SCANED NO 5282 OF 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 5282 OF 2024 BETWEEN ANNA EMMANUEL MAHINGILA As administratix of the estate of the late ESTERIANO EMMANUEL MAHINGILA.......... PLAINTIFF VERSUS ABDUL ZAID ADAM.................................................................. .1stDEFENDANT ADAM SAMWEL LABAN............................................................. 2ndDEFENDANT ALISILE VALENJI MWAKATUMA............................................... 3rdDEFENDANT AMINA ABDALLAH JAFAARI......................................................4thDEFENDANT ATANASI MANUELI THOMASI.................................................. 5thDEFENDANT BEATRICE C. WABUKUMBI........................................................6thDEFENDANT DAIMONI MSINGWA................................................................ 7thDEFENDANT DANIEL OBADIAH MWAIBATA................................................. 8thDEFENDANT DEOGRATIUS LIUS MAGANGA................................................. 9thDEFENDANT DIDASY WILLIAM ASENGA..................................................... 10™DEFENDANT DOROTH JOSEPH SAWE.......................................................... 11™DEFENDANT EDWARD GODFREY MWAIMU................................................ 12™DEFENDANT ELIBARIKI MUSHI..................................................................13™DEFENDANT EMANUEL JOSEPH MUSHI...................................................... 14™DEFENDANT EMMANUEL JOFREY MOSHI................................................... 15™DEFENDANT EMMANUEL LINUS MOSHA.....................................................16™DEFENDANT FATUMA RAMADHANI MOHAMED........................................... 17™DEFENDANT FAUSTA FAUSTINE MVULA......................................................18™DEFENDANT FILOTENS H. MLOWE.............................................................. 19™DEFENDANT FRANK FULILA NKYANI.......................................................... 20™DEFENDANT 1 GOD SHIRIMA........................................ 21st DEFENDANT HABIBU MUSA SANDA............................................................ 22ndDEFENDANT HAPPY S. MAKERE.................................................................. 23rdDEFENDANT ISACK FOCUS MNYASA........................................................... 24™DEFENDANT JAFARI KWA MABIBI.............................................................. 25™DEFENDANT JOHNSON MEDSON MSONGOLE............................................. 26™DEFENDANT JONAS FULUJENA LASWAI......................................................27™DEFENDANT JULIAS MANASE...................................................................... 28™DEFENDANT JULIUS KAPELA....................................................................... 29™DEFENDANT KASIM SAID............................................................................ 30™DEFENDANT KASSIM MOSHI SANDA........................................................... 31stDEFENDANT LABANI JOHN YOEL............................................................... 32ndDEFENDANT LUCIA BERNARD VICENT...................................................... 33rdDEFENDANT MAHAMUD SAID MSANGI...................................................... 34™DEFENDANT MAKULATA JOAKIM RIAMBO................................................. 35™DEFENDANT MARIA LOUIS MAGANGA........................................................ 36™DEFENDANT MARIAM SAHIMU ABDALA......................................................37™DEFENDANT MARIAMU TITUS MIHO........................................................... 38™DEFENDANT MLATO LEONARD MGINA........................................................ 39™DEFENDANT MOZES MPALANZI.................................................................. 40™DEFENDANT MOSES ADAMU MWAPAJI.......................................................41™DEFENDANT MPOLA STANLEY.................................................................... 42STDEFENDANT MUSTAPHA RONJINO MIHO.................................................. 43NDDEFENDANT MUHAJI HUSSEN KI ME LA.......................................................44™DEFENDANT MUSA ALENI MEMBA.............................................................. 45™DEFENDANT NOEL ROTARY NCHIMBI.........................................................46™DEFENDANT OBADIA ERASTO SANGA........................................................ 47™DEFENDANT PETER ALBERTO MAGOVA...................................................... 