SAFINIEL CLEOPA v JOHN KADEGHE 1984 TLR 198 (HC)

SAFINIEL CLEOPA v JOHN KADEGHE 1984 TLR 198 (HC)

Court High Court of Tanzania - Arusha

Judge Chua J

November 29, 1986

(PC) CIVIL APPEAL 16 OF 1983 E

Flynote

Probate and administration - Revocation of appointment of administrator of estate of

deceased - Reasons that may justify such revocation. F

-Headnote

The appellant sought to revoke the appointment of the respondent as administrator of

the estate of the deceased on the ground that he had misapplied or subjected the

estate to loss or damage. It was G established on the evidence available that the

administrator had underpriced some property sold and failed to account for the

whereabouts of various other properties.

Held: (i) The sale of property at below the market value and failure to account for the

whereabouts of H other properties in the custody of the administrator amounts to

misapplication of the estate;

(ii) an administrator who misapplies the estate of the deceased or subjects it to

a loss or damage is liable to make good such loss or damage. I

1984 TLR p199

CHUA J

Case Information

A Appeal allowed.

No case referred to

J.J.A. Mwale for respondent.

[zJDz]Judgment

B Chua, J.: In the Primary court of Same Safiniel Cleopa filed a suit in which she

sought for an order of revocation of the appointment of John Kadeghe as

Administrator of the estate of the late C husband of the applicant. The Primary

Court dismissed the suit. The appellant appealed to the District Court without success

and now appeals to this court.

From the mass of evidence adduced at the trial it was clearly established that the

respondent John Kadeghe was the brother of the deceased and that he had been

appointed administrator of the D estate with the unanimous consent of the other

relatives of the deceased including the appellant. It was also established that he has

administered the estate since the death of the deceased in 1972. The only question

which was at issue was whether he had misapplied the estate or subjected it to loss or

damage.

E The most important property that caused controversy was a motor vehicle of the

deceased. According to the appellant, shortly before the deceased died he had a Land

Rover which was in running order. The respondent sold the Land Rover for 2000

Shs. Out of the 2000 Shs. he deposited 1000 Shs in the accounts of the children of the

deceased and used the balance for their welfare. The F sale of a Land Rover for 2000

Shs is a transaction that can hardly be believed especially when it is considered that

the vehicle was in running order prior to the death of the deceased. Two thousand

shillings could hardly have been sufficient to buy 4 tyres with their rims. What more

evidence of G misapplying the estate did the Primary Court and the District Court

require?

Next there were 4 heads of modern dairy cattle which were the property of the

deceased. Since by the time the deceased died there is evidence that some of them

were being milked they must have H delivered. The appellant claims for these

cattle. The respondent replied that the cattle had died and that he sold the skins and

from the money realized gave the appellant 75 Shs. One is bound to ask what disease

killed all the 4 cattle? And what is even more pertinent is what happened to the I

calves? The respondent failed to give a satisfactory answer.

1984 TLR p200

CHUA J

Then the appellant referred to two houses built by the deceased at Rogai but alleged

to have been A demolished by the respondent. Where did the building materials

such as iron sheets go? Other properties of the deceased which appeared not to have

been distributed by the respondent were a gun, a Singer sewing machine, a bed, 25

metres of chicken mesh, a sprinkler, plumbing parts, a hose B pipe and a jerry can.

In my view the evidence on record showed on a balance of probability that the

respondent had misapplied the estate. S.8 of the 5th Schedule of the Magistrates'

Courts Act, provides:

An administrator who misapplies the estate of the deceased or subjects it to

loss or damage shall be liable to C make good such loss or damage and an

administrator who occasions loss to the estate by neglecting to get in any part of the

property of the deceased shall be liable to make good the amount. D

The evidence on record shows that the respondent could have been sued under the

above provision. Since the applicant had only sought for revocation the court had to

decide whether there was good and sufficient cause to remake the appointment under

S.2 (c) of the 5th Schedule of the E Magistrates' Courts Act. In my view misapplying

the estate is a good and sufficient cause.

I accordingly allow the appeal with costs. The respondent should surrender any

document evidencing his appointment immediately. The appellant and or her son

who is now said to be of the age of majority are at liberty to apply in the Primary

Court to be appointed as administrators of the F estate jointly or severally and are at

liberty to sue the respondent for the value of property he has failed to account for. G

Appeal allowed H

1984 TLR p201

A