final Ruling PETER NATHAN NJAU AND ANOTHER TANZLII

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI CIVIL CASE NO. 19917 OF 2024 PETER NATHAN NJAU…………………………………………………1ST PLAINTIFF BERNAD NJAU………………………………………………………….2ND PLAINTIFF VERSUS MINISTER PRESIDENT'S OFFICE, REGIONAL ADMINISTRATIONS AND LOCAL GOVERNMENT……………….1STDEFENDANT CHAIRMAN OF THE INDEPENDENT NATIONAL ELECTION COMMISSION…....……………………………………...2ND DEFENDANT MOSHI MUNICIPAL COUNCIL.………..……………………………3RD DEFENDANT MOSHI DISTRICT COUNCIL.………..………………………………4TH DEFENDANT KIKARARA VILLAGE COUNCIL.………..…………………………...5TH DEFENDANT ATTORNEY GENERAL.…………………………………………………6TH DEFENDANT RULING 11th October & 13th December, 2024. A.P. KILIMI, J.: The plaintiffs hereinabove being senior residents of Kikarara Village, within Old Moshi Mashariki Ward in Moshi District are suing all the defendants mentioned above praying for a Judgement and Decree of this Court on the following reliefs; First, this court to declare that the alteration of the boundaries of Kikarara Village did not follow the legal procedures 1 stipulated in the law; Second, This court to declare the actions by Defendants to act on alteration of borders of Kikarara Village went against a valid Court Order; Third, this court to declare that the alteration of the borders of Kikarara Village is void and of no legal effect; Fourth, this court to order the Defendants to use the original boundaries of Kikarara Village unless and until the 1st Defendant comply with the procedures stipulated by the laws; Fifth, the 2nd Defendant be ordered to observe and conduct their duties in all the upcoming election by adhering to the original boundaries of Kikarara Village unless and until the legal process to alter the boundaries is complied with, and any other order that the this Court may deem fit to grant. When the above claims were communicated to the defendants through plaint filed in this court, all defendants filed a joint written statement of defense ‘WSD’ together with the notice of three preliminary objection on point of law to the effect that: one, That this court, seized as ordinary civil court, has no jurisdiction to hear and determine this suit; Two, the Plaintiffs do not have cause of action against the Defendants and/or the suit is unmaintainable; and third, the Plaintiffs do not have locus standi to bring this matter against the Defendants. 2 However, remarkably the fifth defendant despite of being inclusive under the domain of the superior defendant hereinabove, opted to file her separate written statement of defence wherein at paragraph ten supported claims sought by the plaintiffs. When the said objections were ready for hearing before me, the plaintiffs enjoyed the service Mr. Deogratias Matata Peter learned advocate whereas the defendants were represented by Mr. Deodatus Nyoni Principal State Attorney assisted by Ms. Jeska Shengana PSA, Messrs. Sifael Kulanga and Lucas Myula both State Attorneys. Mr. Nyoni commenced with the first objection and argued that this court has no jurisdiction to determine this matter, to substantiate his assertion he urged this court to look paragraphs 11 and 13 then commented that the plaintiffs are challenging an administrative bodies decision which did alteration of boundaries of their village. Thus, they aimed to question administrative actions which does not fall under a branch of ordinary civil suit. 3 Still protesting the presence of this matter in this court, Mr. Nyoni argued that this being a plaint under the above facts cannot be gauged in terms of limitation to see whether is proper before this court, Mr. Nyoni expounded that their claims are neither for compensation nor for recovery of land upon the laws for time limit. He was of the view that plaintiff ought to have brought their matter by way of Judicial Review, to bolster his stance the Mr. Nyoni invited me to see the case of Elieza Zakharia Mtei and 12 others vs. AG and 3 others Civil Appeal No. 177 of 2018 CAT at Arusha. Hence concluded that under the circumstances this court has no jurisdiction. In regard to second objection, Mr. Nyoni bluntly argued that there is no cause of action against defendant. He then explicated that to establish cause of action the plaintiff must be able to show that their rights have been violated. He then compared with this matter and contended that the plaintiffs have not shown what rights have been violated and since those facts are not stated, it is not easy to gauge whether it is tortuous, trespass to land, or compensation matters so as to measure limitation in law on how and when may be adjudicated. Thus, Mr. Nyoni in his view above concluded that the plaintiffs have no cause of action against the defendant 4 and to support his stance referred the case of Auto Garage and others vs. Motokov (1971) 1 EA 514. Lastly on third objection, Mr. Nyoni attacked the plaintiffs to initiate this matter without having locus stand, He expounded his assertion by submitting that the plaintiffs have not shown their interest or rights that have been interfered in order to bring this matter in this court. For instance, he argued that they did not say whether they had a contract or defendants have trespassed their land. To strengthen his argument he invited me also to see the case of Peter Mpalanzi vs. Christina Mbaruku (Civil Appeal 153 of 2019) [2021] TZCA 510 (TANZLII) and Lucia Shubi Ballonzi vs. Registered Trustees of Chama cha Mapindunzi (1996) TLR 203. Therefore, he urged this court to see plaintiff have no locus stand thus their plaint be dismissed in its entirety with costs. Responding to the above objections, Mr. Matata for the plaintiffs initially alerted this court that in the joint WSD filed by the defendant specifically at paragraph 4, 7, and 8 they have averred that there is no any alteration of boundaries regarding to the 5th defendant. Mr. Matata further rebutted the first objection and boldly argued that this Court has 5 jurisdiction to