, the owner of the suit land is the iate Haiid Hassani Kiiumbu (herein after referred as the deceased) who died intestate on 24^ Aprii, 1983 and left behind his 1 Vz acres which was customary inherited to his survived family. 7. That, the suit iand is the dan iand which was found and developed by the iate grandfather of the deceased one ATHUMAN KILUMBU MATIPUKA, the same be pass down to generation to generation 8. That, since the deceased passed away his family has being in possession ofthe suitiand and used the same for agriculture uninterrupted untii 2016 when the head teacher of the 1^ Defendant on RICHARD FIMBO used the deceased's family to Ifakara Ward Tribunalfor Trespass in a suitiand through iand case No. 6of2016 where he claimed the same to be a school property Page 5 of 15 9. That, in the said Ward TribunaTs case the deceased's family appointed the plaintiff to be their representative though he was not yet an administrator ofthe estates ofthe deceased, and so the case went off favoured the Defendant The , plaintiffbeing aggrieved with the decision he filed iand appeal No. 136 of 2016 to Kiiomhero District Land and Housing Tribunal which resulted to quashing and setting aside the Ward Tribunal's decision for lack of iocus stand of the 1^ Defendant's head teacher.(Copy ofthe JudgmentofLand Case No. 136 of 2016 dated 4^^ July, 2018 is hereto annexed and marked as Annexure SA2 forming part this piaint). 10. That, after the decision of Kiiomhero District Land and Housing Tribunal, the deceased's family proceed with the use of the suit iand peaceful untii 2020 where the 1^ Defendant trespassed to the suitiand and cultivate paddy. Reading the above paragraphs, it is evident that; one,the late Halid Hassani Kilumbu passed away in 1983, paragraph 6 depicts, two, left behind 1 Vi acres was customarily inherited by his survived family, paragraph 6 Page 6 of 15 elucidates, three, the land in dispute remained under ownership and peaceful use of the surviving family of the late Halid Hassani Kilumbu until 2016 when the head teacher of the 1^ Defendant Trespass in a suit, paragraph 8 describes, four, that plaintiff herein instituted land dispute no 6 of 2016 before Ifakara Ward Tribunal and later land appeal No.136 of 2016 in the District Land and Housing Tribunal for Kilombero which was quashed for lack of locus standi of the plaintiff, ^Ve, the plaintiff went to Ifakara Primary Court applied for letter of administration and on 30/4/2021 he was accordingly granted and became the administrator of the estate of the late Halid Hassani Kilumbu and six, having been granted letter of administration which gave him locus standi in May, 2023 he filed the present suit against the defendants. That is the story in nutshell. The parties did lock hons on the fact that the plaintiff's period for discharging administration matters has expired as the time to accomplish the same is four months unless extended by court upon request, thence the preliminary objection. On the other hand the plaintiff submitted that, the administration will be complete on completion of the case and that the four months within which Page 7 of 15 to accomplish the task of administration does not apply to the incidence at hand. Upon reading the plaint and submission for and against the preliminary objection, this court did ask two pertinent questions, one, whether there was estate of the late Halid Hassani Kilumbu capable of being administered, thus grant of letter of administration to the plaintiff and two, whether the plaintiff is still within time limit to discharge administration function of the late Halid Hassani Kilumbu by virtue of Rule 10 of the Primary Courts (Administration of Estates) Rules, G.N.49/1971 In addressing the first question, for a letter of administration to be issued there must be; first, proof of death, second, statement of that, the deceased passed intestate, third, proof that there properties which need to be administered for the interest of heirs, forth, there are debts or properties which need to recovered and fifth, statement that the deceased's properties are not yet inherited or distributed to the heirs/beneficiaries, and sixth, minutes of family meeting nominating the applicant to be granted letter of administration. Page 8 of 15 In the present case, the plaintiff has unequivocally confirmed, through paragraphs 6 and 8 of the plaint that, "...the owner of the suit /and is the iate Haiid Hassani Kiiumbu (herein after referred as the deceased) who died intestate on 24'^ Aprii, 1983 and left behind his 1 V2 acres which was customary inherited to hissurvived famiiy." Reading the above quotation from paragraph 6 of the plaint, it is evident that, there is nothing to be administered as the deceased's properties including land in dispute were inherited by the deceased's survived family. In that regard therefore, since there is nothing to administer then the heir/heirs can pursue for their encroached rights by explaining to the court how they became into ownership of the land in dispute. There is no need to appoint administrator where there is nothing to administer as deceased's estate. This court therefore is of the settled view that, since there was nothing to be administered then the appointment of the plaintiff is nullity as he serves no administration functions rather a person granted power of attorney to Page 9 of 15 institute a case on behalf of the interested party, the inherited deceased's surviving family. Further, reading paragraphs 6, 7, 8,9 and 10 of the plaint just to cite a few, it is clear that, the plaintiff granted letter of administration was only for purposes of getting locus standi after land appeal No. 136 of 2016 of the District Land and Housing for Kilombero being quashed for same reason. All said and done, the appointment