jacob jesse angowi vs joachim zuberi msofe 2023 tzhc 17534 25 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOSHI SUB REGISTRY)

AT MOSHI MISCELLANEOUS LAND CASE APPEAL NO. 9 OF 2022 (C/F Land Case Appeal No. 40 of 2021 before the District Land and Housing Tribunal for Moshi) JACOB JESSE ANGOWI.................................................APPELLANT

VERSUS JOACHIM ZUBERI MSOFE........................................RESPONDENT

JUDGMENT Last Order: 25/4/2023 Judgment: 24/5/2023 MASABO, J.: - This is a second appeal. It originates from Kirua Vunjo Kusini Ward Tribunal, Moshi District in Kilimanjaro region where the appellant, Jacob Jesse Angowi, was successfully sued over trespass into a parcel of land allegedly owned by the Msoffe clan. His appeal to the District Land and Housing Tribunal for Moshi (the appeal tribunal) ended barren hence the present appeal based on the following five grounds of appeal.

1. The appeal tribunal grossly erred in law and in fact as it ignored the Q fact that the respondent had no locus stand'r, 2. The appeal tribunal did not consider the fifth ground of appeal and in so doing arrived at a bad and an unfair decision; 3. The appeal tribunal ignored the fact that the Ward Tribunal's decision was tainted with contradictions and consequently, it delivered a decision which was also tainted with contradictions; Page 1 of 11 4. The appeal tribunal erred in nullifying the sell agreement on the ground that the suit land belonged to the wasoffe clan while there was sufficient evidence that it belonged to the family of Bakari Zuberi Msoffe and his wife had right to sell it; 5. The appeal tribunal materially erred as it ignored the fact that there was a non-joinder of a necessary party as the respondent omitted to join Goodness Bakari Msoffe who sold the suit land to the appellant hence a necessary party; and 6. The trial and the appeal judgments were bad and unjustifiable for failing to state good reasons for the decisions. Hearing of this appeal proceeded in writing at the request of the parties. The appellant had representation. He was represented by Ms. Jackline Julius Makange, learned counsel. The respondent had no representation. He fended for himself. Both parties filed their submissions as per the schedule. A summary of the submissions shall be

provided below. However, before moving on to the summary of the submissions, I will briefly narrate the factual background to the appeal as discerned from the court record. The kernel of the dispute is a parcel of land measuring one acre which the appellant purchased from one Goodness Bakari Msoffe, the widow to Bakari Msoffe who died in 2003. The respondent claiming to be the head of the wasoffe dan was aggrieved by the sale on ground that, it proceeded without approval of the clan and that, the said Goodness Bakari Msoffe, had no right to sale it to third parties as the same belonged to the wasoffe clan. Page 2 of 11 Prosecuting his application before the ward tribunal, the respondent called 3 witnesses. From these witnesses and the defence witnesses, it is gathered that, the suit land was originally owned by the respondent's father, Zuberi Kashamaba Msoffe, who was also the biological father to Bakari Zuberi Msoffe (now deceased), the husband to Goodness Zuberi Msoffe who sold the suit land to the appellant. Zuberi Kashamaba Msoffe died in 1975 being survived by two wives, namely Nashangena and Nakudasha who continued to till the same until their death. After their demise, Bakari Zuberi Msoffe, a son to Zuberi Kashamaba and his wife started to till the land. In 2003, Bakari Zuberi Msoffe died being survived by his wife, Goodness Bakari Msofe and their children who continued

to till the land until on 25/8/2021 when she sold the same to the appellant through a sale agreement currently contested. The trial tribunal found merit in the respondent's claims and granted his prayers. The appellant was aggrieved, he went to the district Land and Housing Tribunal alleging that the suit was incompetent for want of locus standi and the judgment was erroneous. The appeal was dismissed. Aggrieved further he lodged this appeal. Submitting is support of the first ground of appeal, Ms. Makange argued that, when he instituted the claim before the ward tribunal the respondent had no locus standi. The record show that he filed the application in the capacity of a chairman of wasoffe clan which is neither an individual nor a legal entity that can legally sue or be sued on its name. He cited the case of Lujuna Shubi Ballonzi v Registered Trustees of Chama cha Mapinduzi [1996] TLR 203 (HC) in fortification of his submission that the Page 3 of 11 suit was incompetent for want of locus standi. He added that/the respondent had no any document introducing him as chairman of the wasoffe clan and on top of that, Martha Badi Msoffe, Mary Bakari Msoffe and Benedict Rajab Msoffe who are also members of the wasoffe clan disowned the appellant as they testified that what they know is that the last chairman of the clan was one Hillary Zuberi Msoffe and since his death in June 2021,

