Juma Ngoi vs Mustapha Mohamed Locus Standi Edited

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELLANEOUS LAND APPEAL NO. 16/2023 (Arising from the District Land and Housing Tribunal for Singida at Singida in Land Appeal No. 51 of 2019) JUMA S. NGOI......………………….....................................APPELLANT VERSUS MUSTAPHA MOHAMEDI..............................................RESPONDENT JUDGMENT Date of Last Order: 18/7/2024 Date of Judgment: 16/8/2024 MASABO, J:- This is a second appeal. It originates from Ikungi Ward Tribunal (trial tribunal), Singida District in Singida region where the appellant was unsuccessfully sued over trespass into the suit land allegedly owned by the respondent. He appealed to the District Land and Housing Tribunal for Singida (the appellate tribunal) on the following six grounds of appeal. One, the trial tribunal erred in law and in fact in entertaining the case on incomplete quorum as required by the law. Two, the trial tribunal erred in declaring ownership to the parties who were not the parties to the trial. Three, the respondent adduced evidence which was heavier compared to the appellant which could have entitled him to be declared the owner of the suit land. Four, costs were to be awarded to the appellant since the respondent failed to prove the case. Five, the trial tribunal erred in law and fact in stating that the appellant was not found in a disputed land while it Page 1 of 10 was the respondent whose land was not found as per the sketch map. Six, the trial tribunal did not properly evaluate the evidence. The appeal was allowed and the decision of the trial tribunal was consequently reversed. The appellant was aggrieved. He has filed the present appeal based on the following three grounds: First, the appellate tribunal erred in ignoring the evidence of Hamis Makita who denied involvement in the land sale agreement; second, the appellate tribunal erred in failure to consider the appellant’s evidence although he used the same evidence while litigating over the same suit land in Land Case No. 108 of 2015 by which he was declared the lawful owner of the suit land but on appeal to this court, a trial de novo was ordered and third, that the tribunal erred materially by failure to accord weight to the testimony of Juma Makita. On 18th July 2024, the parties appeared before me for a viva voce hearing. Both parties appeared in person; they were unrepresented. Supporting the appeal the appellant submitted that the appellate tribunal erred in not considering the evidence of Hamis Makita who told the trial tribunal that the suit land belonged to the appellant’s father who, in 1938, gave it to his sister who was Hamisi Makita’s mother. Hamisi Makita started to till the land from 1986 until 2014 when he relocated and returned it to the appellant. Hence, the appellant is the lawful owner. The appellant argued further that in 2015 he successfully sued the respondent before the ward tribunal. The respondent being aggrieved by the decision of the trial tribunal unsuccessful appealed to the District Land and Housing Tribunal vide Land Appeal No. 108 of 2015. Aggrieved again he appealed to this court via Land Appeal No. 88 Page 2 of 10 of 2016. This court found the appeal to have merit and ordered a retrial. When the trial de novo was conducted, the trial tribunal declared the Makita’s family to be the owner of the suit land. Aggrieved the appellant successfully appealed to the first appellate tribunal which wrongly reversed the trial tribunal’s decision. The appellant passionately argued that the reversal was materially wrong as he proved that he is the lawful owner of the suit land. Hamis Makita returned the suit land to him and all its documentation. That, it was wrong to declare the respondent as the lawful owner of the said land. He argued further that the appellate tribunal materially erred by not considering that he formerly won the suit over the same land and that the respondent was not born in the respondent’s village. Rather he relocated to the appellant village in 1975 from Itigi. In reply, the respondent submitted that indeed there have been multiple cases over the suit land. His first case was for criminal trespass before Ikungi Primary Court in 2014. He was suing Juma Makita who had trespassed into his land. On 26/11/2023 Hamisi Makita left the area. Juma Makita took occupation of it. They were told to go to the ward tribunal. When he went there, he found that the appellant herein had gone there to sue him over the same land. It was decided in the appellant’s favour. He was not satisfied. He unsuccessfully appealed to the appellate tribunal. Still aggrieved he appealed to this court where the order for retrial was issued. Upon rehearing of the case, the trial tribunal decided in favor of Hamisi Makita. The respondent being aggrieved appealed to the appellate court which decided Page 3 of 10 in his favor. The appellant was dissatisfied. He