abdulgadi

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISC. CIVIL APPLICATION NO. 20125 OF 2024 ABDULGADI SALEH AL-SHABIBY (Administrator of the estate of the late ABDALLAH SALEH AL-SHABIBY)................................. APPLICANT VERSUS DODOMA CITY COUNCIL.......................................... 1STRESPONDENT THE ATTORNEY GENERAL........................................ 2nd RESPONDENT RULING Date of the last order: 11/02/2025 Date of the Ruling: 28/02/2025 KHALFAN, J. This is a ruling on preliminary objection raised by the respondents to the effect that, this application is incompetent since the applicant has no locus standi. The factual background of this matter is that the applicant, Abdulgadi Saleh Al-Shabiby filed this application for judicial review seeking inter alia for prerogative orders of certiorari and mandamus over Plot No. 44 Block 5 at Madukani Area within Dodoma City (hereinafter referred to as "the suit property") against the respondents. This application has been preferred under section 17(2) of the Law Reform 1 (Fatal Accidents and Miscellaneous Provisions) Act [Cap 310 R: E 2019] and Rule 4 and 5(a) and (b) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, GN. 324 of 2014. This application is supported by the affidavit affirmed by the applicant himself. In countering the application, the respondents filed a joint counter affidavit and a preliminary objection that this application is incompetent as the applicant has no locus standi. Hearing of the preliminary objection proceeded by written submission in which the applicant was represented by Mr. Samwel Mcharo, learned advocate while the respondents were represented by Mr. Erasto Baluwa, learned state attorney Submitting in support of the preliminary objection, Mr. Baluwa contended that, the applicant in his affidavit sworn that he is suing the respondents in his capacity as an administrator of the estate of the late Abdallah Saleh Al-Shabib. He argued that matters of administration of estate of the deceased are established by law and so the applicant was required to bring the letter of appointment by the court to show that he had the requisite locus standi fax suing the respondents. But looking into the applicant's pleadings there was none. Mr. Baluwa based his submission in Moto Matiko Mabanga vs. Ophir Energy Pic & Others, 2 Civil Appeal No. 199 of [2021] TZCA 599 (22 October 2021), on the point that a preliminary objection cannot be taken from abstract, reference must be made to the pleadings and annexures attached. The learned state attorney stressed that the applicant could not sue on his own name as the property in issue is in the names of his late father. It was his further submission that locus standi\s a point of law rooted into jurisdiction and so it is required to be considered by this court at earliest opportunity as no interest of the applicant were interfered. Reference was made on the cases of Peter Mpalanzi vs. Christina Mbaruka, Civil Appeal No. 153 of 2019) 2021 TZCA 510 (23 September 2021), Chama cha Wafanyakazi Mahotel na Mikahawa Zanzibar (Horau) vs. Kaimu Mrajisi wa Vyama vya Wafanyakazi na Waajiri Zanzibar, (Civil Appeal No. 300 of 2019) 2020 TZCA 1923 (18 December 2020) and Registered Trustees of SOS Children's Villages Tanzania vs. Igenge Charles and Others, (Civil Application No. 426/08 of 2018) [2022] TZCA 428 (14 July 2022). Finally, the learned state attorney prayed this court to dismiss with costs this application. In response, Mr. Mcharo for the applicant contended that a preliminary objection must be on the pure point of law. Reference was made on Mukisa Biscuit Manufacturing Co. Ltd. vs. West End Distributors Ltd, [1969] EA 696. The learned advocate was of the view 3 that the present preliminary objection does not meet the conditions set out in the above case. Mr. Mcharo argued that the present application stems from Land Case No. 152 of 2009 at the district land and housing tribunal of Dodoma (hereinafter referred to as "the tribunal") where the applicant's late father, Abdallah Al-Shabib successfully sued the defunct Capital Development Authority (hereinafter referred to as "the CDA") over the suit property. That it was upon his late father's death, the applicant as the administrator of the estate of his late father, successfully executed the decision of the tribunal against the successor of CDA, that is the 1st respondent vide Land Application No. 64 of 2022. Furthermore, he submitted that even the 1st respondent in its correspondence to the applicant (the letter dated 31st July, 2023 with reference no. HJD/LD/21524/23) recognised him as the administrator of the estate of his late father, Abdallah Al-Shabib. And lastly, that in the same capacity the applicant was granted uncontested leave by this court in Misc. Civil Application No. 26987 of 2023 for him to file this application. The learned advocate then wondered as to how now the respondents fail to recognise the applicant as the administrator of the estate of his late father, Abdallah Al-Shabib. Mr. Mcharo otherwise urged this court to take judicial notice of 4 the above court's proceedings and decisions which recognised the applicant as the administrator of the estate of Abdallah Al-Shabib. The learned advocate further invited this court to consider sections 60 and 122 of the Evidence Act [Cap 6 R.E 2022] and the case of Nicodemus Nyambuya vs. Hamisi Ramadhani, [1995] TLR 118 