ABISAI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY

AT POPOMA LAND APEAL NO. 2877 OF 2024 (Arising from the decision of DLHT for Dodoma at Dodoma in the Land Application No. 249 of 2022 delivered on dated 15/12/2023 by Hon. Kanyenyeri, CHR) ABISAI PETER.............................................. ..................... APPELLANT

VERSUS SHABANIJUMA..................................................................RESPONPENT

JUDGMENT 28/ 2/2025 Hassan, J.: In terms of section 41(1) of the Land Dispute Courts Act Cap. 216 R.E. 2019, the appellant herein preferred the instant appeal to be determined by this court. The dispute arose following the dissatisfaction from the decision of the District Land and Housing Tribunal of Dodoma for Dodoma in the Land Application No. 249 of 2022. Thus, the appellant triggered six grounds of appeal as follows: l 1. That the trial chairman erred in taw and facts by failure to analyses and evaluate the evidence adduced by appellant, hence reached to>unjust decision.

2. That the learned trial chairman erred both in law and facts to decide without considering the fact that the appellant was a Bonafide purchaser to the land in dispute.

3. That, the wholejudgment andproceedings o f the trial tribunal were married by illegality and irregularities.

4. That the trial tribunal erred in law and in facts by pronouncing thejudgment in favour o f the respondent by failing to consider the strong evidence o f the appellant who legally acquired ownership o f the disputed land without fraud and holds a certificate o fa right o f occupancy before transferred to Alexander Lupindo.

5. That, the chairman [sic] erred in law and to condemn the appellant to pay cost o f the case. 2 In his pursuit to look for his right, the appellant prayed the court to allow the appeal and set aside the decision of the trial tribunal dated 15th December, 2023, with costs. Briefly, the background story leading to the dispute is thus: initially, the appellant herein was one of three respondents in Land Application No. 249 of 2022, who is contesting the decision of the District Land and Housing Tribunal (DLHT) of Dodoma delivered on 15th December, 2023, and the respondent herein was pronounced a winner. Time passed without any reflection in protest of the decision rendered by the tribunal; neither the appellant herein nor his fellow respondents from the original application had initiated an appeal. Thereafter, the respondent herein lodged an application for execution in the Miscellaneous Land Application No. 02 of 2024; though the application for execution was heard ex parte, the same was granted to the respondent save for the award of costs in the ruling delivered on 15th March, 2024. Along with the ruling, the removal order and letter for handing over the premises, both dated 21st March, 2024 were issued. 3 Following the respondent's undertaking, the appellant became alive and awoke; thus, this instant appeal contests the whole decision of the DLHT in the Land Application No.

249 of 2022. In this appeal, the appellant is armed with 5 grounds of appeal (supra). When the appeal was called up for hearing, that is, on 11/12/2024, the court ordered the parties to submit their case by way of written submission. Proudly, they both complied with the terms of preference in submitting their appeals. For the appellant, Mr. David Justine Malugu, learned counsel had taken charge. Whereas, for the respondent, Mr. Lucas Alto Komba, also learned counsel assumed the same responsibility. On his side, the appellant's counsel submitted thus: the appellant herein was the 2nd respondent in land application No. 249 of 2022 that was heard before the District Land and Housing Tribunal or Dodoma at Dodoma, of which the decision was pronounced on the 15th December, 2023. Thus, discontented by the said decision, the appellant appeals against the whole of the decision, advancing his appeal with five grounds to seek the remedies. Starting with the 3rd ground of appeal, which faults the decision of DLHT that the whole judgment and proceedings of the trial tribunal were 4 marred with illegality arid irregularity. He thus argued that the records at the trial tribunal, more specifically the pleadings, reveal that the dispute involves the registered land plot no. 467 block "K" Majengo Mtumba within Dodoma with title No. DOM010962. Therefore, the appellant counsel pointed out that the

