Silivia Joseph

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA BUKOBA DISTRICT REGISTRY AT BUKOBA MISC. LAND APPEAL CASE NO. 1346 OF 2024 (Originating from Misc. Application No. 19 of2023 of the District Land and Housing Tribunafof Muleba and Original from Civil Case No. 15 of 2012 of Biirabo Ward Tribunal). SILIVIA JOSEPH (Suing as next friend of ELIZEUS NDIBUSHA)...APPELLANT VERSUS SALIMU PAULO.................... ............................. ............RESPONDENT RULING OF THE COURT Date of last Order: 22/03/2024 Date of Ruling: 09/04/2024 BEFORE: G.P, MALATA, J Briefly, at the Ward Tribunal for Biirabo the parties to Civil case No. 15/2012 were Salum Paulo the respondent herein, as he then was a complainant and Paulo Malingumu and Elizeus Ndibusha the respondents. The dispute was that, the first respondent failed to execute the Primary court's order in Civil Case no.21 of 1988 delivered on 31/08/1988,which was sold to the second respondent in contravention of the said judgement. The judgement was entered before 1 commencement of the present land laws. The parties to Civil case No.21 of 1988 were Paulina Paulo, the claimant against Paulo Malingumu and Joseph Teshasha. Later the Decree holder, Paulina Paulo transferred ownership to Paulo Salurn, the respondent herein. The decision in Civil case No.21 of 1988 was not appealed against to date, thus Paulina remained the lawful owner of the landed property. The respondent sued the Paulo Malingumu and Elizeus Ndibusha in Civil case No.15/2012 at the Ward Tribunal for Biirabo which decided that, the matter was finally determined by the Primary Court for Nshamba in Civil Case No.21 of 1988, thus the matter is res judicata. The decision of Civil case No. 15/2012 was delivered on 14/11/2013. Untill 21/02/2023 being ten (10) years after delivery of the said decision, the appellant herein filed Miscellaneous Civil application no. 19 of 2023 as next friend of Elizeus Ndibusha seeking extension of time to file revision out of time against the decision in Civil case No. 15/2012 by Ward Tribunal for Biirabo delivered on 14/11/2013. The appellant being a wife of the Elizeus Ndibusha decided to take over the matter to challenge the decision by the Ward Tribunal For Biirabo as next friend before the District Land and Housing Tribunal for Muleba for allegedly that, her husband Elizeus Ndibusha had run insane thus unable to pursue the matter. 2 The appellant attached a document issued by "Igabiro Makao ya Wasiojiweza" under Lutheran Church of Tanzania IGABIRO MAKAO YA WASIOJIWEZA S.L.P98 BUKOBA 20/07/2022 Titled "KWA YEYOTEANAYEHUSIKA Ndugu YAH:ELIZEUS NDIBUSHA LUGENAGAMU (MIAKA 53) REG.NO.066022 Mtajwa hapo juu aiiietwa hapa kituoni kwetu na jamaa zake tarehe 29/06/2022 akiwa na historia ya kufanya fujo kupigina na kutoroka tordka. Matatizo yakehaya iiisemekana ni ya muda mrefu tangu mwaka 2004. Baada ya kufanya uchunguzi wa kina mgonjwa aiigunduiika kuwa na ugonjwa wa akiii (SCHIZOPHRENIA). Mgonjwa aiiiazwa kwa muda wa mwezi mmoja. Tarehe 15/07/2022 mgonjwa aiitor.oka toka kituoni ha ndungu zake waiifahamishwa. Natanguiiza shukrani za dhati Wako katika huduma Saini.................. 3 Festo Batenga Mkuu wa Kituo Further, the appellant filed application for stay of execution Miscellaneous Civil application Nod24 of 2020 to stay execution No.91 of 2020 arising from Civil case NO.15/2012 of Ward Tribunal for Biirabo. All the application by the appellant encountered hurdle for failure to pass legal ingredient test, thus dismissed. The appellant preferred the present appeal against the denial of extension of time to file revision arising from Miscellaneous Civil application nod9 of 2023 filed after ten (IQ) years from the date of impugned decision. On 20/02/2024, this matter came for hearing the parties appeared. The appellant appeared through Mr.Gildon Mambo learned counsel while the respondent appeared in person. In endeavour to be acquainted with the facts of case based on record, this court noted that, the appeal is being pursued by Silivia Joseph as next friend of Elizeus Ndibusha. For the appellant to act as next friend of the Elizeus Ndibusha, must have met the requirement under Order XXXI of the Civil Procedure Code (CPC), Cap. 33 R.E. 2019. In fact, the person gets locus standi to sue on behalf of the next friend upon fulfilment of conditions stated under Order XXXI of the CPC. Short Of that, a person lacks locus standi. 4 In the present case, the real plaintiff is not a minor, thus for the appellant to act oh behalf of the Elizeus Ndibusha as next friend must be proven that, the friend is of unsound mind. The record of the DLHT shows nothing in compliance with Order XXXI Rule 15 of the CPC. The question is whether there was medical report or court inquiry report confirming the status of unsoundness of the next friend, thus court's order conferring locus stan di to Silivia Joseph to sue as next friend of Elizeus Ndibusha . This court found non on record. Thence, this court, suo motto raised point of law on whether the Silvia Joseph had locus standi acquired under XXXI Rule 15 of the CPC. Hearing of the appeal was adjourned to enable the parties prepare themselves and submit on the suo motto raised point of law. On 29/02/2024 parties appeared for hearing. The appellant appeared represented by Mr. Gildpn Mambo, learned counsel whereas the respondent appeared in person. Submitting on the point of law Mr. Gildon Mambo stated that, the issue before this court is whether Order XXXI Rule 15 of the Civil Procedure Code, Cap. 33 R.E. 2019 was complied with by the appellant before instituting case at Muleba