benedicto rweikiza ijumba vs abdallah nahdi 2021 tzhclandd 814 19 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 376 OF 2017 BENEDICTO RWEIKIZAIJUMBA PLAINTIFF VERSUS ABDALLAH NAHDI DEFENDANT RULING 19th & 19th November, 2021 A, M ATU MA, J: This is a ruling in respect of two issued raised by this court suo motto which are; i) Whether the parties' respective vendors in the circumstances of this suit are not necessary parties and this suit can properly proceed for hearing and the rights of the parties conclusively determined in their absence. ii) Whether this suit had ever been mediated as the law enjoins, and if not what is the legal consequences in the circumstances of this suit. The brief facts leading to the herein above raised issues goes this way. The plaintiff and the defendant are scrambling for ownership of the suit property which are two plots No. 989 and 991 located at Upanga area with a certificate of title No. 186175/55. i Originally the suit property was owned and registered in the names of Saidi Ramadhani Mussa Makutika, and the parties are not at issue on this fact. Now the plaintiff alleges that such original owner of the suit property sold it way back in 1982 to one Mayasa Lumbe, Mayasa Lumbe in 1997 also sold it to Ibrahim Athumani who in turn sold the same to Michael Martin Karata in 2003. The said Michael Martin Karata in 2013 on the 8th May, sold it to the plaintiff herein. On the process to have the property registered in his name, the plaintiff found that the property was not in the names of his vendor nor in the names of its original owner. Instead it is the defendant who is registered in the property as its owner. In that regard the plaintiff made an official search through which he found that the Administrator general happened to be legal personal representative of the late Saidi Ramadhani Mussa Makutika, the original owner. Subsequently thereto, the Administrator General passed the property to Hemed Makutika, Yusufu Makutika, Jumanne Makutika, Zainabu Makutika and Amina Makutika as beneficiaries of the late original owner of the property Said Ramadhani Mussa Makutika. Subsequently thereto, those herein above-named beneficiaries jointly sold the property to Anil Mohamedali Visram and Abbas Gulamali Mohamedali. Thereafter, Abbas Gulamali Mohamedali transferred half share of the property in question to Anil Mohamedali Visram from whom the Defendant obtained title and registration of the property is his name. It is from the herein above background, the first issue supra was raised as to whether the rights of the parties can be conclusively determined without the respective vendors being made parties to the syitTbf'them to establish 2 their respective titles to the property prior to their respective sales to the parties herein. On the second issues it is on record that this suit on the 6th July, 2020 undergone through 1st pretrial conference in which scheduling orders were made, including the order for the parties to go through mediation. Hon. Madeha Judge was assigned as the mediator Judge but could not do the needful as the parties neglected the mediation. She thus remitted back the case file to the trial Judge with remarks that; "This case was scheduled for mediation for the first time on 16/07/2020 but parties to the case do not appear in court on mediation dates. So, mediation not conducted due to their absence. Therefore, I remit this case to the trialJudge to proceed under order VII Rule 29 of the CPC, Cap. 33 as amended by Rules 2019 for other necessary orders". It is from such background I raised the second issue supra. At the hearing of those two issues both parties in person were absent but were dully represented by their advocates. Mr. Andrew Kannonyele learned advocate represented the plaintiff while Mr. John James learned advocate represented the defendant. Submitting in the first issues, Mr. Kannonyele learned advocate argued that in the circumstances of this case an effective decree cannot be passed in the absence of the respective vendors as each party alleges to have obtained ownership by way of purchase from a third party. That those third parties ought to have been made parties to this case so that they are accorded opportunity to establishj^hether they possessed good 3 tittle to pass to the parties herein. Otherwise it would turn to condemn them unheard. The learned advocate addressed the court on the available remedies when a necessary party is not joined. He submitted that the court in the circumstances can direct the Plaintiff to join those necessary parties under order I rule 10 (2) of the CPC as amended in 2019 by GN 381 of 2019, or struck out the suit with some directions to the plaintiff as it was decided in various cases including OUcom Tanzania Limited versus Christopher Letson Mgaiia (HC) at Mbeya, Farida Mbaraka and Another versus Domina Kagaruki, Civil Appeal no. 136 of 2006 and Abduiiatiff Mohamed Hamis vs. Mehbood Yusufu Osman, Civil Revision No. 6 of 2017. The learned advocate submitted on the third option which is to allow the Plaintiff upon prayer to withdraw the suit with leave to refile under Order XXIII rule 2 (a) and (b) of the CPC supra. In the circumstances of this suit, the learned advocate prayed for leave to withdraw the suit with leave to refile and that leave to withdraw be granted without costs to either party. Mr. John James learned advocate for the Defendant on his party did not take much time of the court as he was in agreement with the learned advocate for the Plaintiff. He only:produced a copy of a decided case of Nuta Press Limited versus Mac Holdings & Another, Civil Appeal no. 80 of 2016 (CAT). He did not also object the plaintiff's prayers. On my party, I am in agreement of the learned advocates most so Mr. Andrew Kannonyele whom I have considered to have acted as an officer of the Court for his deliberation on the legal stance on the issue despite of its negative impact on his party. The respecbyeVendors of the parties 4 are necessary parties in the instant matter as rightly submitted by Mr. Kannonyele because the ownership of the property at issue to each party is alleged to have been acquired through purchase of the property. In that respect, it is not the matter of either party to prove only that he purchased such property from his vendor. The title of such respective vendors must as well be proved for the court to reach a conclusion as to who among them possessed better title to pass to the parties herein. Such proof can better be given by the respective vendors themselves and not the parties herein. It is them who can