process of acquiring land in Tanzania passes through various processes and institutions that govern the same. He mentioned that the Dodoma City Council and the Registrar of Title are responsible for the allocation and the registration of land, respectively. Therefore, he arguably maintained that condemning them without being heard in the actions/deeds they have entrusted in the allocation and registration of the disputed plot was a serious irregularity that deprived the right to be heard to the Commissioner for Lands, Dodoma City Council, and the Registrar of Titles. To bolster his argument, Mr. Malugu invited the court to the case of Nestory Msoffe and 5 others vs the registered trustees of Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019 TZCA {TANZLII} at page 6, where the court held that: "7/7 the premises, in view o fthe state o f the pleadings and the stated position o f the law, it was incumbent for the High Court to be keen enough to require the parties to 5 amend the pleadings andjoin the Registrar o f titles who is allegedly to have registered the respondent's property is question held under certificated o f title." Furthermore, he argued that joining the above-mentioned institutions could have assisted in determining the real questions as to how the Appellant has acquired the certificate of title. learned counsel Malugu contended further that if the court

gives an order to the Commissioner for Lands, the Dodoma City Council, and the Registrar of Titles to revoke and rectify the title of the disputed plot to the respondent herein, it will cause a violation of the principle of natural justice for not giving them an opportunity to be heard; and as a result, it will cause miscarriage of justice on the part of the appellant. Thus, for that reason, an intervention is necessary to allow the appeal. Moving on to the 1st, 2nd and 4th grounds of appeal, Mr. Malugu craved to argue them jointly, and thus, he submitted that the appellant had testified at the trial tribunal that he purchased the disputed property, and he showcased how he acquired the certificate of title for the disputed plot. He therefore argued that, in that respect, his evidence was clear and strong, as 6 indicated at pages 26 and 27 of the proceedings. Whereas the appellant testified how he purchased the disputed plot, paid the requisite fees, and received the title deed of the impugned plot. The counsel for the appellant contended further that it is a trite law that in civil cases the standard of proof is on the balance of probability, and having regard to the trial court judgment and proceedings, the evidence of the appellant was heavier compared to the evidence of the respondent. Hence, the trial tribunal erroneously arrived at the impugned decision based on the weak

evidence of the respondent. To conclude therefrom, Mr. Malugu prayed the court to allow the appeal and to order a trial de novo in compliance with the law; or based on the evidence, to reverse the decision the trial tribunal and declare the appellant as the rightful owner of the disputed plot, and finally, award the costs of the suit. On the other hand, the respondent's counsel resisted the appeal. He further submitted in the first place that, before he starts to argue the Appellant's submission, he pleads the court to take a judicial notice that this appeal has been taken by event since the execution relating to the 7 judgement has been conducted to the end. To that effect, he attached the copies of the ruling of execution made on 15/03/2024, the removal order dated on 20/03/2024, and the letter for handing over the premises dated on 21/03/2024. In furtherance of what he has blown up, Mr. Komba also submitted that under section 59 (1) (d) and 59 (3) of the Evidence Act Cap 33 R.E. 2019, the court may take judicial notice on its own accord or upon request by a party. He thus referred to the case of Craven v. Smith, 1869 LR 4 Exch 149, in which the following was observed thus: "The court is entitled to look at its own record and proceedings in any matter and takejudicial notice o f their contents although they may not be formally brought before the court by the parties." In the

circumstance, Mr. Komba submitted further that the execution had already been done and the order for vacant possession had also been made. Therefore, the appellant's eviction from the property is proper and will do justice to the parties. He stressed that, in any event, litigation must come to an end in one court, and the end of litigation is signified by the 8 execution of the court order. Thus, he further submitted that the question that follows is, does this court have the necessary jurisdiction to entertain this appeal? In his view, the answer is that this court does not have jurisdiction. Replying on the 3rd ground of appeal, learned counsel Komba contended on the point raised by the appellant that, the decision and proceedings of the trial tribunal were marred with illegality and irregularity, and on arguing the same he basing on none joinder of the Registrar of Title, Commissioner of land and Dodoma City Council. In addressing such an argument, Mr. Komba contended that, firstly, it is not mandatory that the registrar of title has to be joined in every case that is linked to the registered land, but arguably, it depends upon the circumstances of each case. He added that the main reasons to do so are (i) when the person ought to be joined as a plaintiff or defendant and has not been joined, or (ii) when, without his presence, the questions in the suit cannot be completely

