LAND APPEAL NO 3634 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA LAND APPEAL NO. 3634 OF 2024 (Originating from Land Application No. 07/2023, the decision of the District Land and Housing Tribunal for Lindi at Lindi) JUMA FAMAU.............................................................................. 1st APPELLANT SAIDI MMOTO............................................................................. 2nd APPELLANT NASRI KAMBILI........................................................................... 3rd APPELLANT ZARAFI AMIRI.............................................................................. 4th APPELLANT ATANAS STEPHANO........................................................................................... 5thAPPELLAN MUSA ALLY.......................................................................................................... 6thAPPELLANT CONRADI KASIAN.............................................................................................. 7thAPPELLAN HAMIS NALANGA................................................................................................ 8thAPPELLAN SAIDI ALLY KAMNYENJE................................................................................... 9thAPPELLAN JOSEPH JOHN................................................................................................... 10thAPPELLAN MUSSA

ALLY....................................................................................................... 11thAPPELLAN AMINA SELEMANI...................................................................... 12™ APPELLANT SULEIMAN ABDALLAH SULEIMAN ©SELEMANI MALUNDILA (Administrator of the estate of the late SALIM KHALFANI OTHAMAN).......................................................................... 13™APPELLAN BINT MTESA........................................................................................................ 14™APPELLAN DANIEL KAVOGO...............................................................................................15™APPELLAN SAID NAVED.......................................................................................................16™APPELLAN FATUMA MALEKAYA.......................................................................................... 17™APPELLAN MPLELEPELE .................................... 18™ APPELLANT

VERSUS MSHAMU MAKAME............................................................................................1stRESPONDEN HAMIS ABDALLAH MINANGA.......................................................................... 2ndRESPONDE ABDALLAHNGOWE............................................................................................3rdRESPONDEN RAJABU LIGONO ..................................................... 4th RESPONDENT MWARABU @BINTI YUSUPH................................................... 5th RESPONDENT IDD....................... ,6th RESPONDENT ASHA ALLY........... .7™ RESPONDENT ALLY MNAMBA..... ..8th RESPONDENT MUSSA CHOGO .... ,.9™ RESPONDENT HAJI KA LULANGA 10th RESPONDENT SAIDI MOHAMEDI .11™ RESPONDENT MOHAMED MAKANYANGA........................................................ 12™ RESPONDENT MIKIDADI ISSA.................. .13™ RESPONDENT ALLY NDONJI...................... .14™ RESPONDENT FATUMA ALLY MUSSA........ 15™ RESPONDENT RASHIDI NAMANGUPA....... .16™ RESPONDENT ASHA SELEMANI HASSANI. .17™ RESPONDENT BWETELE UWESU BASHIRU 18™ RESPONDENT

JUDGMENT 7h August & 19h September, 2024 MPAZE, J.: In Application No. 07 of 2023 before the District Land and Housing Tribunal of Lindi at Lindi (the DLHT), the 1st respondent opened a suit against the appellants and 2nd to 18th respondents, alleging trespass on his land located in Mahumbika Village, Mnazi Mmoja, described as Farm 37 & 38 (the disputed land). The 1st respondent claimed to have inherited this land from his late father, Makame Rashidi Mnalihinga. 2 Following these allegations, the 1st respondent sought a declaration from the DLHT affirming him as the lawful owner of the disputed land and declaring the appellants, along with 2nd respondents to 18th respondents, as trespassers. He also sought general damages amounting to Tshs 20,000,000/=, along with the costs of the suit and any other reliefs deemed appropriate by the DLHT. The appellants strongly contested the 1st respondents claim, claiming that they were engaged in agricultural activities on their own land, which they argued was separate from the disputed land. They identified their land as Farm No. 36 in Mnazi Mmoja. However, the matter was heard ex parte with respect to the 2nd to 18th respondents. After examining the application, the DLHT found the evidence given by the 1st respondent sufficient to substantiate his claim against the appellants and 2nd to 18th respondents on a balance of probabilities. As a

result, the DLHT declared the 1st respondent the rightful owner of the disputed land, deemed the appellants and 2nd to 18th respondents as trespassers, and ordered them to vacate the land. Additionally, the 1st respondent was awarded the costs of the suit. 3 Dissatisfied with the DLHT's decision, the appellants filed an appeal to this court on the following five ground; 1. That the trial chairman erred both in law and fact by failing to make finding that the first respondent had no capacity to sue or being sued in that land application for having no locus standi 2. That, the tribunal chairman erred in law and in fact by failure to make proper examination and evaluation of the evidence on record thereby arriving at the wrong conclusion.

