ruth jackson mpunda vs the commissioner for lands ministry of lands and housing and human settlement development others 2022 tzhclandd 12795 25 january 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO.769 OF 2022 RUTH JACKSON MPUNDA APPLICANT VERSUS THE COMMISSIONER FOR LANDS, MINISTRY OF LANDS AND HOUSING AND HUMAN SETTLEMENT DEVELOPMENT RESPONDENT THE DISTRICT EXECUTIVE DIRECTOR,KIGAMBONI MUNICIPAL COUNCIL.... 2-RESPONDENT YUSUPH MZEE NGORORO 3"® RESPONDENT THE ATTORNEY GENERAL 4™ RESPONDENT RULING Date ofLast Order: 13.12.2022 Date ofRuling: 25.01.2022 T M MWENEGOHA,J The applicant sought for an injunction order against the respondents and any person working under their instructions from making any attempt to dispose the applicant's landed property located at Magogoni Area, Plot No. 618, Block G within Kigambdni Municipality in Dar ES Saiaam Region, pending the filling and fuii determination of the appiicanfs intended suit. TTie instant case has been preferred under section 2(3) of the Judicature and Application of Laws Act, Cap 384, R.E 2019, Order XXXVII Rule 1(a) and Rule 2, sections 68 and 95 of the Civil 1 Procedure Code, Cap 33 R.E 2019. The same was supported by the affidavit of the applicant herself. Moving against the Appiication at hand, Mr. Urso Luoga, counsei for the 2"" and 4"^ respondents raised three preiiminary objections as foilows; 1. That, the applicant is abusing court process. 2. That, the suit is bad in iaw for suing a wrong party. 3. That, there is no cause of action against the I®', 2"^*, and 4"^ respondents. Hearing of the objections was by way of written submissions and exparte against the appiicant as she faiied to file her reply submissions as ordered per order of this Court of 13/12/2022. I will begin my analyzing with the 2"'' objection. Mr. Luoga argued in his submissions that, according to the Local Government(Urban Authorities) Act, Cap 288, R.E 2002, under section 14(1), it has been provided that, every urban authority established under the said law has a legal personality, perpetual existence and has the capacity to sue and be sued in its own name,therefore, suing the District Executive Director of Ubungo Municipal Council as a 2"" respondent Is wrong in this case. That, the same position was taken in the case of Elizabeth Simon Mwakapangaia (Adminstratix of the Estate of the late Said Shomari) versus Municipal Director, Ilala Municipal Council & Another, Misc. Land Application No. 580 of 2020, High Court of Tanzania at Dar es Salaam. Beyond ail doubts, I agree with Mr. Luoga. The 2^ respondent is a wrong party, joined in the case at hand. The District Executive Director of Ubungo Municipal Council has no capacity to sue or be sued on behalf of the Municipal Councii. Let me quote the provisions of section 14 1 (b) of the Local Government(Urban Authorities) Act, Cap 288, R.E 2002, which provides as follows;- 14. Urban authority to be body corporate and to be graded (1)Every urban authority established or deemed to have been established under this Part, and in respect of which there is in existence a certificate ofestablishment furnished under section 9, shaii, with effect from the date of commencement of the establishment order, be a body corporate, and shaii- (b) in its corporate name, be capable ofsuing or being sued. See also Elizabeth Simon Mwakapangala (Adminstratix of the Estate of the late Said Shomari) versus Municipal Director, Ilala Municipal Council & Another supra. On the basis of authorities cited above, I find merits in the 2"" objection, hence the same is sustained. Considering the fact that Ubungo Municipal Council is a necessary party in this Application as per the content of the affidavit in support of the Appiication, her absence therefore affects the entire Application. The same cannot proceed into merits. Further, the findings obtained in the 2"^ objection herein above, are capable of disposing the entire Application, hence I see no need to deal with the 1=^ and 3"^ objections. In the event, the application is hereby struck out with costs. Ordered accordingly N MWENEGOHA, S JUDGE, ★ ★ 25/01/2023 mo DIV\ m