Bingile Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CIVIL CASE NO. 1247 OF 2025 1. BINGILE BUHWAHWA 2. GOODLUCK E. LEMA 3. STAIMILI O. SHOO 4. CHARLES KWEKA 5. RAYMOS S. NKYA 6. FRORENCE LYARUU 7. ELIAMIN N. SOMI …………….PLAINTIFFS 8. EMMANUEL FEDRICK SOMI 9. FITINA KAKULOLI 10. RICHARD MBUZIMBILI KITOGWA 11. SALVATORY MUSIMU 12. PAULINE MATHIAS MAKUNGU 13. ELIZAKAYO SHUMA VERSUS GEITA TOWN COUNCIL………………………………………...1ST DEFENDANT THE REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI……………………………………………..…2ND DEFENDANT ATTORNEY GENERAL…………………………………………..3RD DEFENDANT RULING Date of last order: 17/02/2025 Date of Ruling: 24/02/2025 MWAKAPEJE, J.: This ruling addresses the preliminary objections raised by the 1st and 3rd defendants in their joint Written Statement of Defence, questioning the plaintiffs' case before this Court. In summary, the plaintiffs claim joint ownership and occupancy of shop buildings on Nyerere Road Street, Geita Town, at the market known as "SOKO LA MITUMBA SABASABA" following the decision of the District Page 1 of 19 Land and Housing Tribunal for Geita in Land Application No. 14 of 2008. Allegedly, between 2015 and 2016, they entered into a contractual agreement with the 1st defendant as co-owners of the premises. The plaintiffs further allege that the 2nd defendant unexpectedly issued an eviction notice, constructed a commercial complex thereat, and failed to provide fair compensation. Following harassment and interference, including the service of a notice of vacant possession, they filed this suit, seeking, among other remedies, a ruling that the 1st defendant breached the contract, compensation from both the 1st and 2nd defendants and general damages of Tshs. 1,000,000,000. In response, the 1st and 3rd respondents argue that the suit is incompetent and legally flawed for the following reasons: (1) It contravenes Order VII Rule 3 of the Civil Procedure Code [CAP 33 R.E 2019]. (2) It fails to join the Commissioner for Lands and the Registrar of Titles as necessary parties. (3) It violates the mandatory provisions of Rule 4(1)(a) and (b) of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022, G.N No. 66 of 2022. Before proceeding with the 1st pre-trial and scheduling conference and considering the essence of the preliminary objections, the Court, as a matter of practice, found it necessary to determine the merits of these objections first. See the case of Mondorosi Village Council & Others Page 2 of 19 vs Tanzania Breweries Ltd & Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303 (14 December 2018). During the hearing, the 1st and 3rd defendants were represented by Mr Netho Mwambalaswa, Senior State Attorney and Mr Allen Mbuya, State Attorney; the 2nd defendant was represented by Mr Laurent Bugoti, a learned advocate. The plaintiffs were represented by Mr Beatus Emmanuel and Mr Yisambi Siwale both learned advocates. In arguing the first preliminary objection, Mr Mbuya submitted that the suit was legally defective as it contravened Order VII Rule 3 of the Civil Procedure Code (CPC). He emphasised that the provision required a proper description of the disputed land, using the word "shall," which, according to Section 53(2) of the Law of Limitation Act, indicated a mandatory obligation. He pointed out that the plaintiffs alleged interference by the 2nd defendant in the ownership of the plot between the plaintiffs and the 3rd defendant but failed to specify the title number. He contended that Order VII set out two conditions for identifying land: unregistered land should be described by location, size, and boundaries, while registered land must be identified by its title number. Referring to the case of Elidadis M. Rushikala v Samuel Malecela (Land Case No. 89 of 2023) [2023] TZHCLandD 16761 (9 August 2023), Mr Mbuya argued that disputes concerning immovable property required a proper Page 3 of 19 description to facilitate the execution of court orders. He maintained that the facts in Elidadis were analogous to the present case, which led to its dismissal. He also cited Olorubare Nginyu vs Kilempu Kinoka Laizer (Civil Appeal No. 416 of 2021) [2024] TZCA 598 (18 July 2024), where the Court held that a failure to describe the disputed land resulted in the inability to establish a cause of action. He, therefore, prayed for the dismissal of the suit with costs. On the second preliminary objection, Mr Mbuya argued that the suit was defective due to the non-joinder of the Commissioner for Lands and the Registrar of Titles, as the disputed land was registered under Title No. 3124 GLR. He submitted that where land is registered, the Commissioner for Lands and the Registrar of Titles must be joined as necessary parties. He referred to Tanzania Railways Corporation (TRC) v. Gbp T. Ltd (Civil Appeal No. 218 of 2020), where the necessity of joining the Commissioner for Lands was underscored. Similarly, in Tanzania Posts Corporation v. Dominic A. Kalangi (Civil Appeal No. 12 of 2022), the Court held that the Commissioner for Lands and the Registrar of Titles played a crucial role in land registration and dispute resolution. Mr Mbuya further submitted that the failure to join these entities could lead to a