AMANI STUART CHITEMO SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 7997 OF 2024 (Arising from Judgement of Temeke District Land and Housing Tribunal at Temeke in Land Application No. 51 of2021) AMANI STUART CHITEMO......................................... APPELLANT

VERSUS COLOURFUL INDUSTRY CO. LTD................. ............. RESPONDENT

JUDGMENT 9h July 2024 & 245 September, 2024 L. HEMED, J. AMANI STUART CHITEMO, the Appellant herein, was the one who instituted Land Application No. 51 of 2021 at the District Land and Housing Tribunal for Temeke at Temeke against COLOURFUL INDUSTRY CO. LTD. In the said suit the Appellant was suing the respondent for breach of the lease agreement in respect of Plot No. 2989, Block No 7999, located at Buza - Mashine ya Maji at Temeke District, Dar es Salaam Region under the Certificate of Title No.

2689. Before the trial Tribunal, the Appellant sought for the followings reliefs:- i "a) A declaration that Respondent is in breach of tease agreement.

1. An order to the Respondent to pay an outstanding rent of Tanzania Shillings forty One Million four Hundred thousand (Tshs 41.400,000) 2. This honourable Tribunal be pleased to issue an order for vacant possession of the Respondent and to demolish their structure erected on the demised premise.

3. General damages of Tanzania Shillings of Two hundred Million (Tshs 200,000,000/=) 4. Cost of this application to be borne by the Respondents..." The Respondent here in resisted the said claims hence the trial of the matter. At the end of trial, the Tribunal dismissed the Appellant's claims after having found that the Appellant had no power to lease the suit land, among other things. The appellant was aggrieved by the said decision hence this appeal on the following grounds:- "1. The Chairperson erred in law and fact by failing to evaluate the evidence given and applying wrong principle of law to invalidate the existed lease agreement between the Appellant and the Respondent; 2. The Chairperson erred in law and fact in deciding that there was no breach of lease agreement without taking into consideration the whole of evidences adduced during trial by the Appellant's witnesses as well as the Respondent's witness; 3. The Chairperson erred in law and fact by failing to clearly and categorically analyze the admission made by the Respondent in their Written Statement of Defense; A. The Chairperson erred in law and fact for dismissing the Application without taking any consideration on the materia/ breach of the lease Agreement made by the Respondent by failing to pay rent.." The Appellant prays the court to allow the appeal, quash the whole decision of trial Tribunal, and declare

the respondent to have breached the lease agreement. He also seeks for an order that the respondent to pay rent arrears. Hearing of the appeal was by way of written submissions, which were promptly filed as directed by the court. Mr. Joseph Mbogela, learned advocate represented the Appellant while the Respondent enjoyed the legal service of Mr. Mwombeki Kabyemela, learned advocate. I have thoroughly gone through the records of the trial tribunal together with the rival submissions. To start, the learned counsel for the Appellant submitted in respect of the 1st ground of appeal that the trial tribunal failed to evaluate evidence and wrongly applied principle of law to invalidate the existed lease agreement between the appellant and respondent. It was the arguments of the learned counsel that there was a valid lease agreement between the parties and the respondent had the contractual obligation to pay rent to the appellant. In his view, the non­ payment of rent by the respondent from 2021 to present time constitutes the breach of the agreement. He proceeded to argued that the trial tribunal deviated to the issue and introduced new issue which was not raised at the commencement of the trial. The decision in Kumbwandumi Ndemfoo Ndossi vs Mtei Bus Service, Civil Appeal No. 257 of 2018 was reffered to in glueing the Appellant's arguments. 4 On his part, the learned counsel for the

Respondent contended that the decision of the trial Tribunal stems on evidence adduced by the Appellant himself. In his opinion, the trial chairperson properly evaluated evidence on record in reaching the decision he made. He prayed for dismissal of the appeal. As said earlier, I took time to revisit the records of the trial Tribunal, the rival submissions and the impugned judgement for purposes of ascertaining the merit of the appeal. In the course of examining evidence on record so as to find out if the same was well evaluated, I realized presence of ample evidence showing that the suit landed property is part of the whole land registered in the name of the Registered Trustees of East African Church Province. It is also on record that the Respondent stopped paying rent to the Appellant after the Respondent entered into Memorandum of Understanding with the registered owner of the land to pay land rent arrears to the Government in respect of the whole land of Plot No. 2989, Block No 7999, Buza- Mashine ya Maji, Temeke District, Dar es Salaam Region. I also realized that, at one time, Registered Trustees of East African Church Province were joined as 3rd parties but letteron were removed from the proceedings. In my view and in light of evidence on record, the Registered Trustees of East African Church Province was closely connected to the matter before the trial tribunal. In

fact, he was a necessary party to the proceedings. I am aware of the decision of the Court of Appeal of Tanzania on this point which was stated in Tanga Gas Distributors Limited v. Mohamed Salim Said & 2 9 Others, Civil Application for Revision No. 68 of 2011, thus- ”...an intervener, otherwise commonly referred to as a NECESSAR Y PARTY, would be added in a suit under this rule ...even though there is no distinct cause of action against him/ where: - (a) NA (b) his proprietary rights are directly affected by the proceedings and to avoid a multiplicity of suits, his joinder is necessary so as to have him bound by the decision of the court in the suit. "[Emphasis added] In the instant matter, the Registered Trustees of East African Church Province being the owner of Plot No. 2989, Block No 7999, Buza- Mashine ya Maji at Temeke District, under the Certificate of Title No. 2689, was the necessary party in suit because of its interest on the suit land and the 6 memorandum of understanding entered with the Respondent herein. The importance of joining necessary party was emphasized by the CAT in Abdulatif Mohamed Hamis vs Mehbood Yusuf Othman and Another, Civil Revision No. 06 of 2017, that;- //„ , we take the position that Ru/e 9 of Order 1 only hoids non- necessary parties. On the contrary in the absence of necessary parties, the court may fail to deal with the suit, as it shall

eventually, not be able to pass an effective decree. It would be idle fora court, so to say, to pass a decree which would be of no practical utility to the plaintiff.'[Emphasize is added] The holding of the apex Court, as quoted above, binds me to hold that the failure to join the registered owner of the suit landed property in the matter before the trial Tribunal constituted a non-joinder of necessary party. The omission rendered the entire suit before the trial Tribunal incompetent. In the circumstance of this matter, I find no need to determine the other grounds of appeal. From the foregoing, I do allow the appeal. Proceedings, judgment and subsequent decree thereof are hereby quashed and set aside. Parties are at 7 liberty to institute proceedings in a competent court joining all necessary parties. Each party to bear its own costs. Order accordingly. DATED at DAR ES SALAAM this 24th of September 2024. . HEMED

JUDGE 8