rogath blass olutu six others vs elisifa bwanakule four others 2021 tzhc 2032 21 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LAND REVISION NO. 9 OF 2020 (C/F Land Application No. 56 of 2019, District Land and Housing Tribunal Moshi) ROGATH BLASS OLUTU (Suing as Administrator and Representative of the late Edward Merishoki and 5 O thers............................. 1st APPLICANT REGISTERED TRUSTEES OF CATHOLIC DIOCESE OF M O SH I.............................. 2nd APPLICANT VERSUS ELISIFA BWANAKULE 1st RESPONDENT MAGDALENA TARIMO 2nd RESPONDENT JEREMIA LEONOK MMARI 3rd RESPONDENT LABAN MASAULE MSUMANJE 4th RESPONDENT AMON DANIEL MSUMANJE 5th RESPONDENT JUDGEMENT 30/8/2021, 27/10/2021 MWENEMPAZI, J: The applicants are aggrieved by the decision of the District Land and Housing Tribunal for Moshi (Application No. 56 of 2019) in the Ruling delivered on 17th September, 2020 by Hon. J. Silas, Chairman which struck out the application in the DL&HT with costs on the reasons that the applicants have no Locus Standi to sue the respondents and the they had no consents of the administrator general to transfer 30 acres of Land to 2nd applicant, the Registered trustees of the Catholic Diocese of Moshi. Land Application No. 56 of 2019 was filed by the applicants in the District Land and Housing Tribunal praying for orders declaring the Respondents as trespassers to the suit land and that the applicant be declared as lawful owners of the same suit basing on the decision and or order in the case, DC Civil Appeal No. 31 of 2003 in this court wherein the parties were Edward Mirishoki and five (5) others Versus Mtakuja village council. They have filed this application under the provisions of section 79(1) (c) of the Civil Procedure Code, Cap. 33 RE. 2002 seeking an order for revision of the proceedings, Ruling and order in Land and Housing Tribunal for Moshi, costs of the application and any will deem it just to grant. In the affidavit supporting the application, which has been sworn by Mr. Gabriel Michael Shayo the applicants advocate, it is shown that the 1st applicant herein is a holder of power of attorney granted to him to represent Isack Edward Olotu, Narsisi Edward Olotu, Aloyce Boniface Olotu, Michael Blasi Olotu and Kristian Blasi Olotu. He has also a letter of administration of the estate of the late Edward Merishaki Olotu granted to him after the demise of Edward Merishoki in a Mirathi No. 02/2015, Uru Primary Court. In the affidavit the averment is that the 1st applicant(s) were declared lawful owners of the suit land comprised in 72 acres of land, pursuant to the decision of this court in DC Civil appeal No. 31 of 2003 and the second applicant received 30 acres out of the said 72 acres as a donation from the familyof Edward Merishoki and five others mentioned. By virtue of paragraph 5 to 9 of the affidavit the applicants have argued that it was wrong for the chairman to hold that they had no locus standi to sue the respondents. In the written submission by the applicants through their attorney Mr. Gabriel Michael Shayo, learned advocate the applicants have submitted that the applicants were declared by this court as lawful owners of the suit land through DC Civil Appeal No. 31 of 2003, High Court of Tanzania Moshi, a decision which has never been challenged. That decision burds all courts and Tribunal below. He has cited the case of Jumuiya ya Wafanyakazi Tanzania Vs. Kiwanda cha Uchapishaji cha Taifa (1988) TLR 146 where it was held that: "All counts and Tribunal below the court o f Appeal are bound by decision o f the court regardless o f their correctness" Also, it is the same position in the case of Dothia Vs. National Grandlays Bank and another (1970) 1EA 195. The chairman of the District Land and Housing Tribunal is bound by the decision. Therefore, Edward Merishoki and five (5) others as lawful owners of 72 acres of land have cause of action and right to sue the respondents as well as the right to transfer 30 acres of land out of 72 acres to Uru Secondary School. The issue to obtain counsent to transfer 30 acres of land is a statutory compliance and that does not deprise their right of ownership of the suit land. It is the submission of the applicants that the issue of ownership was decided in the mentioned civil Appeal No. 31 of 2013 by Hon. F.A.R Jundu, J and the suit laid was handed over to Edward Merishoki and five others whereas Rogath Olotu is a representative of them. In conclusion the applicants have locus standi and cause of action to sue. The applicants pray that the Ruling and proceedings of Land application No. 56 of 2019 be revised and declared by the High Court that: 1. The order of this court in DC Civil Appeal No. 31 of 2003 be honoured by respondents and the applicants are lawful owners of the suitland and thus it is unfair for them to pay costs. 2. Applicants proceed to use and enjoy the land measured72 acres as declared by this court in Civil Appeal No. 31 of 2003. 