domic mukama kambarage vs godfrey mosses tumaini 2023 tzhc 20068 7 august 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MOROGORO) AT MOROGQRQ LAND APPEAL NO. 50 OF 2023 (Originating from Land Appiication No. 110 of2019 District Land and Housing Tribunal for Morogoro) DOMINIC MUKAMA KAMBARAGE APPELLANT VERSUS GODFREY MOSSES TUMAINI RESPONDENT JUDGMENT !(); Hearing date on:28/07/2023 Judgment date on: 07/08/2023 NGvifEMBEj^r Mr. Dominic Mkama Kambarage, the appeiiant in this case unsuccessfpily sued the respondent before the District Land and; Tribunai for Morogoro (the tribunai) for a daim of ownership of iand estimated to measure about 421/2 acres iocated at Ngerengere Mtaa, Mi<uhdi 'Ward herein Morogoro Municipaiity. He ciaimed to have purchased that iand from Hamadi Saidi Omari Katoto on 25/01/2003. his cause of action, the appeiiant claimed that on ^uly 2019 he note] tR§t^W rdsfjondent had invaded the iand and aiibttltf it W Hiibbr pIbts'By pegging iron bars purporting to make bddhdariel'ifi^Shat iarid; T^afwhen he-was faced, he ciaimed ownership thrbu^fi^hia^fatHdr ® Among others, he prayed that;-tHeappllan[t^Ba iMRljfVd; ivaro" ■■ lud '^0 nav-' purc^psed ihpt fro dd/Oi/dOOd. ' IdP', on ddy i';e ttM'ddc ■a :./-6 ^vntttcddt d-dH V i.:c:ptpra:. ':/udnddrjds'diT' • . ddP:.-u-::-rdjddrdrid-r- declared, a righ owner; the respondent be ordered to remove and take avyaY everything he brought to the land; eviction; cost and general damages. Xhe respondent filed his Written Statement of defence denying §pecificajly the clairn. Added that he was the administrator of his deceased father, the late Anderson Tumaini Buku and that he annexed a CQpy pf Primary Court which appointed him. §ffl^fijt|h^that belonged to the deceased who-lOeS''had'i c|se Irf he won against the said Hamadi SSidNOrhefi I^Bi®"he also won on a subsequent appeal which Katoto preferred; cqpies'df judgriient f^r both cases were annexed. ^ i The case was heard on merits, and passed bedA/eed tWo Ghaifpersons; was Khasim who held the file and h^rd%e pfaihtii^'s evidence.jO the special clearance session, the casefile was feigned'to ^lon.' Mm^ who completed on the defehcdritfeinis ifien 4hd''''chairmah" was preparing his judgment, dbseiVed'sdhiie ih1drdbri8ti^'"He thuis raised a new issue on propriety df suing'thd i^p^deht iii his ^personal capacity instead of suing him as ah administrator. ; c. \ and Tarimo represented the respondent and the appellant respectively The chairman addressed them to argue on the is|ue 'which they both did. Eventually, the chairman was satisfied that the- suithivas'TOtallyl^ for having been preferred afgaifea whang party BeGausei the respondent was clear that acted the administrator 6f the deceased estate. Part of his judgment stated: ; ''Nl kweli suata la nguvu/mamiaka kwenye shaur! iinakwencia kwenye mzizi wa shaur!. Baada ya mjibu maombi kufichua kuwa yeye sio mrnlllkl wa ardhi bishaniwa, na kwamba ardhi 2 i "■ bishaniwa ni sehemu ya mirathi ya marehemu Andason Tumatni Buku/basi, mwombaji alikuwa na jukumu la kuomba kiifanya marekebisho ya hat! ya madai na kumweka mdaawa sahihi/' In the above paragraph, the tribunal proceeded to opine on locus sfa/7<y/ which went to the root of the case itself. That the respondent having disclosed that the land was part of the deceased estate, the appellant was required to amend his pleading and impiead the proper party. The tribunal proceeded to strike out the suit with costs and advised thO Appellant to sue the proper party if interested. ' The Appellant was not satisfied by such decision thus presented his apiieai"before this court putting forward five grounds of appeal wfiich Wiii not be reproduced for obvious reason that he expressly'^dFopbed other grounds, while maintained only ground three (3), which was to tHe effect that, the court erred in law for failure to declare the'respondent'^ trespasser and for striking out the matter on the ground that the respondents had no interest. On hdaring, of this appeal Mr. Tarimo prayed to argue On gfouhds 3 and 5 jdintiy, but what he actually submitted, in my understanding was in Tespbct of only ground 3, which challenged the tribunal^ failure%i declare the respondent a trespasser. Ground 5 which compiained about the award of costs to the respondent was never addressed. In his ^bmissidn, Mr. Tarimo argued that, the basis of the tribunal dismissing the appeilant's case was that the respondent had no interest in the disputed land, while in trespass cases the respondent need notfbe interested in the land. He