miscarriage of justice. He acknowledged that the Court had discretion under Order I Rule 10(2) of the CPC to join necessary Page 4 of 19 parties but contended that such discretion must be exercised judicially. Moreover, he argued that Section 6(2) of the Government Proceedings Act (GPA) required a 90-day notice before suing any government entity. He pointed out that the plaint indicated that notice had only been issued to the first and third defendants, not the Commissioner for Lands or the Registrar of Titles. He cited Msafiri Makindi Mtigandi vs Mwanza City Council and 2 others (Land Case No. 56 of 2023) [2024] TZHC 6790 (8 July 2024), where the Court reaffirmed the mandatory nature of Section 6(2) of the GPA. He, therefore, maintained that the suit should be struck out for non-compliance with statutory requirements. On the third preliminary objection, Mr. Mbuya contended that the plaintiffs' pleadings contravened the mandatory provisions of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022, introduced through the Written Laws Miscellaneous Amendments Act No. 2 of 2021. He explained that the amendment deleted Section 84(1) of the Interpretation of Laws Act, Cap 1, and introduced Section 84A, which mandated Kiswahili as the language of the courts. He noted that Subsection (5) granted the Chief Justice, in consultation with the Minister for Legal Affairs, the power to make rules regarding the use of English in courts. Page 5 of 19 Mr. Mbuya elaborated that Rule 3 of these Rules specified the circumstances under which English could be used, including when the governing law, practice, and procedure were in English. He noted that since the CPC was the governing law and had no official Kiswahili version, Rule 4(3)(a) required pleadings to be filed in English with a corresponding Kiswahili translation. He asserted that the plaintiffs had failed to adhere to this requirement. Citing Ibrahimu Pius Kangasha and Gilbert G. Mahumba v. Bera Karumba and Kigoma/Ujiji Municipal Council (HC Land Appeal No. 8 of 2022), he emphasised that procedural requirements must be followed. He concluded by praying that the preliminary objections be upheld and the suit dismissed with costs. In response, Mr. Emmanuel objected to the preliminary objections. Regarding the third objection, he argued that the legislative amendment aimed to make Kiswahili the official language of the courts, which had been complied with. He contended that the argument regarding the unavailability of the CPC in Kiswahili was a matter of evidence and referred to On Africa Construction Limited vs Cata Mining Company Limited (Civil Case No. 2 of 2023) [2023] TZHC 23089 (1 December 2023), where the Court held that, there was no mandatory provision requiring the exclusive use of Kiswahili. Page 6 of 19 On the second preliminary objection, Mr. Emmanuel submitted that the case stemmed from two issues: the decision of the District Land and Housing Tribunal (DLHT) of Geita and contractual agreements between the plaintiffs and the first defendant. He argued that the reliefs sought were related to a breach of contract and did not involve the Commissioner for Lands or the Registrar of Titles. He maintained that these entities were not parties to the original case and had no connection to the contract. He cited Msafiri Makindi Mtigandi(supra), where the Court allowed amendment of the plaint to cure defects. He contended that the dispute should be determined on merit rather than technicalities. Regarding the first preliminary objection, Mr Emmanuel asserted that the land in dispute was well known to both parties and that paragraph 5 of the plaint sufficiently described it. He maintained that the judgment pronouncing the plaintiffs and the 1st defendant as co-owners formed the basis of the claim. He argued that the title number mentioned by the respondents was a new fact that had not been part of previous transactions. He submitted that, if necessary, the issue could be rectified by amending the plaint rather than dismissing the suit, as held in Thabitha Masanja vs Sophia Mbuke Madilisha (Land Appeal No 44 of 2023) [2024] TZHC 9996 (8 November 2024). He prayed that the preliminary objections be dismissed. Page 7 of 19 Mr. Siwale associated himself with Mr. Emmanuel's submissions, particularly on the third objection. He argued that the objectors had not demonstrated any prejudice caused by the use of Kiswahili. Referring to On Africa Construction Limited (supra), he maintained that objections based on language must show actual prejudice suffered by a party, which had not been done. He, therefore, prayed for the dismissal of the preliminary objections with costs. In rejoinder, Mr Mbuya reiterated that the joinder of the Commissioner for Lands and the Registrar of Titles was necessary for justice delivery. He maintained that the title number had been provided in the 2nd respondent's written statement of defence and was not a new fact. He insisted that the preliminary objections should be upheld and the suit struck out with costs. Mr Bugoti reaffirmed that paragraph 3 of the plaint necessitated the presence of the Commissioner for Lands and the Registrar of Titles, as the dispute involved the issuance of