Andrew Frank Msumeno

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO LAND APPEAL NO 11545 OF 2024 [Appealfrom the decision ofthe District Land and Housing Tribunalfor Morogoro District at Morogoro in Consolidated Miscellaneous Land Applications No 153 and No 154 of2023] BETWEEN ANDREW FRANK MSUMENO APPELLANT VERSUS BYUNG KUK KIM AND ANOTHER RESPONDENTS JUDGMENT MRUMA,J At the District Land and Housing Tribunal for Morogoro at Morogoro the present Appellant filed two Land Applications. The first was Land Application No 153 of 2023 and the second was Land Application No 154 of 2023. In the first (i.e. Land Application No 153 of 2023) the Applicant prayed to be declared a lawful owner of a piece of land measuring three (3) acres located Mindu area/street within Mindu Ward in Morogoro Municipality. In the second Application (i.e. Land Application No 154 of 2023 the Applicant prayed to be declared a rightful owner of piece of land measuring approximately 2 Vi acres located at Mkwajuni area/street in Mindu Ward also within Morogoro Municipality. After being served with the application, the Respondent filed their joint Written Statement of Defence in both application and raised Preliminary Objections on the point of law that:- 1. The Application is incompetent incurably defective for non joinder of necessary party Respondent to the Application 2. The Application for the 2"^ Respondent is incompetent and untenable for not disclosing the cause of action against him. By order of the trial tribunal the two sets of preliminary objections were consolidated and argued together and one ruling was composed for all. In its ruling the trial tribunal sustained the Preliminary Objections and dismissed the two Applications with Costs to the Respondents. The Appellant was aggrieved and has filed this appeal on the following grounds:- 1. That, the trial chairperson of the trial tribunal erred both in law and in fact by holding that there Is non joinder of party. 2. That, the trial Chairperson of the trial tribunal erred both in law and in fact by holding that there is no course of action against the second Respondent while facts constituting the cause of action against him were evidently disclosed. 3. That, the trial Chairperson erred in law for failure to observe principles governing determination of preliminary Objections on point of law. The Appellant is praying this court to allow the appeal by quashing the decision of the trial tribunal, order costs to the Respondents, and grant any other reliefs it may deem fit to grant. At the hearing of this appeal parties' were represented. The Appellant was represented by Mr Ignas Seti Punge while the Respondents were represented by Mr Bartolomew Tarimo, both learned advocates. The Appeal was argued by way of written submissions. Submitting in support of the first ground of appeal counsel for the Appellant contended that the trial Tribunal erred in law and in fact in holding that there was non joinder of a party. Mr Punge submitted that the subject matter of the dispute is a surveyed land allocated to the applicant by Mindu Local Government and that the Appellant has been in continuous occupation thereof and he has no claim against the allocating authority as to make it a necessary party to the dispute. He referred this court to the provisions of Rule 3 of Order 1 of the Civil Procedure Code (Cap 33 R.E. 2019) which provides conditions necessary for the Joinder of Respondents/Defendants. The learned council bolstered his submission by citing the following cases:- 1. Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999]1 EA 55; 2. Abdulatif Mohamed Hamis Vs Mehboob Yusuf Othman & Another, Civil Revision NO.6 OF 2017 and; 3. Abdi M. Kipoto vs. Chief Arthur Mtoi Civil Appeal No. 75 of 2017 Submitting in support of the second ground which is to the effect that the Appellant has no cause action against the Second Respondent, counsel for the Appellant contended that cause of action was disclosed in paragraph 7 (a) (vi) of the Appellant's application by stating that the second Respondent was interfering with the Appellant's/Applicant's enjoyment of his premises. The learned counsel referred this court to the decision of the Court of Appeal in the following cases:- 1. Musanga Ng'anda Azvdwa Vs. Chief Japheth Wanzagiand Eight Others [2006] TLR 351; 2. Mashado Game Fishing Lodge Limited and Two Others Vs Board of Trustees of Tanzania National Park (T/A Tanapa) (2002) TLR 319; 3. Stanbic Finance Tanzania Ltd Vs Giuseppe Trupia & Chiara Malavasi [2002] TL.R 217; and 4. John Byombarilwa Vs Agency Maritime International (Tz) Limited (1983) TLR 1 On the third ground which is to the effect that the trial Chairperson erred in law for failure to observe principles governing determination of preliminary objections on points of law as the two Preliminary Objection sustained by the Tribunal do not qualify to be Preliminary Objections, the learned counsel contended that in law preliminary objections must be based on pure point of law whose determination does not require ascertainment of facts or evidence. He cited several cases including the landmark case of Mukisa Biscuit Manufacturing Company V. West End Distributors Limited [1969] E.A 696 and; 1. Jackline Hamson Ghikas Vs Mllatie Richie Assey, Civil Application 656 OF 2021 and also the case of; 2. Shose Sinare Vs Stanbic Bank Tanzania Limited & Another Civil Appeal 89 OF 2020 Based on the above lucid submissions, we pray that this appeal be allowed with costs. He concluded that the two preliminary points did not qualify to be raised as preliminary objections. Responding to the submission by Mr Ignas Punge, Mr Tarimo for the Respondent contended that the suit premise was neither surveyed nor registered or numbered by the Land Registry as stated by the Appellant/Applicant. He stated that the Applicant's pleadings at the District Land and Housing Tribunal asserts that he was allocated the suit land by Madaganya Government Council therefore in law he ought to have joined the said local government authority as a party to the proceedings. According to the learned counsel non-joinder of party and non-disclosure of cause of action can be observed by looking and perusing the Application and its annex therefore the trial tribunal was correct in upholding the preliminary objections because documents on the ownership and its allocation by the Madaganya Local Government were annexed to the pleadings. On the provisions of the law and cases cited by