omary ally sanya and another vs abdul majid kimaro 2021 tzhclandd 6769 1 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE N0.105 OF 2019 OMARY ALLY SANYA PLAINTIFF RAMADHAN NZOMOKA 2^° PLAINTIFF VERSUS ABDUL MAJID KIMARO DEFENDANT EX-PARTE JUDGEMENT Date ofLast Order: 01.11.2021 Date ofJudgment: 1.12.2021 OPIYO.3. The plaintiffs' claims in this suit are as follows; - a) Declaratory order that the plaintiff is a lawful owner of the farm situated at Miwateni Visiga Village within Kibaha District. b) Perpetual injunction restraining the defendant from interfering with the plaintiff's farm situated at Miwateni Visiga, within Kibaha District. c) Payment of general damage to be assessed by the court. d) Payment of interest on (c) above from the date of judgment until full payment at 125 annual court interest. e) Payment of exemplary damages at 100,000,000/= and any other relief this court will deem fit to grant. Briefly, the dispute is over a land of unknown size, situated at Miwateni, Visiga Village, at Kibaha District within Coast Region. The plaintiffs claimed to have acquired the said land after paying a compensation before Mlandizi Primary Court in Kibaha, in 2006, where it was alleged that in the same year, the defendant trespassed in the suit land and started to remove crops without plaintiff's consent, hence this suit. When the case was filed, efforts to procure the attendance of the defendant proved futile therefore the same had to proceed ex-parte against him. Either, in this case the plaintiffs appeared in person, unrepresented. Three witnesses testified to prove plaintiffs' case, both plaintiffs inclusive. PWl, Ramadhan Athuman Nzomoka testified that, in the year 1975, during operation Vijiji, one Shabani Goliama convinced his friends Athuman Nzomoka and Ali Omary Sanya to move to the area. He gave them a piece of land constituting disputed property, but the Cashew trees remained in his ownership as he still wished to enjoy the proceeds. That Shaban Goliama gave PWl's father about 2.5 acres of land. That, upon the death of Shaban Goliama and PWl's father, one Zainab Shabani Goliama, the daughter of the late Shabani Goliama emerged and claimed the land that was given to PWl's father. That, they approached the elders to resolve the dispute over the said land, where Zainab was told that she cannot claim a land that was already given to PWl's family, however,they were ordered to compensate for the trees her father had planted on the suit land. They were told to pay a total of 250,000/=. Zainab refused to accept the money and decided to file a case at Mlandizi Primary Court. The court advised for a valuation of the trees in the area where the same totaled to 476,870/=. Later the trial magistrate who was handling the matter died before the execution took place. Upon his death, Zainab went to the Court to inquire about her payments where another magistrate executed the order. PWl tendered the decision of Mlandizi Primary Court which was admitted as exhibit PI. He went on to state that, later they paid the compensation in court as per exhibit P2. That, his father died in 1978. Then father to the 2"^^ defendant was called in court to witness handover of the money to Zainab Goliama. That, instead of what he was called for, upon reaching there, he was told to vacate the place, and was surprised as we had already paid the compensation since 2006. That was in 2010, about 4 years after alleged payment. That, after that, the defendant demolished the properties of both Athuman and 2"^^ Sanya. That, after the demolition, PWl and others went to complain to the District Court where Zainab brought a new buyer to the street chairperson. When she was told to bring a proof of ownership of the suit land, she went back to Mlandizi Primary Court. Later they destroyed everything including the evidence of payment of compensation. That, at the suit land they have constructed a petrol station which exists to date. When answering question by the court, PWl insisted that, he is not an Administrator of the estate of his iate father. That, Mfaume Athuman, their elder brother is the one who took the matter on their behalf upon death of their father. That, the case was filed after the death of their father and PWl's brother who was occupying the place was the one who was sued by then. That, the 2"^^ plaintiff is the administrator of the estate of his father, the iate Ally Omary Sanya. The evidence of PWl was well corroborated by that of PW2 and PW3 who narrated the same story almost verbatim. After going through the testimony of the plaintiffs (PWl and PW2), together with that of PW3, along with the exhibits PI and P2 coiiectiveiy, I find myself despondent to declare the plaintiffs as the rightful owner s of the suit