IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

(CORAM; MUGASHA, J.A., MURUKE J.A, And NANGELA. J J U

CIVIL APPEAL NO. 437 OF 2023

EVELYNE MBUNA ..................................................................... APPELLANT

VERSUS

JOSEPH MSHANA (Administrator of the Estate

of the late Naginder Singh Matharu)................................... RESPONDENT
(Appeal from the Judgment and Decree of the High Court of Tanzania,
Land Division at Dar es Salaam)

(Mansoor, J.)

dated the 22nd day of August, 2022

in

Land Case No. 427 of 2016

JUDGMENT OF THE COURT

16th June & 3rd July, 2025

MURUKE, J.A.:

This appeal, is from the Judgment and Decree of the High Court of

Tanzania (Land Division at Dar es Salaam), delivered on August 22nd,

2022, in Land Case No. 427 of 2016. The original parties were Naginder

Singh Matharu as the Plaintiff and Evalyne Mbuna as the Defendant.

Joseph Mshana is now the Administrator of the Estate of the late

Naginder Singh Matharu and is the Respondent in this appeal.

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 At the trial court, the respondent claimed vacant possession of Plot

No. 1370, Msasani Peninsula, registered under Title No. 36304 (the Suit

Property), which the Defendant was allegedly unlawfully occupying.

Additionally, the Plaintiff claimed USD 360,000, representing five years

unpaid rent at a rate of USD 6,000 per month, and general damages for

trespass. The Plaintiff asserted that he was the registered owner of the

suit property.

Having heard the parties, the trial court found that the respondent

was denied the use and occupation of the property since 2006 and was

entitled to general damages and costs of the suit to the tune of TZS.

1,000,000,000/=. The trial court ultimately declared the respondent the

lawful owner of the suit premises, while the appellant was declared a

trespasser and ordered to yield vacant possession immediately on the

ground that there was no valid sale agreement.

Aggrieved, the appellant lodged this appeal comprised of 15 points

of grievance. However, due to what is to unfold in due in course, we

shall not reproduce the grounds of appeal.

At the hearing of the appeal, Mr. Libert Rwazo, learned counsel

represented the appellant, while the respondent was being represented

by Mr. Gabriel Mnyele, also learned counsel. Before hearing could

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commence on merits, the appellant counsel sought leave of the Court to

add one more ground, the notice of which was earlier filed, which prayer

was not objected to by the respondent counsel, thus granted by the

Court. The additional ground reads as follows:

"Land Case No. 427 o f 2016 decision o f which is

subject o f this appeal was incompetent and
therefore not maintainable in law for being
instituted against Eva/yne Mbuna ("the
appellant') in her own name and not against the
Administratrix o f the Estate o f the late Joseph
Mbuna the owner o f the suit property therefore
in violation o f the provisions o f section 71 o f the
Probate o f the Probate and Administration o f
Estate Act"

For the reason that will become apparent later, we moved counsel

to initially address the Court on the additional ground.

The appellant's counsel submitted that, at the High Court, (trial

court) the appellant was sued wrongly as a trespasser. The appellant

pleaded that she was not a trespasser in her Written Statement of

Defence at page 35 of the record. She said, her late husband Joseph

Mbuna, purchased the disputed land before he died and, in her evidence

at page 303-314 of the record, the appellant was in the disputed house

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by virtue of her late husband's ownership. Mr. Rwazo further submitted

that the High Court determined the rights of the late Joseph Mbuna

while he is deceased. Thus, he argued that the proceedings were not

properly before the trial court because section 71 of Probate and

Administration Act was not complied with. He also cited the case of John

M. Litondo, Hanna H Litondo And Fred P. Salakana (legal

representatives of the Estate of the late Amina Litondo v. Fatuma

Amiri Masika (legal representative of the Estate of the late Zaitun Amri

Masika) Civil Appeal No 229 of 2020 [2024] TZCA 977. According to Mr.

Rwazo, the case is similar with the case at hand, whereby the

administrators of the late Mbuna were to be sued and not the appellant

in person. In this regard, it was argued that the trial was vitiated and

the resulting judgment is a nullity. Therefore, Mr. Rwazo invited the

Court to invoke revisional powers to quash the proceedings at the High

Court to set aside the judgment and decree.

In reply, Mr. Mnyele submitted that the suit was properly filed

against Evelyne Mbuna personally, as the appellant's counsel assertion

from the bar that there are three administrators of the estate of the late

Mbuna, is not supported by the record. More so, in the amended

defence at page 63 of the record, the appellant has not described

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herself as an administrator of the late Joseph Mbuna. He added that,

notwithstanding the sale agreement and the transfer deed, the property

is in the name of the late Naginder Singh. It has never become the

property of the late Joseph Mbuna. Thus, it was argued that in law, the

registered owner is the legal owner in the wake of nothing to the

contrary. Therefore, it was argued that the trial court was right in

declaring the appellant the trespasser, submitted the respondent's

counsel.

