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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISC. LABOUR APPLICATION NO 4467 OF 2024 (Originating from Labour Execution No. 12 of 2021 in the High Court of Tanzania at Mbeya) MAURICE SELEMANI MWAMWENDA (Personal Legal Representative of the Estates of the Late Professor TUNTUFYE SELEMANI MWAMWENDA)..………………………………… APPLICANT VERSUS RASHID NDITI……………………………..…………………….…...... 1ST RESPONDENT MUSA MOHAMED MNASI……..……………………………………… 2ND RESPONDENT MR. EUGEN TEMIGUNGA T/A FAGIO COURT BROKER………… 3RD RESPONDENT RULING Date: 15 November 2024 & 10 January 2025 SINDA, J.: The applicant brought this application under Section 94(1)(d)(f)(ii) of the Employment and Labour Relations Act [Cap. 366 R.E 2019] (the ELRA), Rules 24(1)(2)(a)(c)(d)(e)(f) of the Labour Court Rules, GN No. 106 of 1 2007 (the Rules), Section 24 (2) of the Law of Limitation Act, Cap. 89, R.E 2019 (the LLA) and Order XXI Rule 88 and Section 95 of the Civil Procedure Code, Cap 33, R.E 2019 (the CPC). He is praying before this court, inter alia, to grant his application for enlargement of time within which to lodge an application for setting aside sale of Plot No. 1350 Block “M” New Forest Area in Mbeya City (the Disputed Property) on grounds of irregularities and fraud out of time prescribed under the law. Upon being served with the said application, the second respondent filed a counter affidavit together with a notice of preliminary objection (the P.O) with two grounds. To wit: 1. That, the applicant has no locus standi in this matter 2. The application is brought before this court by another person who has never been a party in the Labour Execution No. 12 of 2021. It is thus upon this court to determine the P.Os put forth, before deciding whether or not to continue deciding on the application. At the hearing of the P.O, the applicant was represented by Mr. Augustino Mahenge, learned counsel. The second respondent was represented by Mr. 2 Bosco James Mdoe, learned counsel. The first and third respondents did not enter appearance. In his submission in chief, Mr. Mdoe argued both limbs of the P.Os together. The counsel submitted that locus standi is a right or legal capacity to bring an action or to appear in court. That, it is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Supporting his argument, he cited the case of Peter Mpalanzi vs Christina Mbaruka, Civil Appeal No. 153 of 2019 (Unreported) which referred to the case of Godbless Lema vs Mussa Hamis Mkanga & 2 Others, Civil Appeal No. 47 of 2012 (Unreported). And that of Gervas Masome Kulwa vs Returning Officer & Another [1996] TLR 320. Also that of Lujuna Shubi Ballonzi vs Registered Trustees of Chama cha Mapinduzi [1996] TLR 203. He added that although the applicant is the personal legal representative of Professor Tuntufye Selemani Mwamwenda (the Deceased), the Deceased had never owned the Disputed Property, which is the subject matter of the applicant’s application. The counsel continued that the Deceased has also never been a party in Labour Execution No. 12 of 2021 which ordered the sale of the Disputed Property. Therefore, the applicant lacks locus standi. 3 In his reply submission, Mr. Mahenge began his argument by citing the case of National Insurance Corporation of Tanzania Ltd and Another vs. Shengena Ltd, Civil Application No. 20 of 2007, Parastatal Sector Reform Commission vs Shengena Limited, Civil Application No. 02 of 2007, AND Mukisa Biscuits Manufacturing Company Ltd (1969) E.A 696 on the definition of a preliminary objection. In defending his position as the representative of the Deceased, the applicant cited section 24 (2) of the LLA and the case of Josiah Balthazar Baisi & 138 Others vs Attorney General & Others [1998] TLR 331, where it was held, among other things, that locus standi has been expanded to include sufficient interest, so that anyone with sufficient interest may seek a remedy on behalf of others who are also injured. He quoted the case of Samson Mwambene vs Edson James Mwanyingili [2001] TLR 1 to support his argument. He continued that whether or not sufficiency of interest has been established is a matter that is within the discretion of the court. From the above provisions, the applicant was of the view that the ones who could rightfully challenge his locus standi are family and clan members because they have an interest in the suit, and not the second respondent. 