CHARLES RIWA MAREALLE SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 9555 OF 2024 CHARLES RIWA MAREALLE (Administrator of the Estate of the late Robert Moshi Marealle)........................................ PLAINTIFF VERSUS LADY ANNA LISSO MAGANDA (As Adminstrator of the Estate of the late Obadia Lukona)........................... DEFENDANT RULING 2nd & 31st July, 2024 L. HEMED, J Charles Riwa Marealle, the administrator of the estate of the late Robert Moshi Marealle, instituted the instant suit against Lady Anna Lisso Maganda, the administratrix of the estate of the late Obadia Lukoma praying for Judgment and decree as follows: - "(0 A declaration order that, there was sale agreement for the suit /and between transferor and transferee. (ii)For Orders of specific performance, ordering the Defendant being legal personal representative of the transferor to perform part of the bargain of i the contract entered into between the transferor and transferee thereby compelling the said Defendant to abide and comply with the terms of the agreement requiring her to transfer to the Plaintiff all rights over the suit land. (Hi)For orders of permanent injunction to be issued against the Defendant, her assignees, agents workmen and or any person deriving tide over her from interfering onto the suit land which is lawfully owned by the Plaintiff. (iv)In the alternative if the Defendant will refuse to adhere to relief No. Id (i) above, the Plaintiff be declared as the legal owner of the suit land. (v) That, the Defendant be ordered to pay punitive and general damages, for her acts of refusing to sign transfer documents and or for condoning the acts of still use, onto the suit land and in the sums that shall be accessed by the Honorable Court. (vi)General damages at the tune of Tanzania shillings seventy Million (Tzs. 70,000,000.00) only. (vii) Costs of the suit. (viii)Any other relief (s) that this Honorable Court may deem fit andjust to grant". 2 The Defendant through her advocate, Dr. Alex Nguruma disputed the claims by filing the written statement of defence. The written statement of defence had four (4) points of Preliminary Objection to wit; "(a) That the suit is Res Judicata this Court having ruled the absence of cause of action in Civil Case No. 138 of2023. (b) That the suit has been filed out of time prescribed by the Law of Limitation Act Cap 89 (RE. 2019) Section 3 and Item 7 and 22 if part I of the schedule. (c) That the Plaint does not disclose a cause of action against a Defendant as per the requirement of the Civil Procedure Code Cap. 33 [RE 2019]. (sic) (d) That the suit is defective for failure to join a necessary party, to wit the Commissioner for Lands". The matter was called for necessary orders on 2nd July, 2024 at 10:00 am. On the particular date the learned Counsel for the Defendant prayed to withdraw (a), (b) and (d) limbs of the preliminary objections. The Court however, directed parties to argue on limbs (c) and (d); that is on failure to disclose cause of action and none joinder of a necessary party. \ 3 Due to time constraint, the objections were argued by way of written submissions. Dr. Alex Nguruma, learned advocate acted for the Defendant while the Plaintiff enjoyed the service of Mr. Ngasa Ganja Mboje, learned counsel. All submissions were promptly filed as directed by the Court. I have opted to start with the point of the suit being defective for failure to join a necessary party, the Commissioner for Lands. I am on the same page with the Counsel for the Plaintiff that points of objection are ascertainable by looking at the pleadings filed by the parties. This is pursuant to what was stated in Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors Limited (1969) EA. 696 that; .....a Preliminary Objection consists of a point of Law which has been pleaded, or which arises by dear implication out of pleadings, and which if argued as a Preliminary Point may dispose of the suit" Based on the authority above cited, in order to ascertain whether or not the Commissioner for Lands is a necessary party to the instant matter, we have to look at what has been pleaded in the Plaint. Having gone through paragraph 9, 10 and 11 of the Plaint, I found that the Plaintiff is 4 blaming the Office of the Commissioner for Lands for the Misplacement of transfer documents which were signed by the transferor. The Counsel for the Plaintiff has averred in his reply submission that such facts merely give a background history of what happened from the date when the sale agreement was signed until the Defendant refused to sign the fresh documents. In his opinion, such facts, do not entitle the Plaintiff to join the Commissioner for Lands for a Claim or Civil action of specific performance of the contract. By reading the Plaint, the clear implication that comes out of it is that the vendor or transferor had performed his duty by signing all the transfer documents which were presented to the Office of the Commissioner for Lands for purpose of transfer. Only that the same were misplaced at the Office of the Commissioner. The facts pleaded against the Commissioner for Land for the loss or misplacement of the transfer documents reveal the cause of action which the plaintiff has against the Commissioner. This being so, he is inevitably a necessary party to the instant suit. The question is what the effect of failure to join the necessary party? The Court of Appeal of Tanzania in Abdullatif Mohamed Hamis vs Mehboob Yusuf Othman and Another, Civil Revision No. 6 of 2017, 5 made it dear that failure to join a necessary party to the proceedings renders the suit incompetent. This being the Case, I find the entire suit before me to be incompetent for failure to join the Commissioner for Lands. The fact that the point for non - joinder of necessary party suffice to dispose of the entire suit, I will not labor to determine the remained limb of objection. The entire suit is hereby struck out with costs. Order accordingly. DATED at DAR ES SALAAM th/T31st July, 2024. JUDGE 6