48™DEFENDANT PETER FRANCIS MUSHI..........................................................49™DEFENDANT PROSPA FRANCE MUSHI......................................................... 50™DEFENDANT 2 RASHIDI MOHAMED MIAMBAO....................... 51st DEFENDANT REBEKA AMBAKSYE.......................................... 52nd DEFENDANT REGANI FILIPO LU LANGE...................................................... 53rdDEFENDANT REUDA BONIFASY MDUNDWIGE............................................ 54™DEFENDANT ROZIMARY CRABA MGENDI................................................... 55™DEFENDANT SALEHE AHAMAD NGALAWA.................................................. 56™DEFENDANT SALEHE YUSUPH MPONDA..................................................... 57™DEFENDANT SALUM FEREJI HAMIS............................................................ 58™DEFENDANT SALUMU SELEMANI................................................................ 59™DEFENDANT SHABANI HUSSEIN................................................................. 60™DEFENDANT SHABANI OMARI NINGA........................................................ 61stDEFENDANT SIWEMA JONATHAN NANIYE................................................. 62ndDEFENDANT SIWETU PHILIPO KYANDO.................................................... 63rdDEFENDANT TABU MOHAMED SINGANO.....................................................64™DEFENDANT TEOFANES MHA MKOKO......................................................... 65™DEFENDANT TWAHILI RASHIDI HODARI................................................... 66™DEFENDANT TWAIBU S. KALIBABANIKA .................................................... 67™DEFENDANT VENANT ZAMOYONI NOMBO.................................................. 68™DEFENDANT WILLY LAZARO AMONI........................................................... 69™DEFENDANT ZAINABU HASSANI SALA........................................................ 70™DEFENDANT ZAINABU KIDAU MOHAMED................................................... 71stDEFENDANT ZAKARIA LAZARO YUSUFU.................................................... 72ndDEFENDANT RULING 22/08/2024 &19/09/2024 A.MSAFIRI, J. The Plaintiff herein as the administratrix of the estate of the late Esteriano Emmanuel Mahingila has jointly and severally filed the suit against the above defendants seeking the following orders:- Afi I n- 3 1. For orders of declaration that the Defendants are mere trespassers on the suit land and for orders requiring their eviction forthwith. 2. For orders ofpermanent injunction, to be issued against the Defendants jointly and severally, their assignees, workmen, and or any person deriving title from them, from further trespassing onto the suit land. 3. The Plaintiff claim for damages caused by Defendants for continuing trespass and damages for loss of use of her 20 acres, which is TZS400,000, OOO/=(Say Four hundred Million Only), as damages for interfering with the cultivation, possession, and usage of Plaintiff's land as they occupied it for more than 5 years. 4. That the 1st -72nd Defendants be ordered, jointly and severally, to pay both punitive andgeneral damages for their illegal acts of trespassing and or condoning the acts of trespass onto the suitland in the sums that shall be assessed by the Hon. Court. 5. For payment ofInterests on items (3) and (4') above at the commercial rate of 18% p.a. and court's rate of 12% p.a. respectively, from the date of institution of this suit and or date ofjudgment. 6. For orders requiring the 1st - 72nd Defendants to pay costs and incidental to the suit. 7. Any other reliefs the Hon. Court shall deem just and fit to grant. Upon being served with the plaint, the counsel for the lst: -72nd Defendants save for 28^ Defendant raised the preliminary points of the laws as follows:- (a) That the plaintiff's plaint is misconceived and bad in taw as the plaintiff has neither locus standi nor cause ofaction. (b) That the suit is incompetent for nonjoinder ofnecessary parties, -i 4 The hearing of the preliminary objections was by way of written submissions, Mr. Rajabu Mrindoko, learned advocate appeared for the 71 defendants and Mr. Fredrick Augusti Massawe represented the plaintiff. In support of the preliminary objection Mr. Mrindoko argued that the plaint is bad in law as the plaintiff has no locus standi and cause of action. He was of the view that the administration function has to be performed within the specific time, he put reliance in the case