kuzenza lutelemla vs kashindye so mapela 2016 tzhc 2151 21 april 2016

IN THE HIGH COURT OF TANZA N IA AT TABORA MISC. LAND CASE APPEAL NO. 33 OF 2015 (Arising from Land Appeal No. 4 o f 2015 in the District Land and Housing Tribunal forNzega District, Original Land Application No. 2 o f 2014 ofNtobo Ward Tribunal) KUZENZA L U T E L E M L A ...............................APPELLANT VERSUS K A SHINDYE S/O M A PE L A ................. RESPO N D EN T JUD GEM EN T 29/3 & 21/4/2016. Utamwa, J. This is a judgem ent regarding an appeal filed by the appellant, KUZENZA LU TELEM LA against the judgem entdated 29/05/2015 (impugned judgm ent) o f the District Land and Housing Tribunal forNzega District (DLHT) in Land AppealNo. 4 o f 2015. In making the impugned judgem ent which was in favour o f the respondent, K A SH IN D Y E S/O MAPELAthe DLHT w;as exercising its appellate jurisdiction over a decision o f the Ward Tribunal ofNtoboWard (the trial tribunal) in application No. 2 o f 2014. Page 1 of 8 The brief background o f the appeal is this;back in 2014 the appellant lodged a land dispute before the trial tribunal claiming for a piece o f land against the respondent. The trial tribunal granted judgm ent to him. The respondent was aggrieved and thus appealed to the DL1IT on grounds o f time limitation, lack o f locus standion the part o f the appellant and want o f sufficient evidence. In turn the DLHT, through the impugned judgem ent upheld the appeal lodged by the respondent and reversed the decision o f the trial tribunal. The appellant was dissatisfied by the impugned tribunal, hence this appeal. The appeal has two grounds couched in a laym an’s language, but meaning the following; 1. That the D LH T erred in lawr and in fact in deciding the case before it against the weight o f the appellant's evidence. 2. That the DLHT erred in law and fact in deciding that the appellant lacked locus standi in the case at issue. When the appeal was called upon for hearing before me parties were not represented and thus had nothing to argue. In deciding this appeal 1 start with the second ground o f appeal related to locus standi since if the same will be upheld there will be it will be capable o f disposing o f the entire appeal without testing the second ground. The major issue here is therefore, whether or not the DLHT w;as justified to hold that the appellant lacked locus standi in claiming for the disputed land. According to the record, especially the petition o f appeal to this court (see the second ground o f appeal) the appellant is not disputing that the land at issue belonged to his late Page 2 of 8 grandfather (actual owner o f the disputed land ), but his clan appointed him through the Sukuma tribe customs, to be the administrator o f his estate. He also maintains that he was approved as administrator o f the estate vide a judgm ent (dated 17/06/2015) o f the Primary Court of Igunga District, at Igunga (Urban) in Probate Cause No. 19 o f 2015 (copy attached to the petition o f appeal). In my view, the claim by the appellant that he had locus standi by virtue o f been the administrator o f the estate o f his late grandfather is not supported by the record. In fact the record o f the trial tribunal (forming part o f the record o f this appeal) does not indicate anywhere that he claimed the land in his capacity’ as administrator o f the estate. He is recorded as claiming it in his own capacity as actual owner of the land. Besides, the appellant’s appointment as administrator o f estate by the primary court was made on 17/06/2015 w'hich was about eighteen (18) days after the date o f the impugned judgem ent (i. e. on 29/05/2015). The appointment could not thus have a retrospective effect to the decisions o f the trial tribunal and the DLHT. It is thus obvious that the appointment was an afterthought that cannot affect the holding by the DLHT that the appellant did not have locus standi at the time when the decisions o f the trial tribunal and the impu’g ned judgem ent were delivered. It may also be presumed that the appointment was aimed at circumventing the legal consequences o f the impugned judgem ent, which said course cannot be condoned by this court for fear o f leading to a serious injustice. Page 3 of 8 As 1 held in the case ofLazaro Kim bind u v. Athanas Mpondangi, High Court (PC) Civil Appeal No. 137 of 2003, aty Dar es salaam (unreported judgment), in law where issues o f a deceased person or any other interested person wish to defend the estate o f the deceased through proceedings before courts like the trial tribunal the first significant step to take is to nominate an administrator o f the estate who will be appointed/approved .by the t court (as administrator) so that he can defend the estate on their behalf. This is also the stance taken by this court (Mw'alusanya J, as he then was) in the case o f Samson KishoshaGabba v. Charles KingongoGabba [1990] TLR 133, at page 136. Alternatively the appointed administrator can collect properties falling under the estate, distribute the same to persons entitled as their inheritance (including the issues o f the deceased if any), so that each o f them can defend the share distributed to him as his own property. But in the matter at hand the above procedure envisaged by the law' had not been accomplished at the time when the decision by the trial tribunal and the impugned judgm ent were made as indicated earlier. The view underlined herein above is further supported by paragraphs 5 and 6 o f the Fifth Schedule to the Magistrates Court Act, Cap. 11. R. E. 2002. Paragraph 5 provides for the general duties o f an appointed administrator o f estates o f a deceased thus; an administrator appointed by a primary court shall, with reasonable diligence, collect the property o f the deceased and the debts that were due to him, pay the debts o f the deceased and the debts and costs o f Page 4 of 8 the administration and shall thereafter distribute the estate o f the deceased to the persons or for the purposes entitled thereto and, in ea rn ing out his duties, shall give effect to the directions o f the primary court. On the other side paragraph 6 guides that an administrator may bring and defend proceedings on behalf o f the estate. The view just highlighted above is based on the principle o f law that courts m ust alw:ays be_ceilain o f the identity o f the parties before them so as to avoid entertaining fictitious or dishonest persons and so that entitlement o f rights goes to the rightful persons and liability also goes to the proper liable persons. 