3. That, the tribunal chairman erred in law and in fact to decide the matter in favour of the first respondent without properly making determination ofall issues raisedin the course ofhearing of the said land application.

4. That, the tribunal chairman erred in law and fact to hold the matter in favour of the first respondent without being proved on balance ofprobability.

5. That the trial chairman erred in law and in fact to decide the matter in favour of the first respondent without according right to be heard to all the parties. 4 Based on these grounds of appeal, the appellants prayed the appeal be allowed with costs and that the decision of the DLHT be quashed and set aside. At the hearing, Mr. Yusuph Mkanyali, Advocate, appeared for the appellants, while Mr. Ahyadu Nannyohe, Advocate, represented the 1st respondent. The matter proceeded ex parte with respect to 2nd to 18th respondents. The appeal was argued orally. Upon examining the grounds of appeal and the submissions made by the parties, I noted that resolving the first ground of appeal in the affirmative would be sufficient to address the entire appeal. Therefore, I will begin with this ground, as it concerns the jurisdiction of the DLHT. In support of the first ground of appeal challenging the locus standi of the 1st respondent, Mr. Yusuph argued that the 1st respondent's claim of trespass on the disputed land against the appellants and 2nd to 18th respondents was untenable. He contended that the claim was untenable because the 1st respondent at the DLHT was complaining about trespass on land he inherited from his father, which he alleged his father had purchased from LIDECO. 5 Mr. Yusuph submitted that despite the 1st respondent claiming inheritance of the land, the exhibits

tendered and admitted collectively as Exhibit Ml, including a letter of offer dated 8th February, 1991 a payment receipt dated 25th September, 1995 and sale minutes dated 30th November, 1995 did not bear the 1st respondent's name. Mr. Yusuph further stated that Exhibit Ml shows the land is registered under another name, LIDECO, and not under the name of the 1st respondent, who claims to have inherited the land. He argued that if the land had indeed been sold, a transfer of ownership should have been documented in these records. Moreover, Mr. Yusuph contended that if the 1st respondent's claim of inheritance were valid, the ownership should be reflected in the documents to substantiate his claim. He cited sections 67 and 68 of the Land Registration Act [Cap. 334 R.E 2019] (the LRA) which outline the procedures for registering and transferring land acquired through inheritance. Mr. Yusuph explained that section 67 requires land owned by a deceased person to be transferred to the administrator of the deceased's estate before it can be conveyed to an heir for legal ownership through inheritance. To support this argument, he cited the case of Philemon Vanai 6 Saiteru Mollel v. William Titus Molel (as Administrator of the Estate of Titus Aron Mollel) & Another (Civil Appeal No. 407 of 2021) [2024] TZCA 157 (5 March 2024). Mr. Yusuph asserted that the evidence presented to the DLHT

lacked any documentation demonstrating a transfer of ownership from the 1st respondent's late father to the 1st respondent, thereby failing to establish him as the lawful owner of the land by inheritance. From his perspective, Mr. Yusuph argued that a procedural violation had occurred because the evidence provided did not legally authorize the 1st respondent to file the case on his own behalf. He contended that there was no evidence linking the 1st respondent to the land he was claiming, alleging that the 1st respondent lacked locus standi. Additionally, Mr. Yusuph referred pages 9, paragraphs 3 and 4 of the DLHT typed proceedings, where witnesses Osward Winston and Kisna Esau Mgeni, land officers, testified that the disputed land, Plot Nos. 37 and 38, is owned by LIDECO, an institution responsible for managing land in both Lindi town and Lindi rural areas. Counsel pointed out that the testimony of these witnesses supports the exhibit which is the offer of right of occupancy which identifies LIDECO 7 as the registered owner. He argued that this evidence further substantiates that no transfer had taken place from LIDECO to the 1st respondent, thereby undermining the 1st respondent's legal capacity to initiate this suit and claim ownership of the land. Mr. Yusuph urged the court to consider the case of Lujuna Shubi Balonzi v. Registered Trustee of Chama cha Mapinduzi [ 1996]

