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Lukuwi v Administrator General (PROBA TEAND ADMINISTRATION CAUSE NO. 64 OF 1999) [2006] TZHC 29 (29 June 2006)

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IN THE HIGH COURT OF TANZANIA

AT DARES SALAAM


PROBA TEAND ADMINISTRA TION CAUSE NO. 64 OF 1999


DORAH TITO LUKUWI APPLICANT

VERSUS

ADMINISTRATOR GENERAL RESPONDENT



RULING


A. Shangwa, J.

This matter has a long history. To cut it short, I will start with what took place from February, 2002 and then I will come to the main point. On 8/2/2002, this Court Bubeshi, J (Rtd) revoked the appointment of one John Lukuwi as administrator of the estate of the late Tito Lukuwi who died intestate on 4/2/1998 and appointed the Administrator General to take over. This Court did so after being moved by one Halima Kisita and Blandina Mataka.


On 23/2/2005, one Dorah Tito Lukuwi filed an application for revocation of the appointment of the Administrator General as administrator of the estate of the late Tito Lukuwi and for being appointed as a new administrator of the estate of his late father Tito Lukuwi. His application was supported by his own affidavit.




On 13/6/2005, the Administrator General filed a counter affidavit sworn by one Gilbert Peter Bubelwa in which he raised two points of preliminary objection which are as follows and I quote.

  1. That the suit is wrongly filed before this Court and is contrary to r.49 subsection 2 of the Probate and Administration Ordinance cap 445.

  2. That the suit be dismissed because it has been attested contrary to the law, therefore unmaintainable.

On 16/6/2005, the applicant filed a notice of preliminary objection stating that the Administrator General's Counter affidavit be struck out with costs for having included matters which cannot be deponed.




On 14/11/2005, I ordered that the preliminary objection raised by the applicant should be argued by way of written submissions. Dr. Michael K.B. Wambali argued it on behalf of the applicant and Mr. Gilbert Peter Bubelwa made counter arguments to it on behalf of the Administrator General.




The issue to be considered by this Court is whether or not the Administrator General's counter affidavit contains matters which cannot be deponed as alleged by the applicant and if so whether or not it should be struck out.




I have looked at the Counter affidavit filed by the Administrator General against the applicant's application and

I have noted that at paragraph 1 & 2 it incorporates a notice of preliminary objection. In my view, it was not proper for the respondent Administrator General to incorporate a notice of preliminary objection in his counter affidavit. He was supposed to file a separate document for his notice of preliminary objection. By incorporating the said notice in his affidavit, he rendered it partly defective.




However, as the rest of its paragraphs contains matters which can be deponed by the Administrator General, I do not see any reason why I should strike out the whole of his counter affidavit. Therefore, I strike out paragraphs 1 and 2 of the counter affidavit and retain the rest of its paragraphs. Thus, DR. Wambali's preliminary objection is partly allowed. I make no order as to costs and I order that the application should come for hearing on 27/9/2006.







A. Shangwa,

29/6/2006


Delivered in Court this 29th June, 2006.










A. Shangwa,


JUDGE


29/6/2006