assa abias mkude administratix of the estate of the late abias valentine mkude vs mohamed nassory ali al alawy 2020 tzhclandd 2238 4 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 23 OF 2020 ASSA ABIAS MKUDE (Administratix of the Estate of the Late Abias Valentine Mkude).................................... PLAINTIFF VERSUS MOHAMED NASSOR ALI AL ALAWY................................. RESPONDENT RULING S.M. KALUNDE, J: The plaintiff herein, suing in his capacity as administrator of the estate of the late Abias Valentine Mkude, filed a suit against the defendant praying for judgement and decree and orders for: (i). A declaration that the plaintiff is the legal landowner of the land situated at Mbezi Beach Africana, Plot No. 315, Block L ("The Disputed Property"); (ii). A declaration that the defendant fraudulently trespassed and illegally entered into possession of the Disputed Property which is legally owned by the plaintiff; (Hi). An order that the defendant yield up vacant possession of the disputed property forthwith and demolition of the structures constructed therein; (iv). An order for payment ofgeneral damages to the plaintiff and costs for and incidental to filing this suit; and (v). Any other and further reiief(s) as this Honourable Court shall deem fit and just to grant. In accordance with Order VIII Rule 1 of the Civil Procedure Code, Cap. 33 R.E. 2019 (CPC), the defendant filed his Written Statement of Defense (WSD). Together with the WSD the defendant filed a Notice of Preliminary Objection on points of law which raised six (6) points of law. The preliminary objections (P.Os) are: (a) The Suit is hopelessly out of time as per the Law of Limitation Act Cap. 89 R.E 2019. (b) The Plaintiff lacks locus standi to bring the present suit. (c) The Plaintiff lacks a cause of action against the Defendant. (d) The Plaint is bared for being drawn by an unqualified person contrary to section 41 and 43 of the Advocates Act, Cap 341 R.E 2019; (e) The Plaint is bared for Non- compliance of Order VII Rule 3 of the Civil Procedure Code , Cap 33 R.E2019; and (f) The verification Clause is defective. At the request of the counsel for defendant on 26th February, 2020 I ordered that the P.Os be disposed of by way of written submissions. In support of the P.Os Mr. Ramadhani Karume, learned advocate drew and filed the written submissions for the defendant. On the other hand, the written submissions of the plaintiff were drawn and filed by Mr. Datius R. Faustine, learned advocate. I shall handle the question of locus standi fist. I am saying so because the answer to the question whether the plaintiff has locus standi to bring the present suit has the effect of determining whether there is a suit before the Court sufficient for other points of law to exist and be considered. If the answer to the former question is answered in the affirmative, then the other points come into play. But if the answer is negative, then there will be nothing before the Court in the first place. Mr. Karume argued the 2nd and 3rd points together He cited order XXI rule 3 (1) of the CPC to support a contention that in case the plaintiff dies and the right to sue survives, then the court may, on an application, cause the legal representative of the deceased to be made a party to the suit and the suit shall proceed accordingly. He added that the plaintiff, who is suing in his capacity as administrator of the estate of the late Abias Valentine Mkude, did not attach the letters of administration or will introducing her as the administratix. It was further submitted that the present suit was accompanied by an application for temporary injunction, between the same parties, which was registered as Misc. Land Case Application No. 47 of 2020. The application was successfully challenged on the ground that the applicant had locus standi against the defendant. Mr. Faustine maintained that the plaintiff had locus standi to bring the present suit. He had a view that order XXI rule 3 (1) of the CPC did not oust locus standi of an individual with interest in the deceased's property. He attached letters of administration granted on 19th February, 2020 and added that the letters applied retrospectively hence giving the administrator powers to institute the present suit. In his submission, he attached the letters of administration granted by the Magomeni Primary Court on 19th February, 2020. He concluded by a prayer that the preliminary objection be dismissed with costs. Having gone through the pleadings and the argument of the parties, I think it is essential to reflect on the position of the law on this matter as was well articulated in Lujuna Shubi Ballonzi Senior vs. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203, where this Court (Samatta, J as he then was) attempted to define the term locus standi as follow; "In this country, locus standi is governed by the common law. According to that law, in order to maintain proceedings 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... Because a court of law is a court ofjustice and not an academy of law, to maintain an action before it a litigant must assert interference with or deprivation of, or threat of interference with or deprivation of, a right or interest which the law takes cognizance of." Subsequently in Godbless Jonathan Lema vs Musa Hamis & 2others, Civil appeal No. 47/2012, CAT at Arusha, the Court quoted the decision of the Malawian Supreme Court of Appeal in The Attorney General vs. The Malawi Congress Party and another, Civil Appeal No. 22 of 1996, which provided the test for locus standi. It held that:- "Locus Standi is a jurisdictional issue. It is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject of it, that is to say unless he stands in a sufficient dose relation to it so as to give a right which requires prosecution or infringement of which he brings the action." Now lets revert back to the circumstances of the case at hand. It is on record that the suit was filed on 03rd February, 2010. As rightly pointed out by the defendant, at this point, the plaintiff had not been appointed the administrator of the estate of the late Abias Valentine Mkude. At least it was not pleaded in the plaint and neither did he attach the letters of administration as annexure to the plaint. There was therefore nothing before the Court to establish his locus standi to file the suit as the administratix. He, allegedly, obtained the letters of administration on 19th February, 2020, almost two weeks after he had filed the suit. This Court concludes that, he had no locus standi at the time of filing the suit. He argued that the letters granted on 19th February, 2020 acted retrospectively, I think the argument is misplaced. Firstly, the letter was nowhere within the records of the Court. His attempt to attach it on his written submissions was premature and uncalled for as submission are not evidence. Secondly, even assuming the letters granted were valid, the same cannot operate retrospectively to validate institution of the suit prior to the grant of the letters. As pointed out by the counsel for the defendant, and rightly so, this suit was accompanied by an application for temporary injunction. The respondents, defendants in the present case, raised six (6) preliminary objection on points of law objecting the application. The P.O were couched in the following words: (1) . That the application has been brought under the wrong provision of the law; (2) . That the application is bad in law for been drawn by unqualified person contrary to section 41 & 43 of the Advocates Act, Cap. 341 R.E 2002; (3) . That the applicant lacks Locus standi to bring this application; (4) . That the affidavit in support of the Application is defective for lack of endorsement contrary to section 44 of the Advocates Act, Cap. 341 R.E 2002; (5) . The verification clause is defective; and (6) . That the Affidavit is defective for containing argument contrary to Order XIX Rule 3(1'). I presided over the matter, on the outset, the counsel for the applicant, plaintiff herein, conceded to the preliminary objections on the strength of the 3rd and 4th preliminary objections and prayed for withdrawal. The respondents did not object. The application was marked as withdrawn with half of the costs awarded to the respondents/defendant. Surprisingly, knowing that he had no locus standi, the counsel maintained the main suit. One would think he must have been alerted, but he was not. With respect, that was grave mistake by the counsel for the plaintiff. In the upshot, this Court concludes that the plaintiff had no locus to institute legal proceedings against the defendant his own. He had to do so, at least, after obtaining the letters of administration. He did not do so, instead he first filed the suit without letters of administration and the letters were granted after he had filed the suit. That is not the appropriate cause of action to take in circumstances such as those presented in this case. I, hereby do, uphold the second preliminary point raised on behalf of the defendants. The suit is struck out for incompetence, having been filed by a person with no locus standi to file it. The defendants are awarded the costs of the suit. It is so ordered. DATED at DAR ES SALAAM this 04th day of September, 2020. .M. KALUNDE JUDGE