In rejoinder, the appellant's counsel insisted that, the sale

agreement is between Mbuna Joseph and Naginder Singh as reflected at

Page 315 of the record of appeal in which there is a transfer deed

between the appellant's husband and Naginder Singh. However, the

transfer was to be only after Capital Gain Tax was paid by the

respondent which was not the case. He added that, although the

plaintiff has the right to sue a person who has interfered on his or her

interest, but he cannot sue a person with no capacity to be sued. The

appellant's counsel maintained that, it was not proper to sue the

appellant in person because according to the record the administrator

were already appointed and ought to have sued as legal representatives

of the late Mbuna the owner of the property in dispute.

 With that brief rejoinder submission, Mr. Rwazo invited us to

invoke revision powers under section 4(2) of the AJA to nullify

proceedings of the trial court, and set aside the judgment and decree.

Having considered the record of appeal and submission made by

the parties, the main issue for our consideration is whether the appellant

was properly sued in her own name.

We understand that plaintiff has a right to bring an action in court

to claim his/her right that has been interfered or infringed by another

person. However, the person sued must be capable of being sued for the

court to pass an effective and executable decree. It is an exercise in

futility, to pass a decree which would be of no practical utility to the

plaintiff or defendant.

According to the pleadings, the respondent claimed that the

appellant trespassed into his land in dispute. The appellant in her

written statement of defense denied the claim and contended that the

land in dispute belonged to her deceased husband who purchased it

from the respondent. In particular, at paragraphs 5, 6, 7 and 9 of her

WSD it was pleaded as follows:

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 (5). The late Joseph Mbuna (herein after referred
as "the Purchaser") purchased the dispute
land from Mr. Naginder Singh Matharu the
Plaintiff (hereinafter referred as "the Vendor")
on 31st January 2006 for the consideration o f
TZS. 95,000,000/=. It was one o f the term o f
the Contract that the mode o f payment o f
consideration was by Cash and the deed o f
disposition was to be executed after payment
o f the purchase price.

(6). That on 1st o f February 2006, the Purchaser

paid in full the purchase price to the Vendor.
The Vendor handed over all documents to the
Purchaser and provided vacant possession to
the Purchaser. The Vendor cooperated fully
with the Purchaser to obtain consent from
Kinondoni Municipal Council which consent
was obtained on 22ndAugust2007.

Furthermore, the appellant stated under paragraphs 7 and 9 as

follows:

(7). Upon obtaining consent for the disposition

the Plaintiff requested the Purchaser for time
to raise money to pay the capital gain tax as
per the requirement o f the law. The Plaintiff
has never paid the capita! gain tax as a result

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 the Transfer o f the suit premises into the
name o f the Purchaser died on 2nd July 2009
before the Vendor could pay the Capital Gain
Tax. Therefore, the transfer has been pending
to date. The heir's effort to trace the Vendor
so that he can pay the Capital Gain Tax
proved futile.

(9). Save as to note that the suit property is still

registered in the name o f the Plaintiff the rest
o f the contents o f paragraph 5 o f the Plaint
are disputed. It is stated that the Plaintiff sold
the property to the late Joseph Stanley Mbuna
and the transfer is pending payment o f Capital
Gain Tax by the Plaintiff. Transfer will be
completed upon the Plaintiff paying capital
gain tax as required by law. The Defendant
note that the Certificate o f Title has not been
attached to the

It is discernable from the WSD that, the appellant was residing in

the suit premises which she alleged to belong to her husband. Since it is

on the record that the administrators of the Estate of the late Mbuna

were appointed, the law stipulates under the provisions of section 71 of

the Probate and Administration Act [Cap. 352 R.E. 2002] that:

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 "After any grant o f probate or letters o f
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 Probate or letters o f administration shall
have between revoked or annulled".

The evidence of the appellant above as who were the

administrators of the estate of the late Joseph Mbuna was not

challenged at all. The respondent's counsel assertion that administrators

were not known is not true. In the premises, it is in our considered

opinion, it was irregular for the respondent to initiate a case against the

appellant in her own capacity instead of pursuing action against the

administrators of the late Joseph Mbuna. As this was not the case, the

same vitiated the proceedings at the trial court and the resulting

judgment cannot be spared on account of being void.

Consequently, we nullify the trial proceedings, quash and set

aside Judgment and resulting orders. It is thus directed that whoever

wishes to commence action in respect of the premises, should implead

the appropriate persons in terms of Orderl rule 10 of the Civil Procedure

Code. Thus, the sole additional ground is merited and it is allowed.

Given that the determination of the said ground suffices to dispose of

the appeal, we shall not deal with the remaining grounds. In totality, this

appeal is allowed, with costs.

DATED at DAR ES SALAAM this 3rd day of July, 2025.

S. E. A. MUGASHA
JUSTICE OF APPEAL

Z. G. MURUKE
JUSTICE OF APPEAL

D. J. NANGELA
JUSTICE OF APPEAL

Judgment delivered this 3rd day of July, 2025 in the presence of Mr.

Libent Rwazo, learned counsel for the appellant and Mr. Gabriel Simon

Mnyele, learned counsel for the respondent; is hereby certified as a true

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