ABDUL RAJABU SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 20932 OF 2024 (Originating From Application No. 142/2021, Kinondoni District Land and Housing Tribunal) ABDUL ABEID RAJABU ............................................................1st APPELLANT AZIZA MFINANGA....... ................ ................ ............... ..................2nd APPELLANT HALIMA MFINANGA........ ............................................................... 3RD APPELLANT SELEMANI MNONDWA @ MASI.................. ..................................... 4th APPELLANT VERSUS MOHMAED HAMZA ALI (Attorney of Clemence Mtamila)................ ........RESPONDENT JUDGMENT 25th to 29th November, 2024 E.B. LUVANDA, J The First, Second, Third and Fourth Appellant named above are appealing against the decision of the Tribunal which struck out Application No. 142 of 2021, on account that Happy Mtamila who donated power of attorney to the Respondent is not the administrator of the estate of Clemence Mtamila alleged owner of the suit land. The Tribunal went on to determine merit of the application by ruling that a sale between the First Appellant and Happy Mtamilwa is null and void ab initio and ruled further that the suit property fall under estate of the late Clemence Mtamila. i In the memorandum of appeal, the Appellant grounded that: One, that the Honourable Tribunal erred in law and fact in that, having struck out the Respondents application for alleged lack of locus standi, acted in excess of its jurisdiction in going further to determine ownership of the dispute land and the consequent fate of the Appellants, hence ending at prejudicing their rights. Two, the Honourable Tribunal erred in law and fact as it made its decision against a non-existent party in the name of Helga Mfinanga who does not appear in the Application leaving out Halima Mfinanga (Third Respondent) whose fate remains unknown; Three, the Honourable Tribunal erred in law and fact as it wrongly and unjustifiably failed in its analysis of evidence; Four, the Honourable Tribunal erred in law and fact in acting contrary to the law. Mr. Amin Mohamed Mshana learned Counsel for Appellants, for groound number one, submitted that the net effect of the decision seen from another angle is that the Respondent has been awarded victory through the back door, for explanation that the Respondent's interest was for declaration of the Appellants as trespassers and as long as the Respondent is the sole survivor, a declaration that the land belongs to her father is an indirect victorious award to her to the detriment of the Appellants. He submitted that having found the application to be incompetent, the only legal consequence was to have it struck out as the Tribunal rightly did. He 2 submitted that having struck it out as it did, the Tribunal ceased to have jurisdiction to further determine or declare anything. He submitted that the reason for striking it out is that such a matter is abortive or rather incapable of being heard or even to be adjourned, arguing it carries the implication that there is no matter at all before the Court. He referred to the case of Hashim Madongo & Two Others ss Minister For Industry And Trade & Two Others, Civil Appeal No. 27/2003 and Yahaya Hamis vs Hamida Haji Idd and Two Others, Civil Appeal No. 225 OF 2018 both citing the famous case of Ngonimatengo Cooperative Marketing Union Ltd vs Ali Mohamed Osman [1959] E.A 577. He submitted that as long as there is absence of any administrator of the estate of the deceased, arguing that the ownership of the land is in fact not sued for t by anybody having authority after death of the former owner. He submitted that it was therefore wrong to go further to declare the land to still belong to a deceased person in the name of Clemence Mtamila, knowing just too well that the dead do not and cannot own anything. He submitted that it was as well wrong and in excess of its jurisdiction to determine and declare the fate of the Appellants in, as we have found out, an incompetent proceeding. He submitted that the Tribunal ought to have ended with its striking out order so as to allow 3 the parties to follow the law by bringing a competent application or take correct steps. For ground number four, the learned Counsel submitted that the application was filed under power of attorney granted to one Mohamed Hamza Ali. He submitted that it appears from the record that the granter of the power of attorney Happy Clemence Mtamila also appeared in the Tribunal and testified as PW1. He submitted that the power of attorney ceased to operate as soon as the grantor appeared in the Tribunal. He submitted that she was obviously in Tanzania being mentally and physically fit, hence making the power of attorney legally redundant., citing Najma Hassanali Kanji (suing through Mohamed Hassanali Kanji by Power of Attorney) vs Ramadhani Hamisi Ntunzwe, Land Case No. 93 of 2016. In reply, Ms. Precious Ahmad Hassan learned Counsel for Respondent, prefaced her argument by citing John M. Litondo & Others (Legal Representative of Estate of the Late Amina Litondo) vs Fatuma Amri Masika (Legal Representative of Estate of the Late Zaituni Amri Masika), Civil Appeal No. 229 of 2020. She submitted that in the decision of the Tribunal in page eight last paragraph and paragraph nine clearly state that the land dispute was owned by the late Clement Mtamila and since the death of the decease one Clement Matamila 4 there is no any administrator appointed to administer the land in dispute there the Respondent being an attorney of the deceased daughter does had no locus stand to institute a suit against the respondents. She submitted that Happy Clement Mtamila is not an administrator of deceased estate and if she sold the deceased land is illegal so the Tribunal struck out the application. She submitted that basing on the principle of the cited case above the only remedy when the Respondent