strengthened his argument by referring thil court to Order I Rule 5 of The Civil Procedure Code, Cap 2019/which"provides that, in order to be joined, defendants doed'riot i! ; be interested in aii the reiiefs sought. That since the respondent was the one seen piacing some iron pegs in the disputed iand, then he was the one trespassing. The tribunai ought to have deciared him a trespasser. He further cited the case of Jela Kalinga Vs. Omari Karumwana [1991] T.L.R 67(CA) which to him had the position stated in Order I Ruie 5 above. He prayed this court to aiiow the appeal with costs. On th^ respondent's side, Mr. Benjamin Jonas was the first to address. He was straight forward that striking out the appiicdfidni^s'dn the ground that the appellant sued a wrong party as the respondent lacked caf^city to bejsued and the appellant did not chailengd'tWMct. td hiiti^, even Order I Ruie 5 of the CPC is misused by Mr. Tarimo. The suit was not struck out on the reason that the respondent was hot interested in the reliefs. That the tribunai would not address other issues while the legal issue on the respondent's capacity (locus stand!) catDfable of disposing of the case. Fortified his argument by reiferrmg this ddurt B'tFie cise df Ally Rashid and 534 others Vs. P^rMneht Secretary, Clvir^|9j}eal No. 71 of 2018. Mr. Punge added that the issue of possession was dispuBd as the respondent was in actual possession, while the appellant dairndd the same land, the appeal therefore be dismissed with costs, he prayed. In rejoinder Mr. Tarimo maintained that the iocus stand! \NdiS eistabiishecfdHhe appellant established his cause of action. The tnburiai ^rdnedusty decided' the matter on point of law, the respdhdeht was fdund Jn the suit land; the tribunal's decision was thus wrong. Having summarised the parties' submission as above, it is thi tdrn of this court to decide whether the appeal has merit. I find tfie decisivd issue is whether the tribunai was correct in striking out the case without considering it on merit? Mr. Tarimo maintained his stance that the •• • •' • • • • ■ ■ -'*■ ' •- . -V" ^ J. -l • ■•• • ,■ •; «•' - .. «.,<■ • ' •• 'e-' . : - ; ^ j - .. . V Vvn"-' tribunal was required to declare the respondent a trespasser. For the respondent Mr. Benjamin and Punge were of the contrary view, that the tribunal would not properly reach to that stage whlje the said respondent had no locus stand!. This court has considered all the authorities offered by the learned advocates from both sides, all of them have been visited by this court, and most of them will feature in the course. However, at this juncture I take note of the precedent In the case of Ally Rashijd and 534 others Vs. Permanent Secretary (supra), in that precedent, the Court of Appeal making reference to Order XIV Rule 2 of the CPC, held that If the Issue of law Is upheld, the court Is precluded from entertaining other Issues of facts. See also Sohora Gold & Corporation & Another Vs. Minister for En^^& Minerals (Civil Appeal 112 of 2018)[2022] TZCA 183 whefd tHe court wentbs follows: - ''As a rule ofthumb goes, whenever there Is a point oflaw, the" " Court, has to determine It first before embarking to deterrfiine a substantive matter before It Likewise In the case at hand, the Court shall first determine the point of law It raised suo ^ motu." - " At the onset. It should be known that, the law permffs bh ^djudlcitor fo raise a new Issue and make any decision and orders based on that Issue. The prerequisite Is that, parties to a case n^ust be heard on that new Issue, failure of which leads to miscarriage of justice. Where the new Issue or any of the Issues disposes of the whole matter. In the manner that there will be no need of determining other Issues, the court or tribunal will not be obliged to determine each of the other Issues specifically raised and or pleaded. " ^ Having not lost trust to any of the advocates, I believe all the learned advocates are abreast of the position of the law. One of the authorities Is the case of Mussa Chande Jape Vs. Moza Mohammed Salim (Civil Appeal No. 141 of 2018)[2019] TZCA 490 where It was inter aiia observed: - "The trialjudge is allowed to amend or strike out the framed issue or frame additional issues before passing a decree, but that power must be exercisedjudiciously by according parties - the right to be heard on those additional issues" LilkeWiie In another case of Said Mohmed Said Vs; MuhilMiii Ahiiri, Sivii Ajjpeaf No. 110 of 2020,(CAT - Dar), the court iBsisted ttlt, wFieri the court