t ZALEA GULAMRASUL ANOTHER VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY

AT MBEYA LAND APPEAL NO. 9178 OF 2024 (Originating from the District Land and Housing Tribunal for Songwe at Mbozi in Land Application No. 3 of2022) ZALEA GULAM RASUL t/a RAWFAR INVESTMENT (As an Administratrix of the Estates of the Late Khalid Zaid Said t/a RAWFAR INVESTMENT)............................................................. 1st APPELLANT ZALEA GULAMRASUL t/a RAWFAR INVESTMENT.............. 2nd APPELLANT

VERSUS HALORD LEONARD SIAME............................................... 1st RESPONDENT MLIMANI INVESTMENT CO LTD........................................ 2nd RESPONDENT

RULING 01st & 30th August, 2024 TIGANGA, J. This Ruling is in respect of the preliminary objection raised in two points by the respondents against the appeal filed by the appellants which is challenging the decision of the District Land and Housing Tribunal for Songwe at Mbozi, in Land Application No. 03 of 2022 in which the respondents were the plaintiffs, while Khalid Zaid Said t/a Rawfar Investment (now a deceased) and Zelea Gulamrasul Omari t/a Rawfar Investment (now appearing also as administratrix of the estates of the 1 deceased) were the respondents. In that case, the respondents sued the appellants for recovery of a land baptized as Plot No. 16 CT. No. 13244- MBYLR is located at Sogea area within Tunduma Township (the suit property). After hearing from both parties, the court ruled in favour of the respondents and against the appellants. Dissatisfied with this outcome, the appellants decided to appeal to this Court. As the matter at hand pertains to a preliminary objection, I will not detail the grounds of appeal, as they are not relevant at this stage. As earlier on intimated, the respondents have raised two preliminary objections for consideration: 1. That the appeal is incompetent and unmaintainable for joining the 1st appellant who was not a party to original proceedings without obtaining and granted the leave of the Court.

2. That the appeal is incompetent and unmaintainable for being filed under the District Registry of the High Court which does not exist and/or repealed. With the court's permission and the agreement of both parties, the preliminary objections were addressed through written submissions. The appellants were represented by Ms. Joyce Kasebwa, a learned Advocate, 2 while the respondents were represented by Ms. Jalia Hussein Nyamoga, also a learned Advocate. In support of the preliminary objection regarding the first limb, Ms. Nyamoga submitted that the inclusion of the 1st appellant, who was not a party in the original proceedings, without first seeking and obtaining the Court's leave, contravened Order XXII Rule 4 of the Civil Procedure Code [Cap. 33 R.E 2019] (henceforth referred to as the CPC). She argued that the legal representative of a deceased party in a suit must first seek leave to be made a party to the proceedings. In this case, as the 1st appellant did not seek and obtain such leave, she has no locus standi. To support her contention, Ms. Nyamoga referred the Court to the decision in the case of Mwaisha Ally Mbalika (Administratrix of the Estate of Christian Ally Mbalika) vs. Juma Ally Mbalika & 4 others, Misc. Land Application No. 11 of 2021. According to Ms. Nyamoga, since this appeal was filed by a party without locus standi, it is incompetent before this Court. She

therefore prayed that it be struck out with costs. On the 2nd limb of the preliminary objection, Ms. Nyamoga argued that the first limb is strong enough to dispose of the appeal. Alternatively, she contended that the appeal was filed in the District Registry of the High 3 Court while the same is no longer in existence following the amendment of the High Court Registries Rules, 1971, GN No. 164 of 2017 through GN No. 638 of 2021 which brought into existence High Court Sub-Registry. She prayed that the preliminary objections be sustained and the appeal be struck out with costs. In response to the first limb, Mrs. Kasebwa submitted that the preliminary objection is not based on facts that could dispose of the case. She argued that the 1st appellant was joined in the proceedings by the trial Tribunal on the date of judgment delivery. However, the trial Tribunal failed to include the 1st appellant's name as the legal representative of the deceased. Ms. Kasebwa contended that striking out the appeal due to the trial Tribunal's omission would amount to punishing the 1st appellant for a mistake she did not commit. To reinforce her argument, she cited the case of Cropper v. Smith (1884) CH.D 700. Ms. Kasebwa further emphasized that the omission did not cause any injustice to the respondents. Responding to the second limb, concerning the non-existence of the District Registry, Ms.

Kasebwa conceded to the objection taking that to be an oversight. However, she was quick to argue that this oversight did not affect the rights of the parties and, therefore, could be rectified under the 4 overriding objective principle. She suggested that the Court could simply amend the record by replacing "District Registry" with "Sub-registry." To support her argument, she referred to Article 107A(2)(e) of the Constitution of the United Republic of Tanzania of 1977, Section 3A of the CPC, and case law, including Yakobo Magiga Gichere v. Peninah Yusuph, Civil Appeal No. 55 of 2017. These references emphasize, that courts should dispense justice without being bound by technicalities to ensure the expeditious disposal of cases. She thus urged the Court to overrule the preliminary objections with costs. In her rejoinder submission, concerning the first limb, Ms. Nyamoga added that Ms. Kasebwa's contention that the 1st appellant was joined in the trial Tribunal is an afterthought. She argued that the 1st appellant did not make an application to be joined in the trial Tribunal proceedings. The failure to include her name in the proceedings was not a mistake; rather, no application was ever made for her inclusion, as she appeared only after the conclusion of the hearing. Ms. Nyamoga further contended that merely being present at the time of judgment delivery does not make

