20150828 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA ~:, . •' - •'«':.~ :: IN THE· DISTRICT REGISTRY AT'MWANZA LAND CASE APPEAL NO 8 OF 2015 {Arising from the ruling of Musoma District Land and Housing Tribunal Original Application No. 74 of 2014) 1.WILLIAM BYASIKU NDEGE } - _ 2.BUGUSI NYAMSERA • I I I I I I I I I I I I I I I I I I I I I I I I ■ I I I I I

VERSUS 1.TUMAINI RYANA } 2.ISRAEL RYANA ■■, ■ •• ■ a•••• c1111 ■ ••a ••a ■ ~ 1111111 ■■■■■■■ RESPONDENT

JUDGEMENT Ebrahim, J: This is an appeal against the ruling of Musoma District Land and Housing 'L Tribunalin Application No. 74 of 2014 whereby the Chairman dismissed the ~ application with costs for the reason that the first appellant had no locus standi to sue on behalf of the late Ndege Mugendi as he was not an administrator of the Estate of the late Ndege Mugendi. Aggrieved he has filed an appeal at this court. Briefly, the background of this matter as discerned from the records is that the first appellant filed an application no 74 of 2014 claiming their clan land which was the property of his father the late Ndege Mugendi against the respondents. Counsel for the respondents raised a preliminary objection on point of law that the applicants being not administrators of the Estate of the late Ndege Mugendi, denies them locus standi in the matter making them incompetent to commence proceedings for the decec!s.ed estate. The first appellant has raised three . gr~_\::IIJ.ds . of _appeal hqVveyer the ... .... . . crux of the matter are··the c·omplaihtslnat.the chairman erred in law and facts to dismiss 0 the application on preliminary objection that they have no locus standi; and that he had no locus standi to pursue the matter on behalf of his old aunt who have- given him her powers of attorney. At the hearing of the appeal, the appellant was unrepresented hence fended for

himself while the respondents Mr. Makowe, learned advocate. ~ The appellant submitted before the court that he should be allowed to defend in court their land together with Bugusi Nyamsera following an objection that he has no locus standi. The appellant stated that he is the beneficiary his late father's land and an heir. Further the 2nd appellant is very old, she is 96 years therefore if he is not allowed to state their case, they will not get their right. The appellant contended further that the late Ndege died in 1996 and he was appointed by the clan to be an administrator on 21/09/1996 and that he was confirmed by Kuhirango Primary Court on 7/2/1997 through case No. 9/1996. He 2 also said that he attached its judgment on the pleadings at DLHT and the chairman afforded no weight on it. Therefore, he prays to this court to dismiss the ruling of the preliminary objection of DLHT Musoma. Further, the court should allow the case to be heard and determined on merits In reply Mr. Makowe contended that the issue here was that at the DLHT, both appellants filed the case against the respondents in their own capacity but not as the administrators of the late Ndege. Mr. Makowe contended also that at the application form for institution of the matter at the DLHT, form No. IV was not even mentioned .The appellant filed a case as themselves but not as an administrator of the estate of

his late father assisted by 2nd Appellant. As 1st appellant was going to DLHT he went as an administrator of the Estate, however he did not have the letter of administration. Mr. Makowe pointed · on the incorrectness of the order of the DLHT that since it was on competence, a matter ought to have been struck out but no dismissed. He therefore pray that this appeal be dismissed with cost but the order of the DLHT be revised and read struck out. In rejoinder, the 1st appellant insisted that he handed form no IV at the DLHT which showed that he was appointed to be an administrator of the estate of 7/2/1997. Further without even being an administrator of the estate, he could claim for the land as he is an heir. He pleaded with the court that in the event that he did not follow procedure, he prayedto be given chance to rectify the same so that he can claim for their land. Locus standi is a common law principle that is applicable in our courts by virtue of section 2(3) of JALA, Cap 358 RE 2002. There is no dispute that the appellants are seeking to claim the land of the late Ndege but all the same they filed the application at the DLHT at their own 3 individual capacity. The appellant complaint is that he attached form no IV showing that he is the administrator of the estate of the deceased, however the same has not even been mentioned in the list of documents appended at the DLHT.In

the circumstances, much as the appellant is claiming that he is the beneficiary of the estate, he should show the court that he was allowed by other beneficiaries to institute the matter on their behalf. Evidently, since he is suing for the land of the late Ndege, he should also show the court that he is the administrator of the estate and he is thus guiding the interest of deceased estate. Therefore, like the DLHT I am also inclined to agree with Mr. Makowe that the appellants have no locus standi to commence proceedings for the deceased estate at their individual capacity short of the letter of the administration of the estate. Again the 1st appellant is also complaining that he has powers of attorney to represent the second appellant. Nevertheless, the said power of attorney is not registered in conformity to the relevant provisions of the Land Registration Act, Cap 334 to enable the court to adopt it. Mr. Makowe has raised an issue pertaining to the order of the DLHT to dismiss the application instead of strucking it out. I share his view. The consequence of striking out is that the party do not file an appeal but rather start afresh if they so wish having rectified the anomaly. Court of Appeal discussed in lengthy the difference between "striking out" and "dismissal" in the case of Abubakar Khamis Bakary and 17 Others V Speaker of the House of Representatives, Civil Appeal

No 34 of 200~ quoting the case of Ngoni-Matengo Cooperative Market Union Ltd. v. Alimohamed Osman, (1959) EA 577 at page 580:- 4 " the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies that there was no proper appeal capable of being disposed of ..... // Since the application was not determined in merits, the proper order was to struck it out and not dismiss it. In the circumstance therefore, I invoke the revisionary powers of this court and revise the order of the DLHT and the same should read that the application ~~een struck out and I proceed to dismiss the appeal for the party who broughf d no locus standi at first plac~ ro 9Q.foG• Following the circumstance of the case I give no order as to costs Ordered Accordingly R.A. Ebrahim

JUDGE 5