THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

MBEYA SUB- REGISTRY

AT MBEYA

LAND CASE NO. 9 OF 2023

ERICA BARNABAS ZILINDE............................................................ PLAINTIFF

VERSUS

REMMY BARNABAS ZILINDE....................................................................... 1stDEFENDANT

DEBORA GIDION SIRIKWA......................................................................... 2ndDEFENDANT

FANUEL ISAYA SIRIKWA.............................................................................3rdDEFENDANT

RULING

Date of Last Order: 09/04/2024

NDUNGURU, J.

The plaintiff, Erica Barnabas Zilinde who is the beneficiary of the

suit property instituted the suit against the above-named defendants

claiming that the 1st defendant's act of selling the suit property to the 2nd

and 3rd defendants is unlawful. She prayed for among other orders;

declaration orders that the plaintiff is the beneficiary of the suit property

and entitled to be registered as the owner, that the sale transaction of

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the suit property between the 1st defendant and the 2nd and 3rd

defendants is unlawful.

In their joint written statement of defence (the WSD) the 2nd and

3rd defendants vehemently disputed the liability. They also raised the

preliminary objection to the effect that:

(a) This Honourable Court is not clothed with pecuniary jurisdiction to

hear and determine this case; and

(b) The plaintiff hereinabove has no locus standi to institute this

plaint.

In accordance with a well-established practice, once a preliminary

point of objection is raised, the Court is duty bound to entertain it first

and make a decision thereon before proceeding to hear the substantive

matter.

When the matter was placed before me for hearing of the

preliminary points of objection, the plaintiff was represented by Mr. Seif

Wembe, learned advocate whereas the 2nd and 3rd defendants were

represented by Mr. Hassan Gyunda, learned. The preliminary points of

objection it was orally argued.

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 Starting with the 1st limb of objection, Mr. Gyunda submitted

that, this court has no pecuniary jurisdiction because the monetary value

of the suit property is less than the amount which makes the case to be

filed at this court. He also argued that, the plaintiff's plaint paragraph 26

states that the monetary value is 400,000,000/= but he has not

attached valuation report to support his assertion. Again, he submitted

that, their written statement of defence is annexed with a valuation

report which showing that the value of the suit property is Tshs.

74,000,000/= which is far below 300,000,000/= which makes the matter

to be filed at the High Court as per section 33 (1) (b) of the Land

Disputes Courts Act (Cap 216 R.E. 2019).

Mr. Gyunda further averred that, the valuation report was done in

November, 2022 to 15th day of November 2022 valuation was complete.

This case was filed on 31st day of March where hadly three months

passed. Again, he challenged the estimated value on the ground that for

such short period the monetary value cannot raise from Tshs.

70,000,000/= to Tshs. 400,000,000/= for those four months. He also

prayed the Court to consider the import of section 6 of the Civil

Procedure Code (Cap 33 R.E. 2019). Finally, he prayed the Court to

struck out the suit with costs.

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 In relation to the 2nd limb of objection, Mr. Gyunda contended

that, the plaintiff has no locus standi because in his claim, he states that

he is a beneficiary of the property and pray to be registered as the

owner of the property. He also argued that, there is nowhere in the

plaint the plaintiff shows to be the owner of the landed property. He

went on submitting that, the plaintiff's plaint states that the landed

property belongs to his late father and the same was given to him by

the family meeting.

He further submitted that, the said suit property was among in the

administration of the estates by the 1st defendant as the administrator of

the estate hence the plaintiff has no cause of action on the said

property. He added that, the plaintiff has not challenged the fact that

the 1st defendant was the administrator of the estate and the suit

property was one of them. On that reason, the counsel for the 2nd and

3rd defendants submitted that, if she believes that the suit property was

sold illegally could have resorted to the Probate Court. He referred this

Court to the case of Peter Mpalanzi v Christina Mbaruku, Civil

Appeal No. 153 of 2019, CAT at Iringa (unreported), where the Court of

Appeal discussed the meaning of the locus standi. He implored this

Court to struck out this case with costs.

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 Replying to the 1st limb of objection, Mr. Wembe averred that, the

preliminary objection is baseless. He went on submitting that, the Court

has jurisdiction to entertain it as per section 37 (1) (a) of the Land

Disputes Courts Act (Cap 216 R.E. 2019). He also contended that, the

plaint provides that the value of the suit property is Tshs. 400,000,000/=

and the parties and the Court have to be bound with the pleadings

before the Court. He added that, the submission made by the counsel

for the 2nd and 3rd defendants need evidence.