a right of occupancy. He maintained that the failure to describe the land properly was a fundamental defect and urged the Court to sustain the preliminary objections and strike out the suit with costs. After the parties finished their respective submissions, this Court raised an inquiry on the issue of locus standi and invited the parties to Page 8 of 19 address it, considering that the plaintiffs were not named in the judgment of the District Land and Housing Tribunal of Geita in Application No. 14 of 2008. Mr Emmanuel submitted that while it was true that the decision in Application No. 14/2008 listed the names Anifa Abdu, Shaddydu Khatibu, and others on the front page, a review of pages 13 to 17 of the judgment revealed that the District Land and Housing Tribunal had noted the presence of additional claimants. These proceedings, which were part of the plaint before the Court, included a list of the claimants on the last six pages. He explained that the phrase "and others" referred to a representative suit, as reflected in the trial court's decision. He asserted that the discrepancy between the judgment and the proceedings was a typographical error rather than a substantive issue. The representative nature of the suit, he argued, was explicitly addressed in the first two pages of the proceedings, and the plaintiffs before the Court were among those ordered by the Tribunal to be enlisted. He further emphasised that the issue of locus standi was sufficiently addressed by Annexure No. 1 of the plaint, which complied with the requirements set out in the Court of Appeal of Tanzania's decision on represented parties. Under Section 99 of the Civil Procedure Act (CPA), Mr Emmanuel pointed out that the Court had the power to rectify clerical Page 9 of 19 errors in proceedings. He argued that the appropriate remedy is for the Court to correct the error, either suo moto or upon an application by the parties. Given that more than 90 individuals were part of the claim and that 13 plaintiffs were present before the Court, he contended that the plaintiffs had the requisite locus standi and prayed that the matter be heard accordingly. Mr Mbuya responded by acknowledging that the judgment did indeed contain discrepancies, such as omitted names. He referred to the case Othiniel Ahia & Others vs L.M. Investment Limited (Civil Application No. 2 of 2015) [2016] TZCA 923 (27 May 2016) to outline the conditions for representative suits, including the requirement for leave and proper disclosure. He noted that while the plaintiffs' counsel asserted that leave had been granted, this was made from the bar, and there were no proceedings confirming such leave attached to the record. The leave sought, he stated, was only to attach the judgment, not the proceedings, to form part of the plaint. Mr Mbuya argued that it was necessary to determine whether the names listed in the judgment corresponded to those in the trial tribunal's records, as two of the names in the judgment did not match those of the plaintiffs before the Court. He went on to state that, although counsel for the plaintiffs invoked Section 96 of the CPA to request rectification of clerical errors, such Page 10 of 19 corrections had to be made by the court that issued the original judgment. Therefore, he argued that the plaintiffs should have applied for rectification before the District Land and Housing Tribunal. Since the issue of locus standi had been raised by the Court suo motu, he prayed that the suit be struck out to allow for the necessary rectifications before it was entertained further. Mr Bugoti also submitted that the plaintiffs lacked locus standi to bring the suit before the Court. He pointed out that Annexure 1 referred to "Anifa Abdu, Shaddydu Khatibu and others" as applicants, but upon reviewing the proceedings, it became evident that different names appeared, including "Anifa Abdu Mfuruki" and "Shaddyu Khatibu v. Geita District Council." He referred to Sections 96 and 97 of the CPA, which allowed for rectifying errors in judgments and proceedings but emphasised that the plaintiffs had a duty to seek rectification before filing the suit. He questioned the identity of the plaintiffs, noting that their failure to seek corrections raised doubts about their locus standi. Mr. Bugoti asserted that locus standi was a jurisdictional issue. He cited the cases Lujuna Shubi Ballonzi vs Registered Trustees of Chama cha Mapinduzi (Civil Case No. 214 of 1992) [1995] TZHC 731 (9 May 1995) and Gervas Masome Kulwa Vs. The Returning Officer and Another (1996) TLR 320 to underline that failure to establish locus Page 11 of 19 standi directly affected the court's jurisdiction. He concluded by submitting that the plaintiffs had failed to prove their locus standi and, as a result, the Court lacks jurisdiction to entertain the matter, urging that the suit be struck out. Having carefully considered the submissions of all parties, the key issue for determination is whether the objections raised are meritorious. As a matter of judicial practice, it is imperative for this Court to first determine, from the pleadings, whether it is properly vested with jurisdiction, as any proceedings conducted without jurisdiction