John M. Litondo and 2 Others (Legal Representative of the Estate of the late Amina Litondo) vs Fatuma Amri Masika (Legal Representative of the Estate of the late Zaituni Amri Masika) (Civil Appeal No. 229 of 2020) [2024] TZCA 977 (23 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWARUA. 3.A., KEREFU. 3.A. And KAIRO, 3.A.1 CIVIL APPEAL NO. 229 OF 2020 JOHN M. LITONDO, HANNA H. LITONDO AND FRED P. SALAKANA (Legal Representatives of the Estate of the late AMINA LITONDO) .... .......... ..... .... ..... ..... APPELLANT VERSUS FATUMA AMRI MASIKA (Legal Representative o f the Estate of the late ZAUUN1 AMRI MASIKA) ..... ............ ...... .........RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Moshi) fSumari. J/l dated the 28thday of August, 2018 in Land Case No. 19 of 2016 RULING OF THE COURT 21st& 23d October, 2024. KEREFU. J.A.: The main issue of controversy between the parties to this appeal is the ownership of a parcel of land described as Plot No. 8/111, (the suit property)/ situated at Liwali Street within Moshi Municipality. The material background and essential facts of the matter as obtained from the record of appeal indicate that, the original registered owner of the suit property was the late Hija Roweta who died intestate in

1985. It was alleged that the late Hija Roweta left the suit property to her daughter, the late Halima Selengia who, prior to her death, owned it for about fifty-one years without any disturbance or interference until she passed away in 2013. After the demise of Haiima Selengia, on 24th April 2014, the appellant was appointed by the Primary Court at Moshi via Probate and Administration Cause No. 52 of 2014 to administer her estate. By virtue of being appointed administratrix of the estate of the late Halima Selengia> the appellant contended that she became the legal owner of the suit property and acting in that capacity, she instituted a suit in her personal name and capacity against the respondent together with one Msuya Auction Mart, who is not a party to this appeal as her case was withdrawn on 4th June, 2018 prior to the trial. The appellant prayed, among others, for a declaration that she is the lawful owner of the suit property and a permanent injunction restraining the respondent or anybody else from interfering with her peaceful occupation and use of the suit property. In her written statement of defence, the respondent disputed the appellant's claim by contending that, the suit property belonged to the late Hija Roweta who died intestate on 10th October, 1985. That, after the

death of Hija Roweta, the late Zaituni Amri Masika was appointed administratrix of her estate by the Primary Court at Moshi vide Probate and Administration Cause No. 148 of 2015. The said appointment was objected by the appellant but, it was confirmed by the District Court of Moshi on 20th July, 2016 vide Civil Appeal No. 11 of 2015. However, the late Zaituni Amri Masika died intestate on 30th March, 2017 and Fatuma Amri Masika was appointed on 18th August, 2017 as administratrix of her estate vide Probate and Administration Cause No. 110 of 2017. It was the further contention of the respondent that the late Halima Selengia was only an invitee in the suit property and she was not the owner of the same. That, the late Hija Roweta had four issues including the appellant's mother, the late Halima Selengia, who had no exclusive right on the suit property over the other children and or the grandchildren of the late Hija Roweta. As such, the respondent urged the High Court to dismiss the appellant's case with costs and declare that the suit property belongs to all rightful heirs of the late Hija Roweta. Having heard the evidence adduced by the parties before it, the High Court (Sumari, J.) decided the suit in favour of the respondent, The decision of the High Court prompted the appellant to lodge the current

appeal to express her dissatisfaction. The appeal comprises ten (10) grounds of appeal. However, for reasons that will shortly come to light, we do not deem it appropriate, for the purpose of this ruling, to reproduce them herein. When the appeal was placed before us for hearing, the appellant was represented by Mr. Emmanuel Anthony, learned counsel whereas the respondent appeared in person. At the outset, it is imperative to deal with a preliminary procedural matter that we addressed prior to the hearing of the appeal. That, on 10t h July, 2023 when the appeal was initially called for hearing, Ms. Jane James, the then learned counsel for the appellant, informed the Court that the appellant had passed away on 22n t J July, 2021 and her legal representative(s) were yet to be appointed. As such, the hearing was adjourned to allow the relatives of the deceased to avail the legal representative(s) of the appellant to be joined in this appeal in the place of the deceased, the appellant. On 21st October, 2024, when the matter was again called on for hearing, Mr. Anthony informed the Court that Mr. John M. Litondo, Ms. Hanna H. Litondo and Mr. Fred P. Salakana have been appointed by the 4