TLR 203 to elucidate the concept of locus standi. He contended that, based on the principles outlined in that case, it would be clear that the 1st respondent's rights or interests had not been affected in a way that would justify the right to institute this case. In conclusion, he prayed that the court find the 1st respondent lacked locus standi to sue the appellants and the 2nd to 18th respondents. In response, Mr. Ahyadu countered this ground, asserting that the 1st respondent had locus standi when he filed the case. He pointed out that evidence on page 13 of the DLHT typed proceedings demonstrates that the 1st respondent inherited the disputed land from his late father. Mr. Ahyadu further noted that in response to the assessor's question, the 1st respondent replied that he had owned the disputed land by inheritance for approximately two years. This, Mr. Ahyadu argued, confirms 8 that the 1st respondent had locus standi based on his inherited ownership of the land. Regarding the case of Philemon Mollel and William Titus Mollel & Another (supra), Mr. Ahyadu argued that it is not directly applicable to the current case as it concerned the sale of land, rather than the institution of a suit. He added that although the court in that case determined that the purchaser lacked locus standi, the purchaser was still recognized as the rightful owner. In conclusion, Mr. Ahyadu insisted

that the 1st respondent, having inherited the land from his father, clearly had locus standi. He requested that the court find this ground without merit and dismiss it with costs. In his brief rejoinder, Mr. Yusuph reiterated his earlier submissions and argued that Mr. Ahyadu's allusion to the case of Philemon Mollel and William Titus Mollel & Another is misleading. He pointed out that page 10 of that case addresses the issue of a bona fide purchaser's ownership, which is distinct from the question of locus standi. Mr. Yusuph emphasized that his reliance on that decision was specifically in relation to sections 67 and 68 of the LRA and the issue of locus standi. He observed that while sections 67 and 68 address matters other 9 than locus standi, his primary focus remained on locus standi, as elucidated in the case of Lujuna Shubi Balonzi. In light of this argument, Mr. Yusuph maintained that the court should find that the 1st respondent lacked locus standi to institute the suit against the appellants and the 2nd to 18th respondents Given the counsels' divergent arguments, both in favour of and against the appeal, coupled with the documentary evidence tendered before the DLHT, the primary question to be determined in this appeal is whether the 1st respondent had the requisite locus standi to institute the case. Before delving into this issue, it is crucial to acknowledge that

the question of locus standi was not raised or deliberated during the hearing at the DLHT. Nonetheless, given that locus standi pertains to a jurisdictional matter, it may be introduced and scrutinized at any stage of the proceedings, including on appeal. This forms the basis for prioritizing its examination at this juncture. This principle is supported by the Court of Appeal's decision in Peter Mpalanzi v. Christina Mbaruku (Civil Appeal 153 of 2019) [2021] TZCA 510 (23 September 2021), which cited the earlier case of Chama cha Wafanyakazi Mahoteli na Mikahawa Zanzibar (HORAU) v. Kaimu io Mrajis wa Vyama wa Wafanyakazi na Waajiri Zanzibar Civil Appeal No. 300 of 2019 (unreported). In these cases, the Court held that: '.... 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.' According to the Black's Law Dictionary 4th Edition, locus standi is defined as a right of appearance in a court of justice, or before a legislative body, on a given question. In the landmark case of Lujuna Shubi Balonzi vs. Registered Trustees of Chama Cha Mapinduzi, as referred by Mr. Yusuph in his submission, the Court of Appeal extensively expounded the term locus standi as follows; In this country, locus standi is governed by Common law. According to that law, in order to maintain

proceedings successfully, a plaintiff or applicant must show not only that the Court has the power to determine the issue but also that he is entitled to bring the matter before the Court.' Again, in the case of William Stilus v. Joseph Samson Wajanoa, Civil Appeal No. 193 of 2019 (unreported), on page 10, it was held that; 'Essentially, locus standi is the legal capacity or competency to bring an action or to appear in Court. It is a long-settled principle of law that for a person to institute a suit, he/she must have locus standi.' 11 Furthermore, in the case of Peter Mpalanzi v, Christina Mbaruku {supra), it was held that; 'Locus standi is a principle which 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................... 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 dose 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 Godbiess Lerna v. Mussa Hamis Mkanga and 2 Others, Civil Appeal No. 47 of 2012 (unreported).' After thoroughly examining the concept of locus standi, I turned to the case at hand to determine whether the 1st respondent