decided. Thus, to back up his point, he referred to the case of Nuta Press Ltd vs. Maki Holdings and Another (Civil Appeal No. 80 of 2016 (Unreported). 9 Based on the above, he argued that, according to the circumstances of the case at hand, there was no need to join, either the Registrar of Title, or the Commissioner of land, or the Dodoma City Council because, the root of the dispute was the validity of the sale agreements between the parties. Furthermore, Mr. Komba argued that, a non-joinder of the parties cannot amount to the illegality or irregularity because the words illegality and irregularity do not cover either error of laws or fact, but it is basing on the matter of jurisdiction, denial to the right to be heard, and on issue of time limitation. He stressed that, the position is clearly explained in the case of Ms. Speed Security Ltd vs. Hussein Abdallah Kanik and Other (Civil Application No. 142/12 of 2023) where it was held that: "...the word illegality and material irregularity" do not cover either errors o ffads or law, they do not refer to the decision arrived at the manner in which it is reached". Adding to that, he insisted that it was further emphasized thus: "From above definitions, it is our conclusion that for the decision to be attacked on the ground o fillegality, one has to successfully argue that the court acted illegality for 10 want o fjurisdiction or

for denial o f right to be heard or that the matter was time barred". Protesting further on the issue of non-joinder of the registrar of title, he insisted that this issue should not receive the court's attention because it was not set out as grounds of appeal. In fact, it was raised contrary to the provisions of Order XXXIX, Rule 2 of the Civil Procedure Code, CAP 33 R.E. 2019, which prohibits the parties from arguing a point that was not set out in the memorandum of appeal, save where there is leave of the court to that effect. The provision of Order XXXIX, Rule 2 of the CPC states: "The Appellant shall not, except by leave o f the Court, urge or be heard in support o f any ground o f objection notset forth in the memorandum o fappeal; but the Court, in deciding the appeal, shall not be confined to the grounds o f objection set forth in the memorandum o f appeal or taken by leave o f the court under this rule." By concluding this point, Mr. Komba argued that, based on the above explanation, he maintained that a non-joinder of the parties thereof cannot amount to the illegality or irregularity. ll Moving forward, he submitted that the 1st, 2nd and 4th grounds of appeal, which deal with analyses and proof of the case were jointly argued by the Appellant. Arguing on those grounds, Mr. Komba firstly conceded that when the Appellant was testifying, he disclosed that he secured the

suit land by purchasing it. He then managed to acquire a title deed. However, in his view, Mr. Komba contended that the evidence of the Respondent herein was heavier than that of the Appellant since the Respondent, through the written agreement, made the proof that he was the 1st to buy the suit land from one Shaibu Sozi Salum on 25th April, 2021. That means, he elaborated, that when the Appellant bought the suit land from Shaibu Sozi Salum, the said land already belonged to the Respondent herein. He further contended that, through the written agreements tendered by both parties, it is an undisputed fact that the Respondent was the 1st person to buy the suit land. Therefore, an execution of the sale agreement between Shaibu Sozi Salum and the Appellant herein was made illegal; and for that reason, the whole procedure followed by the Appellant herein to get the Certificate of Occupancy was null and void. That is why the trial tribunal has decided in favour of the Appellant herein. 12 That is all the parties have submitted for and against the appeal. Now, going forward through the submissions, it is crystal clear that as it stands, the matter that requires the court's attention is whether or not the appeal has merit. In the first place, I am tempted to kickstart by analysing the 3rdground of appeal, which deals with the issue of a joinder of a party. It was the appellant's view

that the trial was tainted with illegality and/or irregularity, and he therefore maintained that the suit land is registered, and for that reason, there is a necessity to join the Registrar of Title, Commissioner of Land, and the Dodoma City Council in the suit as necessary parties; although, the respondent has vehemently opposed the argument. In his submission, the respondent's counsel succumbed that it is not mandatory that the registrar of title has to be joined to each case that is linked to the registered land. He further contended that, arguably, it depends upon the circumstances of each case; he therefore explained that the only main reasons to do so are: (i) when the person ought to have been joined as a Plaintiff or Defendant, and has not been joined; or (ii) when, without his presence, the questions in the suit cannot be completely decided. To 13 support his point, he cited the case of Nuta Press Ltd vs. Maki Holdings and Another (supra). To bolster his point, the appellant forcefully argued further that by condemning the Commissioner for Lands, Dodoma City Council, and the Registrar of Titles with the opportunity of being heard in the actions/deeds that they have been entrusted with, it was a serious irregularity that deprived them of the fundamental right to be heard. To strengthen his argument, he invited the court to the case of Nestory Msoffe and 5 others vs.

the registered trustees of the Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019 TZCA -{TANZLII} at page 6, where the court held that: "i/7 the premises, in view o fthe state o f thepleadings and the stated position o f the law, it was incumbent for the High Court to be keen enough to require the parties to amend the pleadings andjoin the Registrar o f titles who is allegedly to have registered the respondent's property is question held under certificated o f title." 14 On the other hand, the respondent's counsel opposed the argument fronted by the appellant, and he therefore contended that, according to the circumstances of this case, there was no need to join either the Registrar of Title, the Commissioner of Land and the Dodoma City Council. He reasoned out that the root cause of the dispute was the validity of sale agreements between the parties. Furthermore, Mr. Komba argued that a non-joinder of the parties cannot amount to the illegality or irregularity because the words illegality and irregularity do not cover either error of laws or fact, but it is based on the matter of jurisdiction, denial to the right to be heard, and the issue of time limitation. He stressed that the position is clearly explained in the case of Ms. Speed Security Ltd vs. Hussein Abdallah Kanik and Other, (Civil Application No. 142/12 of 2023), where it was held that: "...the word

illegality and material irregularity" do not cover either errors o ffacts or law, they do not refer to the decision arrived at, or the manner in which it is reached". Adding to that, the counsel insisted thus, it was further emphasized this authority as thus: 15 "From above definitions, it is our conclusion that for the decision to be attacked on the ground o fillegality, one has to successfully argue that the court acted illegality for want o fjurisdiction or for denial o f right to be heard or that the matter was time barred". Arguing on the issue of non-joinder of the registrar of title, the respondent insisted that this issue should not attract the court's attention because it was not part of the grounds of appeal. He adds that the claim is contrary to the provisions of Order XXXIX, Rule 2 of the Civil Procedure Code, CAP 33 R.E. 2019, which prohibits arguing a point that is not part of a memorandum of appeal, save by a court leave. For reference, the provision of Order XXXIX, Rule 2 of the CPC provides: 'The Appellant shall not, except by leave o f the Court, urge or be heard in support o f any ground o f objection notset forth in the memorandum o fappeal; but the Court, in deciding the appeal, shall not be confined to the grounds o f objection set forth in the memorandum o f appeal or taken by leave o f the court under this rule." 16 By concluding this point, Mr. Komba

argued that, based on the above, he maintained that a non-joinder of the parties thereof cannot amount to the illegality or irregularity. On my side, going through the arguments, I acknowledged the position of the law that whenever the disputed land is registered, the Registrar of Title becomes the necessary party to be joined to the suit. See the recent decision of the Court of Appeal, see for instance in Hassan Ally Warsama (as administrator of the estate of the late Ally Warsama) vs. Haybe Ahmed Dudeh (as administrator of the estate of the late Ahmed Haji Mohamed) (Civil Appeal No. 518 of 2020) [2024] TZCA 1193 (26 November 2024), where it was held that: "It is common ground that determination o f any dispute regarding ownership o f such land could not be complete without the presence o f the Registrar o f Tides who registered die same, as a party to the suit. In our considered view, failure to join the Registrar o f Titles in the suit before the High Court rendered the proceedings a nullity and occasioned miscarriage o fjustice." 17 That said, in my view, the above precedent sets a mark of general application; that is, when the disputed land appeared to have been registered, it was necessary to join the Registrar of Title in order to defend his undertaking. Apparently, in this case the fact that the disputed land has been registered is not doubtful; it appears at paragraph

3 of an amended application and paragraph 3 of the written statement of defence (WSD) of the amended application, where the respondent noted such fact without any reservation. Notably, the disputed land was marked as follows: length 84 steps, width 16.48 steps with boundaries East Abdulrahman Hamis Salum, west Shaibu Sozi Salum, South Dar es Salaam Road, and North Mr. Peter in Mtumba Ward within Dodoma City; now Plot 467 Block K Majengo Mtumba. That being the case, it is common knowledge that registration of land is normally done by the Registrar of Titles, who is appointed in terms of section 4 of the Land Registration Act, Cap 334 (the LRA), and further executes his work under this law. Thus, based on the facts demonstrated herein above, there is no dispute between the parties regarding the registration of the land in dispute. In the circumstance, therefore, it is crystal clear that if a dispute arises touching ownership of the registered land, the Registrar of Title should be 18 given an opportunity to defend his case. Therefore, to say the least, I am in agreement with the appellant's submission that the Registrar of Title ought to have been made a party in the case. This is because, if the decision made will touch his interest, then his right to natural justice would be curtailed. And the consequence thereof is to render the proceedings a nullity for occasioning a

miscarriage of justice. See Hassan Ally Warsama (as administrator of the estate of the late Ally Warsama) vs. Haybe Ahmed Dudeh (as administrator of the estate of the late Ahmed Haji Mohamed) (supra). Recapping the respondent's argument that according to the circumstance of this case, there was no need to join either the Registrar of Title or the Commissioner of Land or the Dodoma City Council due to the reason that the root cause of dispute was the validity of sale agreements between the parties. In my considered view, even if the root cause to the dispute was the validity of sale agreements between the parties, so long as the plot went on to the stage of registration, let alone if the registration depended on the aforesaid sale agreement and/or any other inputs, provided that the Registrar of Title has registered it; in my opinion, such an undertaking 19 attracts his presence in order to defend his position and thus, he becomes the necessary party to the suit; that is the position of our law at meantime. Turning to another point of complaint by the respondent, that is, the issue of non-joinder of the Registrar of Title does not deserve to attract the court's attention as it was not set out as one of the grounds of appeal. In this point he arguably maintains that the claim raised by the appellant is contrary to the provisions of Order XXXIX, Rule 2 of the Civil Procedure

Code, CAP 33 R.E. 2019, which prohibits parties from arguing a point that was initially not set out in the memorandum of appeal save where there is a court leave to that effect. In my opinion, the argument doesn't have any weight. If you look at the appellant's reason for appealing, he did indeed complain about illegalities and irregularities in the judgment and the proceedings in paragraph 3; though I accept, as it appears apparent from the face of the memorandum of appeal, that such irregularity and/or illegality was not vividly visible, in my view, that was the old style of crafting the ground of the appeal, which, although not friendly to the adverse party, has not caused any prejudice to either side. In the upshot, as discussed above, failure to join the Registrar of Titles in the suit before the Trial Tribunal rendered the proceedings a nullity and occasioned miscarriage of justice. I thus, agree with the counsel for the appellant in his submission that the proper cause to take, as I accordingly do, is to nullify the proceedings and quash the judgment of the trial tribunal in the Land Application No. 249 of 2022. That said, I allow the appeal. And, in the normal course of business, after nullifying the proceedings and quashing the judgment, I could have returned the case to the DLHT with directions to amend the application in order to add other necessary parties. However,

in this case, since the impugned parties are the Registrar of Title, Commissioner of Land, City Council, and Attorney General who by his portfolio become necessary party, thus the DLHT will no longer have jurisdiction to entertain the matter. In the circumstance, based on the findings above, there will be no other option except to strike out the Land Application No. 249 of 2022, as I hereby do. As the case involves government institution, it can no longer be litigated under the same roof; as, per the Government proceedings Act I provides, in such composition the jurisdiction will change. 21 Needless to say, if either party is still interested in pursuing the right through trial, they can institute a fresh case in the high court in compliance with Order 1, Rule 10 (2) of the Civil Procedure Code. Ultimately, considering the nature of the defect, I make no order as to costs. It is ordered. DATED at DODOMA this 28th day of February, 2025. This Judgment delivered this 28th day of February, 2025 in the presence of the parties' counsels and the appeal is allowed.