Malaika Juma

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO LAND APPEAL NO. 9099 OF 2024 (Appeal from the decision of District Land and Housing Tribunal for Kiiombero District at Uianga in Land Application No 106 of 2019) BETWEEN MALAIKA APPELLANT VERSUS THE REGISTERED TRUSTEE OF ROMAN CATHOLIC CHURCH DIOCESE OF MAHENGE RESPONDENT JUDGMENT MRUMA,J The Respondents the Registered Trustees of Roman Catholic Church Diocese of Mahenge filed Land Application No 106 of 2019 against nine Respondents namely Nurudini Hassan Matata, Miraji Milimo, Hadimu Milimo, Malaika Juma, Magida Ng'uduru Masunga, Mikaela Edigar Mrumba, Silvester Anold Kambanga and Abbasi Utolite for a declaration that the Registered Trustees of Roman Catholic Church is the rightful owner of a piece of land measuring 35 acres located at Mayanda hamlet 1 Ihowanja Village of Kilosa Mpepo Ward within Malinyi District in Morogoro Region. She also prayed for a declaration that the acquisition of the disputed land by the Respondents (the present Appellants) were wrongful and illegal; an order of immediate eviction of the Respondents from the disputed land, an order of permanent injunction against the respondents and their agents restraining from trespassing the disputed land, payment by the respondents of general damages as shall be determined by the tribunal, payments of specific damages to the tune of Shillings. 5,000,000/= costs of the application and any other reliefs as the tribunal would deem fit to grant. After hearing both parties, the District trial tribunal entered judgment in Respondent's favour and against the Appellants. The historical background of the matter albeit briefly as can be discerned from the record goes like this; in 2003 the Roman Catholic Church Ihowanja parish Kigango applied to the Village Council of Ihowanja for allocation of a piece of Land measuring approximately 70 acres. The application was granted and the parish was allocated 70 acres of Land located at Mayanda neighbourhood of that village. After the allocation the parish developed it by constructing church buildings and doing cultivation activities. 2 In 2018 a Land Tenure Reform Support Programme (LTRSP) project focused on surveying and enabling persons holding land under customary rites but without titles to be Issued with Customary Certificates of Titles was carried out In Kllombero, Mallnyl and Ulanga Districts. During that exercise the Appellants claimed that the Land which was allocated to the church belonged to them. A church pastor one Reverend Pastor Claude Gerald Mbena noted about the Appellants' claims. He reported to the Village Executive Officer who allowed the pastor to go on with the survey of the land allocated to the church under the Land Tenure Reform Support Project. The land was surveyed and It was established that Its size was approximately 67 acres. In the year 2019, the Church discovered that the Appellants had trespassed and were occupying the Respondents land. A meeting was convened by the Registered Trustees of Roman Catholic Church of Mahenge to authorize pastor Claude Gerald Mbena, to Institute legal dispute against the present Appellants. As stated herelnabove the trial tribunal declared the Respondents lawful owners and the Appellants and others as trespassers to the land and order Immediate vacation of the suit land. The decision aggrieved the Appellants and hence this appeal with the following grounds of appeal 1. That the trial tribunal erred in law and facts to its failure to comprehend the facts that the Respondent failed to establish its locus standi and thus erroneously entertained judgment in its favour. 2. That the tribunal erred in law and facts to enter judgment in favour of the Respondent and not taking into account that the trial tribunal lacked jurisdiction to pass judgment in favour of a party who failed to establish locus standi. 3. That the tribunal erred in law and facts to consider and weight to the evidence adduced by the Appellant despite the fact that the Appellant had good and strong evidence that proved ownership of the land in dispute. 