fredrick vicent sagwa 9 others vs agnes mhando 60 others 2022 tzhclandd 166 23 march 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 14 OF 2022 (Originating from Land Appeal No. 233 of 2021) FREDRICK VICENT SAGWA..................................................... 1stAPPLICAN NOAH BONIPHAS LEMGOHA................................................... 2ndAPPLICAN LUCKSON ATHIWELA MWAPASI.............................................. 3rdAPPLICAN ANDREA OMARY.......................................................................4thAPPLICAN JAMES TARIME....................................... 5th APPLICANT DAUD K. MRISHO WATUTA..................................................... 6thAPPLICAN TEDY SAGWA HKOLA.................. 7th APPLICANT PETER MANAS CHILAGALE...................................................... 8thAPPLICAN JAMILA HAMIS UCHECHE ........... 9th APPLICANT PASTORI MOMBEKI............................................................... 10thAPPLICAN VERSUS AGNESS MHANDO............................................ 1st RESPONDENT AHMAD SALEH MLILIMA ................... 2nd RESPONDENT AISHA MUSSAH MFAUME........................................................3rdRESPONDE ALLY RAJAB MASIKI.................................. 4™ RESPONDENT ANDREW MESHACK MAKANGE................................................ 5thRESPOND ASUMAN ENDRU KIPINDU....................................................... 6thRESPOND ATHUMAN MLEMETA................................................................7thRESPONDE BEATRICE BENEDICT© ISHENGOMA.............. 8th RESPONDENT BERED FANUEL NTABALINGA......................... 9th RESPONDENT^! 1 BOLLEN THOMAS LINUS 10th respondent BRIGITHA PAUL 11th RESPONDENT DAVID PATRICE SIGUNGU 12th RESPONDENT DEVOTHA M. PAULINI 13th RESPONDENT DEVOTHA G. KOMBA 14th RESPONDENT DIGWA MATHIAS 15th RESPONDENT ESTHER LAZARO GASOGOTA 16th RESPONDENT ESTA DAMAS 17TH RESPONDENT FATUMA OMARY MWINYI 18th RESPONDENT FRANK RUBENI MSOPHE . 19th RESPONDENT FARIDAA ABDI............... 20th RESPONDENT HALIMA A. MAINGO 21st RESPONDENT HALIDIIDDY MSUYA ........... 22nd RESPONDENT HUSSEIN KILEO MWAMEZA.................................................. 23rdRESPOND HUSNA NARDO................................... 24th RESPONDENT GRESI HANDIHAL................................................................... 25™RESPOND JANETH NDIBALEMA............................................................. 26™RESPOND JENIFA MBALASWA CHAPA 27™ RESPONDENT JEREMIA HASSAN JUMA .... 28™ RESPONDENT JESCA IGNAS MAHAMBA ... 29™ RESPONDENT JOAN LOHAY LEON........... 30™ RESPONDENT JOSEPH YOHANA JOSEPH .. 31st RESPONDENT JOYCE JEREMIA KESSI......................................................... 32ndRESPONDE JUDITH GEORGE CHUMBWA................... 33rd RESPONDENT JULIUS DANIEL SILVESTA....................................................34™RESPONDE JULITHA BRIGHTON MUSHOBOZI................... 35™ RESPONDENT i|/ 2 IBRAHIM MBWANA ALLY....................................................... 36™RESPOND IBRAHIM ALLY ........................... 37™RESPONDEN IDD OMARY GOLAYA............................................................. 38™RESPOND KURUTHUM ALLY MWINYIMKUU.......................................... 39™RESPOND LEILA SEVERIN NDENGA....................................................... 40™RESPONDE LEODGER BEATUS KABOGO.................................................. 41stRESPONDE LETICIA EDWARD KISAMA................................................... 42ndRESPOND MARIAMU HUSSEIN KITIA................................................... 43rdRESPONDE MARIAMU RASHIDI GONDO .......................... 44™ RESPONDENT MARY YOTAMU MUSSA.......................................................... 45™RESPOND MATHIAS DANIEL SYLIVESTER............................................. 46™RESPOND MUSTAPHA RAMADHANI KAKOLAYA............. 47™ RESPONDENT OMARY SAID MLILIMA......................................................... 48™RESPONDE PATRICK LAURENT MWENGA................................................ 49™RESPOND RAMADHAMNI M. RAJAB....................................................... 50™RESPOND REGINA JACKSON KIHIRI.............................. 51st RESPONDENT SAIDI AZIDI MADAFA........................................................... 52ndRESPOND SENGI ELIZABETH TIMOTHY................................................ 