fauzia abdallah mohsen malik 2 others vs ubungo municipal council 2 others 2 2023 tzhclandd 16785 16 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 70 OF 2023 FAUZIA ABDALLAH MOHSEIN MALIK......................... 1st PLAINTIFF MALIKI ABDALLAH MOHSEIN MALIK.......................... 2nd PLAINTIFF TARIQ ABDALLAH MOHSEIN MALIK........................... 3rd PLAINTIFF VERSUS UBUNGO MUNICIPAL COUNCIL........................................................ 1stDEFENDAN THE HONOURABLE ATTORNEY GENERAL....................................... 2ndDEFENDANT SHAMSA SALUM alias SHAMSA SALUM AKLAN Alias SHAMSA NASSORO.................................................................. 3rdDEFENDANT RULING 20th July, 2023 & 16th August, 2023 L. HEMED, J. On 20th March, 2023, the plaintiffs, FAUZIA ABDALLAH MOHSEIN MALIK, MALIK ABSALLAH MOHSEIN MALIK, and TARIQ ABDALLAH MOHSEIN MALIK filed the instantaneous suit, jointly and severally praying for a declaration that the two farms located at Gogoni Kiluvya Kibamba, Ubungo Municipality, measuring approximately twenty five acres, is lawfully owned by them as caretakers through the estate of the late Zuwena i Salum. They finally pray for judgment and decree against the defendants as follows: "(a) A declaration that the area measuring about Twenty Five acres at Kiluvya Gogoni Kibamba Ubungo Municipal is lawfully owned and administered by the plaintiffs. (b) A permanent injunction against the first and 3td defendants from entering with the plaintiffs peaceful occupation of the area. (a) Payment ofgeneral damages. (d) Costs of the suit." All defendants, that is, UBUNGO MUNICIPAL COUNCIL, THE ATTORNEY GENERAL, and SHAMSA SALUM alias SHAMSA SALUM AKLAN alia SHAMSA NASSORO disputed the plaintiffs' claims vide their written statement of defences. The 3rd defendant also filed notice of preliminary objection on the following points of law: That plaintiffs have no locus stand to sue in their individual capacities hence the court has no jurisdiction on the suit. 2. The plaint is defective as it contains a defective verification clause as the person verifying for and on 2 the behalf of the other plaintiffs while the suit is not a representative suit and there is no leave of this court granting leave to sue in a representative capacity contrary to Order VI Rule 15 of the Civil Procedure Code [Cap. 33 R.E2019] 3. The verification is totally defective for not being verified by the 2nd and 3d plaintiffs contrary to Order VI Rule 15 of the Civil Procedure Code [Cap. 33 R.E 2019]" The preliminary objection was argued by way of written submissions. The 3rd respondent was assisted by Ms. Maseke Samwel, learned advocate while Mr. Joseph Rutabingwa, learned Senior advocate, acted for the plaintiffs. I have opted to begin with the 1st limb of objection on the locus standi of the plaintiffs to institute the instant suit. On this point, the 3rd defendant's counsel submitted that the plaintiffs have wrongly sued the defendants in their own individual capacities and not in their personal legal representative capacities as joint administrators of the estate of the late ABDALLAH MOHSEIN MALIK. She asserted that the plaintiffs did not disclose in their title and names that they sue as personal legal representatives of the estate of the late ABDALLAH MOHSEIN MALIK. Ms. Maseke argued that the issue 3 of locus standi is a jurisdictional legal point, thus the court has not jurisdiction to hear and decide on this case. In reply thereto, the plaintiffs' counsel stated that the plaintiffs have locus standi. He argued that according to the pleadings, the 3rd defendant had sold the suit land to the first defendant alleging that the land belong to her by virtue of being administrator of the estate of her late husband. The Plaintiffs are saying under paragraph 5 of the plaint that they are caretakers of the two farms flowing from the estate of the late Zuwena Sa I urn following the death of their father Abdallah Mohsein Malik. Mr. Rutabingwa contended that there is no where in the plaint pleaded that the farms forming the suit land is a property of the late Abdallah Mohsein Malik. According to the plaintiff, they are challenging the sale and they have shown their interest and connection to the land by the facts pleaded. He submitted that the late Abdallah Malik was the one looking after the farms. Having gone through the rival submissions made by both learned counsel, the issue is whether or not the plaintiffs have locus standi. It is well known that locusstand/'is the right or capacity to bring an action or to appear in a court. This definition was also echoed in the case of William Sulus vs. 4 Joseph Samson Wajanga, Civil Appeal No. 193 of 2019 and Maina Mikaeli & 14 others vs. Rukia Amini & Another, Civil Appeal No. 141 of 2020. I have decided to begin my deliberation on the question of locus standi of the plaintiffs on the matter at hand by looking at the plaint which was presented for filing by the plaintiffs on 20th March, 2023. I have opted so based on the principle that preliminary objection has to be a point of law and has to be determined based on the pleadings. This was stated in a widely celebrated decision of Mukisa Biscuit Manufacturing Co. Ltd vs. Westland Distributors Ltd (1969) EA 696 that: - "...z a preliminary objection consists of a point of law which has been pleaded, or which arise by dear implication out ofpleadings, and which if argued as a preliminary point may dispose of the suit." According to the plaint, the plaintiffs have pleaded in paragraph 5 thus: - "The plaintiff jointly and severally pray for a declaration that the two farms located at Gogoni Kiiuvya Kibamba Ubungo Municipal, measuring approximately Twenty Five acres, is lawfully owned by the Plaintiffs as caretakers through the estate of the /ate Zuwena Saiurn..." 5 It should also be noted that the plaintiffs in paragraph 1 of the plaint have pleaded to be joint administrators of the estate of the late Abdallah Mohsein Malik. According to what has been pleaded by the plaintiffs, they claim to be caretakers of the suit landed property and they pray to be declared owners. The question that arises is whether, the suit property being part of the estate of the late Zuwena Salum, the caretakers who are not administrators of estate of the late Zuwena Salum can have locus standi to sue on the estate. The answer to this question is found under section 71 of the Probate and Administration of Estate Act, Cap. 352 which provides thus: - "After any grant of probate of letters of administration, no person other than the person to whom the same shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative ofthe deceased, until such probate or letters of administration shall have been revoked or annulled." From the above provision, a "caretaker" is not a person with locus standi to sue or prosecute any suit emanating from the property of the deceased. Those powers are vested only to the administrators or executors 6 or executors. The fact that the plaintiffs are not administrators of the estate of the late Zuwena Salum, they have no legal capacity to institute and prosecute the matter at hand. In the final analysis, I find merits on the 1st limb of objection. The fact that, the first limb of objection suffices to dispose of the entire suit, I find it wastage of time to determine the other limbs of objection. The entire suit is hereby struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 16th August, 2023. L. HEMED\ JUDGE \ J? \ ' x/ 7