has framed any new Issue suo motu It must afford parties the rrght to be heard by availing them a chance to address'on the Issue. It observed: - "As to what should a judge do in the event a new issue crops up in the due course of composing a judgment, settled iaw is td the ^ ' ct that the new question or issue should iod piaced^^' on record and the parties must be given opportunity to addfess the court on it" ^ ^ > rri Further similar position of principle was pronounced In the casds of Margwe Error & Others Vs. Moshi Bahalulu (Civil Appeal No. Ill of 2014) [2015] TZCA 282, and Scan-Tan Tours Ltd Sid, The Registered Trustees of the Catholic Diocese of MbulU^ Civil Appeal No. 7iJ of2012(unreported)among many dtheirsl P According to |he proceeding of the tribunal, thd 'ciiSirpdfson availed thfe ojDportunity to the parties and Messrs. Tarlmo and Banjamin sufficiently addressed the tribunal on the Issue. The learned advocates held their respective positions and arguments which they have exhibited " .P -4- ,P.--,7'P-..>P' ^ . .. • •' ' V'• ■ 'U ■ 'O! P; • •-•rP ■ • to hold before this court. It follows therefore the tribunal committed no error as per the procedure. Now whether its findings were correct, is the following question. From the facts of the case, records are clear that the respondent was in occupation of the land and it is stated that he was found:by the appellant placing iron pegs in the iand making sort of allotment of the land Into plots and making boundaries. True also that when addressed he ilnplied that he was in the course of discharging his duties of an adrhinistrator since the land was part of the late Anderson Tumaini Buku whose estate he was administering. Not oniy that, even in the Written Statement of Defence, first paragraph he stated that, he y^s-an administrator and he annexed a copy of judgment. Even at the '7^ paragraph, he stated cleariy that the land belonged to the deceased'wRb even had a case in 2003 and he won with a subsequent appeal? Mr. Tarimo was of the unchanged position that, the'respbndeirit trespassed the iand by himself. It was his argument that ais the deceased never invaded that land, the respondent was to be held responsible for his trespass irrespective of his interest. Mr. Benjarhin and bunge on the other side, were holding to the spirit of the respondent's capacity. Arguing that provided he was in the undertaking 'as tha adrhinistrator of the estate, it could not be proper in law to sue him in his personal capacity. In deaiihg with this issue, this court is well aware that when a person is appointed to be an administrator of the estate, he becomes two persons in one. He retains his personal capacity as a'natural individual person, but also upon appointment, he secures another personality of an administrator by stepping in the shoes of the deceased person. Authorities are many, one of the most reievant in our case is the decision in the case of Abdulatif Mohamed Hamis Vs. Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017)[2018] TZCA 25, where the first respondent was sued on her own capacity while actually, she was the administratrix of the estate and the undertaking complained of was in respect of her office of the administratrix. The following is what the Court of Appeal observed and held regarding the propriety of suing her in that manner: - "The respondent's ownership ofthe suitland was notin her persona! capacity, rather, it was on account of her being the iegai representative ofthe deceased. Thus, in our view, to the extent that the suit iand was vested upon the 2nd resporident ' by Virtue of her capacity as the deceased's iegai' representative, any suit with respect to that property Ougtif to have been instituted against her in that capacity." The personality of an administratrix, to put it clearly, is a sort of legal personality. Its existence is determined by the law and again is limited only to the subject attached, which is the estate of the deceased. This person must himself be clear in his undertaking so that a disfihction is never compromised. Likewise, where any of his conduct is being'caiied into question, the person so complaining must be specific as'td w^ he complains against the natural person or the legal person as an administrator/trix. In several cases we have clarified this position, see for example the case of Edward Henerico Bubadalaja Vs. Minzimali Luchagula & 2 Others (PC. Civil Appeal No. 59 of 2021)[2022] tZHC 521, where this court sitting at Mwanza did not accept the appellant's sliit in his