explain how did they came about the property and subsequently owned it before they could sale it to the parties herein. In the instant matter at least Michael Martin Katara who sold the property to the Plaintiff and the Administrator General who is alleged to have acquired title from the deceased owner of the property and subsequently passing it to some other people who in turn sold the same until when it reached the defendant could have not missed as necessary parties. That does not mean other vendors in between are not necessary. For instance, was Abbas Gulamali Mohamedali involved in any sale of the property? How his rights are extinguished while the records are clear that he was a co-purchaser of the property with Anil Mohamedali Visram's. He is seen to have transferred half share of the property from him to Anil Mohamedali Visram. Did that mean the whole property came to be solely owned by Anil Mohamedali Visram who in turn sold it all to the defendant? Unless they are made parties, an effective decree cannot be passed. Only those necessary parties can satisfy the court on how they lawfully acquired the property from its original owner. 5 Along with the cited authorities by the learned advocates herein, in the case of Juma B. Kadala vs. Laurent Mkanda [1983] TLR103 it was held that when the matter tends to affect title on land allegedly purchased from a third party, the seller or vendor becomes a necessary party. Dealing on a matter of similar nature in the case of Bunda Mbonaiiba Hwanya vs. Fabian Dombagu, Misc. Land Appeal No. 16 of2021 in the High Court of Tanzania at Kigoma, I further observed the necessity of the vendor being made a party to the suit. I held that the essence of making the vendor party to the suit is to accord him or her; "Opportunity to justify his or her selling in protection of the purchaser's rights. In other words, to establish his or her good title on land and that the same properly passed to the buyer". Since the Plaintiff made an official search and obtained the names of the Defendants vendors ranging from the Administrator General ought to have made the said vendors particularly the Administrator General a party to this suit. On the other hand, had he not made the official search, it would be enough for him to sue only the defendant who could in turn join his respective vendors by way of third party notice. But in no way could the Plaintiff skip to join his vendor for him to establish his title before passing it to the Plaintiff. The Court of Appeal of Tanzania in the case of Abdullatiff Mohamed Hamis supra defined a necessary party to be the one in whose absence the court cannot pass an effective decree or whom the decision might be pronounced against him. In the instant matter we cannot determine the rights of either party unless we pronounce a decision against the vendppervendors of one party that he or they did not possess good title to pass. By doing so in his or their absence would be condemning him or them unheard which is bad in law as rightly submitted by Mr. Kannonyele learned advocate. Since there is another issue whose effects may lead to the dismissal of the suit; I refrain striking out this suit to determine first the second issue. On the second issue both learned advocates were in agreement that the mediation process in the instant matter was not fully exhausted as the law requires. Mr. Kannonyele learned advocate addressed the court on the available remedies under Order XIII rule 29 of the CPC supra when mediation is not conducted for failure of either party to attend including the dismissal of the suit in case the defaulting party is the Plaintiff or strike out the defence in case the defaulting party is the defendant. He also argued that under paragraph (c) of rule 29 supra, the court may resort into any other remedy in the circumstances of the matter without necessarily dismissing the suit or strike out the defence. In the circumstances of this case the learned advocate submitted that the parties did not mediate as the parties themselves were absent and the advocates and the court did not properly address their minds towards the provisions of the law to the effect that advocates could enter into the negotiation of the matter on behalf of their clients during the mediation. That had they so properly construed the law, they could mediate the matter in the absence of their clients. He thus prayed for the court to refrain from issuing adverse orders to the parties and accord them opportunity to mediate in case the suit survives the first issue. Mr. John James learned advocate for the defendant just like it was in the first issue joined hands with Mr. Kannonv^ier^ 7 In determining this issue, once again I agree with Mr. Kannonyele that mediation is a necessary step towards arbitration of the suit between the parties and cannot be skipped at the option of the parties. In the instant matter the parties in person did not attend the mediation whenever they were required to attend. The learned advocate argued that they thought the parties should have themselves appear in the mediation but he is now aware that the law gives room for the advocates to mediate on behalf of their clients. In the instant matter both parties defaulted appearance without good cause. In that respect both parties deserves legal consequences for their deliberate failure to attend the mediation and or even initiate the process for making sure that such necessary step is not skipped because no trial can be lawful without first the matter to have undergone the mediation process. I would have therefore dismissed the suit but that will benefit the defendant who committed the same wrong. On the other hand I would have strike out the defence but again that would benefit the Plaintiff who committed the same wrong. To balance between the parties, I rule the second issue that it was a misinterpretation of the law by both parties and none perusal of the records by my predecessor Judge to detect that mediation has not been conducted for her necessary orders. I thus return back to the first issue and proceed to struck out this suit without costs. I cannot allow withdrawal of the same as that would amount to be pre-empting the issues raised. The suit is therefore struck out without costs and the Plaintiff is at liberty to reinstitute it subject to 8 the requirements of the law as to time limitation, statutory notice to sue etc as the case may be. 19/11/2021 Court: Ruling delivered in the presence of advocate Andrew Kannonyele for the plaintiff and advocate John James for the defendant. Right of appeal explained. 9