entertain this matter and cannot follow the realm of judicial review because there is no decision which has been made by the Minister. Mr. Matata then expounded his stance that since there is no decision made by the administrative body to be challenged as stated on paragraph 4,7 and 8 of the joint WSD thus, they cannot bring the matter of judicial view, but on the ground, there is alteration of the boundaries which is something to be challenged and shown by evidence in this court that the boundaries of Kitarara village have been altered, therefore that is why they have sought to move this court normally since the same did not qualify for judicial review. To buttress his stance the counsel referred the case of Msafiri more and 22 vs. Morogoro District Council and Another Civil Case No. 6 of 2023. Rebutting the second objection, Mr. Matata argued that the first plaintiff as embodied from the first paragraph shows that they are residents of Kitarara village, which means they are concerns with issue of illegal alterations of their village as residents. He submitted that the villagers have interest as it can be gleaned from paragraph 1, 8, 16, 17 and 18 which shows villagers sufferings as they were not allowed on the village elections due to the said alteration of boundaries. 6 In respect to the third objection, Mr. Matata vehemently responded that as per paragraph 16 and paragraph 17 plaintiffs have averred on troubles facing their village and as ordinary members of the said village they are also affected, thus being among the villagers, they are concern with the life and that of other residents due to the effect of said illegal alteration of boundaries. The learned counsel for plaintiff further argued that no objection was raised on limitation of time therefore he cannot respond on it thus prayed the same be expunged. Lastly Mr. Matata urged this court to take notice that according to WSD by the 5th defendant, they concede with the plaintiffs’ claims and prayed the same be granted. In a brief rejoinder Mr. Nyoni contention was that since the claim was of the whole village, the issue of locus comes in as plaintiff could have brought this matter under the representative suit. Further in responding to the issue of time limitation, the Principal State Attorney argued that the same was not raised as a preliminary objection but commented that this matter could have been brought in another way such as representative suit, thus the case could have been decided differently. Mr. Nyoni further responded to the concern of Elections that it was a different matter which has its own parameters to be guided during election. Thereafter in 7 conclusion he pointed out that the plaintiffs under paragraph 11 of their plaint averred that there was a decision of the administrative body therefore this court have no jurisdiction thus reiterated his prayer this matter be dismissed with costs. Having highlighted the rival submissions above, it behooves me to determine the raised preliminary objections, but before delving into them I am guided by principle that in order for the preliminary point of objection to stand, the point concerned must raise a pure point of law which is argued on the assumption that all the facts pleaded by other side are correct. It cannot be raised if any fact is to be ascertained or in what entails the exercise of judicial discretion. See Hezron Nyachiya vs. Tanzania Union of Industrial and Commercial workers 11 and others, Civil Application No. 79 of 2001 (Unreported) and Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors Ltd. [1969] E.A. 696. I wish to start with the first objection which claims that this court has no jurisdiction to entertain this matter, I am mindful the question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature, thus the question 8 of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be aware of it. (See Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & 2 Others [1995] T.L.R. 155. Therefore, when raised like in this matter the same should be settled first. In this objection, briefly the defendants claimed that the plaintiffs are seeking to challenge the decision of administrative body thus the proper forum was a judicial review and not a normal suit. They relied on paragraph 11 of the plaint whereas the plaintiffs’ counsel claimed the same cannot be the course of this matter because there is no decision which has been made by administrative body. In the view of above arguments, it has prompted my mind to know whether there is any decision by the said administrative body. The same has instigated me to inspect the pleadings which in my opinion when looked apparently the same may be settled. In the Registered Trustees of Roman Catholic Archdiocese of Dar es salam Civil Appeal No. 158 of 2015 (unreported) the Court had observed as follows on the importance of pleadings: "In civil litigation, it is through pleadings where parties establish their cases before adjudication. In that context therefore, 9 pleadings are road map which should show the destination the parties to the case intended to reach..." According to paragraph 11 which was alleged by Mr. Nyoni which shows that there is administrative decision, for the sake of clarity the same provides; “11. That immediate after the decision stated in paragraph 10 hereinabove, the 3rd and 4th Defendants complied with the Court Order by maintaining the original boundaries of the Village, that was until 10th of July 2019 when the Honorable District Commissioner of Moshi District made an oral announcement at a public meeting that part of the area of the Village was now the area of the 3rd Defendant.” In my view, on the face of the above pleaded facts by the plaintiffs need to be ascertained to know whether it was administrative body decision or not. Thus, I am settled under the circumstances of this matter relying on the point that this court has no jurisdiction because there is a decision of administrative body remains wanting, therefore in the premises the same cannot be a pure point of law as envisaged by the authorities above. In 10 Karata Ernest vs Attorney General, Civil Revision No. 10 of 2010 (unreported) where the Court of Appeal stated; "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 arise by clear implication out of the pleading, Obvious examples include, objection to the jurisdiction of the court; a plea of limitation…..” [Emphasis supplied] For the foregoing stated, I dismiss this point of preliminary objection for want of merit forthwith. Next, for the reasons to be known later I now jump the second objection and now landing on the third objection, the interesting story in the arguments of Mr. Nyoni in this objection is that the plaintiffs have not shown their interest or rights that have been interfered in order to bring this matter to this court and added ought to have brought this matter under a representative suit. Whereas Mr. Matata as the plaintiffs’ counsel 11 averred in their plaint being the members of the said village are affected as other members of the village for the acts of the defendants. Before delving internally on this objection, I wish to state that I am aware that locus standi conveys a principle which a person bringing a matter to court should be able to show that his or her right or interest has been interfered with. See for instance the cases of Lujuna Shubi Ballonzi Senior vs. The Registered Trustees of Chama Cha Mapinduzi [1996] T.LR. 203, The Registered Trustees of SOS Children's Villages Tanzania vs. Igenge Charles & 9 Others, Civil Application No. 426 of 2018 [2022] TZCA 428 and Malietha Gabo vs. Adam Mtengu, Civil Appeal No. 485 of 2022 [2023] TZCA 17318.To mention few. I am highly motivated by the decision of the court when described this principle in the case of The Registered Trustee of SOS Children's Villages Tanzania v. Igenge Charles & 9 Others, Civil Application No. 426/08 of 2018 (unreported), when borrow a leaf from the Supreme Court of Malawi's decision in the case of The Attorney General vs. Malawi Congress Party & Another, Civil Appeal No. 32 of 1996 and observed: "Locus standi is a jurisdictional issue, it is a rule of equality that a person cannot 12 m aintain a suit or action unless he has an interest in the subject of it, that is to say, unless he stands in sufficiently close relation to it so as to give a right w hich requires prosecution of infringem ent of which he brings the action." [Emphasis supplied] According to the plaint, plaintiffs aver that they are natural persons and residents of Kikarara village, at paragraph 8 of their plaint they further aver that their claim against the Defendants is for illegal alteration of the boundaries of Kikarara Village without following the legal procedures and in breach of a valid Court Order. Now the next point I should consider is whether under the said circumstances the plaintiffs’ right or interest have been interfered with. As alluded by Mr. Matata, he has endeavored to show that in respect to paragraph 16 and 17 plaintiffs, other villagers who are residing at the boundaries between the village and the 3rd defendant are affected by the said alteration of boundaries done by the defendants, for instance some of the villagers in that areas were not allowed to participate in the Local Government election of 2019. 13 According to the above facts pleaded, there is no dispute that the plaintiffs did not separate their claims as individuals and the claims of other/fellow villagers residing on the disputed area thus in my considered view I have failed to draw the line between themselves and the other members of the village. In my view, I think since the plaintiffs have sued as individual persons ought to have shown the breach of their right by the defendants as individuals in their person capacity and not to generalize with other members of the village whom they had no legal capacity to represent them in this court of law. Thus, they cannot under that capacity maintain the right of other members of the said village and prosecute for the infringement of their right if any. Be it as it may, according to the pleadings above as said requires to show guidance, apparently does show their relation with the subject matter they endeavored to establish, but since in it the reliefs sought will affect other village members, in my view their interest ought to have shown apparently through pleading that there are also represented. I am also 14 fortified by the holding of the court in the case Peter Mpalanzi vs Christina Mbaruku (Civil Appeal 153 of 2019) [2021] TZCA 510 (TANZLII) when the court observed that; “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.” In the circumstances, I am constrained to agree with the submission made by Mr. Nyoni that, the plaintiffs have no locus standi to institute the case against the respondent in her own names and capacity. For the reasons I have given above, I find that the Plaintiffs had no Locus standi to sue the Respondents over the said subject matter, thus I find this third objection raised is meritorious thus sustained. In the premises, it is my finding that having determined this third objection in the foregoing manner, I find it suffice to dispose this matter therefore no necessary of considering other remaining objection which in my view has been rendered redundant and inconsequential. Consequently, 15 I hereby struck out this case forthwith. Having considered the circumstances of this matter, I order each party to shoulder his/her own costs. It is so ordered. Dated at Moshi this 13th day of December, 2024. X JUDGE Signed by: A. P. KILIMI Court: Ruling delivered today on 13th day of December, 2024 in the presence of Mr. Deogratius Matata learned advocate for Plaintiffs, Mr. Moses Muyingi assisted by Mr. Lucas Myula both Learned State Attorneys, also first Plaintiff present in person. Sgd; A. P. KILIMI JUDGE 13/12/2024 16