CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA (CORAM: KEREFU. J.A.. FIKIRINI. J.A. And MASOUP. J.A.^ CIVIL APPEAL NO. 555 OF 2022 CHARLES PETER SEMWENOA (Administrator o f the Estate of the late MAKAME MOHAMED SUNGURA)....................................... APPELLANT VERSUS AZANIA BANK LIMITED....................................................1st RESPONDENT MARK AUCTIONEER AND COURT BROKERS COMPANY LIMITED......................................................... 2nd RESPONDENT ZUMBI MUSIBA (Administrator o f the Estate of the late ELVIS MUSIBA)................................................... 3rd RESPONDENT CORPORATE ADVISORY SERVICES LTD.............................4™ RESPONDENT THE HON. ATTORNEY GENERAL....................................... 5th RESPONDENT KIGAMBONI MUNICIPAL COUNCIL................................... 6™ RESPONDENT THE REGISTRAR OF TITLES.............................................. 7™ RESPONDENT THE COMMISSIONER FOR LANDS..................................... 8™ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Maevekwa, J.l dated the 20th day of July, 2022 in Land Case No. 108 of 2022 RULING OF THE COURT 11th & I4 h February, 2025. KEREFU. J.A.: The main controversy between the parties to this appeal is the ownership of a parcel of land described as Plot No. 186 Block 'G', situated i at Kigamboni Municipality in Dar es Salaam Region comprised in a Certificate of Title No. 57283. L.O No. 234934 (the suit property). It was the appellant's claim before the High Court that, in 1975, during the 'Operation Vijiji' the suit land was allocated to his father, namely Makame Mohamed Sungura (deceased) who passed away on 27th September, 2018. That, at all material times, the deceased occupied the suit property without any interference until 1992 when he had boundary dispute with one of his neighbours to wit, Abdalah Ngororo, which was later, settled amicably. That, sometimes between 2003 and 2005, through a mutual agreement, and after several requests, the deceased allowed the 3rd respondent, whom he used to meet regularly at the Local Government Authority offices, to carry out his brick making business on the suit property. The 3rd respondent conducted the said business until 2007, when he suddenly abandoned it and left his bricks and other properties on the suit property. The deceased's efforts to trace the 3rd respondent to come and collect his properties, proved futile. The appellant stated further that, the deceased was previously, and for unknown reasons, approached by the leaders of the Local Government Authority who threatened and forced him to sell the suit property to the 3rd 2 respondent. Having noted the said ill motive, the deceased opted to survey the suit property to formalize his ownership over it. However, the survey process could not be completed as it was frustrated by the said leaders. Then, the deceased, unsuccessfully reported the matter to the Director of Temeke Municipality. Subsequently, in 2010, when the process of making follow up on the matter became difficult to him due to his old age and financial hardship, the deceased decided to transfer the ownership of the suit property to the appellant. In 2016, the deceased formalized the said transfer by executing a deed of gift in favour of the appellant. It was further stated by the appellant that, upon the demise of the deceased, there were misunderstandings among the family members on the division of his estate. Thus, on 4th May, 2021, the appellant was appointed by the Primary Court of Kigamboni in Dar es Salaam via Probate and Administration Cause No. 45 of 2021 to administer the deceased's estate. That, between August and October, 2020, in the course of performing his duties, he conducted an official search on the suit property. Through the said search, he discovered that the registered owner of the suit property was the 3rd respondent and in 2015, the 3rd and 4th respondents had secured a loan facility from the 1st respondent by 3 mortgaging the suit property. Having failed to repay the said loan, the 1st respondent had issued a notice of sale of the suit property to recover its unpaid loan facility. Based on that information, the appellant decided to institute a Land Case No. 108 of 2022 in the High Court of Tanzania, Land Division, at Dar es Salaam against the respondents claiming for the following reliefs: (i) A declaration that the appellant is the lawful owner of the suit property; (ii) A declaration that the 1s t J d and 4h respondents acquired the title o f the suit property illegally due to negligence act o f the 6h, 7th and 8h respondents; (Hi) A declaration that the 1st, J d and 5th respondents trespassed into the suit property; (iv) Payment o f TZS 700,000,000.00 as general damages; (v) Award of compensation at commercial rate for the malicious acts done by the respondents; and (vi) Costs of the suit. In their written statements of defence, the 1st, 3rd, 5th, 6th, 7th and 8th respondents disputed the appellant's claims as they contended that the lawful owner of the suit property is the 3rd respondent who having completed all the legal procedures, he was granted the