instituted the present appeal which in his humble opinion, is devoid of merit and should stand and the appeal be dismissed. By way of rejoinder, the appellant reiterated his submission in chief that the appeal has merit. The suit land belonged to his father who gave it to Hamisi Makita’s mother. Then, Hamisi Makita, returned it to him in 2015 and from that time, he was peacefully using it to 2023. I have keenly considered the grounds of appeal, the records, and the submissions of both parties. As all the three issues revolve around the evidence adduced, there is only one issue for determination, namely whether the appellant proved his case to the standard required before the trial tribunal. It is a trite principle of law that he who alleges must prove. The principle is entrenched under sections 110 and 111 of the Law of Evidence Act, [Cap 6 RE 2019] and applied in numerous authorities such as in the case of Barelia Karangirangi vs Asteria Nyalwamba, Civil Appeal No.237 of 2017 [2019] TZCA 51 TanzLII, Anthony M. Masanga vs Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014, [2015] TZCA 556 TanzLII, Bright Technical Systems & General Supplies Limited v. Institute of Finance Management, Civil Appeal No. 12 of 2020 [2022] TZCA 710 TanzLII. It is also established through these authorities and a plethora of other cases that, unlike in criminal cases where the standard of proof required is proof beyond reasonable doubt, in civil cases such as the one at hand, the standard required is proof on the balance of probabilities. As clarified in Bright Technical Systems & General Supplies Limited Page 4 of 10 v. Institute of Finance Management, Civil Appeal No. 12 of 2020 [2022] TZCA 710 TanzLII: What it means by the above is that the court must be satisfied that the plaintiff has discharged his burden of proof on the required standard before entering judgment in his favour See also the cases of Cooperative and Rural Development Bank vs M/s Desai & Co. Limited, Civil Appeal No. 51 of 1999 (CAT- unreported) Attorney General & Others vs. Eligi Edward Massawe &Others, Civil Appeal, No. 86 of 2002, CAT (Unreported). Accordingly, the appellant herein being the applicant in the trial tribunal had the burden to prove his ownership of the suit land on the standard articulated above. In perusal of the record to see what transpired, I have observed that during the trial, the respondent who was the applicant did not anyhow demonstrate how he acquired the land. His narration was overwhelmingly about how he had previously litigated over the suit land and won and when he ended this narration, he told the tribunal that the land belonged to his clan, not the respondent’s clan and the appellant herein has no any right to inherit it as he is not from the same clan. His witness, PW2 Rajabu Ramadhani, told the tribunal that the suit land belonged to the respondent’s father one Mzee Ntandu. PW3 Hamisi Selemani stated that it belonged to Hamis Makita and PW4 Abdalla Salum, stated that the land was allocated to Masenga Ntandu. Thus, it is crystal clear from these witnesses that, the suit land did not belong to the respondent but to Masenga Ntandu. Similarly for Page 5 of 10 the appellant who was the then respondent, nothing shows that the suit land belonged to him. He told the tribunal that it belonged to his father who gave it to his sister one Mariamu Ngoi. DW1 Hamis Makita also corroborated as he told the tribunal that the owner of the suit land was the appellant’s father Said Ngoi, who gave the same to Hamisi Makita’s father and later on he (Hamis Makita) returned it to the appellant. Thus, he was its owner. In view of the evidence above and the submissions by the parties, the immediate question I have asked myself is whether the respondent had locus standi to institute the matter against the appellant and whether the trial tribunal had jurisdiction to entertain it because, as stated by the Court of Appeal in Godbless Lema vs. Mussa Hamis Mkanga and Two Others, Civil Appeal No. 47 of 2012 (unreported), locus standi is a point of law rooted into jurisdiction hence can be raised suo motto by the court even on appeal stage as jurisdiction is statutory and cannot be assumed. To unravel the issue above and since this issue was not addressed in their submission, when the parties came for judgment today, I invited them to address the court on whether the respondent had locus standi. The respondent quickly conceded that he instituted the application not on his capacity but as a representative of his father who was ailing and he is now deceased. He also told the court that, he had nothing to show that he was suing in a representative capacity and sought no leave of the tribunal to sue in that capacity. The law on locus standi is very clear as it has been litigated in numerous cases thus, there is a plethora of authorities on it. As defined in Lujuna Page 6 of 10 Shubi Balonzi vs. Registered Trustees of Chama cha Mapinduzi [1996] TLR 203, at page 208 locus standi is:- A principle governed by common law whereby in order to maintain proceedings successfully, a plaintiff or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court. In the case of Peter Mpalanzi vs. Christina Mbaruka Civil Appeal No. 153 of 2019 [2021] TZCA 510 TanzLII the Court deliberated on the concept of locus standi, its rationale and at what time it can be raised and resolved. It held thus: Simply defined locus standi is the right or legal capacity to bring an action or to appear in court. In Lujuna Shubi Ballonzi vs. Registered Trustees of Chama cha Mapinduzi [1996] 203, Samatta, J (as he then was) had the following to say on locus standi: Locus standi 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 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 vs. Mussa Hamis Mkanga and Two Others, Civil Appeal NNo. 47 of 2012(ubnreported0. Further, locus standi is a point of law rooted into jurisdiction. It is for that reason Page 7 of 10 that it must be considered by a court at the earliest opportunity or once it is raised. A litigant instituting a suit or complaint in court or tribunal must demonstrate the interest he has else, the suit will be deemed incompetent for want of locus locus standi and the court or tribunal will have no jurisdiction to entertain it. As the respondent was claiming ownership of the suit land he had to demonstrate his interest in it but, as seen above, he did not and as he had just admitted, he was suing not in his capacity but as the representative of his father who was the owner of the suit land. The present appeal originated from the ward tribunal and the law applicable to the ward tribunals as far as land matters are concerned is the Ward Tribunal Act and Land Disputes Courts Act Cap. 216 R.E 2019. Before I proceed further, it is to be noted at this outset that, although the jurisdiction of the ward tribunals to hear and determine land disputes is no longer there as it was ousted through the amendment ushered to the Land Disputes Courts Act by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2021, when the present matter was being heard and determined before the tribunal, the law conferring adjudication powers to ward tribunals was still operational. Reverting to the issue of locus standi, section is 18(2) of Land Disputes Courts Act provides as follows:- 18(1). N/A (2). Subject to the provision of subsections (1) and (3) of this section, a ward tribunal may permit any relative or any member of the household of any part to any proceeding, upon request of such party to appear and act for such party. Page 8 of 10 Thus, the appearance before the tribunal is by the applicant himself as a natural person or on his or her behalf by a relative or a member of the household with the permission of the trial tribunal. Thus, since as demonstrated above, the respondent did not institute the application in his personal capacity but as a representative of his father who was then still alive, he had to clearly state so and seek the leave of the trial tribunal permitting him to represent his father. As the record is silent as to whether such permission was sought and granted respondent has conceded that there was none, it is crystal clear that there was an anomaly. The omission constituted a fatal irregularity and vitiated the proceedings. As held by the Court of Appeal in the case of Ramadhani Omary Mbuguni vs. Ally Ramadhani and Another, Civil Application No. 173 of 2021 [2022] TZCA 267 TanzLII, when a person suing in a representative capacity he must clearly state so and the omission thereto is a fatal irregularity. In this case, the Court instructively stated thus; It is now settled law that a party commencing 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. In the foregoing, and for the reason above stated, I am of the firm view that the application before the trial tribunal was incompetent for want of jurisdiction and the tribunal had no jurisdiction to entertain. The proceedings of the trial tribunal and its decision was therefore a nullity. The proceedings, Page 9 of 10 judgment and decree of the appellate tribunal cannot stand as they originate from nullity proceedings and decision of the ward tribunal. Accordingly, I invoke the revisional powers of this court in section 43(2) of the Land Dispute Courts Act, Cap 216 R.E 2019, revise, quash and set aside the proceedings, judgment and decree of the appellate tribunal for being predicated on nullity proceedings and decision of Ikungi ward Tribunal which are equally quashed and set aside. The parties are at liberty to institute a fresh application before an appropriate forum. As the ground upon which the appeal has been disposed of was raised suo motto by the court, I have found it to be in the interest of justice that the parties bear their respective costs. DATED and DELIVERED at DODOMA this 16th day of August 2024. J. L. MASABO JUDGE Page 10 of 10