had no locus stand to institute a case is to struck out the application for which the Tribunal did the same. She submitted that there is no any place the Tribunal acted in the excess jurisdiction to determining the matter, for explanation that Happy Clement Mtamila for not being a proper legal representative of the deceased property. She submitted that the cases cited by the Appellants are irrelevance to our case for an argument that the Tribunal after both parties presented testimony it was when the Tribunal discovered that the dispute land belong by the late Clement Mtamila and there is no any legal representative was appointed to administer the estate as per the provision of the Probate and Administration of Estate Act Cap 352. For ground number four, the learned Counsel submitted that the law is clear when the owner of the land is died other people € cannot take advantage and inter into the land and acquire it for the ground that the deceased cannot own 5 land because law give power to the administrator to administers the deceased property. She cited section 127(1) of the Evidence Act Cap 6 R.E 2022, for a proposition that every person shall be competent to testify. Also cited Mehaboob Abdulkarim Mohamed Shivji (Appearing by his dully constituted Attorney Rosemary Amil Ladha Bhaloo), Civil Appeal No. 97 of 2008, regarding authorization under power of attorney. She submitted that the holder of the power of attorney can appear in court as a witness in respect of the facts which are in his or her own knowledge the same was done by Miss Happy Clement Mtamila because she is a competence witness as per the provision of the law and cases cited above because the evidence of the done is just a hearsay evidence and court cannot act on the hearsay evidence, she submitted that the holder of the power of attorney cannot delegate the power of testifying in the court to the donee. To my view, there is no problem for the Tribunal striking out the application on account that that Happy Clement Mtamila was not an administrator of the estate of the late Clement Matamila alleged the owner of the suit land. The only anomaly was for the Tribunal to determine merit of the application by ruling that a sale between the First Appellant and Happy Mtamilwa is null and void ab initio and ruled further that the suit property fall under estate of the late Clemence Mtamila. As alluded by the learned Counsel for Appellants, having 6 ruled the application to be incompetent with its eventuality of striking it out, the Tribunal ceased to have jurisdiction to delve into the merit of the docket. As per lucid argument of the learned Counsel for Appellants, the Tribunal overstretched and slept into a serious error for wrongly acting in excess of its jurisdiction to determine and declare the fate of the Appellants in an incompetent proceeding. A mere fact that the testimony of both parties was available, is immaterial. This is because the ground of locus standi traverse across to the very root of the matter and render everything done therein null and void. Therefore, it a serious mistake to determine rights of litigants in proceedings which are nullity. The law is clear that only the executor or administrator can step into the shoes of the deceased and sue. Section 101 of Cap 89 (supra), provide, An executor or administrator has the same power to sue in respect of a// causes of action that survive the deceased, and may exercise the same powers for the recovery of debts due to him at the time of his death, as the deceased had when living' In the case of John M. Litondo (supra) it was held that, 'The appellant had no locus stand to institute the case against the respondent in her own name and capacity on a suit property which was owned by the deceased... it is irregular for the appellant to institute in her own name and capacity, the suit against the respondent on the suit property which belong to the deceased' 7 Therefore, it was wrong for the Tribunal to make orders invariably granting consequential reliefs which in fact had the effect of determining the matter to its finality. For ground number four, it is true that in the application filed at the Tribunal, the Respondent (Mohamed Hamza Ali) who testified as PW2 pleaded as suing under power of attorney donated to him by Happy Clement Mtamila (alleged living abroad in London England). The said Happy Clement appeared before the Tribunal and testified as Plaintiff witness number one (PW1). PW2 tendered a power of attorney exhibit P5. Exhibit P5 at item or clause 5, read, 'To commence any other legal proceedings (to sue or be sued) or use any other means that may appear to the Attorney desirable or necessary in order to enforce my right in connection with the aforesaid un-surveyed parcel of land' Therefore, it was superfluous for the donor to appear to testify while the donee is having mandate to sue and enforce her rights. As alluded by the learned Counsel for Appellant, in the event the donor appeared personally to testify, exhibit P5 was rendered redundant. May be, it was tendered for the sake of vindicating that the Respondent was legally capable and having mandate to file pleadings at the Tribunal. 8 In that regard, the decision of the Tribunal is partly upheld to the extent of striking out the application, but is faulted to the extent of declaring rights of parties in incompetent proceedings. Therefore, the decision of the Tribunal that declared the sale between the First Appellant and Happy Mtamilwa as null and void ab initio and that the suit property fall under estate of the late Clemence Mtamila, is of no legal effect, accordingly set aside. The appeal is substantially allowed. No order as to costs. E.B. LUVAfJDA lUDGE i/H/2024 Judgment delivered in the presence of Ms. Precious Ahmad Hassan learned Counsel for Respondent also holding brief for Mr. Amin Mohamed Mshana learned Counsel for Appellants. LUVANDA MDGE 29/11/2024 9