are rendered null and void. See the cases of Fanuel Mantiri Ng'unda vs Herman M. Ng'unda & Others [1995] TLR 155 and Registered Trustee of Sos Children's Villages Tanzania vs Igenge Charles & Others (Civil Application No. 426 of 2018) [2022] TZCA 428 (14 July 2022). In the Registered Trustee of Sos Children's Villages Tanzania vs Igenge Charles & Others, it was explicitly stated that: "…………………….., if a person who brings action has no locus standi, this puts to question the issue of the jurisdiction which must be considered at the earliest, be it by the parties or the court itself." Further, the Court of Appeal went on referring with approval to the case of The Attorney General Versus Malawi Congress Party and Another, Civil Appeal No. 32 of 1996, in which it was stated that: "Locus standi is a jurisdictional issue; it is a rule of equality that a person cannot maintain a suit or action unless he has an interest in Page 12 of 19 the subject of it, that is to say unless he stands in sufficiently dose relation to it so as to give a right which requires prosecution or infringement of which he brings the action." With this in mind, I will first address the objection raised by this Court, as it provides the necessary foundation for the subsequent analysis of the objections raised by the 1st and 2nd defendants. As stated above, it is a well-established principle that locus standi is a fundamental legal requirement that must be satisfied before a party can initiate proceedings in a court of law. In the case of Lujuna Shubi Ballonzi, Senior vs Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203, it was observed that: "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." [Emphasis supplied] Similarly, it was emphasised in the case of Registered Trustee of Sos Children's Villages Tanzania vs Igenge Charles & Others(supra) that: "…………. a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with." In the present case, the plaintiffs claim that, based on the decision in Application No. 14 of 2008 before the District Land and Housing Tribunal, they were recognised as joint owners of the suit premises Page 13 of 19 alongside the 1st defendant. However, upon scrutiny of the said decision, inconsistencies arise concerning the identity of the applicants. The title of the decision lists "Anifa Abdu, Shaddydu Khatibu, and others vs DED Geita," while the proceedings indicate other individuals representing their fellows, specifically "Anifa Abdu Mfuruki" and "Shaddyu Khatibu v. Geita District Council." Notably, these two applicants are absent from the present proceedings. While it is true that in a representative suit, any person within the represented group may initiate proceedings, there is no evidence that Land Application No. 14 of 2008 was filed as a representative suit, which included the present plaintiffs as far as Order I, Rule 8 of the Civil Procedure Code [Cap. 33 R.E. 2019] is concerned. The same provides that: "8.-(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested; but the court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct." According to this provision, a suit may be instituted by one or more persons on behalf of others with a common interest, provided that leave of the court is obtained and notice is issued to the parties concerned. In Page 14 of 19 the case of KJ Motors & 3 Others Ltd v Richard Kishimba & Others, Civil Appeal No. 74 of 1999, on representative suits, the Court of Appeal, had this to say: "The rationale for this view is fairly apparent where, for instance, a person comes forward and seeks to sue on behalf of other persons, those other persons might be dead, non-existent or either fictitious. Else he might purport to sue on behalf of persons who have not, in fact, authorised him to do so. If this is not checked, it can lead to undesirable consequences. The Court can exclude such. possibilities only by granting leave to the representative to sue on behalf of persons whom he must satisfy the Court they do exist and that they have duly mandated him to sue on their behalf." [Emphasis supplied] In the present case, there is no indication that leave to file a representative suit was either sought or granted nor is there evidence that the requisite notice was issued. While Mr. Emmanuel has asserted that the application before the Land Tribunal constituted a representative suit, this claim remains unsubstantiated due to the absence of a formal order granting such representation and the corresponding notice. Consequently, the suit is rendered incompetent, as the plaintiffs' alleged joint ownership of the suit premises has not been established, particularly in light of their non-disclosure in the proceedings. This position aligns with the principles laid down in Bernard Masaga, Merchant K. Ikungura & Others v. National Agricultural and Food Corporation & 2 Others (Civil Application No. 177 of 2006, Page 15 of 19 CAT, (unreported) and referenced in Othiniel Ahia & Others v. L.M. Investment Limited (supra) and Juma Marumbo & Others v. Regional Commissioner, Dar es Salaam Region & Others (Civil Application No. 242 of 2016) [2016] TZCA 2045 (8 November 2016). In that case, the Court of Appeal stated that: "As it