CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM; MKUYE. 3.A.. RUMANYIKA. J.A And MDEMU. J.A.^ CIVIL APPEAL NO. 284 OF 2022 Reference No. 20220701000431752 BURHAN SAID MLAVI (As Legal Representative of ZUHURA ABDALLAH (Deceased)................................................. APPELLANT VERSUS DMI ST. JOSEPH UNIVERSITY OF TANZANIA, ARUSHA CAMPUS.................................. ............................ 1st RESPONDENT THE REGISTERED TRUSTEES OF DAUGHTERS OF MARY IMMACULATE AND COLLABORATORS...............................2nd RESPONDENT Appeal from the Judgment of the High Court of Tanzania, at Arusha) (Massara. 3.^ dated the 15th day of October, 2021 in Land Case No. 13 of 2019 JUDGMENT OF THE COURT 14th& 28th February, 2025 RUMANYIKA. J.A.: In Land Case No. 13 of 2019 which was instituted in the High Court of Tanzania at Arusha (the trial court), Burhan Said Mlavi, the appellant sued the respondents seeking the following reliefs: 1. A declaration that appellant is the law ful owner o f 17.5 acres o f Farm No. 409, L.0 No. 131048 comprising a total o f 37.5 acres situated a t Ngorbob Village in Arumeru D istrict within Arusha region (the su it land); 2. An order compelling the respondents to give vacant possession o f the su it land; 3. Specific damages to the tune o f TZS. 11,099,400.00 being compensation for the crops destroyed by the trespassing respondents; 4. Payment o f TZS. 10,000,000.00per annum for loss o f the expected annual earnings from the farm. 5. General damages; 6. Costs o f the suit; and 7. Any other reliefs which the court would deem fit and ju st to grant. The respondents, in their joint written statement of defence denied all the claims levelled against them. In reverse, they claimed ownership of the suit land vide Certificate of Title No. 20031 as they had purchased it from one Jitu Investment Co. Ltd. At the end of trial, the learned Judge was convinced on balance of probabilities and held that the respondents lawfully owned the suit land, among other orders. Not satisfied by that decision, the appellant has preferred the present appeal on six grounds. However, for the forthcoming reasons, we shall reproduce only the second ground of appeal which is sufficient to dispose the appeal. If we may paraphrase it, it reads that; The High Court raised extraneous issue on the appellant's locus standi to form the basis o f the impugnedjudgm ent without according parties a hearing. Before us, Messrs. Gwakisa Sambo and Erasimus Buberwa, learned counsel represented the appellant and the respondents respectively. On the said stand-alone ground of appeal, the learned counsel successfully sought to adopt their written submissions earlier on filed to form part of their respective oral submissions. They contended albeit briefly, as hereunder. Mr. Sambo, with moderate zeal and vigour, he faulted the learned trial Judge for having imposed and determined on the appellant's locus standi without hearing the parties. Amplifying his point, he asserted that, the respondents successfully attacked the appellant's locus standi at eleventh hour in their closing submission. And additionally, that not only the judges' finding contravened a long cherished legal principle that cases have to be decided on the framed issues, but also, it prejudiced the parties. Therefore, Mr. Sambo urged this Court to hold that the said omission amounted to denial of a right to be heard, and the respective proceedings were vitiated thus, rendering the resultant judgment a nullity. To reinforce his proposition, Mr. Sambo cited our decisions in Mic Tanzania Ltd v. Mayunga Saduka and Others (Civil Appeal No. 145 of 2020) [2023] TZCA 18 (11 April 2023; TanzLII) and National Microfinance Bank PLC and Another v. Lello Laurent Sawe (Consolidated Civil Appeals No. 385A & 339 of 2021) [2024] TZCA 17(6 February 2024; TanzLII). Responding to Mr. Sambo's contention, Mr. Buberwa contended that, the appellant's complaint is unfounded and liable to be discounted for two main reasons; one, that, initially, the appellant sued in his personal capacity until later, when he filed an amended plaint as legal personal representative of the Late Zuhura Abdallah, the original owner of the suit land. Two, that it was not until the appellant's locus standi was questioned when he promised to establish his status by producing relevant documents which he did not heed to. Therefore, Mr. Buberwa contended that, unlike in National Microfinance Bank PLC (supra) and in Mic Tanzania Ltd. Mayunga Saduika And Others (Civil Appeal 145 of 2020) [2023] TZCA 180 (11 April 2023; TanzLII) where the issue of locus standi was raised by the court suo /770ft/and on that ground the cases were dismissed, in the present case the trial court proceeded with the case on merit, irrespective of the appellant having no locus standi. As such, Mr. Buberwa beseeched us to distinguish those two cases from the instant case. He commended the learned trial Judge for holding as he did, much as the issue in question could be raised at any stage of the suit. To fortify his proposition, he cited the Court's decision in Scan-Tan Tours Ltd. v. The Registered Trustees of The Roman Catholic Diocese of Mbulu, Civil Appeal No. 78 of 2012 (unreported). Considering the counsel's written submissions, their oral contentions and the authorities cited, the only issue for our determination is whether the trial court raised and determined the issue of locus standi of the appellant suo motu without according the parties a hearing. Certainly, it is undisputed that the point so raised was not in the list of the issues previously framed which appear on page 92 of the record of appeal for determination. However, it is clear to us that upon filing the substantive plaint, on reflection the appellant filed the amended plaint about seventeen months later on 13/10/2020. Where, on paragraph 4 he acted as Personal Legal Representative of the deceased mother who owned the suit land. However, it is common ground