JUDGMENT Alex Simbeya vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY AT MBEYA LAND APPEAL NO. 27436 OF 2023 (Originating from the judgment and decree in application No. 44 of 2021 of the District Land and Housing Tribunal for Songwe at Mbozi) ALEX KOLONARD SIMBEYE ….……………………………….............. APPELLANT VERSUS DILU UPULE SHIMBI (As Administrator of the Estate of the late Upule Shimbi) …………..….………………..………….. RESPONDENT JUDGMENT Date of Last Order: 10th July, 2024 Date of Judgment: 13th August, 2024. KAWISHE, J.: This appeal has been preferred by Alex Kolonard Simbeye (the appellant) in this court, challenging the decision of the District Land and Housing Tribunal for Songwe at Mbozi, in Application No. 44 of 2021. It was alleged by the respondent that, the appellant trespassed in his land measuring thirty-seven acres located at Malindilo Hamlet, Nzanzya 1 Village, Chilulumo Ward within Momba District and Songwe Region. In his testimony the respondent told the trial Tribunal that, the disputed land was bought by his late father in 2016, from Tito Majaliwa Siame (PW4) who owned the said land since 1980. The sale agreement witnessed by the hamlet chairman (PW2) and the respondent (PW1) was tendered to prove that fact. The respondent told the trial Tribunal further that, the dispute was reported at Chilulumo Ward Tribunal and the appellant denied to have trespassed into the suit land. The letter from Chilulumo Ward Tribunal was tendered and admitted as exhibit P2. According to the testimony given by the Village Chairman (PW5), the disputed land was surveyed by the Land Officers and the appellant was granted with the Certificate of Customary Right of Occupancy in 2020, but was granted irregularly since the procedures of granting the certificate were not followed thus, it was obtained fraudulently. On his part, the appellant (DW1) denied to have trespassed into the suit land. He claimed to have inherited the disputed land from his grandfather, one Lazaro Simbeye. DW1 testified further that, he once successful sued Flavia and Mathias Siame for trespass in the disputed land before the District Land and Housing Tribunal for Mbeya. The 2 District Land and Housing Tribunal judgment was tendered and admitted as exhibit D1. DW2 the Village Executive Officer (VEO) of Nzanzya Village, witnessed when the appellant was given the suit land measuring 46 acres by the court broker. The appellant alleged that the suit land was invaded by the respondent’s father (Upule Shimbi) in 2021. DW3 (the Land Officer) told the trial Tribunal that, he witnessed the survey of the suit land and the appellant was granted with the Certificate of Customary Right of Occupancy but the Village Government and the appellant’s neighbours were not informed. Basing on the testimonies adduced by the parties, the trial Tribunal found out that the respondent proved his claim and he was declared to be the lawful owner of the disputed land. Aggrieved by that decision the appellant filed this appeal on the following grounds: 1. That the trial Tribunal erred in law and fact by entertaining the matter initiated by a person who had no locus standi. 2. That, the trial Tribunal erred in law and facts to deliver judgement in favour of the respondent based on weak evidence. 3. That, the trial Tribunal erred both in law and facts by its failure to analyse properly the evidence adduced by the appellant hence it reached into an erroneous decision. 4. That, the trial Tribunal erred in law to entertain the dispute contrary to section 13 of the Land Disputes Court Act, N0.2 of 3 2002 as amended by Written Law Miscellaneous Amendment No.3 of 2021. 5. That, the trial Tribunal erred both in law and facts to deliver judgment in favour of the respondent without ascertaining the size, location, and boundaries of the disputed land. 6. That, the trial Tribunal erred both in law and facts to determine the matter in the absence of necessary party. Upon agreement between the parties, this appeal was argued by the way of a written submission. The appellant had the legal service of Mr. Felix. Kapinga, the learned counsel and the respondent enjoyed the legal service of the learned counsel Mr. Isack Chingilile. The counsel filed their submissions pursuant to the court order. In his submission, the appellant’s counsel dropped the second and the fifth grounds of appeal. Submitting on the first ground of appeal, he argued that, the trial Tribunal entertained the matter which was initiated by a person who has no locus standi. He contended that, locus standi is a common law principle, that the one who brings the matter before the court has to show that his right or interest has been interfered with and a stranger is not allowed to interfere with the judicial proceedings. To buttress his stance, he referred this Court to the decision made in the case of Lujuna Shubi Balonzi vs. Registrar of Chama Cha Mapinduzi [1996] TLR 203, Gervas Masome Kulwa vs. Returning 4 Officer and Another [1996] TLR 320, and the case of Ally Ahmed Bauda (Administrator of the estate of the late Amina Hussein Senyange) vs. Raza Hussein Ladha Damji & 7 Others, Civil Application No. 525/17 of 2016. He added that in Application No. 44 of 2021, which was filed before the trial Tribunal shows that the respondent who was the applicant had no locus standi. He averred that, while the said application was instituted by Upule Shimbi Nanai, the verification clause was verified by Dilu Upule Shimbi. He added that, this means that the one who verified the application is not the one who initiated the application and he never prosecuted it and the matter was prosecuted