Levison Mpanda and Others vs Mohamed Gunda Malala (as Representative of the Kinankali Clan) (Civil Appeal No. 643 of 2024) [2026] TZCA 215 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA. J.A., MASOUD, J.A, And FELESHI. J J U CIVIL APPEAL NO. 643 OF 2024 LEVISON MPANDA ........ . ............................................. ...1s tAPPELLANT HASSAN MAKOYE.......................................................... 2n d APPELLANT SAID MAKOYE ................... . .......................................... 3r dAPPELLANT MWANAIDI ATHUMAN.. .............................. . .................. 4th APPELLANT HALIMA YUSUPH............ . ................ . ............................ 5th APPELLANT AZIZA ATHUMANI ......... . ........ . ............................... . .... 6thAPPELLANT GODFREY SELEMAN ........... . ............. . ..................... . .... 7th APPELLANT VERSUS MOHAM ED GUN DA MALALA (as Representative of the Kinankali Clan)....................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dodoma) fKhalfan, J.1 dated the 10th day of October, 2023 in Land Appeal No. 44 of 2023 JUDGMENT OF THE COURT 23d February & 4P1March, 2026 MASOUD. J.A.: In this appeal, the appellants are challenging the concurrent findings by the courts below. The findings had the effect of resolving the suit brought by the respondent, allegedly, as a representative of the Kinankali clan, for recovery of a clan land, in favour of that clan. As a result, the Kinankali clan was declared the rightful owner of two pieces of land, to wit, firstly, one measuring about 28 acres situate at Kyalo Hamlet, Kisuiluiga village in Mkalama District, and secondly, one i measuring about 8 acres situate at Kinandili village, Miganga ward, in Mkalama District. The suit land was thus declared clan land belonging to Kinankali clan and the appellants were, accordingly, adjudged trespassers to that land. It all started when the respondent, as a representative of the Kinankali clan, sued the appellants at the District Land and Housing Tribunal of Iramba at Kiomboi (the trial tribunal) over the suit land which the appellants had, allegedly, trespassed. He claimed that, he had been duly authorised by the Kinankali clan to institute such proceedings on behalf of the clan vide exhibit PI. Apart from describing the size of the suit land alleged to be dan land and the boundaries in his pleadings found at pages 1 to 4 of the record of appeal, the respondent contended that the suit land is a clan land which the clan inherited from Mzee Lunde from whom the clan descended. He was as such entitled to sue in relation to the suit land as a care taker duly authorized by the clan members by virtue of exhibit PI to represent them. On the other hand, the appellants jointly denied the claim by the respondent as appearing in their pleadings at pages 8 to 12 of the record of appeal. It appears that, they also raised, though unsuccessfully, a preliminary point of objection found at page 8 of the record of appeal questioning the respondent's locus standi to sue the appellants in representative capacity on behalf of the alleged Kinankali clan members and hence the competence of the filed suit. The substance of the evidence in support of the respondent's case was from three witnesses including the respondent who tendered exhibit PI, the minutes of the Kinankali clan meeting. The evidence traversed through the respondent's ancestors and how the suit land originated from them which the respondent claimed to be the basis of ownership of the suit land by his clan. On the other hand, the evidence against the respondent's action arose from a total of nine witnesses. The evidence arising from those witnesses also traced the origin of the appellants' ownership of their respective parcels of land within the suit land, contending that they have been using the suit land for quite a long time. It is also noteworthy that, admission of exhibit PI was vehemently objected by the appellants on reason that it did not originate from Kinankali clan and it did not refer to the suit land. It was after evaluating the evidence that, the trial tribunal found that the respondent's case was more probable and heavier than that of the appellants. Based on that finding, the trial tribunal declared the respondent's clan the lawful owner and the appellants, the trespassers. It also issued a permanent injunction restraining the appellants and their agents from interfering with the suit land. The trial tribunal, as it appears on record, particularly at pages 87 to 88 of the record of appeal, had no issues with the respondent's locus standi which saw him bringing the suit in a representative capacity on behalf of his clan members. It had, therefore, no issues at all with the competence of the respondent's action. The appellants were dissatisfied by the decision of the trial tribunal. They appealed to the High Court against it. One of the complaints by the appellants was on the locus standi of the respondent, arguing that the respondent had no locus standi at the time of instituting the suit against them. The argument was, it appears, twofold; one, that, the respondent had no letters of administration as the claim arose from the land allegedly inherited by his clan from his great grandfather, and two, that, the respondent did not have