20160919 TZHC Mbeya

) - IN THE HIGH COURT OF TANZANIA

ATMBEYA LAND APPEAL No. 8/ 2015 MANFRED LAMS MWASEKELE ................................. APPELLANT

VERSUS SAMSON FttA1Afv1KUF1BI .....................................P. RESPOF1DE11

JUDGMENT 09.09.2016 & 19.09.2016. CHOCHA, 3. Marfred Lams Mwasekele and Samson Mwamkumbi featured before the trial tribunal as the applicant and respondent and subsequently before this court as the appellant and respondent respectively. The respondent's status was maintained because the applicant lost during the trial before he came here for his appeal. Although the parties' names are as indicated on the record they did not themselves physically feature. The physical prosecution of the dispute was by Jonas Mwansasu and AkimuMwakisulu respectively who featured as recognised agents. Unlike during the appeal where both parties were fully represented by the learned counsels, it was the respondent only who had legal services during the trial. The applicant/appellants reliefs during the trial are. hereunder restated:- AT "(1) Tribunal declaratory order against the respondent for evacuation (sic) of the suit land and right of possession of land to the applicant. Costs of this suit Any other relief that the tribunal may deem just' According to the pleading, the respondent is alleged to have trespassed onto the land measuring 2/ 4 acres worth Tshs 7 m/=. The evidence during the trial was fabulously incompatible with the statement on the application with regard to what was being contested for. Whereas the particulars in the application shown that the contest was over a piece of land

measuring 2 1 /4 acres, the evidence was to the effect that the dispute was over the boundary. Upon its inspection of the 'Yocus in quo' thetrial tribunal established that the dispute revolved on the land measuring 29 X 37 X 227 paces which it found to be the respondent's property thereby dedaring him not a trespasser. The trial court had earlier disqualified the applicant's tYocus standi' It contended that the applicant had not established as he had contended, that he was suing as an administrator of the estate. It found that the applicant had not produced any letters of appointment. The trial court's decision sparked into an appeal containing three grounds herein under conveniently summarised. That the trial tribunal should have advised the parties to join in the suit the suitland purchasers. That there was a failure on the party of the tribunal to properly analyse evidence, thereby; Erroneously awarding to the respondent a suitland. I p1 The .trial tribunal's findings, especially a "locus standi" issue raises a pertinent question to address which though not taken up by parties in this appeal, it cannot be left in abeyance. Basing on the evidence, the trial tribunal found rightly so, that the suitland which the applicant was chasing was a family land as is clearly put in the applicant's application that since his father's death in 1955; "the land was under the family care and

that I am the head of the estate ' When the trial tribunal raised a "locus standi"issue it was in other words questioning the applicants "riiht to bring an action" before it, for him "to be heard' (See Black Law Dictionary). in LUJUNA SHUBI BALLONZI, SENIOR V. REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI - (1996) TLR 203 Samatta JK (as he then was) put it this way:- "Locus standi is governed by common law according to which a person bringing a matter court should be able to show that his ri'ht or interest has been breached or interfered with ' Hon Samatta remark that "locus stand!" is governed by common law is substantiated in RE ST LUKE'S CHELSEA (1976) I ALL ER as well as RE CHESTERFIELD cATERING CO LTD (1976) 3 All ER. The petitioner's threshold in all matters is the duty to demonstrate interest in the subject matter which is why in St Luke (supra) some petitioners were denied right to petition: "unless they can establish a sufficient and relevant interest they have no locus standi in this court' ) So, tstablishment of interest is a number one qualification to the "locus standi' How would the appellant establish his locus standi. Locus standi would normally be determined by the nature of the subject matter involved in a suit vis a vis the potential petitioner's status. It makes a difference where a petitioner is personally physically both interested and linked with the subject

matter. A petitioner whose interest over a subject matter accrues by virtue of administration of the estate for example, even where he is the only heir and potential administrator, he does not perform the job quietly. The law requires him to be duly appointed and or certified by court (after clan nomination if applicable) to administer the estate. That is a very simple additional evidence of expression and establishment of interest. The trial tribunal found that this evidence was lacking from the appellant. The question arising is whether, having so found, there was before it any application to try. The issue is fairly simple. An incompetent petitioner cannot beget a competent petition. The petitioner's petition before the trial tribunal was under the circumstances, and the trial tribunal ought to find, that it was equally incompetent. What should the tribunal do? That finding amounts to a preliminary point for which the tribunal ought to end at that. The trial tribunal was erroneously astray when it purported determined the parties' reliefs sought, which are based on an incompetent application for simple logic that the prosecutor was as well incompetent. That part of the trial tribunal's judgment purporting to determine the parties' rights on merits cannot be left to stand. In exercise of revisionary powers in line with the F / F ii. prodsJons of s. 79 of the Civil Procedure

Code Cap 33 RE 2002, the trial tribunal's awards of parties reliefs on merits is quashed and orders set aside. The finding that the applicant/appellant was without /ocus standi" when he purportedly prosecuted the claim, is sustained. The applicant's status at the time of prosecuting the claim as now established, necessarily renders the application incompetent. It is struck out. Having struck out the application, the trial court's proceedings and part of its judgment to the extent hereinabove demonstrated, follow the suit. That renders this appeal without fulcrum to stand. It is quashed. In view of the nature of the cause of theconsequence, each party to bear his costs. • . •.c) :•'; Ni.ca / Judge w;;. Y•'' - \\ r••, • -' 1909.2016 Coram: N.P.Z. Chocha, J. Appellant: Present. For appellant: Magreth Antony - Advocate. Respondent: Absent. For Respondent: Ms Magreth for Mr. Luvinga - Advocate. Court: Judgment delivered. Order: Right of Appeal Explained. NFZ. doft a Judge 19.09.2016 5