3. Ruling and proceedings of the District Land and Housing Tribunal in Application No. 56 of 2019 be revised with costs. The respondents are being represented by Mr. Julius Antipasi Semali Advocate. He has attacked the submission by the counsel for the applicant that this application for revision should be restricted within the scope of the Ruling by the DL&HT according to the counsel the Judgement, I believe, relied by the applicants was not related to the land in dispute before the tribunal and would it be so the applicant would have preferred execution of the Judgement and not an application. As to the question of locus standi the counsel for the Respondents has submitted that the Tribunal may not proceed to determine any application before it first ascertains correctives of the application and the parties thereon. He has cited the case of Lu ju n a S h u b j B a lo n zi. Senior. Vs. R e g iste re d T rustees o f Cham a cha M a p in d u zi (1 9 9 5 ) T Z H C II1 9 96 TLR 203 where this court held that: "In this country locus standi is governed by common law According to that law, in order to m aintain proceedings successfully, a p la in tiff or an applicant m ust show not only that the court has power to determine the issue but also that he is entitled to bring the m atter before the court". In the case of G o d b iess Jo n ath an Lem a V ersus M usa H am is & 2 o th ers, C iv il A p p e a l N o. 4 7 /2 0 1 2 , CAT a t A rusha, the court of appeal approved the essence of locus standi as a matter of law, where by it held thus. "Locus standi is a jurisdictional issue, it is a rule o f equity that a person cannot m aintain a su it or action unless he has an interest in the subject o f it, that is to say unless he stands in a sufficient dose relationship to it so as to give a right which requires prosecution or infringem ent o f which he brings the action." Basing on the authorities, the question whether locus standi is a point of law or not is automatically drawn and that is locus standi is a matter of Jurisdiction and being so is to be ascertained before any step is taken by the court in any suit. That was done by the honourable chairman of the DL&HT. In the counsel's submission the chairman found that the applicant had no locus standi to standi as Administrator of the estates of the said Edward Mirishoki and be representative of the 5 others. Further the applicant had not obtained consent of the registrar of trustees hence no cause of action against the respondents. Therefore, the ruling was not improperly procured as alleged by the applicant in his submission. Therefore, the chairman having been considered the nature of the application by a person having neither locus standi nor cause of action ordered the applicant to pray costs and this is clear that the tribunal exercised its discretion to grant costs as prayed by the respondents. In rejoinder the applicant reiterated the submission in chief and further clarified in detail as he did in the submission in chief. Basically, he argues that the late Edward Merishoki and five (5) others acquired interest over the dispute land by virtue of order in DC Civil Appeal No. 31 of 2003. Further, they appointed the 1st applicant herein to represent them as holder of power of Attorney and also standi as legal representative of Edward Merishoki. Thus, the applicants have necessary interest to have locus standi to prosecute the case. I have read the record of the trial court and the decision of the DL&HT and also the application. At the DL&HT in application No. 56/2019, the cause of action was a suit for declaration of the respondents as trespassers. The applicant rose to sue basing their stand on the ownership declared over them by virtue of a decision in the DC Civil Appeal No. 31 of 2003. According to the record, pursuant to the Mtakuja village general assembly, members of the village unanimously resolved that the dispute land belong to the 1st applicants, as was listed herein above in the introductory paragraphs of this Judgement. As averred in the affidavit the execution was effected and property in dispute was handed over to the applicants. Ultimately, had the application proceed to hearing, the issues for determination would have been whether the applicants are lawful owners and whether the respondents had trespassed into the applicants' land if at all the first issues would be determined in a positive way. Therefore, white appreciating the legal principles pronounced in the submission by the counsel for the respondents to be valid, still their application in this case was not proper. In my view, the applicants' interests were validly acquired and thus they have locus standi to pursue their rights as they did. It was wrong therefore for the trial chairperson to rule that the applicants had no locus standi. I would like to clarify as hereunder. It is well known that Edward Merishoki is dead. In law, there must be appointed a legal personal representative to stand on his shoes. Rogath Blasi Olotu is the one appointed in Mirathi No. 02/2015. The other five members of the family consented to make Rogath Blasi Olotu their attorney by way of power of attorney. That is attached to the application and signify the power to act on their behalf. In any case it is enough to show the interest. / „ There is also a letter by the family to assign 30 acres to the Board of Uru Secondary School for them to utilize the land for cultivation of food crops to feed students. Members of the family have signed. I could not understand how the Hon. Chairman would rule that the applicants have no locus standi. Under the circumstances I have no doubt, the applicants have necessary interests to sue for trespass against the respondents. As to the requirement of transfer, it is a procedural issue to seek necessary consent from the administrator general. That however, does not prevent the 2nd applicant to enforce her rights as a lawful assignee. The same does not justify again the striking out of the application. The applicant has prayed this court to award a number of reliefs. Since the application was not heard on merit, I will just end up quashing the impugned ruling and set aside an order extracted from the said ruling, and order the application be heard on merit by another chairperson and new set of assessors. The original file is thus returned to the District Land & Housing Tribunal for compliance. Dated and delivered at Moshi this 27th October, 2021. 8