LAND CASE 2303 WAMBURA MURUNGU

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA LAND CASE NO. 00002303 OF 2024 REF NO. 20240207000002303 BETWEEN WAMBURA MURUNGU (Administrator of the Estate of Wakuru Masaga) ..................................................... PLAINTIFF VERSUS SANZATE VILLAGE COUNCIL.................................................................... 1stDEFENDANT BUNDA DISTRICT COUNCIL..................................................................... 2ndDEFENDANT ATTORNEY GENERAL/SOLICITOR GENERAL............................................. 3rdDEFENDANT IDIRISA SANAI NYAMRUTA...................................................................... 4thDEFENDANT OXGEN GUTI.............................................................................................. 5thDEFENDANT MUMENYI KATANI..................................................................................... 6thDEFENDANT MUMENYI MAKWASI................................................................................. 7thDEFENDANT ADAMU BONIPHACE................................................................................... 8thDEFENDANT. YAHAYA WEBIRO...................................................................................... 9thDEFENDANT JUMANNE GISIBO.................................................................................... 10™DEFENDANT NYANGI CHACHA......................................................................................11™DEFENDANT WEBIRO WEBIRO.................................................................................... 12™DEFENDANT MASINYI MANYAKI................................................................................. 13™DEFENDANT SAULO MARWA........................................................................................14™DEFENDANT MOGORE MATIKO.................................................................................... 15™DEFENDANT MWITA NYAKEMU................................................................................... 16™DEFENDANT MATIKO MWITA....................................................................................... 17™DEFENDANT MWASI SAGI................................ 18™ DEFENDANT Page 1 of 8 KISINGI WEBIRO............................................................ 19th DEFENDANT MATIKO KIMORI..............................................................20th DEFENDANT RULING July, 2024 M. L, KO MBA, J, This is the ruling in respect of the Preliminary Objection raised by the 1st, 2nd, and 3rd defendants on three points of law that: 1. The plaintiff does not have Locus Standi. 2. The suit at hand is untenable as this Honorable Court lacks Jurisdiction. 3. The plaint is bad in law for contravening Order VI Rule 15 of the Civil Procedure Code CAP 33. Briefly, the plaintiff herein filed a Land Case against the defendants claiming the ownership of 141 acres of land located at Sanzate Village within the District of Bunda of which the defendants are allegedly to trespass. Among the orders prayed by plaintiff includes; 1. The plaintiff be declared the owner of the land in dispute. 2. The defendants be ordered to vacate the disputed land/ or provide another land as compensation to the land they want to take. Page 2 of 8 Upon service, the 1st, 2nd and 3rd defendants filed a joint written statement of defence (WSD) which contains the said Preliminary Objection (PO). As it is already settled, that PO has to be determined first before moving to the merit of the case, I did the same. See Khaji Abubakar Athumani vs Daud Lyakugile Ta D.C Aluminium & Another (Civil Appeal No. 86 of 2018) [2021] TZCA 32 (24th February, 2021) and Deonisia Onesmo Muyoga & Others vs Emmanuel Jumanne Luhahula (Civil Appeal No. 219 of 2020) [2023] TZCA 124 (20th March, 2023). When the matter was placed for hearing of the PO, the 1st, 2nd and 3rd defendants were represented by Ms. Neema Mwaipyana and Mr. Abdallah Makulo, both being State Attorneys while on the other hand, the plaintiff fended for himself. When started to argue in support of their PO filed, the counsels dropped the 2nd point of Objection and argued on the remaining 1st and 3rd points. Starting with the first point, Ms. Neema Mwaipyana submitted that the plaintiff has filed the case calling himself as administrator of the estate of Wakuru Masaga but in plaint there is nowhere he pleaded that he was appointed as administrator of the estate of the deceased and neither he Page 3 of 8 attached any latter concerning the administration of the estate of Wakuru Masaga. Referring to section 110 of the Evidence Act and the case of Rujuna Shubi Balonzi vs Registered Trustee of CCM, TLR 1190, Ms. Mwaipyana was of the views that the plaintiff had the duty to prove who he claimed to be. She proceeded further that, since the letter of administration prove the legal capacity of a person to sue, the letter of administration is needed when a suit is file. She cemented her averment by referring