Registered Trustees of Masjid Mwinyi vs Daniel Zakaria and Others (Civil Case No. 200 of 1995) [1998] TZHC 2163 (12 May 1998)

... . I . ! IN TIIE HIGH ,cou:.::1T OF T:'\Ii7..;\I'!I.:\ · AT D.i\11 ES S/tLii.:il'i --.-•- .,,,,._ CIVIL C1.SE NOo 2QO OF 1995 THE DEGLSTEm.."'D TRUS'rEES' ' OF M!~.SJID M''1INYI • ••• • • o. •. o •. o. • • • o o. o o. oPT.LINTIFF V 1: R S U S

1. D,:\NIEL Z1\KARIA
2. PIU.S KIPENGELE
3. STEVEN M'·liU-'iKO!i. •• o •• o • •• o a •• o • ••••• o o o o •• o .DEFENDd°.NTS RULING Mackanja, Jo ·The Plaintiffs are the rec;istered Trustees. of Hasj id Mwinyi. They have brought" these proceedings to recover two houses which were left behid by ;ne fiziza Omari. It is allP.ged that the deceased pequeathe,i. tnose . . propertie5. to Masj'id Mwinyi. The. plendings ho~, t).1at soon after .t!le ii.eceased's death· Daniel Zaka.ria 1 a lifetime ·rriend of the deceased, applied for and eot letters of administration in respect of that estate.• The plrl.tiffs did not apply for a Brant of letters of a.Jministra.tion. 1 They aver, however, that the .first dcfend,:i.nt frandulently disposed of the ( property formin the estate, including the suit houses. It is in their fraud averments that not only did the first defendant commit acts of in. respect of the estate, he also obtained the grant of letters of administration ·frandulently. The defendants have raised a preliminary po.int of objection Their contention is based · that the plaintiffs have no locus standi.

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·on the fact that only the .administrator of the '/ .. can sue or can be sued in respect/ estate./ That is correct, in. my of · /the estnte view, is quite elementll!'y law. No one can sue to recover any property · I beJ.onging to the estat~ except a person who is duly appointed administrate.· Ift :as ';the plaintiffs allege, the gr{:lnt was pbtainen franrl.lllently, there is · ., .. · 16 . a matter .-that· mt1s,:; 7re- . . nothing this court cMdo" now for / proved by ·the ndduction of evidence before the c•::mrt that ma.de thegrnnt. · ·I am sure the plaintiffs were not well advised when· they decided to- irn=.,i:i h!te these proceedings. Wl1c1.t they ought tc have done ahead of everything was to have the grant :r-evoked, if they have the evidence to establish their_caseo I • 1-·

.. Once that \vus achfovcd they wov.ld then have filed an application to prove the~ they contend was made by the deceased in fvour 1 • ofMasjid Mwiny_i;. If they suc-ceeded they would then be the benefial f-· own0rs of the estate an behclf of Mnsjid Mwinyio Without that having been achieved the present suit i·ras instituted by people who have ' no rie;ht to be heard, and this is 'ti hat locus standi is nll about, the• rie;ht to I --- be hqard 0 There was also an objection relatint_; to misjoinder of defendants and misjoinder of causes of actiono It is no longer necessary to unmintainable det0rmine those issues because the suit is in respect of the first objection. · · Upon the forei~~ing considerations the suit is dismissed with costs. Del:ivered •. Jo M. Mackcnj a . JtW9E 12/5/98 Mr. Maftah, lkbrocate.: For the Pl,J.intif.f - (Absent) Dro Mvungi, Advocate: For the 1st and 2nd Defendants - (Absent) Mr. Ukwon?,a, hdvocate: F.or the 3rd Defenda."'lt - (Absent) I, I I I Certify that true copy of the Original.