of Salum Mustapha Kilumbu (Administrator of the estate of the late Halid Hassan Kilumbu) vs Kiyongwile Primary School and others, Land Case No.6 of 2023. He also relied on Section 107 of the Probate and Administration of Estate Act, Cap 352 which provides that the administrator has to accomplish the administration task within six (6) months, and the period may be extended by the court. He insisted that the plaintiff has no locus standi because she was appointed on 30/11/2020 and the six months has expired since 30th April 2021, while the instant suit was filed on 8th March 2024, thus filed out of time. On the second limb of the preliminary objection, Mr Mrindoko submitted that the suit is incompetent for non-joinder of necessary parties. He referred to the decision of Nestroy Msoffe and others vs The Registered Trustees of Catholic of Arusha, Civil Appeal No. 254 of 201. He stated that in paragraph 7 and 8 of the amended plaint, the- 5 plaintiff claims ownership of the suit property as Farm 831 vide Offer with reference No. LD/MP.52813 located at Pangani Area, Kibaha. He pointed that since the land is registered land, and there is a dispute of validity of grant, the Commissioner of Lands who issued the grant in respect of the land in dispute held under the letter of offer, Registrar of Titles who registered the disputed land and Kibaha Township Council are the necessary party to be joined in suit. He added that the alleged vendor Salum Ahmed Salum Bin Kleb also should be joined as his name appear in the Letter of Offer. » '•' y ■ ' ' '**■'.* In reply, Mr Fredrick Massawe submitted that what constitutes a preliminary objection is well elaborated in the decisions of Ndamo Gamaya versus Luhende Seni Darushi (as Administrator of the estate of the late Michael Mikanda, Civil Appeal No. 93 of 2017 CAT Dar es Salaam at p. 7 and Mukisa Biscuits Manufacturing Company Limited versus West End Distributors Limited, [1969] EA 696 at p. 700 where the court stated that:- ",...a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which if argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised ifany fact has to be ascertained or if what is sought is the exercise ofjudicial discretion..." 6 He argued that the first limb of preliminary objection raised by the defendants does not conform to the qualities of what used to be a demurrer because there is a need to ascertain facts from the Probate court file, to determine if the plaintiff is the administratrix of the estate, and if she has the cause of action or locus standi to defend the interests of the beneficiaries. He cited the case of Lujuna Shubi Balonzi vs The Registered Trustees of Chama cha Mapinduzi, [1996] TLR 203 and Rule 1 Order XXXI of the Civil Procedure Code, [Cap 33 R.E 2019]. He said that according to paragraphs 5.0 and 6.0 of the amended plaint, the plaintiff is administrator of the estate of the late Emanuel Mahangila and hence, she has right to administer the estate of her husband and to defend the interest of the beneficiaries. As per the second limbs of the preliminary objection, Mr. Massawe submitted that the plaintiff has no cause of action against the Registrar of Titles. He insisted that the plaintiff have a cause of action specifically against the defendants for trespassing on the disputed land as indicated in paragraph 4.0 of the amended Plaint. He said the court decree can be executable in the absence of Registrar of Titles and seller. Stressing on this point he referred to the cases of Asile Ally Said vs Irene Redentha Emmanuel Soka & Another (Civil Appeal No. 80 of 2020) and 7 Augustine Matia Truway vs Eliud Magola, Land Appeal No. 118 of 2022. He prayed that if the court find the preliminary objection has merit, the remedy available is not to struck out or dismiss the suit but to order the necessary party to be added as per Order 1 Rule 10 (1) and (2) of the Civil Procedure Cotefsupra). On rejoinder, the counsel for the defendants reiterated his submission in chief and prayers. I have opted to start with determination of the second limb of preliminary objection. In doing so, I had to revisit the amended plaint to find out if the plaintiff has pleaded the facts which require necessary parties to be joined in the suit. Paragraphs 4.0,5.0, 6.0, 7.0, and 8.0 of the amended plaint reads as follows:- 4.0. The Plaintiff's claim against the Defendantsjointly and severally is for the act of the Defendants which commenced and continued to enter