Haruni Sadala vs Ely Peter Mtuli

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF DODOMA AT DODOMA LAND APPEAL NO. 68 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Dodoma at Dodoma in Land Appeal No. 79 of 2016.) HARUNI SADALA............................................................... APPELLANT VERSUS ELY PETER MTULI (As Administrator of the Estate of the late PETER MTULI)............................ RESPONDENT JUDGMENT Date of last Order: 4th April, 2024 Date of Judgment: 29th April, 2024 MASABO, J.:- Haruni Sadala is aggrieved by the decision of the District Land and Housing Tribunal for Dodoma (the appellate tribunal) which, while exercising its appellate powers over the decision of Mima Ward Tribunal, dismissed his appeal after it found that he had no locus standi to sue for recovery of the suit land. The factual background of the dispute as deciphered from the tribunals' proceedings is that the appellant moved the trial tribunal alleging that the respondent's father, Peter Mtuli, now deceased, had trespassed into the suit land which belonged to his grandfather, whose name was undisclosed. After hearing both parties, the trial tribunal decided in favour of Peter Mtuli who was declared the owner of the suitland. Page 1 of 6 Aggrieved, the appellant knocked on the doors of the appellate tribunal with an appeal based on seven grounds of appeal the first of which was that the trial tribunal misdirected itself in not appreciating that the appellant had proved his case to the required standards. Determining the appeal, the appellate tribunal found among other things that the appellant had no locus standi to institute the claim as he was not the owner of the suit land. His evidence showed that the suit land belonged to his grandfather not him. Hence, he cannot claim to have proved his ownership. Based on this and other findings, his appeal was dismissed. Aggrieved further, he has knocked on our door with a further appeal based on four grounds which I summarize as follows: one, the appellate tribunal erred in law by dismissing his appeal. Having found that he had no locus standi, it ought to have nullified the proceedings of the trial tribunal instead of dismissing. Two, the appellate tribunal erred in not appreciating that the coram of the trial tribunal was improperly constituted. Three, the opinion of the assessors before the appellate tribunal was neither reduced into writing nor presented to the parties. Last, the appellate court erred by failing to reevaluate and append weight to the appellant's evidence although the same was strong compared to the respondent's evidence which was weak. Hearing of appeal proceed in writing. The appellant was represented by Ms. Grace Benny, learned counsel whereas the respondent fended for himself as he was not represented. Both parties filled their submissions timely. I have carefully considered them alongside the tribunal's record which I have Page 2 of 6 thoroughly read. I do not intend to reproduce the submissions here as I will extensively deal with them when determining the grounds of appeal. On the first ground of appeal which I prefer to start with, Ms. Benny, learned counsel for the appellant, submitted that the appellate tribunal was right in finding that the appellant had no locus standi because his evidence before the trial tribunal was that the land belonged to his late grandfather who obtained it from Mzee Katei Nzingo but he never produced a letter of administration or any evidence that he was a legal representative of his late grandfather. She argued that the appellate tribunal's error was in the final verdict because after it found out that the appellant had no locus standi, it erroneously dismissed the appeal instead of nullifying the proceedings of the lower trial tribunal. In reply, the respondent joined hands with the appellant's counsel that the appellant herein had no locus standi. He argued that, as the appellant's evidence was to the effect that the land belonged to his late grandfather, he ought to have produced letters of administration. Since he did not produce the same, he had no locus standi. Having made this reply he refrained from commenting on about the final order of the first appellate court. On my part, I hastily agree with both parties as regards locus standi. As correctly submitted by both parties, a person cannot institute a claim unless he has locus standi the context of which and rationale were extensively propounded by the Court of Appeal in the case of Peter Mpalanzi v Page 3 of 6 Christina Mbaruka (Civil Appeal 153 of 2019) [2021] TZCA 510 TanzLII where it held that: "Simply defined locus standi is the right or legal capacity to bring an action or to appear in a court. In Lujuna Shubi Ballonzi v. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203, Samatta, J (as he then was) had the following to say on locus standi: "Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. The High Court has the power to modify the applied common law so as to make it suit local conditions." Locus standi is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Unless a person stands in a sufficient close relation to the subject matter so as to give a right which requires protection or infringement of which he brings the action, he cannot sue on it- see Godbless Lema v. Mussa Hamis Mkanga and 2 Others, Civil Appeal No. 47 of 2012 (unreported). Further, locus standi is a point of law rooted into jurisdiction. It is for that reason that it must be considered by a court at the earliest opportunity or once it is raised." As alluded to above, in the present case, the issue of locus standi was raised in the first appeal and it was determined by the appellate tribunal which, as submitted by both parties herein, found out that the appellant had no locus standi as he did not own the suit land. He was purportedly suing on behalf of his deceased grandfather. Thus, he was legally obliged to provide proof Page 4 of 6 that he was a legal representative of his deceased grandfather a duty which he abdicated as he never produced such proof. This is a trite law in our country. There are numerous decisions to this effect and it is well settled that a person suing in a representative capacity must plead that fact and produce evidence to that effect. The failure constitutes as fatal irregularity with stern consequences as held by the Court of Appeal Ramadhani Omary Mbuguni vs Ally Ramadhani & Another (Civil Application 173 of 2021) [2022] TZCA 267 TanzLII where it was instructively stated that: "It is now settled law that a party who commences proceedings in a representative capacity, the instrument constituting the appointment must be pleaded and attached. Failure to plead and attach the instrument is a fatal irregularity which renders the proceedings incompetent for want of the necessary standing/' (Emphasis supplied). Therefore, in the present case, the proceedings of the trial court were rendered incompetent for want of locus standi. In the foregoing, the appellate tribunal having correctly found that the complaint before Mima Ward Tribunal was instituted by an incompetent person, it had no option than to allow the appeal and subsequently nullify the proceedings of the trial tribunal. Thus, by dismissing the appeal it materially erred. The first ground of appeal is, therefore, meritorious and is allowed. Having allowed the first ground of appeal, I see no need to proceed to the remaining three grounds as the finding in this ground sufficiently dispossess of the appeal. That said and based on this sole ground, I allow the appeal. The judgment, decree and proceedings of the appellate tribunal are hereby Page 5 of 6 quashed and set aside for being predicated on nullity decision and proceedings of the trial tribunal which are also quashed and set aside. Considering that the irregularity by which the present appeal has been allowed was wholly occasioned by the tribunal's misconception, I am of the firm view that it is in the interest of justice that the costs be shared by each of the parties bearing its respective costs. Order, accordingly. DATED at DODOMA this 29th day of April 2024 J. L. MASABO JUDGE Page 6 of 6