Primary Court of Moshi, on 3r d December, 2021, vide Probate and Administration Cause No. 250 of 2021 as the legal representatives of the estate of the late Amina Litondo, the appellant. To substantiate his submission, he availed copies of the letters of administration to that effect and moved us informally, pursuant to rule 105 (1) of the Tanzania Court of Appeal Rules, 2009 as amended by the Tanzania Court of Appeal (Amendment) Rules, 2024, published in Government Notice No. 188 of 2024, to include the said legal representatives in this appeal in the place of the deceased, the appellant. There being no objection, we granted the said prayer and ordered the requested joinder in accordance with rule 105 (1) of the Rules. Before we could embark on hearing of the appeal on merit, we wanted to satisfy ourselves on the propriety or otherwise of the proceedings and judgment of the High Court on account of the locus standi of the appellant to sue in her own name and capacity despite the fact that the suit property in question was the property of the iate Hija Roweta. It was also on record that, although, the appellant was the administratrix of the estate of the late Halima Selengia, her claim was on the ownership of the suit property which was under the estate of the late Hija Roweta which

was being administered by the respondent. As such, we invited the parties to address us on those issues. In his response, Mr. Anthony readily conceded that the appellant did not have the locus standi to institute the suit in her personal capacity because the suit property was registered in the name of the late. Hija Roweta. Elaborating on that point, Mr. Anthony admitted that, according to paragraphs 8 to 18 of the plaint read together with paragraphs 16 to 18 of the written statement of defence, both parties clearly indicated that the owner of the suit property was the late Hija Roweta. Citing the case of Abdulatif Mohamed Hamis v. Mehboob Yusuf Othman & Another, Civil Revision No. 6 of 2017 [2018] TZCA 25, the learned counsel argued that, since the appellant did not have the focus standi to institute the suit against the respondent, which is the subject of this appeal, the entire proceedings of the High Court were vitiated and deserve to be nullified. On that basis, Mr. Anthony beseeched us to nullify the aforesaid proceedings and set aside the judgment and the decree entered by the High Court. On the other hand, since the issue raised by the Court was based on a point of law, the respondent did not have much to say. However, after

the Court had clarified to her on what was at stake, she conceded and welcomed the prayers made by the learned counsel for the appellant Having carefully considered the submissions made by the parties, the main issue for our determination is whether the appellant had locus standi to commence litigation before the High Court against the respondent in her own name and capacity. We wish to start by stating that locus standi is a principle which is governed by common law according to which, a person bringing a matter to court should be able to show that his or her right or interest has been breached or interfered with. See for instance the cases of Lujuna Shubi Ballonzi Senior v. The Registered Trustees of Chama Cha Mapinduzi [1996] T.LR. 203, The Registered Trustees of SOS Children's Villages Tanzania v. Igenge Charles & 9 Others, Civil Application No. 426 of 2018 [2022] TZCA 428 and Malietha Gabo v. Adam Mtengu, Civil Appeal No. 485 of 2022 [2023] TZCA 17318. In the premises, a person whose rights or right has been infringed by another person can seek remedy or re!ief(s) before the court either personally or through an authorised agent. Therefore, if a person who brings action before the court has no iocus standi it raises the issue of 7