representative capacity to sue on behalf of his clan, namely, Kinankali clan. After hearing the parties, the High Court concurred with the finding of facts by the trial tribunal. It dismissed the appeal and upheld the trial tribunal's decision. Specifically on the issue of locus standi, the High Court ruled against it. It held that the respondent had locus standi since he instituted the suit as a representative of his clan and not in his individual capacity. It also found refuge on exhibit PI which, in its view, showed that Kinankali clan had appointed and authorized the respondent to be their representative. With those observations, the High Court held that the respondent had, in the circumstances, the necessary locus standi to institute the case before the trial tribunal on behalf of his clan. As the appellants were aggrieved by the concurrent findings by the two courts below, they preferred the second appeal before this Court with a view to faulting the findings. The grounds upon which the appellants sought to fault the concurrent findings are, firstly, that the respondent's evidence was not credible and could not substantiate the claim of ownership of the suit land as clan land, and secondly, that the respondent had no locus standi to bring an action against the appellants. The appellants were at the hearing represented by Mr. Leonard Elias Magwayega, learned advocate, while the respondent appeared in person unrepresented. Neither the appellants nor the respondent lodged written submissions. With the Court's leave, they made oral submissions. M r. Magwayega submitted on the two grounds, starting with the second which related to locus standi of the respondent, followed by the first which was on the failure to evaluate the evidence. His submission, which, he reiterated in his subsequent rejoinder, was brief and focused. With regard to the second ground, he passionately urged us to consider exhibit PI which he wondered on whether by itself without more, could have given the standing to the respondent to bring the suit as a representative of his clan. Consistent with the foregoing, he urged us to bear in mind that the suit land was, allegedly, a subject of inheritance from the respondent's forefathers. In all, his submission on the second ground raises an issue of whether the respondent had locus standi to institute the suit on behalf of his clan against the appellants regarding land alleged to be clan land. Conversely, the respondent's submission in reply was characterized by a narration of how his clan came into ownership of the suit land as clan land from his forefathers. He invited us to take into account exhibit PI which authorized him to sue on behalf of the Kinankali clan in representative capacity. As far as the respondent was 6 concerned, exhibit PI gave him standing to sue on behalf of the whole clan. We should state at the onset of our determination that this being a second appeal, the Court will rarely interfere with concurrent findings of facts made by the courts below. The exceptions to the rule are when the findings are perverse or demonstrably wrong and occasioning miscarriage of justice. This is, particularly, so where it is shown that there was misapprehension of evidence, misdirection or non-direction, violation of some principle of law or procedure, or where the concurrent finding has occasioned miscarriage of justice. The above position has been well restated in a number of our decisions. See for instance, the cases of Amratlal Damodar Maltaser and Another T/A Zanzibar Silk Stores v. A. H. Jariwalla T/A Zanzibar Hotel [1980] TLR 31, and Samwel Kimaro v. Hidaya Didas [2019] TZCA 201. In the former case, this Court held that: "Where there are concurrent findings of facts by two courts, the Court o f Appeal, as a wise rule o f practice follow the long established rule repeatedly laid down by the Court o fAppeal for East Africa, that is, that the appellate court in such circumstances should not disturb concurrent findings o f facts unless it is clearly shown that there has been a misapprehension o f the evidence, a miscarriage o f justice or violation o f some principle of law or procedure." In the matter before us, the record clearly shows that, the respondent sued the appellants in a representative capacity on behalf of his clan members. The action was against the said appellants for allegedly trespassing into clan land belonging to the respondent's dan which was inherited by the clan from its forefathers. In so doing, the respondent filed the application in the trial court accompanied by exhibit PI, the minutes of the clan members, allegedly, authorising him to institute the suit on behalf of his clan members. The minutes were allegedly signed by the members of the clan in attendance when the meeting was held. In our view, it means that, the clan members listed therein had opted for the alternative procedure of a representative suit as opposed to the ordinary procedure of each member of the group suing separately. Thus, having opted for that alternative procedure, the requirement under Order 1, Rule 8 (1) of the Civil Procedure Code, Cap. 33, of seeking and obtaining leave to sue has to mandatorily apply. In K.J. Motors and Others v. Richard Kishamba and Others [2002] TZCA 27, when faced with more or less similar situation, this