Mr. Punge, it is Mr. Tarimo submission that the cited provisions and cases supports his argument that the limb of preliminary objection is pure point of law and qualify to be preliminary objection as correctly held by the District tribunal. The learned counsel stated further that allocation and management of the land in dispute is vested on the Local Government authority and in this case the Morogoro Municipal council thus it was necessary to join the council as a necessary party in these proceedings. He concluded that in the circumstances the trial tribunal was correct to strike out the application for want of joinder of land allocating committee from where the applicant claimed to have acquired ownership. He said that the trial tribunal could not properly determine ownership of the said disputed land without putting into avoidance the multiplicity of cases on the said land, and decree that would be safely executed. In his rejoinder, Mr Punge reiterated his submission in chief, and added further that the suit land is not a surveyed land as stated earlier. He said that a statement that it was a surveyed land was a slip of the pen and typographical error. I have carefully considered the records of the lower tribunal, grounds of the appeal and parties' submission for and against the appeal. In my opinion the issue calling for determination and consideration by this court is whether the trial tribunal was correct in sustaining the preliminary objections raised by the Respondent. The term preliminary objection was propounded in the case of Mukisa Biscuit Manufacturing Company Ltd. v. West End Distributors Ltd.(1969) E.A. 696, where Sir Charles Newbod P had this to say preliminary objection is in the nature of what used to be a demurrer. It raises pure point of iaw which is argued on the assumption that aii the facts pleaded by the other side are correct. It cannot be raised ifany fact has to be ascertained or whatis the exercise ofjudicial discretion. From the pleadings in this case, the first preliminary point of law which was sustained by the trial tribunal was non joinder of a necessary party. Rule 3 of Order I of the Civil Procedure Code [Cap 33 R.E. 2019] provides that:- Aiipersons may bejoined 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, whetherjointly, severally or in the alternative where, ifseparate suits were brought against such persons, any common question ofiaw or fact wouid arise. From the above cited provision of the law, for a person to be joined as defendant the following conditions must be met; first the plaintiff must have a right to relief against the Defendant and that other person whose absence it will render the decree not executable, and secondly that other person must be a person whose joining is necessary for complete and effective adjudication of the suit. In view of the above conditions, the so called Mandaganya Local Government Council (If at all exists) could not be a necessary party to be joined in the proceedings because the Respondent (who was the Applicant had no claims whatsoever against the said local government authority. Therefore there was no non-joinder of a necessary party in these proceedings. On the issue of cause of action, the term cause of action is contained under Rule 1 (e) of Order VII of the Civil Procedure Code. The Rule provides: " The piaintshaii contain the foiiowing particuiars- (a) the name ofthe courtin which the suitis brought; (b) the name, description and piace of residence of the piaintiff inciuding emaii address, fax number, teiephone number and post code ifavaiiabie; (c) the name, description and piace of residence of the defendant inciuding email address, fax number, telephone number and post code if available, so far as they can be ascertained; (d) where the piaintiff or the defendant is a minor or a person ofunsound mind, a statement to that effect; (e) the facts constituting the cause of action and when itarose; (f) the facts showing that the court hasjurisdiction; (g) the relief which the piaintiffclaims; (h) where the piaintiffhas allowed a set-offor relinquished a portion ofhis daim, the amountso allowed or relinquished; and (i) a statement ofthe value ofthe subject matter ofthe suitfor the purposes ofjurisdiction and of court fees, so far as the case admits. 10 Order VII is couched in a mandatory form by using the word "shall" it follows that the plaint must disclose the cause action. The term cause of action is not defined in the Civil Procedure Code, however this court Kisanga, J (as he then was) in the case of John M. Byombarilwa vs. Agency Maritime Internationale Tanzania Ltd [1983] TLR 1 defined it as follows:- " the expression "cause of action" is not defined under the Code, but it may be taken to mean essentiaiiy facts which it is necessary for the piaintiff to prove before he can succeed in the suit". Having that position in mind paragraph 7 (vi) of the Application filed before the tribunal reads:- "That on 4. 4. 2023 the Respondent ieft the country and ieft the suit properties to the 2"^ Respondent who serves as a guard of Respondent properties and who has aiso refused to give vacantpossession ofthe suit land made a iot ofdamages to the suit iand. The above excerpt of the Application shows the claims against the 2"^ Respondent was for vacant possession of the suit land. The suit land 11 was in physical possession of the the 2"^ Respondent, therefore without an order requiring him to give vacant possession the Applicant cannot occupy the land which he claims to be the rightful owner. That constitutes cause of action against him as he is required to leave the premises to the lawful owner of the suit land. As rightly submitted by Mr Punge a cause of action means every fact which would be necessary for the plaintiff to prove in order to support his title to a decree. In other words, a cause of action is the sum total of those allegations upon which the right to relief claimed is founded. In the case at hand the fact which is necessary to prove is that the second Respondent is in possession of the disputed land and has refused to give vacant possession to the Appellant. That is what is called a cause of action. Thus the Respondent had cause action against the second Respondent. That said I find that this appeal has merits and I allow it. I order that the records be remitted to the trial tribunal for it to proceed with the trial before a different chairperson. Costs will be in the cause. <:s. 0: /7 \ A. R. MRUMA JUDGE 12. 12. 2024 12