53rdRESPOND SHABANI ALLY TINDUA......................................................... 54™RESPOND TUMAINI ALFRED KATWANI..................................................55™RESPOND TWITIKE WILFRED MWASAMBO................. 56™RESPONDENT HASSAN SAID MUTAMBURO..................................................57™RESPOND HAMZA SAID MUTAMBURO....................................................58™RESPOND ATUPAKISYE KABALE MWANGUNULE............ 59™ RESPONDENT NASSORO F. KISWAGA.......................................................... 60™RESPOND JAMES NGEREJA (under power of Attorney issued by .Aj / 3 MARY AGNES MPELUMBE the Administrator of Dr. ISAYA SIMON MPELUMBE deceased)................................. 61stRESPONDENT RULING Date of Last Order: 01/03/2022 Date of Ruling: 24/03/2022 A. MSAFIRI, J In this Application, the ten (10) applicants pray for this Court to grant an Order of staying the hearing of Land Appeal No. 233 of 2021 which is before this Court pending the hearing and determination of Land Revision No. 46 of 2021 which is also before this Court. The Application is brought under sections 51(1) of the Land Disputes Courts Act Cap 216 R.E 2019, sections 68(e) and 95 of the Civil Procedure Code Cap 33 R.E 2019. The application was supported by a joint affidavit from the applicants. The respondents also filed their counter affidavits contesting the application. With his counter affidavit, the 61st respondent through his advocate's notice raised a preliminary objection on point of law to the effect that; 1. That, the applicants being strangers in Land Appeal No. 233 of2021 have no locus standi to move this Court to grant the sought prayers. 2. That, the Application is incompetent as the Court is wrongly moved by incorrect provision of law. The court first started determination of the preliminary objection which was conducted orally. Mr. Makene for the 61st respondent started his submissions by praying to drop the second ground of preliminary objection and argue on the first ground only. 4 Mr. Makene stated that, the 61st respondent is an appellant in the Appeal No. 233/2021 which involves the appellant (who is the 61st respondent) and the 1st - 60th respondents in exclusion of the current applicants. Also, the applicants were not party in the Land Application No. 196 of 2018 which was before the District Tribunal which has involved the 61st respondent as the respondent and the 1st - 60th respondents as the applicants. Therefore in his opinion, the applicants are strangers lacking locus to stand and sue and cannot be allowed to interfere with proceedings before this Court. To cement his arguments, he cited the case of National Oil vs. Aloyce Hobokela, Misc. Labour Application No. 202 of 2013, High Court Labour Division, Dar es Salaam (unreported). He said that this application is the abuse of Court process and should be dismissed. Replying, Mr. Odour for the applicants stated that, the claim that the applicants are strangers is a lie and unfounded in law because the same are not seeking to intervene in Land Appeal No. 433 of 2021. That, what they are seeking is an interlocutory order which does not require to dwell into the merits of the said appeal. He argued further that the preliminary objection raised does not meet the requirement of a preliminary objection on point of law because for the proof of locus standi at this stage, it will require the determination of whether the applicants has interest in the suit property appealed against which will call for adduce of evidence. He said further that the preliminary objection should be free from facts and evidence calling for proof. /L [ j 5 To cement his arguments, he cited the case of Mukisa Biscuits Co. Ltd vs. West End Distributors Ltd (1969) EA. 696. He prayed that the preliminary objection should be overruled with costs. In rejoinder, Mr. Makene reiterated his submission in chief and insisted that this application is not competent before this Court as it has been preferred by strangers who are not parties to the appeal. The issue here is whether the preliminary objection raised has merit. The test on the merit of the above preliminary objection is to be found in the case of Mukisa Biscuits Manufacturing Company Ltd (supra), whereby at page 700, Law J.A observed as follows; "So far as I am aware, a