Court had the following to say: " ... the discretion or option provided under Order 1 rule 8 (1) (a) is given not to the court but to the parties, meaning that where the group opts for this alternative procedure then the requirement under rule 8 (1) (a) o f obtaining leave to sue has to apply. In our view that requirement is fundamental, not a mere technicality..." [Emphasis added] There is nothing on record suggesting that, leave of the trial tribunal to sue in representative capacity was sought and obtained before the institution by the respondent of the suit giving rise to the instant appeal. It was, equally, not in the respondent's submission that, he sought and obtained leave before he brought the suit against the appellants as a representative of the Kinankali clan members. Exhibit PI listed six clan members inclusive of the respondent who, allegedly, gave the authority to the said respondent to sue on behalf of the Kinankali clan. We are not quite sure that those are the only members of the clan, if at all, and whether or not they exist and they indeed gave that permission to the respondent to sue on their behalf as purported 9 by the respondent. We might even not be sure of the existence of the clan. Risks abound of, issuing court processes to non-existent or fictious persons, and leading to undesirable consequences. In relation to such risks, we stated in K.J. Motors and Others (supra) thus: "Where, for instance, a person comes forward and seeks to sue on behalf o f other persons, those other persons might be dead, non existent or otherwise fictitious. Eise he might purport to sue on behalf o f persons who have not, in fact, authorised him to do so. I f this is not checked it can lead to undesirable consequences. The court can exclude such possibilities only by granting leave to the representative to sue on behalf o f persons whom he must satisfy the court that they do exist and that they have duly mandated him to sue on their behalf. ..... We are of the view that compliance with the above procedure was a necessary requirement in the circumstances of the case, in order for the respondent to obtain leave to institute the suit under representative procedure. In other words, the respondent, as a prerequisite to instituting that case, had to file an application for leave to file such a representative suit. It is not the requirement of the law and the practice 10 for one to just indicate and describe in his pleadings that the suit is being brought in a representative capacity without first seeking and obtaining leave as was done by the respondent. We are of the above view because, in his pleadings for the case at hand, the respondent, purporting to bring a representative suit, styled himself as "Mohamed Gunda Malala- as a representative o f the Kinankali dan" and accompanied such pleadings with exhibit PI,the minutes of the Kinankali clan meeting, purporting to authorize himto bring the suit on behalf of the clan whose members are listed in the said minutes. As we have stated a while ago, that was not proper, because leave of the trial tribunal had to be first sought and obtained, before instituting such a suit which, as shown above, purported to be a representative suit. We drew inspirations from the High Court decision in the case of Kiteria Menezes and 33 others v. Afra Engineering Work Ltd and Attorney General [1998] TZCA 6 where the court, when faced with a similar scenario, held that: "Since Civil Case No. 297o f1997purports to be a representative suit, then the provision o f Order 1 , Rule 8 of the Civil Procedure Code had to be complied with. In other words, the plaintiffs, as a precondition to filing that case, li had to file an application for leave to file such a representative suit The plaintiffs did not do so before filing Civil Case No. 297 o f1997. ... that was a fundamental error." [Emphasis added] Since leave of the trial tribunal was not sought and obtained by the respondent to enable him to bring the suit on behalf of the members of the Kinankali clan, we think the suit was incompetent right from the start as the respondent did not have the requisite locus standi. The omission was fatal to the proceedings. Consequently, the purported suit and everything that arose from the filing of the purported suit at the trial tribunal and, subsequently, at the High Court, was a nullity. What had happened signifies a gross violation of law and procedure which entitle this Court to interfere with the concurrent findings by the two courts below. We find it prudent in the circumstances not to deal with the other limb of the second ground and the first ground. In the results, we nullify all proceedings of the first appellate court and the trial court, quash the judgments thereof and set aside the resulting orders and decrees. Henceforth, we allow the appeal to that extent. The respondent may bring a fresh suit if he so wishes after 12 complying with the requisite law and procedure. In view of the nature of the case, we make no order as to costs. DATED at DODOMA this 3rd day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 4thday of March, 2026 via virtual Court, in the presence of Mr. Leonard Elias Magwayega, learned counsel for the Appellants, the Respondent in person and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL IB