raiti mohamed changambere vs salama miraji fundi another 2022 tzhclandd 12647 29 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 57 OF 2022 (Originating from Land Appeal No. 15 of 2019 of the District Land and Housing Tribunal of Mkuranga and the decision of Mkuranga Ward Tribunal in Shauri Na. 13 of 2018) RAITI MOHAMED CHANGAMBERE ......................... APPELLANT VERSUS SALAMA MIRAJI FUNDI ..................................... 1st RESPONDENT MBARAKA MIRAJI FUNDI ..................................... 2nd RESPONDENT JUDGMENT Date of last Order: 28.11.2022 Date of Judgment: 29.11.2022 A.Z. MGEYEKWA, J This is a second appeal; it stems from the decision of the Ward Tribunal of Mkuranga in Shauri Na. 13 of 2018 and arising from the District Land and Housing Tribunal for Mkuranga at Mkuranga in Land Appeal No. 15 of i 2019. The material background facts to the dispute are briefly as follows; Salama Miraji Fundi and Mbaraka Miraji Fundi, the respondents herein instituted a case at Mkuranga Ward Tribunal against Raiti Mohamed Changambere. The respondents claimed that they are the lawful owner of the suit land which they inherited the same from their late father. They alleged that the appellant trespassed on their piece of land measuring one acre. On his side, the appellant claimed that he bought the suit land from Khadija Omari Fundi in 2004. The trial tribunal decided the matter in the favour of the respondents. Aggrieved, Raiti Mohamed Changambere appealed to the District Land and Housing Tribunal for Mkuranga at Mkuranga vide Land Appeal No. 15 of 2019 complaining that the trial tribunal faulted itself to decide in favour of the respondents. The District Land and Housing Tribunal decision did not please the appellant, hence, she decided to challenge it by way of appeal before this court on one grounds of appeal as follows: - 7. That the District land Housing Tribunal erred in law and in fact by accepting that the respondents had the right to sue in the Ward Tribunal while they are not the owners of the disputed parcel of land. According to evidence, the land belongs to one Askof. Hence 2 the respondents had no locus stand. Hence, this honourable court is invited to quash and set aside the decision of both, the District Land and Housing Tribunal as well as the Ward Tribunal. When the matter was called for hearing on 02nd November, 2022, both parties appeared in person. The Court acceded to the parties’ proposal to have the matter disposed of by way of written submissions. Pursuant thereto, a schedule for filing the submissions was duly conformed to. In support of the appeal, Ms. Raiti contended mainly that the respondents from the very beginning had no legal capacity to sue the appellant because it was evidenced from the court records that the disputed land was sold to one Askofu. For that main reason, he stated that it was Askofu who had locus stand to sue the appellant and not the respondent. To support her submission, she referred this court to the testimony of Omari Fundi Umbwaga, on page 12 and 13 of the Ward tribunal proceedings whereby Omari Fundi testified to effect that the disputed land had been sold from the respondents to one Askofu. The appellant went on to submit that after realizing the interference of the appellant the respondents came front and claim ownership over the disputed land which belong to Askofu. In conclusion, the appellant urged this Court to quash and set aside the Judgments of both tribunals and allow the appeal. 3 On the other side, the respondents contended that both the trial tribunal and appellate tribunal were correct in reaching their decision in favour of the respondents because the appellant only purchased the 4 acres from Khadija Fundi and not more than as alleged. They submitted that although Askof was not a party nor a necessary party to the case. They insisted that nowhere is proven that the suit land had been sold to one Askof, to state that the respondents had no locus stand. In collusion, the respondent beckoned upon this Court to find that the appellant had failed to prove his ownership over the suit property. They urged this Court to uphold the decision of the tribunals. In rejoinder, the appellant reiterated his submission in chief. Having gone through the submission of the parties and court records, it would appear to me that in the sole ground of appeal the issue for determination is whether the respondents had locus stand to sue the appellant. I have perused the Court records and found that Omari Fundi Humbwaga, the alleged vendor of the suit land testified that Askof sold the suit land to the respondents. For ease of reference, I reproduce part of his testimony as stated on page 12 and 13 of the Ward Tribunal’s proceedings as hereunder:- 4 “...mama Raiti alikuwa anaelekea nafasi ya shamba la Watoto wangu Ho shamba la Watoto wangu aliuziwa ndugu askofu na baada ya kuuziwa muda si mrefu ndugu Askofu aliweka nguzo za mipaka kwa arama zile Bi Raiti alizing’oa nguzo na akidai He sehemu ni ya kwake na mimi tulivyofanya mauzo na yeye iyo sehemu sijawai kumuuzia baada ya kutokea mgogolo uwo uyu mnunuzi wa Watoto wangu a kin a Salama tulikuja kuwaomba kutetea hiIo shauri kwenye baraza lililopita... [Emphasis added]. From the above excerpt, it is revealed that the respondents sold the disputed land to one Askof, thus, the respondents were called back to rescue the situation after the appellant invaded the boundary of Askofu’s plot. It seems Askof had no capacity to face the appellant hence he decided to involve the respondents. Moreover, Omari Fundi Humbwaga (SM2) testified to the effect that the respondents had passed their title to one Askof hence, the respondents could not sue the appellant. See the case of Antony Leonard Msanze & Another vs Juliana Elias Msanze & 2 Others, Civil Appeal No. 76 of 2012, the Court of Appeal of Tanzania held: - “...the appellants had no cause of action and locus standi in the Land Case No. 26 of 2010. 5 ‘For the above reasons, we allow the appeal and we accordingly quash and set aside the Judgment of the High Court delivered on 26/9/2011.” Applying the above holding applies squarely in the matter hand where the respondent had no cause of action and locus standi to sue the appellant. I have examined the District Land and Housing Tribunal records and found that the issue of locus standi was among the grounds for appeal. The Chairman was required to determine the issue of locus stand because the same establishes the case, unfortunately, it was overlooked by the appellate tribunal Chairperson. In the upshot, I proceed to quash and set aside the trial tribunal and the appellate tribunal Judgment and decree and allow the appeal without costs. Order accordingly. Dated at Dar alaam this date 29th November, 2022. A.Z.MG KWA JUDGE 29.11.2022 Judgment c November, 2022 via audio teleconference, whereas the appellant and respondent were remotely present. 6 a.z.mgeyIkwa JUDGE 29.11.2022 7