ibrahim seif chubi vs hawa mohamed chubi and another 2020 tzhclandd 12 20 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 151 OF 2018 (Arising from the decision o f the District Land and Housing Tribunal for Temeke in Land Application No. 59 o f 2014 (Hon. Mwakibuja, Chairperson) IBRAHIM SEIF CHUBI (Suing as Administrator of the late Mohamed Chubi............................ .............APPELLANT VERSUS HAWA MOHAMED CHUBI......................................1st RESPONDENT SEVERIN SHIRIMA.............................................. 2nd RESPONDENT JUDGMENT: I. MAIGE, J The appellant, Ibrahim Seif Chubi instituted a suit at the District Land and Housing Tribunal for Temeke in a representative capacity. He described himself as the administrator of the deceased estate of the late Mohamed Chubi. He was suing on a landed property described as House No. 248 Magurumbasi Street, Temeke area ("the suit property"). In accordance with paragraph 7(a) (ii) of the Application at tbeJrial tribunal, the suit property belonged to the late Mohamed Ctttfbi. Though described himself as the administrator of the deceased estate of the late Mohamed Chubi, the appellant did not plead his appointment as the administrator of the said estate. Nor did he produce any letters of administration of the said estate. In the course of addressing one of the issues, the trial chairperson doubted if the appellant had in the circumstance, the necessary locus standito institute the matter. Having satisfied himself that he had not, the trial tribunal dismissed the application with costs. The appellant is aggrieved by the decision and henceforth the instant appeal. In the petition of appeal, the appellant has raised six grounds faulting the decision of the trial tribunal. With the exception of the first ground, I have noted, the grounds raised go to the correctness or otherwise of the trial chairperson in determining the merit of the suit. Since the suit was disposed of on technical ground, I do not think that the last five grounds of appeal are not premature. They would have been not premature if the application at the trial tribunal was determined on merit. It is on that account therefore I will as I hereby do, strike out the last five grounds of appeal and remain with the first ground. In the conduct of this matter, Daniel Lisanga, learned advocate, represented the appellant whereas Happy Daniel, learned advocate represented the respondent. It may be pertinent to note that, after being served with the petition of appeal, the respondents through their counsel questioned the maintainability of the appeal on account tbatthsi appellant did not have the necessary locus standi. On going through the counsel's submissions in line with the memorandum of appeal, I established that it was not safe to determine the issue at that particular juncture. I ordered that the same should be considered in my final judgment. I will right away start with the preliminary issue. The submission for the respondents on this issue was that, because he is not an administrator of the estate of the late Mohamed Chubi, the appellant had no locus standi to pursue this appeal. I cannot agree with this submission. The reason being that the appellant is he who lost a suit at the trial tribunal. He is aggrieved by the decision in which he was a party. For the reason of being privy to such decision, the appellant, regardless of whether or not he had capacity to institute the proceeding at the trial tribunal, he has capacity to institute this appeal to confirm among others, the finding of the trial tribunal on whether he has locus standito institute the claim. It is on that account that I overrule the preliminary objection and proceed with the merit of the appeal. In his submissions in support of the first ground, Mr. Lusinga, while admitting that the appellant does not posses any letters of administration of the estate of the late Mohamed Chubi, faults the trial chairperson in determining the matter on the ground of focus standi without addressing the factual issues raised. In his view, as a beneficiary to the estate, he was entitled to protect his interests on the estate. Without spending precious time of this Court, I think the counsel submission is unworthy of being considered. I agree with 3 Miss Happy Daniel leaned advocate for the respondents that, in the absence of letters of administration, the appellant could not litigate on the estate of the deceased representing himself as an administrator. This is an elementary position of law which any litigant is expected to take into account before pursuing an action. There was, in my view, nothing wrong for the trial chairperson to raise and determine it on his own motion. It could have perhaps been wrong had it operated prejudicially to the appellant which is not the case. I cannot agree with the counsel for the appellant that for mere reason of being a beneficiary to the estate, the appellant could have automatically been entitled to litigate on the suit property. In the case of Godfrey Robert Dafi vs. Anna Aaron and another. Land case No. 58 of 2011 relied upon by the counsel for the respondents, this Court dealing with a similar issue made the following remark which I subscribe to. The fact that the plaintiff is one o f the heirs (beneficiaries) o f the deceased's estate does not in any way entitle the plaintiff the right to sue in his personai capacity. In my opinion therefore, the trial chairperson while right in holding that the appellant did not have the iocus standi to institute the claim. That apart, I have noted that, the trial chairperson dismissed the suit as if it was determined on merit. There is no doubt that he was wrong so to do. Although the issue was not raised by either of the parties, this being the higher court, has a duty to correct the error. On tha^ccoCh^t therefore, I will exrcise my power under section 43 (1) (b) of the Land Courts Disputes Act, Cap. 216 and quash the order dismissing the application and substitute in lieu thereof with an order striking out the same. In the final result therefore and save for the substitution of the dismissal order with an order striking out the application, the appeal is hereby dismissed with costs. It is so ordered. I. Maige JUDGE 20/03/2020 Date: 20/03/2020 Coram: Hon. C. Tengwa - DR For the Appellant: Absent with notice For the 1st Respondents Denesis, Advocate For the 2nd Respondent RMA: Bukuku COURT: Judgment delivered in the presence of the appellant/Respondents and then respective counsel C. Tengwp DEPUTY REGISTRAR 20/03/2020 6