john nkana vs filipina sindani 2022 tzhclandd 12343 30 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 28 OF 2021 JOHN NKANA ..................... APPELLANT VERSUS FILIPINA SINDANI.............. ................ RESPONDENT (Appeal from the Judgment and Decree of the District Land and Housing Tribunal for P.ukwa at Sumbawanga) (J. Rwezaura, Chairperson) Dated 30th day of September 2021 In (Land Appeal No. 30 of 2020) JUDGMENT Date: 12/08 & 30/09/2022 NKWABI, J.: This appeal originated from Land Dispute No. 19 of 2019 in the Ward Tribunal for Kipande. The respondent sued the appellant for a seven-acres piece of land which was given to her by his brothers-in-law and sisters- in-law to cultivate in order to subsist her family after her late husband passed away. In its decision dated 10th day of March, 2020, the trial tribunal stated as follows: "Watoto hao ni watoto wa ndugu yake na m/alamikiwa, hivyo wanayo haki ya kupewa sehemu ya urithi kama ndugu wengine na kwa sababu eneo Hmeuzwa wapewe fedha kiasi kinachoHngana na thamani ya bizo ekari ifi i wanunue sehemu nyingine au waonyeshwe sehemu nyingine kulima. Kwa sababu hlzo. na nyinginezo Bi. Fiiipina Sindani kwa niaba ya watato anatakiwa kuoneshwa hekari saba (7) unazudd au dalingl miHoni mcja na laki nne (1,400,000/=) i/iazmzs kununua sehemu nyingine kwani watotp waka zanayo hakisawa na wcngine." fh.-. Thus, Jig tdu,. j anal decided in favour of the respondent, it ordered the appellant to give the respondent seven acres of land in default the respondent be paid T.shs 1,400,000/= to enable her to purchase another piece land. The appellant was aggrieved by the decision of the trial tribunal. He unsuccessfully appealed to the District Land and Housing Tribunal. Because of that, he has approached this Court. Since, oneofthe grounds of appeal preferred by the appellant is based on law, I will address it first. That ground of appeal goes: "That the District land and Housing Tribunal erred in law and in fact by its failure to consider the fact that the respondent had no locus standi to sue on behalf of the family of children of majority age or for the deceased Godfrey Nkana.* 2 The hearing of the appeal was conducted through oral submissions. The parties being lay persons who appeared in person, unrepresented, had nothTg useful to state to the Court but merely adopted the .grounds of appeal and the reply to the grounds :f appeal as their submissions. I ha . . hr.1 ■ ;■ ...T time going T-m.C< mo rourt record, the record tells It Cl met dm response; T sued :Jm appellant on behalf of the family. Even 'in cm m-examination by the ■. ; Cant, the respondent replied: Twz?/ n/mesema. kama famk/a ya Godfrey Nkana kwa niabaya watoto." The record is totally silent on how the respondent was clothed with representative powers for the family. For one to have the locus standi to sue on representative capacity, there should be a procedure which has to be followed. In the trial tribunal, the respondent did not attempt to show it or put to the court the record that the family, indeed, gave her the mandate to sue and represent for the family. The complaint in respect of the irregularity on the representative suit was not raised in this Court for the first time. It had also been raised in the District Land and Housing Tribunal, it appears it was not given much attention. But on my side, I pay attention to the complaint because there is guidance on the situation that was clearly demonstrated by the Court of Appeal of Tanzania in 3 Ramadhani Omary Mbuguni v. Ally Ramadhani & Another, Civil Application' Mo, 173/12 of 2021 (unreported) where it was held that: "1of administration being an instrument through which the applicant traces his standing to commence the proceedings, was in cur view an essential ingredient of the application in whose absence the Court cannot have cry factual basis to imply the asserted representative cepsdty. It is now a settled lew that, where, like in instant case, 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." It is overused law that failure to sue or be sued in the proper capacity is fatal. See Abdullatif Mohamed Hamis v. Mehboob Yusuph Osman & Another, Civil Revision No. 6 of 2017 CAT (unreported) where it was, at pages 27 & 28, authoritatively stated: "When all is said and applied to the situation at hand, as already mentioned, it is beyond question that the 2nd 4 respondent was, at a!/ material times, the administratrix of the deceased's estate. The life of her legal representation with respect to the estate was still srlsisdp nt the tire cf her transaction with the 1st - "■rpondent Just <?uit png was vested in her in her capacity as legal administratrix, But, as we have also hided egg the respondent was. not sued in that capacity, fnstorty the d' respondent sued her in her persona! capacity and, for that matter, no executable relief could be granted as against her personally with respect to the suit land which, as it turns out, was vested in her other capacity as the legal representative." In the premises, I am of the view that this appeal is merited. The respondent had no locus standi to sue on behalf of the family without pleading and indeed proving the required authorization from the family. The appeal is allowed. The proceedings and decisions of both lower tribunals are quashed and set aside respectively. In the circumstances of this appeal, each party shall bear their own costs. It is so ordered. 5 J. F. NKWABI JUDGE 30/09 2022 6