LOMITU SAITABAU LOINYEYE 2 ANOTHER VS

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA ARUSHA SUB - REGISTRY AT ARUSHA LAND APPEAL NO. 10198 OF 2024 (Originating from the Decision of the District Land and Housing Tribunal for Arusha at Arusha in Land Application No. 16 of 2021) LOMITU SAITABAU LOINYEYE................................................................. ...1stAPPELLANT LONING'O LOINYEYE...................................................................................2NDAPPELLANT ISMAIL MARUNDA....................................................................................... 3rdAPPELLANT VERSUS ENOCKJORAM OSANO.............................................................. RESPONDENT JUDGMENT 19th September & 13th November, 2024 KAIN DA, J.: The respondent, Enock Joram Osano successfully sued the appellants for a piece of land with 34 meters length and 24 meters width (suit land) situate at hamlet and Ward of Olorien within Arusha Region. His case at trial Arusha District Land and Housing Tribunal was that; the respondent alleged to be a lawful owner of the suit land having bought it from SM2, Lialo Loinyeye Lukumay. At the trial Tribunal, the respondent complaint was that; on 25th January, 2021, the first and second appellants trespassed into the suit i land and the third appellant started to cultivate it using a tractor. The respondent prayed for the following reliefs; 1. A declaratory order that the respondent is the lawful owner of the suit land 2. A declaration order that the sanction by the appellants is void ab initio. 3. The appellants to be ordered to vacate the disputed property 4. Perpetual or permanent injunction restraining the appellants or their agents from interfering with the peaceful occupation of the suit land by the appellants. 5. Costs of the application. In their Written Statement of Defense, the appellants refuted the claim stating that the suit land belonged to the late Loinyeye Liking'orie Lukumay and that Lialo Loinyeye Lukumay who sold the suit land to the respondent is a stranger without lawful title to pass to the respondent by way of sale or in any other manner whatsoever. Further, the appellants averred that no body including the appellants could lawfully pass the title of the suit land unless appointed administrator of the estate of the late Loinyeye Liking'ore Lukumay, and that, the petition for grant of letters of administration to the first appellant was pending before Emaoi Primary 2 Court. It was further contended that the first and second appellant instructed the third appellant to cultivate the disputed land knowing that the same belongs to their deceased father. At the start of hearing of the matter, the following three issues were framed; one, whether the applicant lawful bought the suit land; two, whether, the applicant is a lawfully owner of the suit land and; three, what reliefs are the parties entitled to. The trial Tribunal heard the evidence from both sides. At the end of the day, it found the claim proved and proceeded to award the reliefs claimed. In its considered decision, the Tribunal held at page 12-13 of the typed judgement thus; "Kutokana na ushahidi uiiotoiewa upande wa mieta maombi ambao ni mzito na unaofanana kwa mashahidi wote nidhahiri kwamba wajibu maombi namba 1 na 2 ndio wanaopinga uuzwaji wa eneo ienye mgogoro kwa mleta maombi na ni ndugu watumbo moja na muuzaji, Liaio Loinyeye. Mashahidi wengine ambao niwatoto wa mama wengine, wameingizwa katika ushahidi kwa ajiii ya masiahi ya wajibu maombi namba 1 na 2. Hivyo basi, kwa kuzingatia ushahidi wa pande zote mbiii, sina shaka kusema kwamba muuzaji (SM2) wa eneo ienye mgogoro kwa mleta maombi aiikuwa na haki ya kuuza 3 eneo lake kwa mleta maombi kwa kuwa alipewa eneo hi/o na mama yake. Kwasababu hiyo, kiini cha 1 katika shauri hili kinajibiwa kwamba, mleta maombi alinunua eneo lenye mgogoro kihalali". The trial Tribunal proceeded to declare the respondent a lawful owner of the suit land. He was granted a general damage at Tanzanian Shillings Five Million (TZS. 5,000,000/=). The appellants were aggrieved with the decision hence this appeal. The appeal is prefaced on the following five grounds; 1. The District Land and Housing Tribunal erred in law and in fact that the documents admitted in evidence at the Tribunal were not read out to maintain the right to be heard. 2. The District Land and Housing Tribunal erred in law for failure to discover that the suit before the trial was incompetent as being instituted against the wrong party to wit the first respondent in his personal capacity. 3. Since the respondent failed to prove, his case on the standard balance of probability, the District Land and Housing Tribunal erred in law for holding in favor of the respondent. 