4. That the tribunal erred in law and facts for its gross failure to analyse assess and evaluate the evidence adduced before it, henceforth came up with a wrong decision lending a miscarriage of justice. On those grounds Appellants are pressing upon this court to quash and set aside the decision of the trial tribunal allow the appeal and declare them lawful owners of the suit land. At the hearing of this appeal parties were represented. While the Appellants were represented by Mr Sylvester Respondents were represented by Mr Michael Mteite both learned advocates. The appeal was argued by way of written submissions. Having gone through the records, the memorandum of appeal and submissions of the counsel for the parties, it is apparent to me that Appellants complaints in this appeal can be grouped into two. The first and second grounds of this appeal are hinged on the locus standi of the Applicants/Respondents in instating these proceedings while the third and fourth grounds are on the evaluation of the evidence tendered during the trial. Locus standi is a legal issue which has to be disposed first as it can dispose of the appeal. The party's.submission on the issue of locus were as follows. According to Mr Millanzi the Respondent has no legal capacity (i.e. locus standi) to institute these legal proceedings because there was nothing on the record to prove that the Registered Trustees of Roman Catholic Church Diocese of Mahenge was a corporate body capable of suing and being sued in its corporate name. The learned advocate referred this court to its own decisions in cases of:- 1. Peter Mpalanzi vs. Christins Mbaruka, Civil Appeal No 153 of 2019; 2. Ambassador Secondary School vs. Maxinsurance Tanzania Limited, Civil Case No 93 of 2018(HC), where it was held that a registered body of trustees must establish that it is so registered so as to enable it to sue or being sued in its own name. The learned counsel submitted that the Respondents sued as the Registered Trustee of Roman Catholic Church Diocese of Mahenge without giving evidence that they are actually a corporate body so registered and incorporated to have capacity to sue and be sued. The learned counsel cited the decision of this court in the case of Sabato Melly vs. Registered Trustee of the Seventh Day Adventist Church, Land Appeal No. 64 of 2020 (HC). Responding to Mr Milanzi's submissions Mr. Michael Mteite for the Respondents' submitted in opposition that the dispute between the parties during the trial tribunal was not on whether a church could own the land but who was the rightful owner of the disputed land. Citing Section 9 of The Trustees Incorporation Act [Cap 318 R.E. 2019) and stated that any property acquired by a trustee or any other person under the body or association should be incorporated or registered under the name of the corporate body or association. The learned counsel submitted further that in terms of section 8 of the same Act if an association or corporate body intends to sue another person as it did in this case it is mandatory that the body corporate name should be used. According to Mr Mteite there is only one registered trustees of the Roman Catholic Church in Tanzania which is the Registered Trustees of the Roman Catholic Church. Having gone through rival submissions of the parties, the question for determination is whether the Respondent, the Registered Trustees of the Roman Catholic Church diocese of Mahenge is a legal entity with powers to sue and/or being sued. The term locus stdndi refers to the legal right or capacity to initiate a suit or appear in court. Establishing locus standi is a critical step in any legal proceeding, as it pertains to the competence and party's interest in the case, justifying their right to pursue the claim. There are myriads of authorities emphasizing importance of establishing iocus stand!before court can determine rights of the parties in the subject matter among them are:- 1. The Attorney General v The Malawi Congress Party and Another, Civil Appeal No. 22 of 1996, where the Malawian Supreme Court of Appeal outlined the test for locus stand!. The decision was later referenced in Godbless Jonathan Lema v Musa Hamis & 2 Others, Civil Appeal No. 47/2012, Court of Appeal of Tanzania in Arusha where the court held that:- ''Locus standi is a jurisdictional issue. It is a ruie of equity that a person can not maintain a suit or action uniess he has an interest in the subject ofif thatis to say uniess he stands in a sufficient dose reiation to it so as to give a right which requires prosecution or infringement of which he brings action". In the matter at hand where the Respondents has sued as the Registered Trustees of Roman Catholic Church Diocese of Mahenge, however nothing was produced to establish existence of the said registered trustees so as to assume acquisition of locus to sue and claim over the the suit land. Without establishing the capacity to sue or being sued (i.e. locus standi), the question of ownership of land cannot be resolved. At the trial Pastor Claud Gerald Mbena who testified as PWl produced in evidence minutes of the Ihowanja Village Council Meeting (Exhibit PI) held on 8^^ October 2003. Agenda No 2 of the said meeting reads: AGENDA