Administrator Central vs Luceus (Civil Case No. 164 of 1998) [1999] TZHC 170 (10 September 1999)

• JN '-T HIG:r-1 --:JURT Oi? ,-AN7AN1A D.\R r ) ,, UIAM ffSfrICT' REG Is'rRY 'L_-~ ALM:;.:I,;tt1ATuF<. C 'F '; .AL \ ··• . -- LUCEU 8 v.:·: .... Ul\10 4 ••• 0 •. ' 0 • ' ••• b.',. DE?ENDANT BUBRS!:!l.a....}: The plainti _;: ::iled a claim agair; J t' tl,~ defendant, claiming amor..gs-c others~ ' .:.-:::ant JY' :.s.ess5.on c.-: r ·:i~.· "'s situate 'I'.:e plaintiff is sulng 2,s the administrator ct tt.8 E.· ·.c.:.-':-, ,...,f -'che 1ate J\lMA TASIBIHI who died on 26/6/1979 at Huhicbili Medical Centre, in Dar es silaam. The defendant :1•.s raised throe preliminary objections on Joints of la.-,,,, ha;nely, that the plaintiff has no 101.us stanc'.i in that the purp-..;rted grant of administration is contrary to Section: 89 (1) and (2) of the ·I:-robate and Administration OrdinE!-nce, Cap,445 and.secondly that the ' ' t order issued under Section 88 (J.) of same Ordinance is not a grant of probate or letters of administration. T~ substantiat..: his arguments, the defendant has submi-bteti ·that the plaintiff is not the legally appointed c administraor o:i:.' the· estate of the deceased. That the order giving di, .::-::;.:..ons mder .Section 88 (l)(b) of Cap 445 is .. ·.:.ot _-1t _, It is pertinent hee to c .. :c~-e that the plaintiff applied for diectons +: of Section 88 ~~) :,. I been submite( ~~~t the~3 r ',.5_s ,--;,-- t, rn tr2 :::;rongth !e .'fend;: i_ts it has y-i · i_r- "'s are only intended ar:::;::_/ ·,o J· e es·:-3 :,c cf 1 ru..L -:, to -- 0 nt thE : : Jba·. or adrni .. ,, ._ . 1 .•• 1 .2reo! to th? ,· 1 lainttff • That thE: Jc! pre ·· :- ~ :,ns eur:;-:,,12r t: _i..., ~cu t + · · c' ·::he uriadiction oi· J '--: ;:':'5 . .11.:::.ry :-· .· ; nd . e.::i· tL..:: · sa.id • t' • :

2 jurisdiction unto.this court. That the order of this court issued on 1L~/12/i"995 i.s clear. The defendant has submitted that the;~ has been.no express grant of such powers to the plaintiff, in terms of the provisior•s c.f Part VII of the Probate and Admintration Ordinance, Cap.445. It is the submission of the defendant that the order issued under Section 88 (l)(b) was neither a grant of probate nor of a letter of administration. As such the plaintiff cannot assume the powers of administrator as per Section 44 of the Ordinance. Further it is contended that even if there was a valid grant, which is denied, the same would contrary to Section 89 (1) and (2) of the I·robate Ordinance. In reply the plaintiff has submitted that he proceeded under the provisions of the Administrator Generals Ordinance

• Sections 5 and 7 respectively. The plaintiff conceded that directions under section 88 (l)(b) is not synonymous with a grant but a procedural step and that as he was going through the procedural step he discovered that the estate was being invaded by::the defendant. Further he adds that although he has not been formally appointed he has locus to institute these proceedings so as to protect the estate. I have considered the filed submissions and I am ~oclined to uphold the same. The plaintiff before suing the defendant,-. has to show that he has powers to do so as the administrator he is claiming the plaintiff has conceded that he is not the administrator so under what capacity or authority is he instituting this claim. This the plaintiff has lamely tried to do by stating that "he has a locus standi to insitute the suit to protect the estate", I am afraid such a contention without the backing of a statutory power cannot pass the test.

3 In the premises I uphold the preliminary objections raised and hold that the plaintiff has no locus to institute this claim. Delivered before Mr. Nassoro for Ndyanabo and in absence of the plaintiff. SGD~ A.G. BUBESHI JUDGE 10/9/99 I hereby certify this to be true copy of the Original. , ./,fff./ ' ,, .. F. S~~ • MUTUKGI DISTRI T REGISTRAR