MARIAM ATHANAS KESHEBERUKA V AG AND SALEHE HARUNA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA MISC. CIVIL APPLICATION NO. 25221 OF 2024 MARIAM ATHANAS KESHEREBUKA ...................... APPLICANT VERSUS 1. SALEHE HARUNAMSAZI . ................... 1st RESPONDENT 2. SMALL INDUSTRIES DEVELOPMENT ORGANIZATION (SIDO) ....... ........... 2ND RESPONDENT 3. MAJEMBE AUCTION MART LTD.... ................ 3rd RESPONDENT 4. THE ATTORNEY GENERAL................ 4th RESPONDENT Date of Last Order: 17/10/2024 Date of Delivery: 25/10/2024 RULING KADILU, J. The applicant is seeking an interim injunction order to restrain the 2nd and 3rd respondents, their agents, and any person acting on their behalf from attaching, selling, or taking any recovery measures in respect of a small mortgage created over a matrimonial home located at Plot No. 420 LO 372397 Block PP with Certificate of Title No. 43735, Ng'ambo/Ali Hassan Mwinyi area, within Tabora Municipality in Tabora Region. She averred that the suit house is currently occupied by the applicant and her children so, the status quo has to be maintained pending the expiration of 90 days’ notice to sue the Government as a necessary party. The application is made under Section 2 (3) of the Judicature and Application of Laws Act [Cap. 358 R.E. 2019] and Section 95 of the Civil Procedure Code (CPC) [Cap. 33 R.E. 2019]. It is made under a certificate of urgency and supported by the affidavit sworn by the applicant in which she i alleges that she is a lawful owner of the 1st respondent. When the matter came up for hearing, the applicant and the 1st respondent appeared in person without legal representation, Mr. Gureni Mapande and Mr. Anthony Rweyemamu, State Attorneys represented the 2nd and 4th respondents, whereas the 3rd respondent was absent. Mr. Gureni raised a preliminary objection on the point of law to the effect that the applicant has no locus standi to institute the matter as she claims that she is a spouse of the 1st respondent but she has not attached any proof. The learned State Attorney urged the court to determine the point first because it is concerned with the jurisdiction. He, thus, prayed for the court to dismiss the application with costs for being brought by a person who has no legal capacity to do so. Responding to the point raised by Mr. Gureni, the applicant stated that she is a legally married wife of the 1st respondent and she has a marriage certificate issued by BAKWATA. She elaborated that they contracted marriage in 2001 in Chemchem Mosque, within Tabora Region. The applicant added that she left a certificate of marriage at home since she did not know that it would be needed in the instant application. She informed the court that if she would be allowed to bring the certificate to court, she could do so. In a short rejoinder, Mr. Anthony Rweyemamu argued that as the applicant has already shown in her affidavit that she is the wife of the 1st respondent, and she did not attach any proof, it does not matter whether she has a marriage certificate or not. Mr. Anthony emphasized that the applicant has no locust® institute the application. He pointed out that in the 2 2nd paragraph of the applicant's affidavit, she stated that she contracted marriage in 2000 but she told the court during the hearing of a preliminary objection that she was married in 2001. The State Attorney maintained that the applicant has not proved that she is married to the 1st respondent hence, she lacks focus standi Is institute the matter. I have considered the submissions by the parties and the existing records. I wish to state that focus standi is a point of law that touches the jurisdiction of the court. The Black's Law Dictionary, 9th Edn. (2004) on page 1025 defines focus standi as the right to bring an action or to be heard in a given legal platform or forum. Simply, it is the right or legal capacity to bring an action or to appear before a court of law. It is, for this reason that focus standi must be considered by the court at the earliest opportunity or once it is raised. In Registered Trustee of SOS Children's Villages Tanzania v. Igenge Charles & 9 Others, Civil Application No. 426/08 of 2018, it was stated that: "Locus standi is a jurisdictional issue, ft is a rule of equality that a person cannot maintain a suit or action unless he has an interest in the subject ofit, 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." In the case at hand, the record indicates that the gist of the matter is a loan facility advanced to the 1st respondent by the 2nd respondent. The 1st respondent mortgaged the suit house allegedly without the knowledge and consent of the applicant who asserts to be his wife. It happened that the 1st respondent failed to service the loan as agreed hence, the suit house is about to be sold. For this reason, the applicant is objecting to it purportedly 3: because the house was wrongly mortgaged. Now, the 2nd and 4th respondents have questioned the marital relationship between the applicant and the 1st respondent. Admittedly, the applicant's affidavit displays that she is the wife of the 1st respondent but as aforesaid, she did not attach any proof. Section 55 of the Law of Marriage Act [Cap. 29 R.E. 2019] provides that proof of marriage in any court shall be by way of a marriage certificate issued under the Act or any law in force. The record shows that the applicant's affidavit was drawn by the learned Advocate, therefore, the assertion that she did not know that she was supposed to attach a marriage certificate cannot hold water. Even if she was unrepresented, that could not be an excuse for the violation of the law as it is common knowledge that ignorance of the law is never an excuse. Thus, I uphold a preliminary objection raised by the learned State Attorney. The applicant has not shown that she has the legal capacity to institute the application. Consequently, I strike out the application. Given the nature of this matter and the outcome of the application, each party shall bear its costs. It is so ordered. JUDGE 25/10/2024 4 Court;- Ruling delivered in chamber on the 25th day of October, 2024 in the presence of Mr. Samwel Mahuma, State Attorney and Mr. Kanani Chombala, Advocate for the Applicant. D.S. NYAKUNGA AG. DEPUTY REGISTRAR 25/10/2024 5