no chairman was elected or appointed. As of September, 2021 when the respondent instituted the suit in the ward tribunal no chairman had been appointed. Also, assuming that the respondent was the chairman as claimed, no evidence was rendered as to the clan meeting that elected/appointed the respondent as the chairman of the clan. Thus, even if the wasoffe clan was a legal entity the respondent would not be its representative. She proceeded that the ward tribunal and the appellate tribunal consistently erred in making orders in respect of the land which was not in dispute. The dispute was over a one acre of land but in its judgment, the tribunals awarded the respondent two parcels of land measuring 2 acres and no reason was advanced in support of that decision. The court erred in awarding the respondent the suit land as the evidence he rendered in the tribunal was materially contradictory. On the one hand, he claimed to be the rightful owner of the suit land but on the other hand he claimed that the suit land belonged to the wasoffe clan hence it was not clear as to who between him and the wasoffe clan owns the suit land. Page 4 of 11 Ms. Makange argued further that the finding of the two tribunals was materially erred considering that for about 39 years, Goodness Msoffe enjoyed uninterrupted occupation of the suit land which she acquired through her husband Bakari Zuberi Msoffe

after it was passed over to them by Nakudasa who was the rightful owner. Under the circumstances, Goodness had all the right to sale it as she pleased. She concluded with a prayer that the appeal be allowed and the judgment and decree of the tribunals be set aside. Locking horns in reply, the respondent cautioned this court about the danger of interfering with the consistent finding of the two tribunals on points of facts. He argued that this court been a second appellate body can only interfere and disturb the findings if they are found unreasonable or made in omission of material points (see R vs. Gokaldas Karia & Another (1949) EACA 116 as cited in Masumbuko Charles vs Republic, Criminal Appeal No. 39 of 2000, CAT). On the first ground of appeal, he submitted and argued that, the respondent being the chairman of wasoffe has a right to sue on behalf of the clan. Therefore, the principle in Lujuna Shubi Balonzi, Senior v Registered Trustees of Chama cha Mapinduzi (supra) was not offended. On the 5th ground of appeal, he submitted that the appeal tribunal correctly directed itself and made the necessary evaluation of the evidence rendered in court. Further, he submitted that the appellant has submitted on extraneous matters which were not raised in the petition of appeal. He argued that such Page 5 of 11 matters should not be considered as they were raised contrary to the

law. As regards the alleged contradictions and assumptions, he submitted that none of the tribunal's decisions was raised on assumptions or contradictions. They were based on the evidence adduced by the parties. With regard to nullification of the sale agreement, he argued that the nullification was in good order considering that at the sale of the suit land, no administrator of the estate of the late Bakari Zuberi Msoffe had been appointed and even the chairman of the clan was not involved. Hence the sale was void. On the issue on non-joinder of Goodness Bakari Msofe as a necessary party, it was argued that, it should not be entertained as it has been belatedly raised during the 2nd appeal and not at trial or first appeal stage. On the 6th ground of appeal, it was submitted that it is an afterthought and devoid of merit as the two judgment was well written and reasoned. In her rejoinder, Ms. Makange reiterated her submission in support of the first ground of appeal and the supporting authority above cited. I have considered the submissions made by both parties and painstakingly read the tribunals' record placed before me. As I embark on the task ahead of me, let me state from the outset that, as correctly submitted by the respondent, in a second appeal such as the present one, the court does not interfere with the consistent findings of fact of the lower courts unless it

