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& 23dOctober, 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withdrawn on 4th June, 2018 prior to the trial.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 10th

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 22ntJ 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 3rd 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 23rd 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 23rd 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