had locus standi. To address this issue, it is essential to first examine the claims made by the 1st respondent at the DLHT against the appellants and the 2nd to 18th respondents. Following this, an analysis of the evidence given in relation to those claims will be necessary to determine if there is a valid cause of action. Starting with the claim presented by the 1st respondent in his amended application before the DLHT specifically paragraph 39 (a) (i) to (iv), the 1st respondent pleaded that; 12 '(a) Cause of action/ brief statement of facts constituting the ciaim (i) That sometime 1995 one Makame Rashidi MnaHhinga now deceased bought the disputed land from LIDECO (Shirika ia Maendeieo Wiiaya ya Lindi) for consideration of six million and ten thousand only (6,010,000/=). (ii) After the death of deceased the estate of the /ate Makame Rashidi MnaHhinga were administered by Kwame Makame and distribute the properties to the heir accordingly. (Hi) The applicant as heir received his part of inheritance and among of the properties he inherited is the disputed land herein and he continued to use the disputed land since then for agricultural purpose. (iv)That on 2021 surprisingly the respondents trespass to the disputed land about 20 hector and started the agricultural activities and furthermore they started violence against the applicant and bar him not to resume with his normal

activities to his land.' The 1st respondent's plea, as outlined in the cause of action in the excerpt above, asserts that the disputed land belonged to his late father. Following his father's death, Kwame Makame administered the estate and distributed the properties to the heirs, including the 1st respondent, who then used the land for agriculture. 13 In his claims, specifically in paragraph 39 (b) (iv), the 1st respondent referred to the letters of administration of the estate of the late Makame Rashidi Mnalininga. A review of the record reveals additional documents submitted by the 1st respondent, including Form No. IV (the appointment form for the administrator of the estate), granted by the Kawe Primary Court on 18th June, 2013 and Form No. VI (the form for the distribution of the deceased's properties). However, for reasons known only to the 1st respondent, which were not disclosed during the hearing, none of these forms were tendered or admitted as exhibits in the DLHT. It is a settled principle of law that documents not tendered as evidence cannot be part of the record or considered by the court or tribunal in reaching its decision. See Japan International Cooperation Agency (JICA) v. Khaki Complex Limited (Civil Appeal 107 of 2004) [2006] TZCA 80 (17 July 2006) and Mohamed A. Issa v. John Machela (Civil Appeal No. 55 of 2013) [2013] TZCA 490 (27 September 2013). Aside

from the claims made in his application, I examined the 1st respondent's testimony during the hearing. In his examination-in-chief, he did not state he own the disputed land through inheritance. Instead, his 14 testimony focused on the land's ownership history, including details of its purchase by his late father, the seller, and the various documents tendered, which were collectively admitted as Exhibit Ml. Upon examining these documents, as correctly submitted by the appellants' counsel, none bear the name of the 1st respondent. The key document, the sale agreement, indicates that the disputed land was sold by LIDECO to the late Makame Rashidi. In addition to the sale agreement, there is an offer of right of occupancy, which, as attested by the two witnesses from the land office, is in the name of LIDECO. This suggests that, despite the evidence of the sale of land from LIDECO to the late Makame Rashidi, the formal process of transferring the ownership to the purchaser had never been completed. As previously stated, neither in the examination-in-chief nor the documents tendered by the 1st respondent provide direct evidence of his ownership of the disputed land. It was only in response to questioning by an assessor and the trial chairman that he claimed ownership through inheritance, as seen hereunder on pages 13 and 14 of the typed proceedings; 15 'Maswali ya Ufafanuzi na

Baraza Mzee Juma Jumbe Mimi ni Mrithi wa eneo ia Mgogoro takribani miaka miwiii Hiyopita Mwenyekiti Msimamizi wa mirathi ni Kwame Makame Rashidi Mirathi tuiifungua Mahakama ya Kawe Shamba iote niiipewa mimi ni rithi mwenyewe.' Despite these responses, which lack solid evidence, the 1st respondent did not provide proof of the administration of his late father's estate in the Primary Court of Kawe. There was no evidence that Kwame Makame was appointed as the estate administrator or that he collected the deceased's properties and distributed the disputed land to the 1st respondent. To prove property acquisition through inheritance, sufficient evidence is required. In this case, although a grant of letters of administration from the Primary Court of Kawe was claimed, there was no proof of such a grant, nor was there Form No. VI showing the distribution of the deceased's properties, such as whether the disputed land belonged to the late Rashidi Makame and who received it after the distribution. Inheritance cannot be assumed by mere death; the necessary steps preceding the transfer of the land's title to the heir must be adhered to. See 16 the case of Marco Ndimubanza v, Abel Marco (Land Appeal No. 29 of 2023) [2024] TZHC 864 (15 March 2024). Therefore, in the absence of the evidence showing how the 1st respondent acquired the land through inheritance, it cannot be concluded that he