of the plaintiff as administrator of the estate of the late Halid Hassani Kilumbu is out of context and ineffectual in law as there was nothing to administer. Essentially, the disposes the whole matter at hand, however for future reference, I shall attempt to deal with the remaining issue which tends to address the parties concern as well. I am indebted to adopt the well settled by my elder brother Hon. L. M. Mlacha, J as then was when he presided over in the case of Beatrice Brighton Kamanga and Amanda Brighton Kamanga Vs Ziada William Kamanga supra and stated that, 'There is no endless administration or iife administrator in our laws'' Also, my brother F.H. Mahimbali J in the case of Mazigo Biseko Vs Wegoro Timbira (Msimamizi wa Mirathi ya marehemu Matai Matete), supra. Page 10 of 15 ^^Administration ofestate is not a iife time but iimited by iaw." Irrefutably, I share similar view with My brothers herein above. Having so said, I now turn the issue which placed the parties into irreconcilable arguments on whether there is time limit within which the administrator should discharge and complete the administration of the estate of deceased. Notably, the administrator is granted, locus standi to administer the deceased estate by Court. Such, locus standi is granted to enable the administrator to discharge administration functions such as; one, to collect the properties of the deceased wherever they are, two, receive claims from whoever had against the deceased, three, ascertain and prove its existence, four, communicate to the heirs on the final verified debts and collected assets, five, pay the final verified debts, six, inform the heirs on the remaining assets and distribute to them accordingly and seven,ask the heirs on whether there is any concern on the distribution of the deceased' assets eight, prepare and file with court a final statement of account and return of letter of administration to the court, nine, court ordering closure of the administration of the respective deceased's estate and ten, upon return of the letter of administration and closure order the locus standi of the administrator ceases. Any claim thereafter will not be preferred against the Page 11 of 15 then administrator as sanction granted by the court to such administrator to stand for the deceased will have ceased. All the above administration functions have to be performed within a specified time limit otherwise the deceased's estate will be subjected to vandalism. Further the estate is intended to support the surviving family of the deceased through the deceased assets, that is why it has to be done within a specific time. Now coming to the crucial issue, this court had time to go through Rule 10 of the Primary Courts (Administration of Estates) Rules, G.N.49/1971 if at all provides for any answer. The Rule reads; (1) Within four months of the grant ofadministration or within such further time as the liabilities court may aiiow, the administrator shaii submit to the court a true and complete statement, in Form V, aiithe assetsandiiabiiities ofthe deceased persons'estate and, atsuch intervals thereafter as the court may fix, he shaiisubmitto the courta periodicalaccountofthe estate in Form VI showing therein aii the moneys received, payments Page 12 of 15 made, and property or other assetssold or otherwise transferred by him. (2) The statement and accounts referred to in subruie(1)may, on application to the court, be inspected by any creditor, executor, heir or beneficiary ofthe estate. By reading and interpreting the Rule, I am of the settled view that, the rule provides for two scenarios; one, it provides for what the administrator should do in discharging administration functions, two, provides for time limit within which to accomplish the assigned task as limited by the said Rule, that is within four months of the grant ofadministration"^, three, the rule provides for extension of time in case the administrator fails to finish I • ' ' . the task within the given time of four months, that is to say, "" within such further time as the iiabiiities court may aiiow'' In nutshell, the administrator has to accomplish the administration task within four months or such further period as may have been extended by the court. Meaning that if there is no extension, then the time is four months as stated by Rule 10 of the Primary Courts (Administration of Estates) Rules, G. N. 49/1971. Page 13 of 15 Unhesitatingly, I hereby settle the matter that, the administration function whether under the Primary Courts (Administration of Estates) Rules, G. N. 49/1971 or Probate and Administration of Estate Act, have time limit within which to discharge the same. As such, I share Similar attitude with Hon. L. M. Miacha, J as he then was High Court Judge, and Hon. F. H. Mahimbali in the afore cited decision whether they stated that "There is no endless administratipn or life administrator in our Jaws"and thad'^Administration of estate is not a iife time but limited by iaW respectively. Having said ail what I wanted to say, I hereby uphold the preliminary objection and rule that, the plaintiff, one SALUM MUSTAPHA KILUMBU (the administrator) has no locus standi for the two grounds advanced herein above. In the event therefore, I dismiss the suit for want of locus standi. Cost to follow the event. IT IS SO ORDERED DATED at MOROGORO this 20^^ October, 2023 G. P. MAIWA judgI 20/10/2023 Page 14 of 15 Court: RULING delivered at MOROGORO in Chambers this 20^^^ October, 2023 in the presence of Piaintiff, her Advocate Ms. Stumai Mushi, iearned Counsei holding brief for Ms. Emma Ambonisye, State Attorney for the Defendant. A. w. MMaUdo DEPUTY REGISTRAR 20/10/2023 Court: Right to appeal to the Court of Appeal explained. Oit A. W. rWBANDG DEPUTY REGISTRAR 20/10/2023 iviov^5 Page 15 of 15