that, not every legal personal representative might necessarily be an administrator of the respective deceased's estate. As such, it goes without question that the appellant's point of grievance was only triggered by the learned trial judge's observation, the appellant had no locus standi, but he jumped to the merit of the case as we observed earlier on. For ease of reference, the operative part of the impugned judgment at page 208 of the record of appeal reads: "... th e P la in tiff fa ile d to p ro ve th a t h is rig h ts o r in te re sts in the s u it la n d w ere in te rfe re d w ith. This, by itself, would suffice to dispose the m atter because lack o f locus standi renders a suit incom petent H ow ever, fo r th e in te re s t o f ju s tic e , I have opted a g a in st ta kin g th a t path . I fin d it im p erative to d e a l w ith a ll th e issu e s on m e rits, la c k o f lo cu s sta n d i o f th e P la in tiff, n o tw ith sta n d in g ." (Emphasis added) With respect, we are settled in our minds that, the trial Judge's finding under reference was good enough to dispose of the suit as on that account the matter was admittedly incompetent before him. Therefore, the learned Judge respectfully acted improperly in the circumstances of the case however strongly the interest of justice might be demanding. It would have been a different scenario, which is not the case, if, after raising the said new issue, the learned trial Judge invited the parties to address him on it before arriving at his decision. See- Scan-Tan Tours Ltd. (supra). Nevertheless, we decline to accept Mr. Sambo's invitation to nullify the resultant decision on account that the parties were not heard. We shall take a different route all together. We are mindful of the effects of violation of the principles of natural justice which are stipulated under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. We note that, the appellant's fowl play did manifest itself in three forms; one, that, initially he sued in his own name claiming title on the suit land. The record remained reading as such until at a later stage when, on reflection, he filed the amended plaint in the capacity of an administrator of the respective estate. However, he did not disclose the name of the probate court, number of the probate cause or status and magnitude of the estate. Two, the appellant did not seriously dispute the alleged solely blood-tied sister one Neema Issa Nassoro who probably might be his co-heir to the said estate. Three, we also note that, upon posing as administrator of the estate and while under cross examination during trial, the appellant undertook to present the respective letters of administration to establish his interest in the estate. Nevertheless, he did not honour that promise. To this effect, the appellant's evidence on page 95 of the record of appeal reads: "... I am a rep rese n tative (a d m in istra to r o f the e sta te ) o f m y m other Zuhura A bdallah....to prove that my mother owned the piece o f land is a certificate o f title and was transferred to me as adm inistrator o f the e s ta te ... (Emphasis added) Further, on page 97 of the record of appeal, the appellant stated that: "I sued Jitu Investment Co. Ltd as trespasser. I did not sue Neema Nassoro, when Jitu said he was given by Neema " In his attempts to show his interest and status in the suit, the appellant on page 98 of the record of appeal stated as follows: have not tendered letters o f administration but I am ready to produce it if required..." Gleaned from the two excerpts above, it is clear to us that, the appellant's failure to exhibit the alleged status was not accidental. It is so, because he did not even include the alleged letters of administration in his list of additional documents to be relied upon which, he filed later as appearing on page 37 of the record of appeal. Therefore, chances are that, by that time the said letters did not exist. It is very unfortunate that, despite the apparent defect noticed by the learned Judge that the appellant had no locus standi, the former risked it all by going onto merit of the case. It follows, therefore, that whether the Registrar of Titles had recorded the appellant consistently as the legal personal representative of Zuhura Abdallah it is immaterial. We are unable to buy Mr. Sambo's proposal that the appellant had locus standi. It is so, because neither granting nor refusal to grant titles is in the legal purview of the Registrar of Titles. He does not even grant letters of administration on the estates. As such, for the latter, only the courts of law have the mandate. It is stressed that, as is the case for courts'jurisdiction, similarly, the parties' locus standi is paramount to be established ahead of some other steps so as to avoid courts issuing decrees against wrong parties thus, making execution next to impossible. In other words, in any judicial proceedings, locus standiof a party is neither assumed nor is it imaginary. We stress that, whether or not the appellant in the present case paid rents on the suit land, it is immaterial because the payment had nothing to do with proof of locus standi. Therefore, until such time, if at all the appellant sought and obtained the letters of administration over the estate in issue, he assumed interest on it which vitiated the respective proceedings. In the result, and for the reasons given above, we allow the appeal by quashing the impugned judgment and set aside the accompanying orders. We direct that, whoever is interested in the estate he may wish to institute a suit all over again properly. Considering the circumstances of this appeal, we make no order as to costs. DATED at ARUSHA this 28th day of February, 2025. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgement delivered this 28th day of February, 2025 in the presence of Appellant appeared in person and Mr. Jeff George Sospeter holding brief for Mr. Erasmus Buberwa, learned counsel for the Respondents;