4 The applicant further refuted the second respondent’s contention that he has no locus standi because he was not a party to the execution proceedings. He was of the view that the applicant has interest in the matter because he is a family member and legal representative to the estate of the Deceased. Hence, he has an automatic interest towards any issue concerning the Deceased. Addressing the second limb of the P.O., the applicant claimed that the first and second preliminary objections are almost similar. He, however, made a comment on the respondent’s argument that the Deceased never owned the Disputed Property. In reply, the applicant impliedly submitted that the execution is against Mlima Mbeya Secondary School, which he is representing. Winding up his submission, he termed the second respondent’s preliminary objection to be premature. He urged this court to deal with his application for extension of time. The second respondent did not file any rejoinder. Having gone through submissions from both parties, I will proceed to determine whether the P.Os raised have merit. In doing so, I too will discuss both limbs of the P.Os together. 5 To begin my deliberation, I believe it is appropriate at this stage to determine whether or not objections raised qualify to be preliminary points of objection. The case of Mukisa Biscuits Manufacturing Company Ltd vs West end Distributors Ltd (Supra), defined what a preliminary point of objection is and prescribes when it can be raised and when it should not be raised. It was stated: "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion" Also, see the case of Karata Ernest & Others vs The Attorney General, Civil Revision No. 10 of 2010 (unreported). The relevant part states that: "At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only consists of a point of law which has been pleaded or which arises by dear implication out of the pleadings.” In a nutshell, from the above-cited cases, a preliminary objection must consist of a pure point of law, which emanates from the pleadings and cannot be raised if any of its facts have to be ascertained. 6 The two raised objections in the matter at hand revolve around the principle of locus standi. Simply defined, locus standi is the right or legal capacity to bring an action or to appear in a court. In the case of Peter Mpalanzi vs Christina Mbaruku (Supra), it was said: “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 (unreported). ……Further, locus standi is a point of law rooted into jurisdiction. It is for that reason that it must be considered by a court at the earliest opportunity or once it is raised. In the instant case, the High Court Judge, was, with respect, wrong when he brushed aside the issue of locus standi once raised before him.” From the above, the applicant's averment that the P.O was brought prematurely dies a natural death. Mainly because the issue of locus standi being a point of law, can be raised at any stage during a case or alternatively, should be dealt with at the earliest convenience once it has been raised by either party to the case. As for the pleadings and submissions, particularly of the second respondent, the foundation of his claims is that the applicant has no interest in the 7 matter and the Deceased has never been the owner of the Disputed property. In paragraph four (4) of the second respondent’s counter affidavit, he stated and I quote: “The contents of paragraph 6 of the affidavit by the applicant are noted to the extent that the warrant of attachment only attach the property of the one MLIMA MBEYA SECONDARY SCHOOL for the fulfillment of the fruits of the decree by the court and that property has never been owned by deceased one TUNTUFYE SELEMANI MWAMWENDA going further the applicant has even never attach any document to prove that the deceased is the owner of the said property, as a court record we pray this honourable court go through the LABOUR EXECUTION NO 12 OF 2021 filed at HIGH COURT OF MBEYA which we will us as annexure BAISTAR O1 the leave is craved to form party of this affidavit. That being the case, and from the above quotation, it goes without saying that all factors surrounding locus standi as raised by the second respondent need to be ascertained. Thus, evidence should be provided from both sides to prove whether or not the applicant, in his administrator of the estate, has an interest in the matter. Likewise, whether or not the Deceased was the owner of the Disputed Property. As a result, the circumstances of the P.O. raised go contrary to what was elaborated in the case of Mukisa Biscuits Manufacturing Company Ltd vs West end Distributors Ltd (Supra) and that of Karata Ernest & 8 Others vs The Attorney General (Supra). The two cases plainly provided, a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. Accordingly, the pleadings as they are, should be enough to show whether the applicant has locus standi to bring the matter or not. From the foregoing, I find both limbs of the P.O to be futile. I will proceed to hear the application for enlargement of time as put forth by the applicant. This preliminary objection is hereby struck out with no order as to costs. It is so ordered. DATED at MBEYA on this 10 day of January 2025. A. A. SINDA JUDGE 9