preliminary objection consists of a point oflaw which has been pleaded or which arises by dear implication out of the pleadings, and which, if argued as a preliminary objection may dispose of the suit.... ” In this preliminary objection, the 61st respondent is claiming that the applicants has no locus standi. The applicants through their advocate are arguing that the preliminary objection raised does not qualify as a point of law because in order to determine whether the applicants has locus standi, the Court will have to call for facts and evidence. However, with due respect, I don't agree with Mr. Odour that an issue of whether a party has locus standi or not is not a pure point of law. As it is was observed in the case of Jonia Kengeli Makene vs. Said Abdallah Mahela & 2 others, Misc. Land Application No. 186 of 2017, High Court Dar es Salaam Registry (unreported), the issue of locus standi is a pure 6 point of law and also one of those fundamental issues that cannot be waived by any court of law. Also, the case of Lujuna Shubi Ballonzi vs. Registered Trustees of Chama cha Mapinduzi, (1996) TLR 203 (High Court), set the principle on locus standi where it was held that; "... In this country, locus standi is governed by common law. According to that law, in order to maintain proceedings successfully, a plaintiff or an applicant must show not only that the Court has power to determine the issue, but also that he is entitled to bring the matter before the court". In determination on whether the applicants has locus or not, the Court will have to go through the chamber application and the affidavit to see whether the matter has been properly filed before the Court. This cannot be taken to water down the preliminary objection raised (see the case of Jonia Kengeli Makene (supra). Having found that the preliminary objection raised is on a point of law, then my next question is whether the applicants has a locus standi to bring this application. The counsel for the applicants has argued that, the same has filed a Land Revision No. 46/2021 which is before this Court praying for their interests in the subject matter to be determined. The Land Revision No. 46 of 2021 is arising from the main dispute which was before the Land Housing and District Tribunal i.e. Application No. 196 of 2018. The applicants have filed revision since they were not party to the main dispute but they are claiming that they have an interest in the said dispute. AJ | a 7 At the same time, the 61st respondent has filed an Appeal No. 233 of 2021 also before this Court and on the same subject matter in Land Application No. 196 of 2018, and in Revision No. 46 of 2021. Because the applicants claims to have an interest in the subject matter, they have filed the present application seeking for this Court to stay the appeal pending determination of a revision. Basing on that, I am of the view that the applicants are not strangers to the proceedings because they have established their interest in this application and Revision No. 46 of 2021. And since the decision in the Appeal No. 233 of 2021 might prejudice their interest while awaiting for determination of the revision, I find that they have locus to institute this application. For those reasons, I overrule the preliminary objection. Having found that the applicants have locus standi, I move on to determine the merits of this application. I find that the applicants have established their interest in the ongoing proceedings in this Court on the subject matter in the Land Application No. 196 of 2018 which was determined at the District Tribunal. Furthermore as observed earlier, there is Appeal No. 233 of 2021 and Revision No. 46 of 2021 both on the same subject matter and both awaiting the determination of this Court. In the circumstances, it is wise for this Court to determine first the Application for the revision which seeks to revise the decision of the District Tribunal in Land Application No. 196 of 2018 and then the same will determine the Appeal No. 233 of 2021 also seeking to set aside the decision of the District Tribunal in Land Application No. 196 of 2018. During that the hearing and determination of Appeal No. 233 of 2021 will be stayed. 8 I hereby allow this application as prayed with no order to costs. Dated at Dar es Salaam this 24th day of March 2022. 9