is satisfied that there was a misapprehension of evidence or that, a miscarriage of justice or violation of principles of law has been occasioned. Expounding Page 6 of 11 this position in Ramadhan Hamis v Republic, Criminal Appeal No. 121 of 2017, the Court of Appeal stated thus: As the learned Senior State Attorney put, and to our mind rightly so, ordinarily, this Court as a second appellate court, will not interfere with the findings of fact of the courts below unless there is a misapprehension of evidence by misdirections or nondirections or when it is clearly shown that there has been a miscarriage of justice or violation of some principles of law or procedure. We have so held in a number of our decisions - see Salum Mhando (supra), Edwin Isdori Elias v. Serikali ya Mapinduzi Zanzibar [2004] T.L.R. 297 and Musa Mwaikunda v. Republic [2006] T.L.R. 387 as well as Julius Josephat v. Republic, Criminal Appeal No. 3 of 2017, Joseph Safari Massay v. Republic, Criminal Appeal No. 125 of 2012, and Felix s/o Kichele & Another v. Republic, Criminal Appeal No 159 of 2005 (all unreported). Guided by this principle, I will now interrogate whether there was any misdirection or non-direction by the two tribunals which warrant the intervention sought by the appellant. Starting with the first ground of appeal, the appellant has implored this court to interfere with the finding of

the tribunals as he thinks that, there was a misdirection on the principle of locus standi which is a crucial principle in proceedings of civil nature. He has argued that the respondent had no locus standi to institute the application before the ward tribunal. Thus, his application was incompetent and ought Page 7 of 11 not to have been entertained as he is neither the owner of the suit land not a legal representative of the owner. He sued in the capacity of chairman of wasoffe c/an, a capacity which is devoid of legal standing and even if it does, it was not properly evidence. The tribunals' records and the submissions by the parties show that this is not the first time the issue of locus standi has been raised. It was raised for the first time in the appellate tribunal. Just like in the present appeal, it was alleged that the respondent was not clothed with locus standi an argument which was brushed away by the appeal tribunal after it held that the respondent's position as head of the wasoffe clan clothed him with the capacity to claim for recovery of the clan land without any prior obtainment of approval from clan members. Thus, the main question for determination in this ground of appeal is whether the respondent was clothed with locus standi. I will prelude my determination of this issue with the decision of the Court of Appeal in Peter Mpalanzi v Christina Mbaruka (Civil

Appeal 153 of 2019) [2021] TZCA 510 (Tanzlii) which I extensively quote below in which the Court dealt extensively with the concept of locus standi, it rationale of the locus standi and the time at which a point on locus standi can be raised and resolved. Instructively, the Court 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 Page 8 of 11 203, Samatta, J (as he then was) had the following to say on locus standi: "Locus standi is governed by common taw 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. Therefore, it is not out of place for this court seating as the second appellant court to consider and determine the issue of locus standiand where relevant, reverse the finding of the lower courts. As for the merit of this ground, the appeal having originated from a ward tribunal brings into play the provision of section 17(1) and 18 of the Land Dispute Courts Act (Cap 216 RE 2019) section 13(1) of the Ward Tribunal Act which, read together, they regulate standing and representation before ward land tribunal. From this provision, it is gathered that the application may be commenced by a natural person or a corporate body and in the case of natural person, appearance before the tribunal may be made on his behalf by a relative or a member of a household as per the permission of the respective tribunal. Page 9 of 11 As correctly argued by the appellant, two issues emerge from the respondent's averments that he instituted the application in his capacity as a chairman of wasoffe clan. The first question is whether the wasoffe clan has legal standing. This question is answered negatively as neither the ward tribunal nor the District Land and Housing Tribunal was presented with such proof. The second question whether there was any proof as to the respondent's purported representative capacity of the wasoffe clan or the late Zuberi

Kashamba Msoffe who was allegedly the owner of the suit land is, for similar reasons, answered negatively. Needless to emphasize, a person suing in a representative must not only plead that fact but produce evidence to that effect. As held by the Court of appeal Ramadhani Omary Mbuguni vs Ally Ramadhani 8t Another (Civil Application 173 of 2021) [2022] TZCA 267 (Tanzlii); "It is now settled law that a party commences proceedings in 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). In the foregoing of the above, it is crystal clear that, since the wasoffe clan which the respondent purports to represent has no legal standing and since the respondent produced no evidence as to his representative capacity, his application before the ward tribunal was incompetent for want of legal standing and so was the proceedings before the District and Land Tribunal for Moshi. The first ground of appeal is meritorious and is hereby upheld. Page 10 of 11 Having allowed the first ground of appeal I see no need to proceed to the remaining ground as this sole ground sufficiently disposes of the appeal. Accordingly, the appeal is allowed, the proceedings, decisions, judgments and orders of the ward tribunal and the District Land and Housing Tribunal are quashed and set aside. The costs shall be borne by the respondent. DATED and DELIVERED at Moshi this 24th day of May 2023 Page 11 of 11