NO 2 OMBI LA UWAM3A WA KU3ENGA KANISA ''Baada ya Katibu Kusoma barua ya Kutoka Katika Kigango Cha Ihowanja Kuhusu Maombi yao ya kupewa eneo la Kujenga Kanisa ia Roman Catholic wajumbe wallamua dinl hlyo Ipewe eneo la Maljana bondeni na eneo hUo Una eka sabinl tu kwa ajlli ya kujenga Kanisa..../' From the wording of the second agenda which was discussed by the Village Council in that meeting, it was the Ihowanja sub-parish or outstation (Kigango) of the Roman Catholic Church that had applied to the Village council for allocation of a plot of land on which they could build a church. The said Kigango was allocated a piece of land measuring 70 acres. The question that follows is whether the sub-parish of the Roman Catholic Church of Ihowanja which applied for the land and which was given 70 acrse is the same as The Registered Trustees of Roman Catholic Church Diocese of Mahenge which instituted these proceedings?. The answer is no! Under the law it is only a body corporate that can that can apply and acquire property including land. Section 8 of the Trustees Incorporation Act provides that: Upon the grant ofa certificate under subsection (1) ofsection 5the trustee or trustees shaii become a body corporate by the name described in the certificate, and shaii have— (a)perpetuaisuccession and a common seal; (b)power to sue and be suedin such corporate name; (c)subject to the conditions and directions contained in the said certificate to hoid and acquire, and, by instrument under such common seat, to transfer, convey, assign and demise, any iand or any interest therein in such and the iike manner, and subject to the iike restrictions and provisions, as such trustee or trustees might, without such incorporation, hoid or acquire, transfer, convey therein, assign or demise any iand or anyinterest 10 (2) AH conditions and directions inserted in any certificate of incorporation shaii be binding upon and performed or observed by the trustee or trustees as trusts of the body or association ofpersons or under the trustinstrument or deciaration oftrust, as the case may be. The Registered Trustee is a body corporate which possesses the qualities of a person in law, able to own property, sue, and be sued. It follows therefore that even if we assume that the Respondent herein is a body corporate within the ambit of the law, the land purportedly allocated to Kigango cha Kanisa Katoliki cha Ihowanja was not allocated to the Registered Trustees of Roman Catholic Church Diocese of Mahenge, the Respondent herein and does not belong to it. Secondly assuming that the Respondent is a duly registered body, therefore a corporate personality (which is not the case here) there is a question regarding the size of the land purportedly allocated to it by the Village Council. Paragraph VI of the Respondent's Application states clearly that the Ihowanja Village Council allocated to the then Roman Catholic Church outstation (commonly known as Kigango) of Ihowanja a piece of land measuring approximately 70 acres. This assertion was repeated by Pastor Claud Gerald Mbena (PWl) who testified that when 11 the Ihowanja church caused the suit land to be surveyed they discovered that it was 67 acres and not 70 acres which was allocated to it. In terms of Rule 76 (1) of the Village Land Regulations GN No 86 of 2001 the Village Land Council has powers to allocate land not exceeding 50 acres. There is no evidence showing that the alleged allocation was approved by the District Council or the Commissioner as required by that regulation. Similarly in terms of Section 17 (5) of the Village Land Act allocation and occupation of village land by non-village organization requires approval by the Commissioner. The said section provides that:- "On and after the coming into operation of this Act, a non- viiiage organisation which wishes to obtain a portion of Viiiage iand for the better carrying on ofits operations may appiy to the Viiiage Councii for that iand, and the Viiiage Councii shaii recommend to the Commissioner for the grant or refusai ofsuch grant" I have no doubt that the Respondent, the Registered Trustees of Roman Catholic Church Diocese of Mahenge (even if we assume it exists) is a non- village organization and therefore recommendation to the Commissioner for grant was mandatory under the law. That being the case the Respondents could not have been held to have proved her 12 claims that she was allocated seventy (70) acres of land by the Village council and therefore she is the rightful owner thereof. Accordingly the Appeal is allowed. Owing to the circumstances of the matter, I make no order as to costs. A.R. MRUMA JUDGE r\ fJ! 23. 12. 2024 13