District Land and Housing Tribunal. It is evident that, under Rule 15 of the CPC the next must prove that; one, next friend was adjudged to be of unsound mind. s or two, upon court inquiry, it established that, the nest friend is unable to handle case due to unsoundness, thus appoint the next friend. In the present case, Elizeus Ndibusha was adjudged to be of unsound mind. This is due to information from "Igabiro Makao ya wasiojiweza Bukoba" which issued such recommendation. To bolster his point, he referred this court to section 16 (1) of the Mental Disease Act which provides among others that, it shall be lawful for the Minister to authorize in writing any registered Medical Practioner to give medical certificates under this Act. The certificate must demonstrate that, the person has mental disease. It is not necessary to be centre but even the individual Doctor/practioher. Section 20 of the Mental Disease Act provide that mere information from the Mental Station is enough. Mr. Festo Batenga who issued information titled to "Kwa yeyote atakayehusika" (To whom it may concern) is not shown whether he is a doctor or not. However, his information is neither a medical report within the meaning of Order XXXI Rule 15 of the Civil Procedure Code, Cap. 33 R.E. 2019 nor a certificate issued under the Mental Disease Act or issued by Mental Static n/centre. This is because I am not sure if it the centre is Mental station within the Mental Disease Act. 6 In our view therefore/ we submit that, requirement of Order XXXI Rule 15 of the Civil Procedure Code, Cap. 33 R.E. 2019 were properly met, thus Silvia Joseph has locus standi. On the other hand, the respondent submitted that, the appellant one Elizeus Ndibusha, is not sick as there is. no medical report or certificate proving such sickness. Further there is no report as to which Mental Health Institute/Centre conducted medical examination. He thus asked the court to find that, the law was not complied with. This marked the end of submissions by the parties. To start with Order XXXI Rule 15 of the Civil Procedure Code, Cap. 33 R.E. 2019 is hereby reproduced for easy of reference. It reads; The provisions contained in rules J to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to person who though not so adjudged are found by the court on inquiry, by reason or unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. The provision echoes that, a person of unsound mind is a person who is declared after competent authority to be unable to understand the nature and consequence of his actions due to the presence of a mental disease or infirmity. 7 The interpretation of Order XXXI Rule 15 of the Civil Procedure Code provides that, rules 1 to 14 of Order XXXII apply not only to minor but also to a person adjudged to be of unsound mind and those who are found through court inquiry to be incapable, by reasons of any mental infirmity of protecting their interest when suing or being sued. This is based on the natural law principles that both parties to a suit must be heard equally before a suit is adjudicated upon. Reading the above said Rule 15 together with Rules 1 to 14 of the same Order, it presupposes that, there must be an application by the next friend stating that, there must be grounds for a person to be allowed to sue or defend as next friend. It is upon, the court being satisfied thereof, it will grant the prayer and the next friend will be allowed to act accordingly. The above position is supported by the nucleus message stated in Rules 3, 5, 6 and 7 of Order XXXII of the CPC. Rule 3 reads; (1) Where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. 8 (3) The application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. Rule 5 of the same Order reads that; (1) Every application to the court on behalf of a minor, other than an application under rule 10, sub-ruie (2), shall be made by his next friend or by his guardian for the suit. (2) Every order made in a suit or on any application before the court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged and, where the advocate of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such advocate Rule 6 of the same Order reads; (1) A next friend or guardian for the suit shall not, without the leave of the court, receive any money or other movable property on behalf of a minor either- (a) by way of compromise before decree or order; or (b) under a decree or order in favour of the minor. 9 (2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor or, having been so appointed or declared, is under any disability known to the court to receive the money or other movable property, the court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficien tly protect the property from waste and ensure its proper application Rule 7 of Order XXXII of the CPC reads that; (1) No next friend or guardian for the suit shall, without the leave of the court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. (2) Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor. Order XXXI Rule 15 of the CPC provides for requirement to be met for a next friend to bring a suit on behalf of minor and person of unsound mind. In case of a person of unsound mind there must be; one, be adjudged to be of unsound mlnd/insane/lunatic and two, though not so adjudged are found by the court on inquiry, by reason or unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. io Therefore, reading Rule 15 and Rules 3,5,6 and 7 of Order XXXI of the CPC, the adjudging of a person of unsound mind, in my view is done by competent authority or doctor, Psychiatric Doctor like those from Mental Institute/Isanga