Ruling Land Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI LAND APPEAL NO. 16553 OF 2024 ( C/F Application No. 108 of 2011 in the District land and Housing Tribunal for Moshi at Moshi) ALPHONCE MARUNDA SWAI (As Administrator of the Estate of the late Monica Bernard Massawe)……....................................APPELLANT VERSUS PAUL A. SWAI………….……………………….....……...RESPONDENT RULING 9th October to 6th November, 2024 MONGELLA, J. This is a Ruling on preliminary objection raised by the respondent on two pints of law, to wit: 1. The appeal is incompetent for being brought against a stranger party who was not before the District Land and Housing Tribunal, to wit PAUL ALPHONCE SWAI. Page 1 of 10 2. The Appeal is fatally defective for non-joinder of a party as indicated in the judgment, to wit VICTOR A. MASSAWE. The preliminary objection was argued by written submissions whereby the respondent was represented by Ms. Lilian Filemoni Mushi and the appellant by Mr. Martin Kilasara, both learned advocates. Ms. Mushi started submitting on the 2nd point of objection. She averred that the appeal is defective for non-joinder of one Victor A. Massawe who was sued at the District Land and Housing Tribunal for Moshi at Moshi (the Tribunal, hereinafter). She alleged that the cardinal principle of the law is that an omission to join a party who appeared in court proceedings is fatal. To fortify her argument, she referred the case of Salim Amour Diwani vs. The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023) TANZLII. With respect to the 2nd point of objection, Ms. Mushi, while making reference to the case of Isaack Wilfred Kassanga vs. Standard Chartered Bank Tanzania Limited (Civil Application No. 453 of 2019) 2022 TZCA 222 (22 April 2022) TANZLIl, averred that the parties in proceedings should at any given time appear as they did in previous proceedings. In that vein, she contended that the appeal was fatally defective for being brought against a stranger who was not a party to the proceeding. Expounding that point, she averred that the Page 2 of 10 respondent herein is Paul A. Swai while the party at the Tribunal was Paul Alphonce Swai. In that respect, she held the view that the introduction of a stranger renders this appeal incompetent because the appellant altered the court record which is considered authentic, a practice that is discouraged. In support of her averment, she cited the case of Isaack Wilfred Kassanga vs. Standard Chartered Bank Tanzania Limited (supra) in which the Court of Appeal settled that position while citing with approval the case of Halfan Sudi vs. Abieza Chililii [1998] T.L.R 257. On his part, when replying to the 1st limb of the preliminary objection, Mr. Kilasara contended that the point of objection is grossly misconceived by the respondent. On the other hand, he had the stance that the error, if any, is not fatal. Reverting to his initial position, he argued that it is apparent from the record that the said Victor A. Massawe is deceased since 2018 and the case proceeded ex parte against him and no written statement of defence was filed by him nor the administrator of his estate appeared to defend the suit against him. In that respect, he found there was no need of joining the alleged party in this appeal. He supported his averment with the case of Ibrahim Kusaga vs. Emanuel Mweta [1986] TLR 26 and Ngusa Mabula vs. Subuya Sungas, Land Appeal No. 30 of 2013 (unreported). In his view, instituting an appeal against a deceased person would invariably render the suit bad in law. Page 3 of 10 Mr. Kilasara further argued that the said Victor A. Massawe was not a necessary party to the proceedings as the appellant does not claim any relief against him and any decree passed would not be prejudicial to him. He fortified his averment with the case of Abdulatif Mohamed Hamis vs. Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018) TANZLII. In alternate, Mr. Kilasara contended that amendment of pleadings should be freely allowed where they can be made without occasioning injustice to the other party; a stance he supported with the case of N.J. Amini Ltd vs. V. B. Patel & Co. Ltd [1968] HCD 256 and Matohov vs. Auto Garage Ltd & Others [1971] HCD 81. He thus prayed that if this Court finds it necessary to join the said Victor A. Massawe, then leave for amendment of the memorandum of appeal should be granted for just determination of the appeal. He made that request within the ambits of the overriding objective principle enshrined under Section 3A and 3B of the Civil Procedure Code [Cap 33 RE 2019]. Addressing the 2nd point of objection, Mr. Kilasara conceded that indeed the respondent’s middle name was inadvertently written in short form to wit with the initial ‘A’ instead of being written in full. He however contended that the same being an unintentional error that does not go to the root of the case or vitiate the whole proceedings as insinuated by the respondent. In his stance, the error can be cured by an amendment as Page 4 of 10 there is no dispute that the respondent served was the one that appeared in the proceedings at the trial tribunal. The learned counsel finalized his submission by praying for leave to amend the memorandum of appeal so that the appellant can insert the respondent’s full names as they appeared at the tribunal. Rejoining, Ms. Mushi maintained that the non-joinder of Victor A. Massawe for reasons that he is deceased is unjustified. She argued so on the ground that the law requires authenticity of proceedings to be adhered to unless there is reason for not observing the same. She reiterated her reference to the case of Isaack Wilfred Kassanga (supra). She further argued that all cases cited by Mr. Kilasara are distinguished from circumstances of the case a hand as they relate to locus standi of a party when one wants to claim deceased’s property. On the other hand, in the present case, she said, the issue is the authenticity of court’s proceedings following the appellant’s neglect to join a party who was present during trial. Insisting on authenticity and accuracy of court records, Ms. Mushi referred again the case of Halfan Sudi vs. Abieza Chililii (supra). Ms. Mushi alleged that the prayer for amendment advanced by the appellant at this juncture is unjustified as the overriding objective principle cannot be applied to ignore mandatory Page 5 of 10 