Elaine Mary Rene

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO LAND APPEAL NO. 10438 OF 2024 (Arising from Land Appiication No. 107of2012 at Morogoro) ELAINE MARY RENE APPELLANT VERSUS KARIMA ABUBAKAR(Msimamizi wa mirathi ya Marehemu Abubakar Hassam) RESPONDENT Date of Last Order: 30.08.2024 Date of Judgment: 11.10.2024 JUDGEMENT MAGOIGA,J At the District Land and Housing Tribunal (to be refereed as ^^DLHT")for Morogoro at Morogoro, the appellant herein lodged Land Application No. 107 of 2012 against Karima Abubakar (administratrix of estate of Abubakar Hassan) claiming, among others, declaration of ownership and vacant possession of the house standing on piece of land described as Plot No. 82 Block "B", Morogoro Municipality with Title Deed No. 15742. The applicant also prayed for an order of mesne profit at the rate of Tshs.200,000/- monthly be granted to the appellant from the date of purchase of the premises until the final disposition of the matter. C#v Before venturing into what happened at the DLHT, it is pertinent to know the flow of events ieading to this appeal. At the DLHT the matter was adjourned for different reasons until 11/02/2016 when the Respondent prayed to stay the proceedings at DLHT pending the determination of Land Case No. 6 of 2016 at the High Court lodged by the respondent against Agriculture Input Trust Fund, involves the same subject matter. On 01/03/2016 the DLHT granted the prayer and stayed the proceedings. The matter resurfaced on 05/03/2018, and on 23/01/2019 Mr. Tibenyendera made two prayers before the DLHT,first to join the vendor as the necessary party and again, stay of the DLHT proceedings pending the decision of the Court of Appeal, involves the same subject matter. For the second time, DLHT granted the prayer on the ruling delivered on 18/03/2019. After lapse of almost four years, on 02/08/2023 the trial Tribunal on 11/09/2023 heard parties. Mr Tibenyendera for the respondent told the court that there are proceedings at the Court of Appeal but they can't affect the current application, he prayed to amend his written statement of defence, and the DLHT granted him leave to do so. The amended written statement of defence was lodged as per the Tribunal directives, and within it, there was Preliminary Objection on the point of law that the application is not maintainabie for being preferred with the defects of non joinder of the vendor and Auctioneer as necessary party and the Tribunal is not vested with requisite jurisdiction to adjudicate on the application since the respondent has iodged a counter ciaim against the Attorney Generai. On the weight of the preliminary objection, on 22/03/2024 the DLHT struck out the application for want of jurisdiction for faiiure to join Attorney Generai in the appiication. Being aggrieved, the appeilant knocked the door of this court with two grounds of appeai as foliows: - 1. That The District Land and Housing Tribunai for Morogoro at Morogoro erred in iaw and facts by ordering the appeiiant to join Board of Trustees of Agricuiture Inputs Trust Fund and Attorney Generai without any iegaijustification. 2. Thaf the District Land and Housing Tribunai erred in iaw and fact by hoiding that it has nojurisdiction to entertain the matter. The appeilant prays this court to aliow the appeai and order any other reiiefs it deem fit. The appeal was heard by way of written submissions and the parties were represented. The appellant was represented by Mr. Jackson Liwewa, learned advocate while the respondent enjoyed the legal services of Mohammed Tibanyendera, learned advocate. Submitting in support of the appeal on the first ground of appeal, Mr. Liwewa for the appellant gave a brief history of the disputed land and stated that since there was a dispute between Abubakar Hassan vs. Agricultural Input Trust Fund in 2000 before Ihema, J the decision which was not challenged, it was wrong for the trial Chairperson to order the appellant to join Board of Trustees of Agriculture Inputs Trust Fund because their matter was already determined by the High Court and the appellant who is the owner of the suit land has no cause of action against Agricultural Input Trust Fund. On the second ground of appeal, it was the appellant submission that Section 167(1) of the Land Act read together with section 3(1) of the Land Dispute Court Act vested exclusive jurisdiction to the DLHT to hear land disputes actions and proceedings, since that is the position in 2012 and the appellant instituted Land Application No. 107 of 2012, it is within the jurisdiction of the Tribunal, as such the Tribunal erred to hold that it has no jurisdiction. On the afore stated grounds, the appellant prays for the appeal to be allowed by setting aside the decision of the trial Tribunal. In response, Mr. Tibanyendera submitted that whatever orders that were made in respect of Civil Case No. 199 of 2000 were wiped out by the dismissal order. Anything that had transpired in that case ended upon dismissal since the orders sought in the said case were not addressed to appellant. The same were issued interparties between the late Hassan Abubakar who was the Plaintiff against the Board of Trustees of Agricultural Inputs Trust Fund, Stock Brokerage and Tortoise Investments Limited (Defendants). Since the appellant had never been joined to the said suit as a party. She cannot benefit from the outcome of Civil Case No. 199 of 2000 which she had never applied to be joined as a necessary party. The learned advocate pressed this court to find no merits in this ground. Submitting on the second ground of appeal, Mr. Tibanyendera argued that the District Land and Housing Tribunal was correct in law and fact by holding that it has no jurisdiction to entertain the matter. According to Mr. Tibanyendera, this ground of appeal has no merit and it deserves to be dismissed. The respondent made reliance on section 6(3)(4) and (5) of the Government Proceedings Act, Cap 5 RE 2019, which