To justify his submission, he referred this Court to the case of

Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors

Ltd (1969) EA 700, where the Court dealt with meaning and tests as to

what constitute a preliminary objection. He further submitted that,

section 33 (1) (b) of the Land Disputes Courts Act (Cap 216 R.E 2019)

should not be regarded as it talks about the jurisdiction of District Land

and Housing Tribunal not the High Court. He continued to argue that,

section 6 of the Civil Procedure Code (Cap 33 R.E 2019) referred by the

counsel for the 2nd and 3rd defendants be disregarded as it does not bar

this Court to hear the case of this nature whose value is above Tshs.

300,000,000/=.

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 As regards the question of locus standi, Mr. Wembe contended

that, it is as well devoid of merit. He went on submitting that, paragraph

5, 12 and 13 of the plaint the plaintiff pleaded that he was given the

said house during the family meeting. This was to be discussed in the

main suit. Again, the counsel for the plaintiff argued that, Mr. Gyunda

has not explained to what capacity the plaintiff has filed the present

case. He also contended that, the cited case is totally distinguishable

with the case at hand. In the cited case, the appellant though claimed to

have been given but it is not true it is her husband who was given the

said house. In conclusion, he prayed the Court to overrule the

preliminary objection with costs.

In his rejoinder, Mr. Gyunda insisted that, the objection raised is a

legal objection. He also insisted that, the value of the subject matter is

not attained by mentioning figure in the pleading it must have value

report to support it. He further submitted that, the allegation that

valuation report is part of evidence is correct. Again, the counsel for the

2nd and 3rd defendants submitted that, section 37 (1) (a) of the Land

Disputes Courts Act (Cap 216 R.E. 2019) deals with the jurisdiction of

the High Court but not how the value is ascertainable. Finally, he

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reiterated his submission in chief that, the value of the subject matter is

Tshs, 74,000,000/= notTshs. 400,000,000/=.

I have considered the parties' submissions for and against the

raised preliminary objection, the crucial issue for determination is

whether the preliminary objection is meritorious.

At the outset, I see it is very important to states that, the

preliminary objection raised in this matter as they are, seem to be purely

legal points worthy for being ascertained at this very stage. I hold so

because the points of pecuniary jurisdiction and locus standi are points

of law which arise out of the pleadings filed before this Court. In so

doing, this Court has a duty bound to inspect the pleadings and their

annextures in order to ascertain whether the preliminary objections are

well founded.

Starting with the 1st limb of objections, as to whether this Court is

clothed with mandate to entertain the present case based on the

pecuniary value of the suit property pleaded in the plaint in absence of

valuation report.

It must be noted that, whenever the suit is made before the Court

of law, the initial issue to decide is whether the Court has jurisdiction to

deal with the matter or not. This position is well emphasized in the case

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of Fanuel Mantiri Ng'unda v Herman Mantiri Ng'unda (1995) TLR

159 where the Court observed that:

"The jurisdiction of any Court is basic; it goes to very root of

the authority of the Court to adjudicate upon cases of different

nature. The question of jurisdiction is so fundamental that

Courts as a matter of practice on the face of it be certain and

assured of their jurisdictional position at the commencement of

the trial"

It is also the law that, parties cannot confer jurisdiction to a Court

or tribunal that lacks jurisdiction. The similar position is stated in the

case of Shyam Thanki & others v New Palace Hotel (1971) 1 EA

199 it was held that:

"The Courts in Tanzania are created by statute and their

jurisdiction is purely statutory. It is an elementary principle of

the law that parties cannot consent to give a Court jurisdiction

while it does not possess."

In land disputes, courts enjoy jurisdiction subject to pecuniary

jurisdiction limit. Section 33 (2) (a) of the Land Disputes Courts Act,

provides that, in proceedings for recovery of possession of immovable

property, the DLHT has jurisdiction when the value of landed property

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does not exceed Tshs. 300,000,000/=. Whereas section 37 (1) (a) of the

Land Disputes Courts Act (supra) vested the jurisdiction to the High

Court to entertain the suits for recovery of possession of immovable

property where the value of the landed property exceeds Tshs.

300,000,000/=.

