jumanne hassan bakari vs juma hassan bakari an administrator of the estate of the late joha juma 2023 tzhc 22907 8 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF TABORA AT TABORA MISC. LAND CASE APPEAL NO. 3 OF 2022 {Arising out from High Court of Tanzania Land Division at Tabora in Misc Land Application No. 30 of 2019 and the Tribunal Land Appeal No. 79 of 2018 at the District Land and Housing Tribunal and Original from Mtendeni Ward Land Tribunal Application No. 8 of 2018) JUMANNE HASSAN BAKARI........................................ APPELLANT VERSUS JUMA HASSAN BAKARI (Administrator of the Late Joha Juma...............................................................RESPONDENT RULING Date: 13/07/2023 & 8/9/2023 BAH ATI SALE MA, J.: This matter has a chequered history. Way back in 2018, the respondent Joha Juma (now deceased) filed a case at the Ward Tribunal against his son Jumanne Hassan Bakari, the appellant herein claiming ownership of the house, where he lost the case. Being aggrieved, he appealed to the DLHT, which dismissed the matter for want of merit. Still aggrieved, he filed his appeal against Jumanne Hassan Bakari (the administrator of the estate of late Joha Juma) before this court, armed with i five grounds of appeal, which I will not discuss for the reasons that will be stated apparently. On the day mentioned, the court noted that the respondent in the tribunal was representing her mother as a legal representative because she was too old. When he appeared before this court, the court discovered that since her mother was dead while the appeal was filed and the respondent had no locus standi as he was not an administrator of the estate of her late mother. Hence the appeal was stayed until he was appointed by the court. The respondent submitted the appointment letter to this court on 18/7/2023 from the Primary Court of Isevya and appointed Hassan Bakari Mwelumpambala. Before this court, the appellant was represented by Mr. Timothy Sichilima, learned counsel, while the respondent was self-represented. The appellant submitted his grounds of appeal and insisted that the lower tribunal failed to consider the evidence of the appellant whereas the respondent disputed the allegation. The case was heard on 7/8/2023 and the judgment was set for 8/9/2023. When I was composing a judgment, I discovered that this matter was filed at Mtendeni Ward Land Tribunal Application No. 8/2018 between Joha Juma and Jumanne Hassan whereas Joha Juma was declared a lawful owner of the disputed property at the ward tribunal. Being aggrieved by the decision of the trial tribunal, he appealed to the District Court, where the appellant Jumanne Hassan also lost his case. Still dissatisfied with the decision of the appellate court, he appealed to this court against Juma 2 Hassan a legal representative. Having gone through Form No. 4,1 noted that the respondent was appointed as the administrator of the estate of the late Hassan Bakari Mwelumpamba who was not a part of this case, instead of Joha Juma who filed the case before. Therefore, I asked myself if the appellant has sued a proper party to bring the present suit, which has the effect of determining whether there is a suit before the court sufficient for other grounds of appeal to be considered. I therefore called on the parties to address me in respect of the issue of locus standi. Mr. Timothy Sichilima stated that it is true that the form presented to this court is the administration of Hassan Bakari Mwelumpamba and since it is a matter of law, he left it to the court to decide. As to the respondent, who was a layman, he prayed and left it for the court to decide. That being the position, Order XXI Rule 3 (1) of the Civil Procedure Code, Cap. 33, provides that in case the plaintiff dies and the right to sue survives, then the court may, on an application, cause the legal representative of the deceased to be made a party to the suit and the suit shall proceed accordingly. The position of the law on this matter was well articulated in Lujuna Shubi Balonzi Senior vs. Registered Trustees of Chama Cha Mapinduzi 3 (1996) TLR 203, where this Court (Samatta, J as he then was) attempted to define the term locus standi as follow; "In this country, locus standi is governed by the common law. According to that law, to maintain proceedings successfully, a plaintiff or an 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... Because a court of law is a court ofjustice and not an academy oflaw, to maintain an action before it a litigant must assert interference with or deprivation of, or threat of interference with or deprivation of, a right or interest which the law takes cognizance of" Similarly, in Godbless Jonathan Lema vs Musa Hamis & 2others, Civil Appeal No. 47/2012, CAT at Arusha, the Court quoted the decision of the Malawian Supreme Court of Appeal in The Attorney General vs. The Malawi Congress Party and another, Civil Appeal No. 22 of 1996, which provided the test for locus standi. It held that: - " Locus Standi is a jurisdictional issue. It is a rule of equity 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 dose relation to it to give a right that requires prosecution or infringement of which he brings the action." Now, reverting to the circumstances of the case at hand, it is on record that Juma Hassan Bakari is administering the estate of the late Hassan Bakari Mwelumpamba who was not a party to this case, instead of Joha Juma. 4 Therefore, from the above findings, I find no reason to go further on the merits of this case since the appellant is not petitioning the right person, who was Joha Juma, Hence, I hereby struck out for want of suing a proper party subject to refile with no order for costs. Order accordingly. A. BAHATI SALEMA JUDGE 8/9/2023 Court: Ruling delivered in presence of Mr. Timothy Sichilima, learned counsel for the Appellant and appellant in person and Respondent in person. A. BAHATI SALEMA JUDGE 8/9/2023 Right of appeal explained. A. BAHATI SALEMA JUDGE 8/9/2023 5