LAND APPEAL NO 21856 OF 2024 scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.21856 OF 2024 (Arising from Land Application No.280 of 2018, of the District Land and Housing Tribunal for liaia) UONGOZI WA MSIKITI WA PUGU MWAKANGA(KINYAMWEZI) ...................................................... 1stAPPELLANT YAHYA HAJI............................................................................... 2ndAPPELLANT ALI BAKARI............................................................................... 3rdAPPELLANT KHARIFA YUSUFU...................................................................... 4thAPPELLANT SAID SULEIMAN........................................................................ 5thAPPELLANT NASSOR MAKAME..................................................................... 6thAPPELLANT VERSUS THE REGISTERED TRUSTEES OF THE SEVENTH DAY ADVENTIST CHURCH OF TANZANIA............................................RESPONDENT JUDGMENT Date of Last Order: 24. 10.2024 Date ofJudgment: 29.10.2024 T.N. MWENEGOHA, J: The appellants approached this Court being aggrieved by a decision of District Land and Housing Tribunal for Ilala in Application No. 280 of 2018. This Appeal is based on the following are the grounds; - 1. That, the Tribunal erred in law and facts by its failure to properly evaluate oral and documentary evidences adduced by the appellants and respondent so as to reach the better conclusion. i 2. That, the Tribunal erred in law and facts for its failure to consider that Ilala Municipal Council was not joined as a necessary party in the suit. 3. That, the Tribunal erred in law and facts for its failure to consider that, the 1st appellant was not a body corporate therefore, it cannot be sued as it is a non-existing entity. 4. That, the Tribunal erred in law and facts by delivering a conditional judgment and decree which is not capable of being executed. The Appeal was heard through written submissions, Advocate Ubaid Hamidu appeared for the appellants, while the respondent was represented by Advocate Samson Edward Mbamba. In his submissions, Mr. Hamidu started with the 3rd ground of Appeal and maintained that according to the law a non-existent person or entity can neither sue as a plaintiff nor be sued as defendant. Hence, parties to the case must be either natural persons or their recognized legal representatives and juristic entities recognized by the law. That, this was also the position in the case of Change Tanzania Limited vs Registrar Business Registration & Licensing Agency, Civil Appeal No.3 of 2021, Court of Appeal of Tanzania (unreported). That, in the instant case, given the facts on the record together with the above position of the law, the capacity of the 1st appellant namely UONGOZI WA MSIKIB PUGU MWAKANGA (KINYAMWEZI) is highly indeterminate simply because it is a nonexistent legal entity hence the suit before the Trial Tribunal was incompetent for having been preferred against a non-existent party without the legs to stand and requisite capacity of being sued. 2 Replying to the arguments of the appellants' counsel on the 3rd ground, Mr. Mbamba maintained that, if the 1st appellant is a non-existence person, then this Appeal too is incompetent as it has been preferred against a non-existent party. After all, the issue before the Trial Tribunal was on ownership of land. Therefore, the Decision of the Trial Tribunal cannot be annulled simply because of suing the 1st appellant alongside the other appellants as stated in Gabriel Mathias and Another versus Halima Feruzi and 2 Others, Civil Appeal No. 28 of 2020, Court of Appeal of Tanzania, (unreported). That, after all, this is a new fact, which was neither raised as a preliminary objection nor as an issue. As preferred by the appellant's counsel, I also find it proper to determine the merit or otherwise of the 3rd ground before embarking on the remaining grounds of Appeal, as this ground touches the legality of what transpired at the Trial Tribunal. Undeniably, the respondent who was also the applicant at the Trial Tribunal, filed her Application on the 21st August 2018, suing the appellants jointly. The Trial Tribunal went on to hear the case up to its finality, without noting that among the parties sued before it, was the 1st appellant, who has no legal personality rather a group of leaders managing a mosque (the 1st appellant). Definitely, and without going around the bush, this case was preferred against a non-existing person. The first appellant, who was also the first respondent at the Trial Tribunal incapable of suing or be sued by any person. That is to say, what was done by the Trial Tribunal is illegal, see Change Tanzania Limited vs Registrar Business Registration & Licensing Agency, (supra). Such illegality is apparent on the face of the impugned Decision, hence null and void, as it cannot be enforced. For these reasons, I allow the third ground of Appeal as it has merits. As for as this Appeal is concerned, I will end my discussion here as with the see findings there is no need to proceed with the remaining three grounds. In the end, under section 43(l)(a) &(b) and (2) of the Land Disputes Courts Act, Cap 216, R.E 2019, I revise the whole proceedings of the Trial Tribunal in respect of Land Application No. 280 of 2018, quash its Decision and set aside the Orders followed it. The Appeal is accordingly allowed with costs. 4