personal capacity whereas the matter w& o^^ concerned with the deceased estate he was administering. fhi§ court observed the following:- 'Tn. r ■ ■ ■ ^ 'rh-v- "In the currentsuit, the appellantsuedin Ms personal capacity Instead ofas an administrator ofthe deceased's estate. He did so after he had already been appointed as the administrator. He had no locus standf as stated above, he could only to sue as an administrator of the deceased's estate. It Is settled that the appellant In Ms personal capacity Is a different person . from the appellant In Ms capacity as the administrator of the deceased's estate" the rationale of this rule, in my considered opinion is obviously clear; liabilities of the deceased estate are generally limited tbthfekate and assets surviving the deceased. The administrator being %hly a servant in whose hand the properties are collected and pass to the heirs, there must be a clear distinction of the two characters otan ihdivTdual natural person and an administrator. Given the facts of the case at hand, I am satisfied, the respondent as he frinkiy disclosed from the beginning of the dispute eVem the suif was'ihstituted as well as in his written statement'of defence, that he was dealing with the property as an administrator of the estdte. There would be no point attempting to sue him on his own capadty and expect the suit to be maintained by the tribunal. At least upon learnihg that the respondent acted as an administrator, the appellant's advocate would have advised his client accordingly and seek to amdni fDleadirigS,;dbiffdctfy asT trial chairman reasoned in his judgh^tP'- -^^ '" ■ t'have^ paid dud regard to the fact that, Mr Tarimo spti^htTeftige uhdef Order"^ I Rule 5 of the Civil Procedure Code td'defehd^fe argument that the suit still deserved adjudication on merit?' He Was bfinging forward an idea that, under that provision the suit WOuld' be maintained and determination be on merit even if the defendant had h^ y'./.; ' r'-; '■■■■. t-S-'' ' \ ' 'v -. . ;A,-'r?- . •' ■ ■ ■ ' -• • / ' i, ..c>r interest in the dispute. I understand, that provision is on joinder of the parties, same provides as hereunder:- "It shall not be necessary that every defendant shall be Interested as to all the reliefs claimed In any suit against him." By a plain interpretation, the rule means that a defendant may be joined (with others in a suit) even if other reliefs are against other defendants only. That it is not necessary that all the reliefs must be ^dught against the defendant for him to be properly joined, fdo nbt think the code intended to mean the plaintiff may sue any person without considering his interest and capacity. Had that been the practice, decrees wduid be ornaments, appearing with pride but' ineSutabie. How wdufd'th'e cburt,for instance order eviction against a hbt rh actubl occupation? Or how can the order of deniolitibli'BFvacant possession be issued against a person who is neither the oWrter'nor occupier of the premise? I think Mr. Benjamin was correct that Order I Rule 5 is misused, and I add, misplaced. - or o-n Even the case of 3ela Kalinga, relied upon by the learned advocate l^r. Tarimo, did not have any of the above implication: fhis cbUft'tlhdersfeod that case to be much different, and I fii^Kllfiiftd summarise hereaften In that case, parties among other clhlzbns,'%rei invited to build cottages/huts surrounding the area which was appointed to be a stadium for election celebrations. The parties' huts werd he)rt to each oiher. But between the two cottages, a public toilet was built leaving passages on either side. The respondent built a wairto cdhPect between his cottage and the public toilet to block up the aliey^as he was ordered by the responsible officers after the celebrations werd 6yef.;TO appellant deniolished the wall and the public toilet, thdn''started construction'bf another cottage in the place, same way thd "^appellant m. -• - - i was ordered by some officials. The suit for trespass was preferred by the respondent/which elevated the ladder of justice from Primary court up to the Court of Appeal. The Court of Appeal considered whether there would be trespass under those circumstances where neither of the parties owned that area in dispute. It thus held inter alia that in trespass claims, possession must be established even if it may not be legal/That as the respondent was in possession, his action against the appellant was proper. It is very unfortunate that the case so cited is different from this at hahd, not dniy on the facts but also the ratio decidendi made'in-'that case cannot assist this court to resolve any of the issues. It i^ even not cbhnkted to Order I Rule 5 of the CPC. Had the facts beert Cld^e to it,' such decision would stand our guide map. ' But in this case even the reliefs sought by the appellant would not be decided upon in the absence of a proper party. It was noted earlier that the appellant sought among others; first- a declaration that he is the legal owner of the land. It is known such declaration must be against a proper party. Second - that the respondent should remoVd an^hing inserted or erected on the land and eviction order. We have already meditated that in order for the court to order for eviction the person being evicted must be in occupation. In this case, assuming the administrator was in the land as a trespasser, an eviction order must be issued against the administrator himself not any other person. In the case of Yunus Seif Kaduguda (as Adminjstratpr of the Estate of the Late of Seif Kaduguda) Vs. Maridtha Yalaselemeye (as Administratrix of The Estate of the Late Tomas Nsanzugwanko)(20 of 2021)[2022] TZHC 13719 which partly followed the case of Abdulatif Mohamed Hamis (supra), this 11 court reiterated on the tests of a proper party or a necessary party to include; whether there is a right to relief against the party and whether a decree can be executed against such a party. This court therefore, does not underestimate the issue of parties. I am mindful of yet other numerous decisions of the Court of Appeal where the point was emphasised. Among those cases, I take note that of M/s Mkurugenzi Nowu Eng Vs. Godfrey M. Mpezya (Civil Appeal 188 of 2018)[2021] TZCA 516 where a wrong party was sued, the court proceed to nullify the proceedings and ordered that the respondent should sue the proper party. It partly held: - "As such, having been informed by the respondent, in ■His ' ■ evidence, that his empioyer was DWl and not the appeiiariiy^- \ '' the Wrbngiy instituted iabour dispute against the appeiiarit waH • ^ ' supposed to end there and the respondent be advised to take necessary steps and institute his dispute against the proper party... As indicated above, the issue ofparties to the case is a iegai and centrai matter in aii proceedings. Therefore, the act of the respondent suing a wrong party had affected the entire thai as it goes to the root ofthe matter" The way I see the facts, the appellant's claim suffered frdfin two fatal ailments; first, the respondent was not a proper defendant 6r, as the learned advocates Mr. Benjamin and Mr. Punge put it, he lacked capacity (to5 standi) to be sued and to properly defend the suit; 5eco/7t/is-the cause of action, in essence there was no cause of action against the respondent. c .: / If that is the case, the trial tribunal was correct in its judgment that under the circumstance it would not be able to pass any decree agaihst the estate of the deceased because its administrator was hot sued. -.12 Likewise, it could not rule against the respondent who clearly stated; from the beginning, that he was doing what he did in performance of his function as an administrator. In my considered opinion, the approach and reasoning of the tribunal were justified. The order that the appellant should sue a proper party, in my thinking, was fair to both parties and for the interest of justice. This court is well satisfied that the procedure of suing the proper party was appropriate and if the appellant had any genuine cause would face no difficult to follow. What loss would the appellant incur if he would have instituted his case against the administrator? Much as 1 khbw that dppeal is an automatic right to the parties, but to the^Bi^-^isQih^ the proper party as the tribunal so advised was a better optiorfi'^- • • ' Having so reasoned, I would agree to what Mr. Benjamin and Punge, learned advocates suggested that this appeal has no merit Finding no merit as such, I proceed to dismiss this appeal entirely, there is no reason as to why costs should not be awarded as prayed/ thus I dfder costs be paid by the appellant to the respondent. - ^ ?s - Ofder"accordingly. Dated at Morogoro this 7^Sjay^f August, 2023. cO P.J. NGWEMBE 3: UJ JUDGE 07/08/2023 Gourt: judgmenFdelivered at Morogoro in Chambers on this^ day of August, 2023 in the presence of the Respondent and in absence of the appellant. 13 .'"is'7''" ■ of' ''yUl A.W. Mm jando DEPUTY REGISTRAR 07/08/2023 Court: Right to appeal to the Cou^ of Appeal explained. // M ndo REGISTRAR ^^7/08/2023 IVlO 14