JOANA EMMANUEL NYAMWELE

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000015985 OF 2024 JOANA EMMANUEL KALONDA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS MWAKA ZIHURUYE NYAMBELE .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J, 17 & 17/03/2025 The appellant lodged a land application in the trial tribunal. He was claiming that the respondent had trespassed into his piece of land which has the size of four acres. He described the piece of land thus: “The disputed piece of land is not surveyed; it is estimated to have the size of four acres. It is situated at Bweru area, Muhunga ward within Kasulu Town Council. It borders Lazaro Tulaniwe on the east side, Sindulije Alex on the West side, Dunia Emmanuel Kalonda on the North side while in the South it borders a piece of land of James Wilson.” Both, the appellant and the respondent claimed that they had inherited the piece of land that is in dispute. Indeed, the trial tribunal, presided over by Mourice Egbert Sekabila, learned Chairman, heard the land application on merit. In the split verdict, the trial tribunal decided in favour of the respondent. It declared the respondent the lawful owner of the disputed piece of land. It dismissed the land application with costs to the respondent. The appellant was unhappy with the decision of the trial tribunal. He launched this appeal. He has two grounds of appeal. For reasons that would be apparent shortly, I do not find the need to reproduce the same. Truly, the appeal was heard on merit. The parties maintained their stances that they inherited the piece of land from their demised parents. Page. 1 When, I was composing the judgment I wanted to make sure that the parties had the locus stand to sue and be sued. That is, I wanted to ensure that as they sued and being sued in their personal capacity, then, the respective piece of land had been distributed to them by the administrator of the respective estate of the deceased persons. To I was doubtful whether the land application disclosed a cause of action. Thus, I vacated my order for judgment and called upon the parties to address me in the following terms: “The appeal is fixed for judgment. However, I vacate from my order of judgment and order the parties address me on the absence of administrator of the estate of the deceased and there are no any accounts of estate of the respective deceased persons estates. Let parties address me on it Whether the land application was competent in the trial tribunal regarding locus standi to sue and cause of action.” The appellant responded by saying that the division of the estate was done customarily. He left it to the Court to decide. On his side, the respondent conceded to the anomalies and left it to the Court to decide as well. On my side, when I was calling upon the parties to address me, I had in my mind several authorities which would guide me. In fact, it an overused law that for one to maintain a suit, one has to have locus standi. See Attorney General v. Malawi Congress Party & Another, Civil Appeal No. 32 of 1996, in which the Supreme Court of Malawi held that: “Locus standi is a jurisdictional issue, it is a rule of equality that a person cannot maintain a suit or action unless he has an interest in the subject of it, that is to say, unless he stands in sufficiently close relation to it so as to give a right which requires prosecution or infringement of which he brings the action.” See also Charles Peter Semwenda v. Azania Bank Limited & 7 Others, Civil Appeal No. 555 of 2022, CAT 14/02/2025 which quoted with approval AG. V. Malawi Congress Party & Another and went on to state that: “Likewise, in the instant appeal, since the suit property was not owned by the deceased, at the time of his death, it was improper for the appellant to institute the suit against the respondents in his capacity as an administrator of the deceased’s estate. Thus, the land case lodged by the appellant before the High Court was incompetent. In view of what we have demonstrated above, we invoke our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 and hereby nullify the entire proceedings and set aside the decision of the High Court in Land Case No. 108 of 2022.” As both parties to this appeal claim to have inherited the piece of land from their parents, they should have attached, in their pleadings, in my view, copies of accounts of the estate which indicate that they have been allocated the piece of land under inheritance. They did not do so. By failure to do so they offended the position in Yara Tanzania Limited v. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019 where it was stated that: “Having held, as she did, that, the rule was offended, the trial Judge would not be entitled to go into the contents of exhibit P1 and hold that the claim was premature for want of exhaustion of the remedies thereunder. This is Page. 2 because, by holding that exhibit P1 was not pleaded and therefore irrelevant, the trial Judge was saying that the claim thereunder was not before her.” See also Mogha’s Law of Pleadings in India with Precedents, 15th Edition where Mogha remarked at page 267: “Generally speaking, the plaintiff’s right or title which has been infringed must be stated first, and the fact of infringement. Thus, in a suit brought on a contract, the contract must first be alleged, and then its breach, and then damages.” Flowing from the above authorities, it is clear that even the land application did not disclose a cause of action. It ought to be struck out at the preliminary stage by the trial tribunal. If the estate of the deceased had not yet been distributed to heirs, for instance, if the estate was still under the administration of the administrator of the estate, the administrator of the estate ought to have been joined to the suit or sued. That is the position in Abdullatif Mohamed Hamis v. Mehboob Yusuf Osman & Fatna Mohamed, Civil Revision No. 6 of 2017 CAT (unreported) where it was stated: “Indeed, non-joinder of the legal representative in the suit under our consideration is a serious procedural in- exactitude, which may seemingly breed injustice. …” The above position of the law is reinforced by the decision on Tanga Gas Distributors Ltd v. Mohamed Salim Said & 2 Others, Civil Revision No. 6 of 2011, CAT, where the Court ruled that: “… it is now an acceptable principle of law (see Mulla Treatise (supra) at p. 810) that it is a material irregularity for a court to decide a case in the absence of a necessary party. Failure to join a necessary party therefore is fatal (MULLA at p 1020.” The above position of this case at hand being illustrated above, the question that follows is what is the way forward? The answer to this question can, in my view, be available in Humphrey Mosha v. Adul Majid Yahaya, Civil Appeal No. 534 of 2021, CAT (unreported) 03/03/2025 where it was decided that: “... hereby quash the proceedings and judgment and the subsequent orders of the High Court and the DLHT for Kibaha. Thus, if any of the parties so desire, may institute a fresh suit joining Msolwa Village Council in accordance with the law and without being subjected to the requirement of (30) days to sue the Msolwa Village Council not later than six (six) months from the date of this Ruling. Since the issue under consideration was raised by the Court suo motu, we make no order as to costs.” In the premises, I follow the decision in Humphrey’s case (supra) and nullify the entire proceedings in the trial tribunal as it is a nullity. I quash the judgment of the trial tribunal and set aside its decree because the land application was incompetent as explained herein above. If any of the parties desires to sue to recover or prove ownership of the land, having the necessary locus standi, shall institute the land case but subject to the law of Page. 3 limitation. As the outcome of this appeal has been predicated on points raised by the Court suo motu, I make no order as to costs. It is so ordered. Dated at KIGOMA this 17th of March 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 4