4 4. The District Land and Housing Tribunal erred in law for failure to observe that the suit land was lawfully owned by the late Loinyeye Liking'orie Lukumay, for many years up to date. 5. The District Land and Housing Tribunal erred in law and in fact that there is no direct evidence to prove that the suit land was owned by one Lialo Loinyeye Lukumay (seller) who sold it to the respondent. The hearing of the appeal was by written submissions. Starting with the complaint in the first ground, that the exhibit P2 was not read out in court. As per the record, the document, apart from being annexed to the pleadings, was not officially tendered and admitted. I allow this ground of appeal. Exhibit P2 is expunged from the record. With regard to second ground of the appeal that; the District Land and Housing Tribunal erred in law for its failure to discover that the suit before it was incompetent for being instituted against the wrong party. It was submitted that, since, according to the adduced evidence, it is not in dispute that the suit land belongs to the deceased appellants father, so the appellants did not have the locus stand to defend the estate through court proceedings merely because they are issues of their deceased father. Only an appointed administrator of the estate can defend the 5 estate in court proceedings as was held in the case of Samson Kishosha Gabba v. Charles Kingongo Gabba [1990] TLR 133. The appellants went on and stated that it was incumbent on the trial Tribunal to draw the attention of the parties on the issue of locus stand and that the act of the respondent to sue the wrong parties is a fatal irregularity. On his part, the respondent argued that the claim before the trial Tribunal was competent as it was made against trespassers in their own capacity and prayed for the court to dismiss the ground of appeal for want of merit. 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 v. Mussa Hamis Mkanga and 2 Others, Civil Appeal No. 47 of 2012. In Lujuna Shubi Ballonzi v. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203, Samatta, JK (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. The High 6 Court has the power to modify the applied common law so as to make it suit local conditions." From above, it is quite common that locus standi is all about bringing an action or to appear in court not to defend an action. I subscribe to the respondents' submission that, the application before the trial Tribunal was made against the appellants as trespassers in their own capacity. On the other hand, the law is that, all persons may be joined as defendants against whom any right to relief arise. Order 1 Rule 3 of the Civil Procedure Code, [Cap 33 R.E 2019] provides; "AH persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whetherjointly, severally or in the alternative where, ifseparate suits were brought against such persons, any common question of law or fact would arise" Accordingly, the second ground of appeal is dismissed for being devoid of merit. Lastly, I opt to combine the 3rd,4th and 5th grounds of appeal which can be summarized that; the respondent failed to prove his case on the required standard which is on the balance of probability. 7 The appellant entered into the disputed land and cultivated with a knowledge that the respondent bought the land from Lialo Loinyeye Lukumay. From the pleadings, the appellants were not claiming to be owners of the suit land. Paragraphs 6, 7, 8, 9 and 10 clearly shows that the appellant did not allege ownership to the suit land. Their main contention was that the same is a property of Loinyeye Liking'orie Lukuma who expired way back in 2016. In this respect, 3rd,4th and 5th grounds appeal also fails. Having expunged exhibit P2, the question is whether the judgement of the trial Tribunal can still be allowed to stand. My answer is in the affirmative because the disputed document did not form the basis of the trial Tribunal decision. As to award of general damage at Tanzanian Shillings Five Million Five Million (TZS. 5,000,000/=), it is trite law that award of general damage is on court's discretion, but the discretion must be exercised judiciary. There must be reason as to how the court have arrived to the figure. However, as per the pleadings, the respondent did not claim to be paid a general damage. I have failed to find out as to why the said sum was awarded. 8 For the reasons hereinabove explained, the appeal is partly allowed to the extent explained. To be specific, the decision of the trial Tribunal is hereby confirmed save for award of a general damage at Tanzanian Shillings Five Million. It is so ordered. S. J. KAINDA. JUDGE. 13.11.2024 Judgement delivered under my hand and seal of the court in Chambers this 13th November, 2024 in the presence of Mr. Joseph Hillary, learned advocate for the respondent and in the attendance of the 3rd appellant and in the absence of the 1st and the 2nd appellant. S. J. KAINDA. JUDGE. 13.11.2024 9