right of occupancy on the same. Therefore, the 1st, 3rd, 5th, 6th, 7th and 8th respondents prayed for the appellant's suit to be dismissed with costs. In addition, the 1st, 3rd, 5th, 6th, 7th and 8th respondents raised a notice of preliminary objection challenging the competence of the suit that it was filed out of the time prescribed by the law, thus time barred. Having heard the parties on the preliminary objection raised by the 1st, 3rd 5th, 6th, 7th and 8th respondents, the learned trial Judge sustained it and dismissed the appellant's suit for being time barred. The decision of the High Court prompted the appellant to lodge the current appeal to express his dissatisfaction. In the Memorandum of Appeal, the appellant raised two grounds of appeal. However, for reasons that will shortly come to light, we do not deem it appropriate, for the purpose of this ruling, to reproduce them herein. When the appeal was placed before us for hearing, the appellant was represented by Mr. Mangiteni Marwa, learned counsel whereas the 1st, 5th, 6th, 7th and 8th respondents were represented by Messrs. Omary Ally Ngatanda and Hance Mmbando, both learned State Attorneys and the 3rd respondent was represented by Ms. Rita Odunga Chihoma, learned counsel. Both, the 2nd and 4th respondents did not enter appearance and according to the affidavit of the Court processes server, the 2nd respondent, was duly served with the notice of hearing of the appeal on 15th January 2025 while the 4th respondent was not served as her 5 whereabout is currently unknown. As such, the hearing of the appeal proceeded under Rule 112 (2) of the Tanzania Court of Appeal Rules, 2009 in the absence of the 2nd and 4th respondents. However, before we could embark on the hearing of the appeal on merit, we wanted to satisfy ourselves on the propriety or otherwise of the proceedings and judgment of the High Court on account of the locus standi of the appellant to sue in his capacity as the administrator of the estate of the deceased, while, in terms of paragraph 18 of the plaint, in 2010, the deceased, prior to his death, transferred the ownership of the suit property to the appellant through a deed of gift which was formally executed in 2016. We thus, invited the parties to address us on that issue. In his response, although, Mr. Marwa readily conceded that, in 2010, prior to his death, the deceased transferred the ownership of the suit property to the appellant and, in 2016, he formalized it by executing a deed of gift, he argued that, after the death of the deceased, and due to misunderstandings among the family members on the division of the deceased's estate, all members of the family were requested to surrender any part of the deceased's property forming part of his estate subject for division to the rightful heirs by the administrator. 6 Upon being probed as to whether, at that time of the death of the deceased in 2018, the suit property was owned by him so that it could form part of his estate. Mr. Marwa conceded that at that time the suit property was not part of the deceased's estate, but he insisted that, due to the said family misunderstandings and for the purposes of bringing peace and harmony among family members, it was appropriate for the suit property to form part of the deceased's estate. Therefore, according to him, the appellant had a locus standi to institute the suit against the respondents in his capacity as an administrator of the deceased's estate. In his response, Mr. Ngatanda challenged the submission made by his learned friend by arguing that the appellant did not have the locus standi to institute the suit in his capacity as the administrator of the deceased's estate, because at the time of the death of the deceased, the suit property was not owned by him to form part of his estate. Elaborating on that point, Mr. Ngatanda referred us to paragraph 18 of the plaint and argued that, since in 2010, prior to his death, the deceased had transferred the ownership of the suit property to the appellant, upon his death, in 2018, the said property could not be included in his estate. It was his further argument that, since the suit property was not part of the deceased's estate, the appellant did not have the locus standi to institute the suit against the respondents in his capacity as an administrator of the 7 deceased's estate. Thus, the entire proceedings of the High Court were vitiated and deserve to be nullified. On that basis, Mr. Ngatanda beseeched us to nullify the aforesaid proceedings and set aside the decision entered by the High Court. On her part, Ms. Chihoma associated herself with the submissions made by Mr. Ngatanda and added that, since Mr. Marwa has conceded that, in 2018, the suit property was not part of the deceased's estate, it was improper for the appellant to institute the suit in that capacity. She thus, also insisted for the entire proceedings of the High Court to be nullified as the appellant did not have the locus standi to institute the suit as an administrator of the deceased's estate. In a brief rejoinder, Mr. Marwa reiterated his previous submissions and insisted that the appellant