by Dilu Upule Shimbi who had no locus standi. Mr. Kapinga added that, though paragraph (iv) of the application states that the respondent appointed Dilu Upule Shimbi through a power of attorney to represent him but that appointment was for another case and not to initiate application No. 44 of 2021 before the trial Tribunal against the appellant. To bolster his arguments on power of attorney, he referred this Court to its earlier decision made in the case of Monica Danto Mwansasu (By virtue of power of attorney from Atupakisye Kapyela Tughalaga) vs. Israel Hosea and Another, Land Revision No. 2 of 2021. He argued further that, even the alleged 5 power of attorney was not tendered and admitted to form part of the trial Tribunal’s proceedings thus, there was no evidence that Dilu Upule Shimbi was appointed by virtue of power of attorney to represent the respondent before trial Tribunal and anything done by Dilu Upule Shimbi in respect of the said application is null and void since he had no locus standi. On the third ground of appeal that the trial Tribunal failed to analyze properly the evidence given by the appellant hence, it reached into an erroneous decision, the appellant’s learned counsel argued that it is the trite law that, in any decision, the evidence given by each witness must be evaluated and examined properly and short of that the decision becomes defective. To reinforce his arguments, he cited the case of Stanlsaus Rugaba Kasusura and Attorney General vs. Phares Kabuye (1982) TLR 338 and the case of Leornard Mwanashoka vs. R, Criminal Appeal No. 226 of 2014 (unreported). He submitted that, in the impugned judgment the trial Tribunal Chairman managed to summarize the evidence given by witnesses from both sides but he failed to evaluate them as required by the law. On fourth ground of appeal that the trial Tribunal entertained the dispute which is instituted contrary to section 13 of the Land Disputes 6 Courts Act, No. 2 of 2002 as amended by Written Law Miscellaneous Amendment Act, No. 3 of 2021, he argued that, it is legally mandatory that, all disputes must be referred before the Ward Tribunal for mediation before they are instituted in the District Land and Housing Tribunal. He contended that, Exhibit P2 shows that, the dispute was not mediated rather it was lodged and forwarded to the trial Tribunal on the ground that the Ward Tribunal had no jurisdiction over the size of the disputed land. To substantiate his stance, he referred this Court to the decision made in the case of Issa Iddi Kauzu vs. Ally Abdallah Mkoko and Another, Land Appeal No. 8 of 2022, High Court of Tanzania at Mwanza. On the sixth and last ground of appeal, he argued that, the trial Tribunal determined the matter in the absence of necessary parties, which were the Village Council and the District Council who issued the Certificate of Customary Right of Occupancy to the appellant. He contended that, the two parties were very important for the enforcement of any decision of the trial Tribunal and the right to defend their case as to whether the procedures to grant the customary right of occupancy were followed. The case of Abdullatif Mohamed Hamis vs. Mehboob Yusuf Osman and Another, Civil Revision No. 6 of 7 2017 (unreported) was cited by the counsel to cement his position of joining the necessary parties. In the end, he prayed for this appeal to be allowed with costs. In response to the submissions made by the appellant’s learned counsel, the respondent’s learned counsel chronologicaly replied to what was submitted by the adverse party. Submitting on the first ground of appeal on locus standi, he stated that the respondent had locus standi to sue on behalf of Upule Shimbi Nanai who was very sick and he was appointed through a power of attorney. He contended further that, the said power of attorney was tendered and admitted as exhibit during trial before the trial Tribunal without any objection from the appellant. On the issue of verification clause, he argued that, it is true that it was verified by Dilu Upule Shimbi and he did not state which information is from his knowledge and which he received from another person but that was a minor error which does not go to the root of the case and the overriding principle to apply as per section 3A of the Civil Procedure Code (Cap. 33, R. E. 2019). He added that, the power of attorney stated at paragraph (iv) of the application form which initiated application No. 44 of 2021, clearly stated that, the respondent was appointed to represent the donor in that application. 8 On the third ground of appeal, the respondent’s counsel argued that, from page six to page ten of the trial Tribunal’s typed judgment, the Chairman properly evaluated the evidence given by both parties and found the disputed land belongs to the respondent whose evidence was heavier than that of the appellant. Arguing on the fourth ground of appeal that the trial Tribunal entertained the application filed before it while it was not referred before the Ward Tribunal for mediation, he submitted exhibit P2 shows that the matter was mediated by the Ward Tribunal before it was filed and entertained by the trial Tribunal. He argued further that, the appellant’s criticism on the minor error on the contents of exhibit P2 should not detain this Court from doing justice to the respondent. He contended further that, there is no any rule which prescribes on what must be the content of the certificate issued by the Ward Tribunal considering that it is always issued by the laypersons. Submitting on the last ground of appeal, he averred that, the respondent was the one