to sections 71,99 and 100 of CAP 352 and the case of William Sulus vs Joseph Samson Wajanga (Civil Appeal No. 193 of 2019) [2023] TZCA 92 (9th March, 2023). Ms. Mwaipyana went on submitting that plaint shows the plaintiff has no power to file the present case. The plaintiff has death certificate which does not vest him with a power to sue on behalf of the deceased. Citing the case of James Funke Gwagilo vs The Attorney General (Civil Appeal 67 of 2001) [2003] TZCA 24 (4th February, 2003), she insisted on the position that parties are bound by their own pleadings. As to the 3rd point of Objection, Mr. Abdallah Makulo was very brief in his submission that a verification clause in the plaint is not made correctly pursuant to Order VI Rule 15 of the Civil Procedure Code. He stated that Page 4 of 8 the verification has no date and it does not show the place where it was verified. Upon their submission both counsel for 1st, 2nd, and 3rd defendants prayed the court to struck out the plaintiff's case with costs. Responding to the PO raised, the plaintiff prayed the case to proceed as scheduled as he has all documents with him. He submitted that he keeps all documents so that he can submit when making his case during the hearing. About verification clause, he argued that he was only directed by his lawyer where to sign on the document. He prayed the PO to be overruled. In rejoinder, the counsel told the court to maintain their submission in chief. It is now my duty to determine whether the PO raised by the 1st, 2nd, and 3rd defendants is meritorious to warrant this court to struck out the plaintiff's case as prayed by State Attorneys. I will start on the 1st point concerning the issue of locus standi. Simple definition of the locus standi is the right or legal capacity to bring an action or to appear in court. Locus standi is the rule of equity that a person Page 5 of 8 cannot maintain a suit or action unless he has an interest in the subject matter. Further, locus standi is the point of law rooted into jurisdiction. See Peter Mpalanzi vs Christina Mbaruku (Civil Appeal No. 153 of 2019) [2021] TZCA 510 (23rd September, 2021). In present case, Ms. Mwaipyana contended that the plaintiff failed to prove he has locus standito bring and maintain this case on behaif of the Wakuru Masaga as there is no letter of administration to such effect. But I cautiously read the plaint and I find nowhere the plaintiff pleaded to claim the land on behaif of Wakuru Masaga. On paragraph 2 of the plaint, the plaintiff stated to be the rightful owner of the disputed land. The paragraph read; That die land in dispute is the lawful property of the plaintiff one Wambura Murungu who occupied it before the establishment of Vijiji vya Ujamaa in the country. And one of the plaintiff prayers before this court is to be declared a lawful owner of the disputed land, that means the plaintiff claim his own land and thus he has capacity to sue under his name. However, even if the situation would have been different, the plaintiff still could have locus standi as one of the attachments enclosed in the plaintiff's Page 6 of 8 plaint is later of administration of the estate of the late Wakuru Masaga which is Form No. 4. That form shows the plaintiff was appointed to be administrator of the estate of the late Wakuru Masaga on 05th October 2022 before Primary Court of Bunda at Ikizu in Probate Cause No. 12 of 2022. On the account, I find the first limb of PO has no merit and I dismiss it. Coming to the 2nd point of PO, I will hasten to paraphrase Order VI Rule 15 (3) of the CPC which provide for verification of pleadings. It states that; 15.-(1) n/a (2) n/a (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. The law is clear that verification in pleadings shall be signed by the person making it and shall state the date on which and the place at which it was signed. The provision used the word shall, that means it is coached in mandatory terms. See Godfrey Kimbe vs Peter Ngonyani (Civil Appeal No. 41 of 2014) [2017] TZCA 1 (25th July, 2017). Page 7 of 8 I have read the plaint by the plaintiff herein specifically at the verification clause and find the plaintiff only signed his plaint but he did not indicate the date when he signed and the place in which he verified. That means date and place was not indicated in the plaint contrary to Order VI rule 15 (3). Therefore, the omission of the verification clause not to state the date and the place which it was signed it render the verification to be defective. And defective clause cannot be amended, this was held in the case of Samwel Kimaro vs Hidaya Didasi (Civil Application No. 20 of 2012) [2013] TZCA 391 (11th October, 2013). In upshot, I find the 2nd point of preliminary objection is meritorious, the matter is incompetent before this court. Thus, I proceed to strike out the plaintiff's case. Each party to bear its own costs. It is so ordered. k M. L. KOMBA Judge 11th July, 2024 Page 8 of 8