is, no information was forthcoming to show who those others are and whether there was leave granted to Ikungura to represent them. In the light of the failure to disclose who those others are, it will be fair to say that, strictly speaking, there is no proper application before the Court in terms of Rule 46(1) [now Rule 48(1)] of the Rules." [Emphasis supplied] Similarly, even if the trial proceedings had been annexed to the plaint for verification, as Mr. Emmanuel contended, the records reveal inconsistencies. The names of the applicants listed therein purport to represent a group exceeding 90 individuals, creating uncertainty as to whether the present plaintiffs were among those represented. Mr. Emmanuel further invited the Court to examine the last six pages of the trial tribunal proceedings, asserting that the plaintiffs' names appeared therein as part of the representative suit. However, upon close scrutiny of the said list appended after the last page, i.e., 79, of the proceedings of the trial tribunal, it is evident that it merely comprises individuals who signed the contract and handled business shop allocations on 20/10/2016 (Makabidhiano ya Vibanda vya Biashara). Page 16 of 19 Notably, Land Application No. 14 of 2008 was determined on 23/05/2015, well before the execution of the said business shop allocations. Nowhere in the tribunal's decision do the plaintiffs feature as having been represented under either "Anifa Abdu, Shaddydu Khatibu & Others v. DED Geita" or "Anifa Abdu Mfuruki and Shaddydu Khatibu v. Geita District Council." Given this glaring lack of evidence, the Court cannot base its findings on conjecture or assumptions. In the absence of clear and compelling proof of representation, the claim collapses for want of legal standing. Additionally, I disagree with Mr. Emmanuel's submission that the inconsistencies in names in the judgment and proceedings are merely clerical errors that this Court can rectify under section 96 of the Civil Procedure Code, which I wish to reproduce as follows: "96. Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either of its own motion or on the application of any of the parties." As far as this section is concerned, the court that originally dealt with the matter, either on its own motion or upon application by any party, has the power to correct clerical or arithmetical mistakes in judgments, decrees, or orders. In the case of Nassoro Abubakar Khamis & Another vs Wakf & Trust Commission Zanzibar & Others (Civil Page 17 of 19 Appeal No. 245 of 2020) [2021] TZCA 736 (3 December 2021), it was stated that: "From the foregoing deliberation, we are settled that cognizant of fostering substantive justice, currently, in fitting circumstances, the Court has been granting the respective appellant an opportunity to approach the court which issued the decree to rectify it and thereafter lodge an amended version through a supplementary record of appeal instead of striking out the appeal. For this stance, see Anthony Josephat @ Kabula v. Hamis Maganga, Civil Appeal No. 150 of 2020 and Daudi Hagha v. Salum Ngezi and Damiani Toyi, Civil Appeal No. 313 of 2017 (both unreported). Besides, we are of the settled view that this approach is in recognition of the fact that both the CPC and Civil Procedure Decree (CPD), sections 96 and 130, respectively, empower trial courts which issue defective decrees to correct clerical mistakes and errors apparent in the decree before execution is done." [Emphasis supplied] Therefore, as rightly argued by Mr Mbuya and Mr Bugoti, and given the circumstances of this case, where the individuals initiating the suit under a representative capacity appear to be different, this Court lacks jurisdiction to alter or correct their names in the decision rendered by the District Land and Housing Tribunal. Accordingly, any application for such a rectification must be made before the District Land and Housing Tribunal, as it is the forum best placed to assess and verify the material facts surrounding the case. See also the case of this Court in Severine Shirima vs. Tanesco (Misc. Civil Application No. 57 of 2022) [2023] TZHC 22579 (13 November 2023). Page 18 of 19 In light of the foregoing, it is evident that the plaintiffs have failed to establish locus standi in this matter. The absence of clear evidence demonstrating that Application No. 14 of 2008 was a properly instituted representative suit which included the plaintiffs herein, coupled with the inconsistencies in the names of the applicants, creates uncertainty as to whether the plaintiffs were indeed parties or beneficiaries of the allegedly previous decision. Since the plaintiffs have failed to establish a legally cognisable interest in the suit premises, this Court has no jurisdiction to entertain their claims, and the suit must accordingly fail. Given that the issue raised by this Court pertains to jurisdiction, I find it unnecessary to consider the remaining preliminary objections, as the determination of jurisdiction alone is sufficient to dispose of the appeal. Consequently, this appeal is hereby struck out with costs. It is so ordered. DATED at GEITA this 24th day of February 2025. G.V. MWAKAPEJE JUDGE Page 19 of 19