has a legitimate claim to the property. The land does not appear to be his, as there is no evidence substantiating his claim. I could have concluded my judgment here, as the explanations already articulated sufficiently demonstrate that the 1st respondent lacked locus standi. However, before rendering this final judgment, I opted to scrutinize the DLHT's decision to ascertain and validate the grounds on which the 1st respondent was adjudicated the victor. Upon examining pages 13 to 14 of the DLHT judgment, which detailed the rationale for the 1st respondent being recognized as the lawful owner of the disputed property, it stated; 'Kwakuwa eneo la mgogoro m/eta maombi kapewa na kumiliki kihaiaii toka Mwaka 1995mpaka mgogoro huu unafunguliwa mbeie ya baraza hili mwaka 2023 tayari miaka 28 imepita toka anamiiiki m/eta maombi kwa ha/i hiyo baraza haiiwezi kumsumbua mtu aiiye kaa kwenye eneo zaidiya miaka 12 biia kubughudhiwa..' 17 This part can be translated as follows; ' Since the disputed land was legally granted to and owned by the applicant from 1995 until this dispute was brought before this tribunal in 2023, 28 years have already passed since the applicant has owned the land. Therefore, the tribunal cannot disturb someone who has occupied the land for more than 12 years without interference.' The DLHT did not stop there; it further stated; 'Sheria za Tanzania zinasema mmiiki

wa arddhi Hiyopimwa ni yule jina lake Hpo katika hati ya umiiiki wa ardhi kama kinavyosema kifungu cha 2 cha sheria ya LRA ambacho kinaeieza kwamba', This can be translated as follows; ' The laws of Tanzania state that the owner of surveyed land is the one whose name appears on the certificate of the title, as stated in section 2 of the LRA which explains that, 'owner as that in relation to any interest, the time for the time being in whose name that the estate or interest registered' The DLHT went further; 'Kwa ushahidi uiiotoiewa na pande zote mbiH na pia mashahidi wa baraza wamethibitisha kuwa ardhi yenye mgogoro imepimwa na kuna ramani, upande wa mieta maombi umethibitisha wamethibitisha katika uwiano kuwa aridhi imepimwa na kusajiiiwa 18 na kwa vieieiezo walivyotoa ni ukwe/i kuwa aridhi ni maii ya mieta maomtj' This can be translated as follows; 'Based on the evidence provided by both parties, and the confirmation by the tribunal's witnesses that the disputed land has been surveyed and there is a map, the applicant's side has proven on balance that the land has been surveyed and registered. The documents they submitted confirm that the land belongs to the applicant.' Upon examining what the DLHT stated in reaching its decision, I am compelled to say that the DLHT misdirected itself in making this conclusion. Had it thoroughly analyzed the evidence, it would not have

reached the conclusions it did. Firstly, it appears the DLHT granted the 1st respondent ownership of the disputed land by way of adverse possession, claiming he had occupied the land for over 28 years without disturbance, which was not correct. Secondly, it declared him as the lawful owner of the disputed land because it was surveyed. I assert that it misdirected itself because if the land was indeed surveyed, how then could it also view him as the owner by way of adverse possession. 19 It is undisputed that the land in question has been surveyed, based on the evidence from the offer of right of occupancy and the testimony provided by the tribunal's witnesses. According to these witnesses and the offer of occupancy, the name listed as the owner of the disputed land is LIDECO. How can one be considered the owner when the documents do not reflect such ownership? Therefore, had the trial chairman been more diligent, he would have questioned the 1st respondent's right to file a claim regarding the land registered under the name of LIDECO. Moreover, if he would have examined the questions posed by the DLHT to the 1st respondent carefully the responses revealed that the 1st respondent claimed ownership of the land through inheritance. In light of the evidence provided and after careful consideration, I agree with the counsel for the appellant that the 1st respondent lacked

locus standi to file this case against the appellants and the 2nd to 18th respondents. Consequently, I exercise the revisional powers of this court under section 43 (1) (b) of the Land Disputes Courts Act, Cap 216 R.E. 2019, to nullify the proceedings, judgment and decree of the DLHT in Land Application No. 07 of 2023. If the 1st respondent still believes he is the 20 rightful owner of the disputed land through inheritance, he must follow the correct legal procedure for establishing ownership. Due to the nature of this case, each party shall bear its own costs. It is so ordered Court: Judgement delivered today in the presence of Mr. Yusuph Mkanyali for the appellants, Mr. Ahyadu Nannyohe for the 1st respondent but in the absence of the appellants and the respondents. M.B. Mpaze i Judge 19/9/2024 21