Mental Hospital/Institute but not just a layperson. This will be evidenced by a Medical Report or Certificate adjudging and confirming that a person is of unsound mind. Since, adjudging is done by the Doctors, a person applying to sue as next friend must table attach the medical report adjudging that person to be of unsound mind. It is my settled legal position therefore that, in the first category of adjudging a person to be of unsound mind, it involves submission of Medical Report/Certificate. As such, the next friend must file formal application praying to be so appointed based on the finding by the Psychiatric Doctor. Satisfied thereof, the court will grant leave to the applicant to sue or defend as next friend. This, in my view cascades squarely with what is stated in Rules 3, 5, 6 and 7 of Order XXXI of the CPC. To the contrary, courts cannot deal with the person who conferred himself as next friend in the absence of court's order/leave. This is a kind of suit of which locus standi to sue or be sued must be approved by the court after hearing the application by the intended next friend who is legally required to discharge his Obligation of proving before the court as to why he be appointed as next friend. u Immaculately, the reason will be based on the Medical Report/Certificate issued by competent authority adjudging that, the person is of unsound mind. In the second category, since the inquiry is done by the court itself, then it is within the mandates of the court itself to confirm existence of unsoundness of the said person. It is upon such finding the court appoint a next friend to sue or defend on that behalf. In this category, there is no need of application by the next friend as he is appointed by the court itself. Having so stated, in the present case, neither of the two ways were used in confirming or adjudging that Elizeus Ndibusha to be unsound mind/insane/iunatic. The document reproduced here above issued by "IGABIRO MAKAO YA WASIOJIWEZA" is not a medical report but just document written by one Festo Batenga, the head of the centre. The center is not a Mental Disease station desgnated by pursuant to the Mental Disease Act. In the event, this court hold that, since there was neither application by the next friend nor court inquiry on the unsoundness of the Elizeus Ndibusha, thence no appointment of the appellant as next friend then, the appellant here has no locus standi to sue or be sued on behalf of Elizeus Ndibusha. Further, the court had no way to recognize and deal with the said next friend who conferred herself as 12 next friend without leave of the court. This is in contravention of Rules 3,5, 6, 7 and 15 of the Order XXXI of the CPC. The appellant's position that next friend is properly before the court is legally unfounded based on the afore stated position of the law. In view thereof, the proceeding and decision by DLHT were nullity on the same ground. I thus exercise the revisional mandate under the Land Disputes Courts Act Cap.216 R.E.2019 revise all the proceeding and ruling filed by next friend including MISCELLANEOUS LAND APPLICATION NO.19 OF 2023 and order that the same are nullity. This court noted further that, Civil case No. 15/2012 of the Ward Tribunal for Biirabo which dismissed the case on the ground that, the matter was finally determined by the Primary Court for Nshamba in Civil Case No.21 of 1988, thus the matter is res judicata. The question here is whether the decision in Civil case No. 15/2012 by the Ward Tribunal for Biirabo which dismissed the case for being res judicata was appeal able. Section 19 and 20 (1) of the Land Disputes Courts Act, Cap.216 R.E.2019 provide for an answer. Section 19 reads; "A person aggrieved by an order or decision of the Ward Tribunal may appeal to the District Land and Housing Tribunal." 13 Section 20 (1) reads; "Every appeal to a District Land and Housing Tribunal shall be filed in the District Land and Housing Tribunal within forty-five days after the date of the decision or order against which the appeal is brought." It is trite law that, revision is not an alternative to appeal. In the case of Augustino Lyatonga Mrema vs Republic and Masumbuko Lamwai [1999] TLR 273 the court of appeal held that: "To invoke the Court of Appeal's power Of revision there should be no right ofappeal in the matter; the purpose of this condition is to prevent the power of revision being used as an alternative to appeal." The Court of Appeal has further maintained the same position even on the application of section 79(1) of the CPC which deals with revisional powers of the Court. Basically, the provision curtails the court from invoking revisional powers where there is right to appeal. In the cited case of Arusha International Conference Centre [AICC] vs Ayoub Bendera and 11 others (supra), the Court of Appeal reaffirmed that: "It is dear from the above section 79(1) that revision is exercised only where there is no right to appeal." In view therefore, any attempt to apply for revision including MISCELLANEOUS LAND APPLICATION NO.19 OF 2023 is total misconception. It should also be 1.4 noted that, the decision in Civil Case No.21 of 1988 of Primary Court for Nshamba wass delivered on 31/08/1988 which finalised the issue of ownership of land in dispute had never beed appealed to date by Paulo Malingumu who sold land to Elizeus Ndibusha, thence this second land dispute. The present appeal is therefore dismissed for want of valid proceedings and judgement sought to be challenged. As the point of law was raised by the court suo motto, each party shall bear its own cost. IT IS SO ORDERED. 15