someone a party to the proceedings. Therefore, the 1st appellant's presence in this appeal is contrary to Order XXII Rule 4 of the CPC. 5 Regarding the second limb, Ms. Nyamoga argued that it is a well- established principle that the overriding objective should not be applied blindly to circumvent the mandatory requirements of the law. She supported her argument by citing the case of Mondorosi Village Council & 2 others vs. Tanzania Breweries Limited & others, Civil Appeal No. 66 of 2017, CAT at Arusha. In conclusion, she insisted that the preliminary objections be sustained and the appeal struck out with costs. I have carefully considered the opposing arguments presented by the advocates. I will address both limbs of the preliminary objection in the order in which they were argued by the learned advocates. The first limb of the objection asserts that the 1st appellant has no locus standi because. she did not apply to be joined in the case as a legal representative of the deceased. This objection is based on the provision of Order XXII Rule 4 of the CPC. For easy reference, the relevant part provides that: Where one of two or more defendants dies......and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (Emphasis supplied). 6 The bolded

part is the crux of the contention. According to the respondent's counsel, since the 1st appellant's name was not in the original proceedings, she could not have been included without first making an application and obtaining leave. On the other hand, Ms. Kasebwa appears to agree with the legal requirements but maintains that the 1st appellant was joined in the proceedings by the trial Tribunal. She attributes the failure to include the 1st appellant's name in that capacity to an oversight by the trial Tribunal. To understand and then determine Ms. Nyamoga's concern, one minor question has to be asked, that is, when the 1st appellant would have applied to be joined in the proceedings; Was it at the time the appeal had already been filed or before? If it had been before, what ought to be the nature of that application considering that there was no pending suit/appeal in this Court? And if it would have been after, meaning that an appeal already been filed before the Court, who would have filed it considering that the deceased died before the trial Tribunal delivered the judgment? The answer to the above question is that the law, Order XXII rule 4 requires joining a legal representative of the deceased party when the death occurred at the time when the suit is in progress, that is, before the 7 hearing closed. When the hearing is concluded and the judgment is pending to be

delivered, the law does not direct or require for the joining of the legal representative but, continues with passing the judgment in the parties' names as they were in the case before the death occurred. This is according to Order XXII rules 4 and 6 of the CPC. Rule 6 provides: "5 Notwithstanding anything contained in the foregoing ru/es, whether the cause ofaction survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place!' (Emphasis added). The Court of Appeal of Tanzania faced a similar scenario in Saidi Omari Mohamedi vs Abdallah Mselem (Civil Application No. 144 of 2023) [2023] TZCA 17277 (26 May 2023) (Tanzlii) when the applicant applied for extension of time. In resolving it, the CAT had this to say: "First, the record is crystal dear that the applicant instituted the present application and cited himself as administrator of the estate of the late Tarimu Mohamed showing that acted in his capacity as administrator of the estate of the /ate Tarimu Mohamed... He did notjoin in the application which was already in Court. An administrator of the estate of a 8 deceased, in terms of sections 99 and 100 of the

Probate and Administration of Estates Act in case of a District Court and High Court and paragraphs 5 and 6 of Part II of the Fifth Schedule to the Magistrates' Court Act for Primary Courts, is a legal representative of the deceased with the capacity to sue and be sued. No doubt, that power includes the power to lodge and defend applications and also preferring and defending an appeal, revision, and review, and any matter pending in Court to which the deceased is a party. Second, in situations of this nature, there is no need to make a forma! application to be joined in the case as there was no application in existence..." (Emphasis added). Deriving from the above, it is clear that the requirement for application to be joined in a suit is not mandatory when a party dies after the hearing has been concluded and when the case is pending judgment. It was thus not obligatory for the 1st appellant to apply to be joined in the trial Tribunal. Therefore, the trial Tribunal cannot be faulted for non- entering the name of the 1st appellant in its proceedings after the death of the person in favour of whom he was appointed to administer the estate. Most important it is undisputed that who was the 1st applicant in the trial Tribunal died. 9 Also, the 1st appellant would have not applied to be joined in the appeal before this court while the same did not exist. That means an application to

be joined is done when the matter is already in court. But, if it is not, a legal representative must indicate to be in that capacity when making an application or appeal. Indeed, that is what the 1st appellant did in the instant appeal. He indicated to be an administratrix of the estate of the late Khalid Zaid Said t/a Rawfar Investment. In the circumstance the 1st limb lacks a leg to stand, I hereby overrule it. The second and final limb of the preliminary objection concerns the error made by the appellant in titling the registry of this Court as "District Registry" instead of "Sub-Registry." Counsel for the appellant conceded to have made the error. In my view, this preliminary objection need not detain us further. As correctly argued by Mrs. Kasebwa, the error does not result in any injustice to the respondents. It is therefore curable under the principle of overriding objective, which requires courts to deal with cases justly, expeditiously, and take great interest in substantive justice as provided by Section 3A of the CPC and Section 45 of the Land Disputes Courts Act, [Cap. 216 R.E 2019]. This principle was also underscored by the Court of Appeal of Tanzania in Yakobo Magoiga Kichere v. io Peninah Yusuph (supra). Accordingly, the second limb of the preliminary objection is overruled. In conclusion, having overruled both limbs of the preliminary objections, I hereby order that the appeal proceed on its merits. There is no order as to costs because the second limb of the objections which was overruled based on the principle of the overriding objective was conceded by the appellant's counsel in the first instance. It is accordingly ordered DATED and delivered at MBEYA on this 30th day of August 2024. J.C. TIGANGA

JUDGE 11