zainab kassim faki another vs hassalima nyumba another 2019 tzhclandd 31 5 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 147 OF 2017 (Originating from LandApplication No. 170 2013) ZAINAB KASSIM FAKI........................................1st APPLICANT ALLY OMARY JUMBE........ ................................. 2nd APPELLANT VERSUS HASSALIMA NYUMBA........................................ 1st APPELLANT TATU OMARY JUM BE...................................... 2nd RESPONDENT JUDGMENT ON APPEAL. S.M. MAGHIMBI. J: The Appellants named above being aggrieved by the judgment of the Temeke District Land and Housing Tribunal in Land Application No. 170/2013 delivered on 18th day of February, 2016 have lodged this to appeal against the whole of the said decision on the following grounds namely:- 1. That the trial District Land and Housing Tribunal erred in law and fact by determining the matter which is res judicata. 2, That the trial District Land and housing Tribunal erred in law and facts by holding that the property in dispute was entitled to the 1st Respondent husband while there is no proof to the effect of paying compensation to other beneficiaries. 3. That the trial District Land and housing Tribunal erred in law and facts by holding that the property in dispute was properly transferred to the 1st Respondent without filing a probate of Amiri Jumbe. 4. That the trial District Land and Housing Tribunal erred in law and fact by failing to properly evaluate the evidence on record. 5. That the trial District Land and housing Tribunal erred in law and facts by failing to appreciate the Appellant's evidence. The appellant prayed for the following orders: a) This Appeal be allowed and the judgment and decree be set aside. b) Judgment be entered in favour of the appellants. c) Any other order/relief as the honourable court shall deem fit and just to grant. Before going into the merits of the appeal, the background of the matter that lead to the current appeal is narrated. One Amiri Jumbe Ndumbura who is now deceased owned the suit house, upon his death, he was survived by three heirs including the 1st respondents husband Omari Amiri Jumbe, Mariamu Hassan Tufi (the appellant's mother) and Tatu Amiri. On 11th February, 2007 family members of the late Amiri Jumbe Ndambura agreed to dispose of the suit for Tshs. 4,500,000/= and the proceeds therefrom be divided to the three heirs at Tshs. 1,500,000/= each. The applicant's husband Omari Amiri Juma (deceased) decided to purchase by paying each remaining heirs their share. It was only the 3rd respondent who was given her share of Tshs. 1,500,000/= on the same day. Unfortunately, the late Omari Amiri Jumbe passed away before he took possession of the suit house and the 1st respondent continued to occupy the suit premises hence the application by his administrator, his wife. On my part however, I will not dwell much on the substance of the appeal as there is an issue of law which vitiates the proceedings of the tribunal. It was undisputed in the pleadings as well as the evidence that what the applicant was seeking at the tribunal was an order declaring her late husband to be the owner of the disputed property. One of the documents tendered at the tribunal was the applicant's letter of appointment as administrator which was received as EXP1. It is therefore conclusive that the 1st respondent sued the respondents as the administrator of the estate of her deceased husband one Omary Amiri Jumbe. Order VII Rule 4 of the Civil Procedure Code, Cap 33 R.E 2002 (The CPC) provides: Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it (Emphasis supplied). To this court's surprise, all along at the tribunal and in this appeal, the appellant appears in her personal capacity and not that of an administrator of the estate of the late Omari Jumbe. However, she had tendered EXP1 which shows that she is the administrator of the deceased estate. This goes to the root of the competence of the 1st respondent to have lodged an application at the tribunal while the suit property allegedly belonged to 3 the estate of the deceased. Indeed, the 1st respondent had no locus to have sued the respondents therein in her personal capacity as she had not adduced evidence to prove that the estate of the deceased Omari Jumbe was distributed and the probate closed. In absence of such evidence, the appellant lacks locus standi to sue the respondent in his (appellant's) personal capacity. In the light of the above, and since it is to the satisfaction of this court that the respondent had no locus to sue the appellant on his own capacity at the trial tribunal, I see no reason to dwell on the grounds of appeal. Having made those findings, the whole proceedings, judgment and the subsequent decree of the tribunal are hereby quashed and set aside. Should the 1st respondent be interested to claim her husband's property, she should bring an action in her capacity as the administrator of the estate of her late husband and not in her personal capacity. I make no order as to costs. Appeal allowed Dated at Dar es Salaam this 05th day of September, 2019 S.M MAGHIMBI JUDGE