makes it mandatory for all suits against the government, to be instituted In the High court,amendments to Section 6 of the Government Proceedings Act, Cap. 5, R.E. 2019 as amended by Act No. 1 of 2020 have a retrospective application to the case and in Board of Trustees of the Agricultural Inputs Trust Fund is a government parastatal organization and a public corporation, the Commissioner for Lands is a government department in the Ministry of Lands as well as the Registrar of titles, the said three institutions cannot be sued without joining the Attorney General. To bolster his submission Mr. Tibenyendera cited the case of Lala Wino vs Karatu District Council (Civil Application 132 of 2018)[2019] TZCA 46 (1 April 2019) in which the Court of Appeal of Tanzania followed the earlier decision in the case of Benbros Motors Tanganyika Ltd. v. Ramanlal Haribhai Patel [1967] HCD n. 435. By way of rejoinder the appellant submitted that the root of this case can be traced from the case of Karima Abubakar (as the administratrix of late Abubakar Hassan deceased) and Saada Mohamed Jubrea vs. Elaine Mary Rene, the board of Trustees of Agricultural Inputs Trust Fund, Land Case No. 6 of 2016, the case reflects what transpired between the respondent and Agricultural Input Trust Fund, and their matter was determined to finality. Therefore, according to Mr. Liwewa, the DLHT has jurisdiction to deal with the application No. 107/2012 and prayed further that the appeal be allowed and the decision of the triai Tribunal be set aside with costs. In determination of this appeai the focus wiil be on whether or not, the appeal has merit. And since the grounds of appeai are intertwined in a way that if the first ground is allowed it automatically answer the second ground. It is imperative to know that it was the appeilant who instituted the suit at the DLHT because she beiieved she is entitled among others for vacant possession of the suit premise after she had lawfully purchased the same through public auction. The question, therefore, is whether it was necessary for the appellant to join Board of Trustees of Agricuiture Inputs Trust Fund and Attorney General in the suit as alleged by the Respondent? In the present case, the appellant bought a suit iand from an auction conducted by Board of Trusteed of Agricuiture Inputs Trust Fund through its agent. I have had an opportunity to read the efforts by the respondent to set aside the sale through Civil case No. 199 of 2000 and Land case No. 06 of 2016 but all in vain. The latter decision in Land Case No. 06 of 2016 in which the appeiiant was a party hammered that the matter between parties is res judicata. The respondent never appealed against that decision and that remained the position to date. With that note, the respondent's efforts to hide in the shieid of the Board of Trustees of Agricuiture Inputs Trust Fund and Attorney General is uncalled for, misconceived and a deliberate calculation to delay the course of justice. The questions by the respondent on the auction process that to whom did the applicant purchase the suit property, who officiated the public auction, what caused the public auction, who was the auctioneer and many other questions which according to the respondent requires the necessary party to be joined are asked out of context of what was done and are misconceived on their face value. The question then becomes who is the necessary party? In the case of Massawe and Company vs. Jashbai P. Patel [1998] TLR 445 defined who is necessary party to the case by holding that; "necessary party''is one who ought to be joined as a party and whose presence is necessary in order to dispose ofthe suit compieteiy and effectiveiy". In the case of Abdullatif Mohamed Hamis vs. Mehboob Yusuf Osman and Another, Civil Revision No. 6 of 2017 (unreported) the court stated that; The determination as to who is a necessary party to a suit wouid vary from a case to case depending upon the facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars ofthe non joined party, the nature ofreliefs claimed, as weii as whether or not, in the absence of the party, an executable decree maybe passed. The applicant at the DLHT did not join Board of Trustees of Agriculture Inputs Trust Fund nor Attorney General because the appellant couldn't be forced to join a party who doesn't have a cause of action against. What she was claiming is the interests in the land he believed to have rightfully acquired by purchasing it through an auction. He had no cause of action against the Board of Trustees of the Agricultural Inputs Trust Fund nor Attorney General in the circumstances of this appeal, hence no necessity to join the Board nor Attorney General to that Land Application before the Tribunal. The attempts by the respondent challenging the validity of the sale now, in my opinion, is deliberate delaying tactics to prohibit the appellant to have full enjoyment of the suit land. The respondent's efforts as noted above trying to challenge sale and others were all in vain. That said and done. It is my strong opinion that, the DLHT had jurisdiction to try the matter without joining the Board and Attorney General in the circumstances of this appeal who are not necessary parties. Consequently, I hereby quash and set aside the ruling of the trial Tribunal in Land Application No. 107 of 2012, and order hearing afresh of the matter before another chairman. The matter to be given priority given the age of the dispute. The appellant shall have costs in this court and the Tribunal below. IT IS SO ORDERED Dated at MORQGj^O this 11^^ day of October, 2024. r- / ;-e/ (! }r'-,yy S.M. MAGOIGA JUDGE 11/10/2024 COURT:Judgement delivered at Morogoro in the presence of Mr. Liwewa, learned advocate for the appellant and Mr. Tibandenyera, learned advocate fortheTespondent today l:. f October, 2024. WW'i s.mJmagoiga JUDGE 11/10/2024 10 COURT: Right of appeal fully expla ned. ' Q S.M. MAGOIGA JUDGE 11/10/2024 11