on ground that by the respondents not contesting the applicant's capacity in all the pleadings in this application and the demand notice meant that they were satisfied that the applicant was indeed the administrator of the estate of his late father. The learned advocate submitted that the applicant as the administrator of the estate of the late Abdallah Al-Shabib instituted this application in that capacity and prayed this court to overrule the preliminary objection with costs. Reference was made to section 100 of the Probate and Administration of Estates Act [Cap 352 R.E 2002], and the case of Janeth William Kimaro and 2 Others as the Joint Personal Legal Representatives of the Late Melleo Auye Mrema vs. Pelagia Auye Mrema and 20 others, Misc. Commercial Application No. 2 of 2020. With regard to the authorities referred by the respondents, Mr. Mcharo contended that they are distinguishable since the applicant by 5 being the administrator of the estate of the late Abdallah Al-Shabib has locus standi. In his rejoinder, Mr. Baluwa, the counsel for the respondents largely reiterated his submission in chief. He however contended that by the applicant having successfully filed Misc. Application No. 64 of 2022 and Misc. Civil Application No. 26987 of 2023 in the capacity of administrator, the learned state attorney argued that, this does not automatically confer the applicant with the locus standi\x\ the instant matter without proof. He contended that this court cannot take judicial notice on nothing. Mr. Baluwa contended further that locus standi is the jurisdictional issue and it can be raised at any stage of the proceedings. Thus, the case of Mukisa Biscuits (supra) and Janeth Willian Kimaro (supra) he contended, are distinguishable. Likewise, sections 58,59(1), 60, 122 and 123 of the Evidence Act [Cap 6 R: E], are irrelevant. Having gone through the parties' pleadings and their rival submissions, the sole issue before this court is whether the preliminary objection raised by the respondents has merit. In the instant matter the respondents are complaining that the applicant has no locus standi to institute this matter. The term locus standi was defined in the case of Lujuna Shubi Ballonzi Senior vs. 6 Registered Trustees of Chama Cha Mapinduzi, [1996] TLR where it was observed that: "Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with ", In Chama cha Wafanyakazi Mahotel na Migahawa Zanzibar (HORAU) (supra) the Court of Appeal held: "... locus standi is a common law principle which provides that; only a person who's right or interest has been interfered with by another person has a right to bring his claim to court against that other person...'' [Emphasis supplied] The learned advocate for the applicant contended that the preliminary objection does not meet conditions that were laid down in Mukisa Biscuits (supra). With due respect, locus standi\s a point of law as it confers jurisdiction to the court. See Peter Mpalanzi (supra) where the Court of Appeal held: locus standi is a point of law rooted into jurisdiction. It is for that reasons that it must be considered by a court at earliest opportunity or once raised..." [Emphasis supplied]. It is not in dispute that in the instant application the suit property was owned by the late Abdallah Al-Shabib. The applicant in this 7 application stated that he is suing as the administrator of the estate of his late father, Abdallah Al-Shabib. However, there is nothing to suggest that he was appointed by the court as such. In his submissions, Mr. Mcharo urged this court to take judicial notice to the fact that initially the applicant successfully applied at the tribunal for execution against the 1SL respondent and there was no question about his capacity as an administrator, likewise when he successfully applied for leave before this court in order to bring this application. It is settled law that parties are bound by their pleadings. This is a fresh suit independent of the former suit. Hence the applicant was required to attach in his affidavit the letters of appointment to administer the estate of his late father, Abdalla Al-Shabib. In that context, this court would have taken judicial notice on the said letters of appointment as a proof that indeed the applicant was duly appointed by the competent court to hold the said capacity. To believe mere words of the applicant that he is the administrator of the estate of his late father because he has been acting in that capacity in the former cases, in my view is not necessarily correct. Furthermore, the suggestion that since the 1st respondent in its correspondences has been recognising the applicant as the administrator of the estate of his late father, again, in my view does not make the 8 applicant an administrator of the deceased's estate without letters of appointment as an administrator. Therefore, the only way to prove that the applicant still holds the said capacity is by producing the letters of appointment. Failure to do that makes him a stranger to the suit and he lacks locus standi to sue the respondents over the suit property. In the upshot, I find the preliminary objection raised by the respondents meritorious and I sustain it. This application is incompetent as the applicant lacks locus standi to sue and I proceed to strike it out. Each party to bear its own costs. It is so ordered. Dated at Dodoma this 28th day of February, 2025. F. R. KHALFAN JUDGE 9