1 also underscored this position of the law in the Lazaro Kimbinducase (supra) andUnilife Group Investiment v. Biafra Secondary School and another, High Court Civil Appeal No. 144 (B) of 2008, at Dar es salaam (unreported judgment) following the envisaging o f the Court o f Appeal of Tanzania (CAT) in the cases o f K. J. Motors and 3 others v. Richard Kashamba and others, CAT Civil Appeal No. 74 of 1999, at Dar es salaam (unreported) and Christina Mrimi v. Coca cola Kwanza Bottlers Ltd, CAT Civil Appeal No. 112 of 2008, at Dar es salaam (unreported) and I underline the same position in the case at hand as well. It follows therefore that, even if it was true that the appellant had been nominated by the clan to be administrator o f the estate o f his grandfather (though I do not hold so), it was premature for him to file Page 5 of 8 the claim before the trial tribunal for want o f locus sincehe had not been approved by the court in that capacity. The term locus standi wras described by this court (Samatta, JK as he then was) in the case o f Lujuna Shubi Ballonzi, Senior v. Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203at page 208 following the Halsburv's Laws o f England, 4th edition, para 49 at p 52 and the case o f Re: l.G. Farbenindustrie AC Agreement |1943] 2 All ER 525 “ In this country, locus sumdi is governed by the com m on law. According to that law, inorder to maintain proceedings successfully, a plaintiff or an applicant must show not only that the court has power to determ ine the issue but also that he is entitled to bring the matter before the c o u r t:.. .Courts do not have power to determ ine issues o f general interest:.. .They can only accord protection to interests which are regarded as being entitled to legal recognition. T hey will thus not make any determination o f any issue that is academic, hypothetical, prem ature or dead. Because a court o f law is a court o f justice and not an academ y o f law, to maintain an action before it a litigant must assert interference w ith or deprivation of, or threat o f interference with or deprivation of, a right or interest which the law takes cognizance of. S in c e ‘courts w ill protect only enforceable interests, nebulous or shadowy interests do not suffice for the purpose o f suing or m aking an application. O f course, provided the interest is recognised by law. the smallness o f it is immaterial. It must also be distinctly understood. I think, that not every dam age or loss can be the subject matter o f court proceedings.” (bold em phasis is mine). The court in the Lujunacase (supra) further held that the rule on locus standi also applies in our jurisdiction though it is wider in human rights litigations than in private interest litigations. It is therefore my finding that the rule o f locus standi also applies before land courts like the trial tribunal w^here the appellant had lodged his land dispute before he was approved by the court as I administrator o f the estate. Page 6 of 8 It follows therefore that since I have found herein above that the respondent prematurely filed the matter before the trial tribunal, then the rule o f locus standi applies against him, and he thus lacked locus standi to file the matter whether in his own capacity or in his purported capacity as the administrator o f estate as long as he does not dispute that the land at issue belonged to another person. Having observed as above, I find that the respondent’s act o f filing the suit without locus standi was fatal to the proceedings and cannot be taken as a mere matter o f procedural technicality since courts are not entitled to entertain matters filed by persons without locus standi as held in the Lujunacase (supra). It goes to the root o f the rights o f the parties. The proceedings o f the trial court cannot thus be protected under s. 45 o f the Land Disputes Court Act, Cap 216 R. E. 2002 which essentially saves irregular proceedings o f subordinate land courts unless they cause injustice. I therefore, find that the DLHT was justified to hold that the r — - - appellant lacked locus standi in this matter. I thus determine the issue posed above affirmatively and I overrule the second ground o f appeal. The DLHT however, would have nullified the proceedings o f the trial court since the appellant lacked jurisdiction to institute the land dispute, but it did not do. Having upheld the second ground o f appeal which is capable of disposing o f the entire appeal, 1 find m yself not obliged to test the first ground o f appeal since that will amount to a superfluous or Page 7 of 8 academic exercise o f kicking a dead horse which is not the core role o f judicial proceedings. I therefore, dismiss the appeal. I consequently nullify the proceedings o f both lower courts since this is the legal remedy where a court entertains proceedings in which a party lacks locus standi. The appellant shall pay costs since in law costs follow’ event unless the court records reasons for departing from this general rule, which said reasons I do not see in the matter at hand. It is so ordered. JHK. UTAMWA JUDGE 21 04/2016 21/04/2016 CO RAM; Hon. Utam wa, J. For A ppellant; Present in person For Respondent; Present in person BC; Mr. Omari M kongo, RMA. Court; Judgment delivered in the presence o f the parties in court this 21st day o f April, 2016. JHK. UTAM W A JUDGE 21/04/2016. Page 8 of 8