jurisdiction which should be resolved at the earliest by the parties or the court itself. In the instant appeal, the appellant's pleadings found at page 10 to 13 of the record of appeal stated clearly that the suit property, in question, belonged to the late Hija Roweta. The said facts are reflected under paragraphs 8 to 18 of the appellant's plaint. For the sake of clarity, paragraphs 8 and 16 of the said plaint are hereby reproduced: "8. That, the said suit premises has once been owned by the iate Hija Roweta who ieft it to her daughter the late Haiima Selengla, the one who built the said house for her mother the iate Hija Roweta; and 16. That, the plaintiff was legally appointed as the administratrix o f the estate o f the late Haiima Selengia on 24/04/2014 via Probate Cause No, 52/2014 ." Furthermore, in her written statement of defence, the respondent stated as follows under paragraphs 4,12 and 17: " 4. That, the contents o f paragraph 8 o f the plaint are partly admitted only to the extent that the house in dispute was once owned by the late Hija Roweta,

the rest are seriously disputed and the plaintiff is put to strict proof thereat; 12. That, the 1st defendant further states that the late Hija Roweta had four issues and the said Halima Selengia wasjust one o f those four issues; and 17. That, the 1st defendant is the lawful administratrix o f the estate o f the late Hija Roweta." In the light of what was specifically stated by the appellant and the respondent in their pleadings, it is dear that the original owner of the suit property was the late Hija Roweta whose estate, by then, was being administered by the late Zaituni Amri Masika. It is also clear that the appellant was the administratrix of the estate of the late Halima Selengia who happened to be the daughter of the late Hija Roweta. However, in pursuing the rights of the late Halima Selengia under the suit property, the appellant improperly instituted the suit under her personal name and capacity despite the fact that the said property belonged to the late Hija Roweta. As such, before the High Court, the appellant failed to show that her rights or interests have been breached or interfered with to enable her to sue the respondent in her own name and capacity. It is unfortunate that

the said anomaly missed the eyes of the High Court as it could have been addressed and determined timely by that court. In the circumstances, we agree with the submission made by Mr. Anthony that, the appellant had no locus standi to institute the case against the respondent in her own name and capacity on a suit property which was owned by the deceased. We are fortified in that regard because the only person who can act as a legal representative of the deceased, is the grantee of the letters of administration as stipulated under the provisions of section 71 of the Probate and Administration of Estate Act, Cap. 352 which provides that: "After any grant o f probate or letters of administration) no person other than the person to whom the same shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative o f the deceased, until such probate or letters o f administration shall ha ve been revoked or annulled." This Court, has had occasions, previously, to deliberate on the applicability of the above provision. For instance, in the case of Omary

Yusuph v. Albert Munuo, Civil Appeal No. 12 of 2018 [2021] TZCA 605, the Court, when faced with an akin situation, nullified the proceedings and set aside judgments of the courts below because the wife of the deceased who was granted the letters of administration had initiated a case in her own capacity on behaif of her deceased husband. Then, the Court stated that: "...it is our considered view that the existence o f iegai rights is an indispensable pre-requisite o f initiating any proceedings in a court o f law. In this particular case, since Yusuph Haji had passed a way, according to the Jaw it is only the lawful appointed legal representative o f the deceased who can sue or be sued for or on behaif o f the deceased which is stipulated under the provisions o f section 71 o f the Probate and Administration Act [CAP 352 R.E.2002], ” Similarly, in the instant appeal, it was irregular for the appellant to institute, in her own name and capacity, the suit against the respondent on the suit property which belonged to the deceased. In view of what we have demonstrated above, we invoke our revisionai jurisdiction under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 and hereby nullify the entire proceedings and set aside the 11

judgment and the decree of the High Court in Land Case No. 19 of 2016. Considering the circumstances of this appeal, we make no order as to costs. DATED at MOSHI this 23r d day of October, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Ruling delivered this 23r d day of October, 2024 in the presence of Mr. Emmanuel Antony, learned Counsel for the Appellant and Ms. Fatuma Amri Masika (Legal Representative o f the Estate o f the late Zaituni Amri Masika)\ho. Respondent, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL