agness b kinguza another vs maria aron ngonyani another 2018 tzhclandd 159 7 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 204 OF 2016 (From the Decision o f the District Land and Housing Tribunal o f Kibaha in Land Case Appeal No. 38 and 39 o f 2012 and originated from Ward Tribunal o f Pangani in Application No. 23 and 25 o f 2012) AGNESS B. KING'UZA............................................... 1st APPLICANT BERNARD KING'UZA................................................ 2nd APPLICANT VERSUS MARIA ARON NGONYANI......................................... 1st RESPONDENT CHIGUMA MAUGO.................................................. 2nd RESPONDENT Date o f the Last Order: 10/04/2018 Date o f the Ruling: 07/06/2018 RULING Makuru. J.: By a chamber summons made under section 38 (1) of the Land Disputes Court Act, 2002 the Applicants, Agnes B. King'uza and Bernard King'uza seeks for extension of time for the Institution of an appeal out of time. The application is supported by the affidavit of Mr. Mafuru Mafuru, learned counsel for the Applicants. It has been deposed that on the 23rd day of March 2012, the 1st and 2nd Applicants respectively instituted Land Appeal No. 38 and 39 against the respective Respondents, namely Maria Aron Nganyani and Chuguma Maugo, in the District Land and Housing Tribunal for Kibaha District at Kibaha (herein after referred to as the Tribunal). It is further deposed that both appeals originate from Pangani Ward Tribunal at Pangani and involved the same issues and subject matter but different parties. The application could not be determined on merits as the Respondents raised a preliminary objection on point of law that the Application wrongly joined both the Respondents and Applicants. When the matter was called on for hearing Mr. Alfred David, learned counsel represented the Applicants, the 1st Respondent appeared in person, unrepresented while the 2nd Respondent enjoyed the legal services of Mr. Wilfred Moshi. The 1st Respondent, addressed the court first. She submitted that in the Trial Tribunal there were two different cases in respect of different subject matters. She clarified that in the Ward Tribunal at Pangani at Kibaha in Application No. 23 of 2012 she was the complainant and the Defendant was Agnes King'uza, the 1st Applicant in the present application. In the subsequent Appeal, Land Appeal No. 38 of 2012 which originated from Application No. 23 of 2012, she submitted that the 1st Appellant was Agnes King'uza and she was the Respondent. As in the present application the Applicants are Agnes King'uza and Bernard King'uza and the Respondents are Maria Aron Ngonyani and Chiguma Maugo, she was of the view that the 2nd Applicant Bernard King'uza and 2nd Respondent Chuguma Maugo have been wrongly joined. Mr. Mashiba, learned counsel for the 2nd Respondent submitted in respect of the preliminary that Land Appeal No. 39 of 2012 originated from Application No. 25 of 2012 in Pangani Ward Tribunal. Parties were Bernard King'uza and Chiguma Maugo. Like the 1st Respondent, he contended that Land Appeal No. 38 of 2012 from Pangani Ward Tribunal parties were Agnes King'uza and Maria Aron Nyonyani. He was of the stand that these are two different cases. He was further of the view that even the subject matter is different. In Original Case No. 25 of 2012, he stated that the land in dispute was sold to Chiguma Maugo, the 2nd Respondent by one Ambili Kapilima Mangosango. The same piece of Land was allocated to Bernard King'uza, the 2nd Applicant in the present case by the Village Local Government Authority. The 2nd Applicant instituted proceedings in the Ward Tribunal. He lost the case. Consequently, he filed Appeal No. 39 of 2012 which he again lost. As regards the second case, that is Appeal No. 38 of 2012, Original Application No. 23 of 2012 he submitted that the complainant was Agnes King'uza, the 1st Applicant in this case and the Respondent was Maria Aron Ngonyani, the 1st Respondent in this case. He concluded on this point by submitting that these are two different cases with different subject matters. He was surprised that his client was joined is a case which he had no interest. He prayed for the application to be struck out. On his part, Mr. Alfred David learned counsel for the Applicants admitted that this application originate from two applications. Applications No. 23 and 25 of 2012 in the Ward Tribunal of Pangani which are in respect of different parties but the same subject matter. Even if it is assumed that the subject matter is different, he argued that the application is for extension of time. Thus it was proper to combine the two cases. 3 As an application is a suit as decided in the case of Karibu Textile Mills Vs New Mbeya Textile Mills Ltd and three Others, Court of Appeal Civil Application No. 27 of 2006 (Dar es Salaam Registry, unreported) he was of the view that Order 1 Rule 9 of the Civil Procedure Code, Cap 33 R.E. 2002 is relevant. Thus, this court can deal with the matter in controversy. He argued that as the two cases do relate, they were determined by the same Chairperson, same Tribunal and same date, Order 1 Rule 9 of the Civil Procedure Code is applicable that the case cannot be defeated by Misjoinder of parties. He prayed that the preliminary objection be overruled with costs as it has no legal basis. In rejoinder, Mr. Mashiba submitted that the provisions cited by learned counsel for the Applicant are irrelevant. He prayed for the preliminary objection to be upheld. Order 1 Rule 9 of the Civil Procedure Code provides that: "No suit shall be defeated by reason o f Misjoinder or non-joinder of parties,; and may in every suit deal with the matter in controversy so far as regards the right and interests o f the parties actually before it" The cited provision is clear that the court will deal with the matter in controversy so far as regards the right and interest of the parties actual before it. As regards parties to suit, Order 1 Rule lo f the Civil Procedure Code provides for who may be joined as Plaintiffs and Order 1 rule 3 provides for who may be joined as Defendants. The said provisions clearly provide that they might be joined if right to relief is in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if such persons brought separate suits or if separates suits were brought against such person, any common question of law or fact would arise. In the instant case, I am of the view that the right of the Applicants and Respondents to relief is not in respect of or arising out of the same act or transactions or series of acts or transactions is alleged to exist and there is no common question of law or fact would arise. The case of Magu District Council and Another Vs Mhande Nkwabi (1997) TLR 286 is also relevant whereby the High Court made remarks to underscore this attitude by providing thus: "No provision o f the Law allows the joining o f a party as appellant in appeal proceedings who had not been a party to the original proceedings whose judgment and decree were the subject o f appeal" As rightly pointed out by the Respondents, the Applicants and Respondents were not properly joined in this application. Also as properly argued by the Respondent, to be joined as a party to legal proceeding a person must have a legal interest recognized by law in respect of the same subject matter. In the present case, the Applicants and Respondents respectively have no legal interest recognized by law in respect of the same subject matter that is why two different applications and subsequent appeals were instituted. It is absurd to join the two cases at this stage In the event, and for the reasons stated above, the application is hereby struck out with costs. /rW )) 0 C.W. Makuru JUDGE 07/ 06/2018 Court: Ruling delivered in court this 07th day of June, 2018 in the presence of Mr. Adam Mashiba, learned counsel for the 2nd Respondent and also holding brief for Mr. Alfred David learned counsel for the Applicants and the 1st RespondenU&oerson. C.wfMakuru JUDGE 07/ 06/201 6