land. My reasons are as here under:- Firstly, the plaintiffs have no locus standi to sue or be sued in respect of the suit land. As per the testimonies of ail plaintiffs' witnesses, the land in question once belonged to two persons, namely Athuman Nzomoka and Ail Omary Sanya. They obtained the same from one Shabani Goiiama back in the year 1975 during operation Vijiji. Both Athuman Nzomoka and Ail Omary are now deceased, and the two plaintiffs above are their children. For the plaintiffs to have the power to sue jointly in respect of the estates of their late fathers, both were supposed to be the appointed administrators their estates. That status should have been reflected in the plaint and the records of this case. As of now, they appear to be suing in their personal capacity. In the records there is letters of administration of the estate of Ally Omar Sanya to Omary Ail Sanya who is the first plaintiff herein. That means the first plaintiff was the administrator of the estate of his father. His capacity to sue therefore could have cleared, but not jointly with the second defendant. This is because, the claim has been jointly made requiring capacity of both plaintiffs to be also determined indivisibly. That required both to have the necessary locus to sue as the court could not determine individual right of each which is not provided. Had it been that the claim was separately presented, only locus of the second defendant could have been in question. Therefore, because of the joint claim, locus of both comes to question. The word locus standi\NdiS well defined by the Court of Appeal of Tanzania in Lujuna Shubi Balonzi Senior v. Registered Trustees of CCM (1996)TLR 2013, where it was observed that, "Locus stand! 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..." See also the case of Mrs. Halima Mchora v. Robert Edward Hindi and two others. Land Case No. 322 of 2014, High Court of Tanzania (unreported). Since it has already been settled that, the issue of locus stand!\s vitally important as far as institution of cases in courts of law is concern, save for constitutional litigation or to any other matter of public interests see, Magambo J. Masato & Others vs Esther Amos Bulaya & Others, Civil Appeal No.l99 of 2016, Court of Appeal of Tanzania,(unreported), this court will not turn a blind eye in the application of this rule as far as the instant suit is concerned. This means, the present case must fail on that reason. Secondly, the plaintiffs would have established that personal interest, locus stand!, to the property by proving payment of compensation for the property after the death of the original owners, but there is no tangible evidence to prove the assertions by the plaintiffs that they did pay the compensation to Zainab Goliama. The exhibits tendered, PI and P2 are not sufficient to prove that the compensation was paid. Being the plaintiffs, the burden of proof as per section 110(1) of the Evidence Act, Cap 6 R.E 2019, to prove the existence of the said facts was on the two of them. Failure of which their case must fail as their evidence is not heavy enough to convince this court to decide on their favor personally in exclusion of their late father's estate see Hemed Said versus Mohamad Mbilu, (1984), TLR 113. It was therefore again important to prove personal iocus stand!, before proceeding with the matter in their personal capacity as they did. Lastly, is the absence of a necessary party in this suit, that is Zainab Goiiama. Being the person who sold the suit land to the defendant, her absence in the presence suit is fatal. This court cannot pass an effective decree without her being joined in the case. This is long settled that an absence of a necessary party is a fatal defect that leads to the failure of a plaint in court, see Juma B. Kadala versus Laurent Mnkande, (1983), T.L.R. it is known to the plaintiffs that it is Zainab Goliama who sold the suit property to the defendant, therefore defendant is not the unknown trespasser as they claim. It was therefore important to join Zainab who had to prove whether she was compensated or not and why she proceeded to sell then property after compensation, If at all. This makes her the necessary party whose absence is fatal to any proceedings. In the case of Tang Gas Distributors Ltd versus Mohamed Salim Said and Two Others, Civil Application No. 6 of 2011, (unreported), it was held that:- "It is now accepted principle oflaw(see MULLA's treatise(supra)at pa.810)that it is a material irregularity for a court to decide a case in absence of a necessity party, therefore, is fatal (MULLA at p. 1020)." For the foregoing reasons, the suit is struck out with no order as to costs. M.P.OPIYO, ■' / i -ii \ V-'-i I , I ;l u Ife ii JUDGE ■/ ' ' 1/12/2021