and occupy the Plaintiff's land, which constitutes trespass, interfering with the entire land registered as farm No. 831 at Pangani, Kibaha District, (herein the suit land). As a consequence, thereof, the Plaintiffhas been dispossessed and deprived of the use of substantial whole suit land. 5.0. That, the Plaintiff serves as the administratrix of the estate of the late Esteriano Emmanuel Mahingila, who passed away intestate on the 1st day ofApril, 2020. The Plaintiffassumed this role through a tetter of administration granted to heron the 30th of November, 7 8 2020. "A copy of the tetter of administration is annexed hereto and marked as annex "BA-1"and leave is craved to refer to it as forming part of this Plaint" 6.0. That, sometime on January 2021, during the course of executing her responsibilities as the administratrix of her late husband's estate, Esteriano Emmanuel Mahingila, the Plaintiff conducted a visit to the disputed land. Upon visit, she discovered that the Defendants had, without any colour of rights, trespassed onto the entire extent of the land, measured 20 acres, and had proceeded to establish a permanent settlement therein withoutany lawful entitlement. 7.0. The Plaintiff further became aware that her /ate husband, Esteriano Emmanuel Mahingila, had been in undisturbedpossession and use of the land in dispute for an extendedperiod, spanning over 12 years. This possession originated from a sales agreement executed on the 7th May, 1996, between her late husband and one Saturn Ahmed (now deceased). 8.0. That the aforementioned agreement delineated a consideration of TZS 3,000,000 (Tanzania Shillings Three Million Only), with the provision for payment to be made in instalments. Additionally, Saturn Ahmed Bindeb (the vendor) as part of the agreement, handover all original documentation pertinent to the aforementioned suit land to Esteriano Emmanuel Mahingila. This documentation included a letter of offer, registered under Folio No. 16195 with L.O No. 130,852 which was issued In the year 1991. "A copy of said agreements and letter offer stated the facts above are annexed hereto and are marked as annex "BA-2" collectively, and leave is craved to refer to it as forming part of this Plaint"...." 1 9 Having looked at the quoted paragraphs, it is obvious that the plaintiff has pleaded that the defendants herein trespassed into the disputed land registered as farm No.831 at Pangani Kibaha-District, measured 8.045 hectares, equivalent to 20 acres, the plaintiff pleaded that the land was owned by her late husband who bought the same from Salum Ahmed Bincleb in the year 1991. The plaintiff discovered that the defendants have trespassed into the disputed land. She informed the Kibaha Municipal Council to seek assistance from the Commissioner for Lands, but the defendants unlawfully continued to occupy the disputed land. Based on the plaintiff's claims, the matter cannot conclusively be determined without the involvement of the Registrar of Titles and Commissioner for Lands who are the authorities which registered and issued the certificate of title to Salum Ahmed Bincleb who later sold to Esteriano Emmanuel Mahingila. For the court to make a declaration that the defendants' are trespassers or not, the plaintiff must first establish her ownership of the disputed land. Since the disputed land is registered, the involvement of the seller, the Commissioner for Lands and the Registrar of Titles are necessary. In the case of Abdulatif Mohamed Hamis vs Mehbood Yusuf Othman and Another, Civil Revision No. 06 of 2017, CAT at DSM (Unreported), the Court of Appeal emphasised and stated thus;- io "... we take the position that Rule 9 ofOrder 1 only holds 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 for a court, so to say, to pass a decree which would be of no practical utility to the plaintiff...." The Court of Appeal of Tanzania herein above-quoted decision held that the plaintiffs failure to add the Commissioner for Lands and Registrar of Titles in the suit constituted a non- joinder of necessary parties. The Commissioner for Lands and Registrar of Titles are necessary parts in the instant suit, thus, failure to join them renders the entire suit incompetent. For that reason, I sustain the second limb of objection and since the same suffices to dispose of the entire suit, I will not determine the rest of the preliminary objections. I proceed to strike out the entire suit with no orders as to costs. 11