However, Order VII Rule 1 (i) of the Civil Procedure Code, Cap. 33

R.E 2022 neither pose a requirement to attach a proof in relation of the

amount mentioned in the plaint nor requires a valuation report to

accompany with plaint so as to determine the value of the subject

matter. I hold so by taking inspiration from the decision of this Court in

the cases of Julius Raphael Maitarya v Commissioner for Lands &

others, Land Case No. 109 of 2018, HC at DSM and Joseph

Augustino Mdaka v David Elias Nombo (The administrator of the

Estate of the late Elias Nombo) & 2 others, Land Case No. 02 of

2022, HC at Songea (both unreported).

The law is trite that in determining preliminary objection, courts are to

look at the complained pleadings against the complained contradicted

law and consider it as if the same is undisputed. In this matter, Mr.

Gyunda seeks this court to look at the WSD's attachment, that is the

valuation report and come to the conclusion that the plaintiff's claimed

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value of the suit land is lower than the required for this Court to be

clothed with jurisdiction. This means that Mr. Gyunda introduces

evidence about the value of the suit property and maintains that since

the plaintiff did not file reply to counter it then this court has no

jurisdiction. With due respect, that is not how preliminary objections are

determine; see Karata Ernest and Others vs Attorney General,

Civil Revision No. 10 of 2010 CAT at Dar es Salaam (unreported) at

pages 7 had this to say:

"At the outset we showed that it is trite law that a point of

preliminary objection cannot be raised if any fact has to be

ascertained in the course of deciding it. It only "consists of a point

of law which has been pleaded, or which arises by dear implication out

of the pleadings."

Though the plaintiff did not file reply to counter the valuation

report in the WSD, yet, cannot safely said that it is not subject for being

ascertained in the course of deciding the case. In the premises, the 1st

limb of preliminary objection lacks merits, it is thus overruled.

Turning to the 2nd limb of objection, my determination is 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

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that his/her right or interest has been breached or interfered with, See

the case of Lujana Shubi Ballonzi Senior v Registered Trustees of

Chama cha Mapinduzi (1996) TLR 203.

Again, it must be noted that, locus standi is a rule of equity that a

person cannot maintain a suit or action unless he has an interest in the

subject matter. Unless a person stands in a sufficient close relation to

the subject matter so as to give a right which requires protection or

infringement of which he brings the action, he cannot sue on it. See the

case of Godbless Lema v Mussa Hamis Mkanga & 2 others, Civil

Appeal No. 47 of 2012, CAT at Arusha.

In the instant case, and as correctly argued by Mr. Gyunda, it has

been pleaded in the plaint specifically paragraphs 5 and 8 that the

plaintiff is the beneficiary of the disputed property and entitled to be

registered as the owner, this also makes first prayer. The plaintiff

pleaded also that the suit property belongs to his late father. Further, at

paragraph 13 and 15 of the plaint, the plaintiff pleaded that the 1st

defendant was appointed and confirmed by the Primary Court to be the

administrator of the estate of his late father one, Benny Barnabas

Zillinde.

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 From the pleadings, therefore, the plaintiff is stating clearly that,

neither is an administrator of the estate of his late father nor the owner

of the suit property. She however, claims under paragraph 13 of the

plaint that it was resolved by a clan meeting after the death of her

father that the suit property be distributed to her. And that the 1st

defendant was nominated to be an administrator of the estates. Meaning

that, her claims are tresses from the clan meeting but not contending

that the same clan distributed the suit property to her.

That being the case, the plaintiff claims his late father's property

while there is an administrator of the estates. Law permits a person to

claim another's right if has firstly complied with legal requirement that

given him mandate to do so on that behalf. Besides, the plaintiff did not

indicate in her plaint about the status of the probate and administration

course in which the 1st defendant was appointed as administrator of the

estates. The non-disclosing of that fact makes this court to remain in

limbo. In that regard, I fully agree with Mr. Gyunda that if the plaintiff

believes that the suit property was sold illegally by the administrator of

the estate could have resorted to the Probate Court. I therefore, find

that the plaintiff has no locus standi to institute the present case.

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 In the event, I sustain the 2nd limb of the preliminary objections.

Consequently, I hereby strike out the present case. Considering the

relationship of the parties and the circumstances surrounding this

matter, that is the dispute emanating from administration of estates, let

each party bear her own costs.

Ordered accordingly.

D.B. NDUNGUR
JUDGE
18/07/2024

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