had a locus standi to institute the suit against the respondents. Having carefully considered the submissions made by the parties, the main issue for our determination is whether the appellant had locus standi to commence litigation before the High Court against the respondents in his capacity as an administrator of the deceased's estate. We wish to start by stating that locus standi is a principle which is governed by common law according to which, a person bringing a matter 8 to court should be able to show that his or her right or interest has been breached or interfered with. See for instance, the cases of Lujuna Shubi Ballonzi Senior v. The Registered Trustees of Chama Cha Mapinduzi [1996] T.L.R. 203, The Registered Trustees of SOS Children's Villages Tanzania v. Igenge Charles & 9 Others, Civil Application No. 426 of 2018 [2022] TZCA 428 and Malietha Gabo v. Adam Mtengu, Civil Appeal No. 485 of 2022 [2023] TZCA 17318. Therefore, a person whose rights or right has been infringed by another person can seek remedy or relief(s) before the court either personally or through an authorised agent. Thus, if a person who brings action before the court has no locus standi it raises the issue of jurisdiction which should be resolved at the earliest by the parties or the court itself. In the instant appeal, the appellant's pleadings found at page 18 of the record of appeal stated clearly that, in 2010, prior to his death, the deceased (who was alleged to be the original owner of the suit property) transferred the ownership of the suit property to the appellant. That, in 2016, the deceased formalized the said transfer by executing a deed of gift. The said facts are clearly reflected under paragraph 18 of the appellant's plaint. For the sake of clarity, the said paragraph is hereby reproduced: 9 "18. That, in 2010 Makame Mohamed Sungura (deceased) decided to locate his estate in regards to his wives' children as he was still alive and he happened to locate the suit premise to the plaintiff by a word o f mouth wherebyf he later formalized it in 2016 by signing a deed o f gift but it brought misunderstanding among the family members upon his demise hence every member had to surrender any part o f the estate held before till the process of division o f the estate by a legal representative (administrator) is done to ensure equity and equal sharing among the legal heirs."[Emphasis added]. In the light of what was specifically stated by the appellant in his pleadings, it is clear to us that the deceased, prior to his death, had already passed the title and the ownership of the suit property to the appellant in his personal capacity. Therefore, since at the time of his death, in 2018, the said property was not owned by the deceased, the same cannot form part of his estate which is being administered by the appellant. As such, it was improper for the appellant, in pursuing hisrights over the suit property, to institute a suit against the respondents under his capacity as the administrator of the deceased's estate. It is unfortunate that the said anomaly missed the eyes of the High Court as it could have been addressed and determined timely by that court. 10 In the circumstances, we agree with the submission made by Mr. Ngatanda and Ms. Chihoma that, the appellant had no locus standi to institute the case against the respondents in his capacity as an administrator of the deceased's estate as the suit property was not owned by the deceased at the time of his death. On this position, we are fortified and guided by the above cited authorities and we equally fully subscribe to the decision of the Supreme Court of Malawi in the case of The Attorney General v. Malawi Congress Party & Another, Civil Appeal No. 32 of 1996 where, while considering an akin situation, it observed 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 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." Likewise, in the instant appeal, since the suit property was not owned by the deceased, at the time of his death, it was improper for the appellant to institute the suit against the respondents in his capacityas an administrator of the deceased's estate. Thus, the land case lodgedby the appellant before the High Court was incompetent. In view of what we have demonstrated above, we invoke our revisional jurisdiction under section 4 (2) of the the Appellate Jurisdiction Act, Cap. 141 and hereby nullify the entire proceedings and set aside the decision of the High Court in Land Case No. 108 of 2022. Considering the circumstances of this appeal, we make no order as to costs. DATED at DODOMA this 13th day of February, 2025. R. J. KEREFU JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL ig delivered this 14th day of February, 2025 in the presence of Mr. Mangiteni Marwa, learned counsel for the appellant, Mr. Hance Mmbando, learned State Attorney for the 1st, 5th, 6th, 7th and 8th respondents, Ms. Hafsa Madunda holding brief for Ms. Ritha Chihoma, learned counsel for the 3rd Respondent and in absence of the 2nd and 4th Respondent, is hereby certified as a true copy of the original. C. DEPUTY REGISTRAR COURT OF APPEAL 12