procedures as laid out in Isaack Wilfred Kassanga (supra). She further referred the case of Mondorosi Village Council & Others vs. Tanzania Breweries Ltd & Others (Civil Appeal 66 of 2017) [2018] TZCA 303 (13 December 2018) TANZLII, which settles that position. She concluded by reiterating her prayers for the appeal to be struck out for being incompetent. I have considered the submissions of both parties’ counsels. It is no doubt that the respondent herein challenges the competence of this appeal on two issues: first, the non-joinder of one Victor A. Massawe who was the 2nd respondent in Application No. 108 f 2011 before the Tribunal and second, the respondent being a stranger to the suit as his name appears different from the one in the main application at the Tribunal. Regarding the 1st issue, Mr. Kilasara did not contest that the said Victor A. Massawe was a party to the suit nor that he was not made party to this appeal. What is in contest is whether the omission is fatal to the extent of vitiating the appeal and or whether the appeal can be saved through an amendment by joining the said Victor A. Massawe. From the tribunal judgement and decree, it is evident that the case was instituted by one Paul Alphonce Swai against the appellant as 1st respondent and the said Victor A. Massawe as 2nd respondent. In this appeal however, the appellant has preferred to institute it against the respondent alone and particularly, as argued by Mr. Kilasara, taking into account that the Victor A. Massawe is demised. Page 6 of 10 I do agree that indeed parties ought to appear as they did in original proceedings before the court or some other quasi- judicial body. However, the meaning, as gathered from Salim Amour Diwani (supra) and Isaack Wilfred Kassanga (supra) is: one, the appeal must involve the same parties as in the original proceedings in the sense that a new party can not be introduced during appeal proceedings. This is well reflected in Salim Amour (supra) whereby the Court stated: “I wish to state at the outset that, court records are considered authentic and should not be easily altered as parties would wish to. It bears reaffirming that, parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that and only with the leave of the court.” From the above holding, it is evident that only parties to original proceedings can appear in an appeal. There are however circumstances where a party may prefer an appeal and another refrain from doing so out of lack of interest. Rather than a question of whether a party is a necessary party, in an appeal as this, the concern is on why the said party is excluded. Though Mr. Kilasara alleged that the said Victor A. Massawe is deceased, a fact also noted in the tribunal Judgement, the record shows that he died amid proceedings. The situation is therefore not the same as that of suing a dead party whose effect is to render the suit a nullity. This issue was discussed in detail in the case of Exim Bank (Tanzania) Limited vs. Yahaya Page 7 of 10 Hamisi Musa (Civil Appeal 275 of 2019) 2022 TZCA 598 (30 September 2022) whereby the Court of Appeal made reference from an Indian case of Prestige Finance P Ltd vs. Balwant Singh and Another, 1978 48 compaCas 459 Delhi, where it was stated as follows: "If a suit is filed against a dead person, then it is a nullity and you cannot join any legal representatives; you cannot even join any other party because it is just as if no suit had been filed. On the other hand, if a suit is filed against several persons, one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void, but the Court has to strike out the name of the party who has been wrongly joined. Such a person would be deemed to be wrongly joined, because he was dead on the date of the institution of the suit and, therefore, incapable of being joined." Since the said Victor A. Massawe was a party to the suit and as evident in the tribunal’s Judgement, orders had been made against him too. Therefore, it cannot be ruled that this appeal would not impact in any way the mentioned Victor A. Massawe. Even if his administrator never entered appearance causing the matter to proceed ex parte against him, he still ought to be joined. This is at least to prevent multiplicity of suits, a reason well adopted in Isaack Wilfred Kassanga (supra) whereby the Court of Appeal held: “...for the avoidance of a multiplicity of endless cases, it is practical to maintain the parties, and once there is an issue, that issue is dealt with at Page 8 of 10 once rather than separately, simply because one party's name was omitted while they had a right to be heard. In foregoing reasoning, I find that the said Victor A. Massawe ought to be joined as party for the sake of maintaining authenticity of the court record and more importantly to afford him the right to be heard if an administrator appears in his stead. This will also help prevent multiplicity of cases. With regard to the second point, I am at one with both counsels that the names of parties in original proceedings must appear the same in an appeal. This relates to the citation of parties’ names as they appear in the proceedings. The notion is to ensure authenticity of the court record is maintained. In this appeal, the respondent appears as Paul A. Swai which is different from Paul Alphonce Swai appearing in the tribunal record. As such, the two points of preliminary objection are with merit. The question therefore is on the way forward. While indeed the appellant made two errors; one, excluding Victor A. Massawe and two, using a name not appearing in the tribunal proceedings, I find these errors not fatal to the extent of vitiating the whole appeal. Further, as argued by Mr. Kilasara, the respondent was duly served and appeared to defend this appeal rendering him not prejudiced in any way. Page 9 of 10 In these circumstances, it is evident that the two errors can be rectified by amendment of the memorandum of appeal, a process well accommodated under the overriding objective principle. I therefore hereby invoke the overriding objective principle and order the appellant to amend his memorandum of appeal within 14 days to add the said Victor A. Massawe and rectify the names of the respondent herein. Costs shall follow events. Dated and delivered at Moshi on this 06th day of November, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 10 of 10