LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.25164 OF 2024 ALI HASSAN KIHELELO........................................................ APPELLANT VERSUS THE REGISTERED TRUSTEES OF PENTECOSTAL CHURCH OF KIJITONYAMA................................................ RESPONDENT JUDGMENT 30/12/2024 & 28/02/2025 GWAE, J Before the District Land and Housing Tribunal of Kinondoni at Mwananyamala (DLHT), the appellant and respondent herein above were in controversy over landed property on Plot No. 11 Block "47" Kijitonyama area within Kinondoni Municipality. Upon hearing both parties, the DLHT's chairperson eventually issued a verdict in favour of the respondent declaring her to be the rightful owner of the suit property as she was allocated the same since 1979 and held that, the appellant to have re-surveyed the suit plot in order to deprive the respondent's ownership. i Aggrieved by the DLHT's judgment and its decree issued on 23rd August 2024, the appellant has brought this appeal, which is comprised of six grounds of appeal, to wit:- 1. That, the Trial Tribunal erred in law and law and fact for failure to determine that the suit plot and Plot No. 13 are two distinct plots 2. That, the Trial Tribunal erred in law and law and fact by neglecting the evidence adduced by the appellant in the resurvey process done by Dar es salaam City Council in 1982 3. That, the Trial Tribunal erred in law and law and fact by considering that a land officer cannot apply for land ownership in Tanzania 4. That, the Trial Tribunal erred in law by failing to make final decision without visiting the place in quo and calling for land officers for verification of boundaries between the plots in disputes while the boundaries was the key problem between the parties 5. That, the trial tribunal erred in law and fact by taking wrong and shaked evidence adduced by the respondent and deciding in her favour. 6. That, the trial tribunal erred in law and fact by vesting the land of the appellant in the hands of the respondent while the land rents of the suit plot are being paid to the Ministry of Land and Human Settlements 2 When I was making myself acquainted with the facts of the case, nature of the facts pleaded by the parties, evidence adduced and in record as well as grounds of Appeal before the Court, I have noted the issue of non­ joinder of necessary parties, notably, the Registrar of Titles, Kinondoni Municipal Council, Commissioner for Lands and Attorney General. I have held that view due to pieces of evidence such as the respondent's Certificate of Title issued in 1979 whose size of area includes Plot No. 11, 12 and Plot No. 13 Block "47"-Kijitonyama area, Appellant's offer issued in 1983 followed by issuance of a Certificate of Title in respect of Plot No. 11 Block "47" Kijitonyama issued in 2010, issuance of building permits of 1981, 1999 and 2015 in respect of the said Plots No. 11, 12 and 13 issued by DED- Kinondooni in favour of the respondent. Further to that, there is letter dated 24th May 2006 issued by Director of Maps and Surveys directing re-survey of plots aforementioned. It was in that regard, I felt compelled to entertain the parties' advocates present, namely; Mr. Hassan Chande and Mr. Justine Kalebo for the appellant and respondent respectively. Mr. Chande admittedly submitted that there is non- joinder of necessary parties. He added that, in the absence of the Commissioner for lands and Attorney General, the appellant's right to own the suit plot will be 3 in jeopardize while he is paying the requisite rental fees to date. According to him, the necessary parties are to be joined in order to confirm the appellant's ownership. He therefore urged protection of the appellant's right to own property as envisaged by Article 14 of the United Republic of Tanzania 1977. On his part, Mr. Justine argued that, the circumstances of the case at hand, call for joinder of necessary parties taking into account of the fact that, the respondent was allocated the suit plot since 1979 and after the allocation of the same, she continued making developments for more than 46 years. Hence, it his opinion that, the land authorities who are the ones who issued the Certificate of Titles together with the CT issued in 1985 and building permits were to be joined. He concluded that, joinder of the land authorities is inevitable. As earlier observed the evidence and facts of the case necessitate joinder of the necessary parties as rightly argued by the parties' advocates since, it is the stance of the respondent that, he is the who was issued the CT in 1979 and the appellant's version that there was re-survey which led to the grant of Right of Occupancy in his favour in 1982 followed by issuance of Certificate of Title in 2010. In this situation, one may have a view that the 4 nonjoinder cannot invalidate proceedings before DLHT but in this particular case, Registrar of Titles, Custodian of certificate of titles, Land Commissioner even the authority issued building permits in favour of the respondent are necessary parties as both parties are contending to have been procedurally allocated by them. Worse still, the appellant is found seriously asserting that he has been paying land rents to the Minister responsible for lands. In this regard, perhaps I should be guided by Order I Rule 3 of the Civil Procedure Code, Cap 33 R.E 2019, which provides:- "All persons may be joined as defendants against whom any right to relief 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 separate suits were brought against such persons, any common question of law or fact would arise." In the circumstances of this case, I fully endorse to the authority in Mr. Hassan Ally Warsama (as administrator of the estate of the late Ally Warsama) vs. Mr. Haybe Ahmed Haji Mohamed (as administrator of the estate of the late Ahmed Haji Mohamed) {Civil Appeal No. 518 of 2020) [2024] TZCA 1193 (4th December 2024) where at page 8 it was stated that; "From the above provision, the question as to how the court should know whether a certain person is a necessary party, can easily be answered through the pleadings, like in the 5 present case, or submissions by the parties to the court. As rightly submitted by Mr. Maro, the pleadings presented before the High Court were very dear that the land in dispute is a registered farm. In the circumstances, it is common ground that determination of any dispute regarding ownership of such land could not be complete without the presence of the Registrar of Titles who registered the same, as a party to the suit. In our considered view, failure to join the Registrar of Titles in the suit before the High Court rendered the proceedings a nullity and occasioned miscarriage ofjustice, l/l/e thus, agree with the counsel for the parties that the proper cause for us to take, as we accordingly do, is to nullify the proceedings and quash the judgment of the High Court..." Being guided by the above recent decision and facts of this particular case, it is my considered view that, without the land authorities being joined, there would be miscarriage of justice. I am aware that, the said necessary parties would not be joined before DLHT in terms of section 6 (4) of the Government Proceedings Act Cap 5 Revised Edition, 2019. For purpose of clarity section 6 (4) of the Act reads:- (4) AH suits against the Government shall be instituted in the High Court by delivering a claim in the Registry of the High Court within the area where the claim arose." 6 In the light of the above quoted provision of the law, the omission to join necessary party, at the time of institution of the application before DLHT, in my view, did not preclude litigants or their agents or the trial tribunal itself from having caused the matter to be filed in a competent court as required by the law. That said and done, I hereby invoke section 43 (l)(b) of the Land Disputes Courts Act, Cap 216, R. E, 2019) I hereby nullify all proceedings, judgment and decree of the District Land and Housing Tribunal of Kinondoni. Parties involved in the dispute, as demonstrated herein, are urged to file afresh case before the High Court by joining necessary parties. Each party shall bear his or her own costs of this appeal and those before DLHT. It is so ordered DATED at DAR ES SALAAM this 28th February 2025 7