who filed the application before the trial Tribunal against the appellant and he was not aware of the presence of the certificate issued under the Customary Right of Occupancy and even the appellant in his written statement of defence failed to stated that 9 there was such a certificate until the application was heard by the trial Tribunal on the defence side when the appellant tendered the said certificate. He was of the view that, failure to join the stated government authorities was not a bar for the trial Tribunal to determine the matter since both parties testified and were availed with an opportunity to summon witnesses they preferred. Finally, he prayed for this appeal to be dismissed with costs. In rejoinder the appellant’s learned counsel reiterated his submission in chief. He added that the anomalies occasioned by the respondent are not curable by the overriding objective principle. He cited the case of Mondorosi Village Council & Others vs Tanzania Breweries Ltd & Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303 (14 December 2018) to bolster his position. This appeal will be determined basing on the grounds raised. On the first ground of appeal, the issue is whether the respondent (Dilu Upule Shimbi) had locus standi to sue the appellant. The doctrine of locus standi is a common law principle as argued by the appellant’s counsel. In the case of Lujuna Shubi Balonzi (supra), it was held that: “In this country, locus standi is governed by the common law. According to that law, in order to maintain proceedings 10 successfully, a plaintiff or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court”. Also, it is important to note that, the issue of locus standi, is a point of law rooted into the jurisdiction of any adjudicatory body. It is for that reason that it must be considered by a court at the earliest opportunity or once it is raised. Therefore, once this issue raised, the Court is obliged to determine it first. This was well-articulated in the case of Chama Cha Wafanyakazi Mahotelini na Mikahawa Zanzibar (HORAU) vs. Kaimu Mrajisi wa Vyama vya Wafanyakazi na Waajiri Zanzibar, Civil Appeal No. 300 of 2019, Peter Mpalanzi vs. Christina Mbaruka, Civil Appeal No. 153 of 2019 and Willium Salus vs. Joseph Samson Wajanga, Civil Appeal No. 193 of 2019. In the instant appeal, the appellant is complaining that the respondent had no locus standi to initiate application No. 44 of 2020 against the appellant. The respondent argued that he instituted the application by virtue of a power of attorney which was tendered and admitted before the trial Tribunal. Having scrutinized the original records of the trial Tribunal, it has come into my knowledge that, the application which is the subject of this appeal was instituted by Upule Shimbi Nanai. 11 The name of the applicant before the trial Tribunal never show that Dilu Upule Shimbi was suing by virtue of power of attorney but he was the one who verified the application in its verification clause acting under the power of attorney as stated under paragraph 6(a) (iv) of the application. Furthermore, the trial Tribunal records show further that, the said power of attorney was not tendered and admitted as exhibit during trial. I find the trial Tribunal wrongly relied on that power of attorney which was not part of the trial Tribunal’s exhibits and it lacks leg to stand on as a legal document. On the issue of verification clause, the son of the applicant, who is the respondent (Dilu Upule Shimbi) was the one who verified on the verification clause of the application despite the fact that, the application was filed by his father, one Upule Shimbi Nanai. The question is who was the applicant? Was the one who instituted the case or the one who verified and attend before trial Tribunal to prosecute the case? This was among the complaints made by the appellant in this appeal. The respondent’s learned counsel submitted that, it was a minor error which can be ignored by invoking the overriding principle enshrined under section 3A of the Civil Procedure Code (supra). Therefore, from what 12 has been stated herein above, I am inclined to the appellant’s counsel submission that, the suit was prosecuted by a person who had no locus standi though it was instituted by a competent person. The respondent’s contention that, the mistakes can be remedied by invoking the overriding objective principle is incorrect since the defects go to the very root of the status of the respondent’s locus standi which renders the application incompetent. Thus, it is my humble view that, the trial Tribunal wrongly entertained the claims raised by the respondent and the first ground of appeal is merited. In the event, I find there is no need to determine the other raised grounds of appeal since this ground alone is capable of disposing of the appeal. That being the case, I proceed to quash the proceedings and set aside the judgment and decree of the trial Tribunal for the reasons I have wondered to provide herein above. The parties are restored to their original position as they were before the institution of the claim at the trial Tribunal. If any party is still interested in pursuing his rights over the disputed land, he or she can initiate a land case before the competent adjudicatory body after complying with all legal procedures. The respondent is ordered to pay the costs. It is so ordered. 13 DATED and DELIVERED at MBEYA this 13th day of August, 2024. E. L. KAWISHE JUDGE COURT: This judgment is delivered virtually in the presence of Mr. Felix Kapinga, the appellant’s counsel and the respondent. E. L. KAWISHE JUDGE 13/08/2024 14