Mbuna

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE N0.320 OF 2023 EVELYNE STANLEY MBUNA, FORESTER IRENE MBUNA MKAPA AND FELICIA JOSEPH MBUNA (Adminstratrixes of the Estate of the late JOSEPH STANLEY.................................................... PLAINTIFFS VERSUS THE ATTORNEY GENERAL................................. 1st DEFENDANT KIGAMBONI MUNICIPAL COUNCIL.................. 2nd DEFENDANT RULING Date of Last Order: 12.11.2023 Date of Ruling: 20.12.2023 T. N. MWENEGOHA, J. The plaintiffs above named filed this suit against the defendants, claiming a land, located at Plot No. 400, Ras Karonjo Area in Kigamboni Municipality, with a Certificate of Title No. 77932, measured 17400 sqm. It is essential that I start by highlighting the background leading to this Ruling. The case was fully heard where both parties presented their witnesses and exhibits. Then the same was adjourned and scheduled for Judgment. However, when this Court was composing its Judgment, it came through facts that made the same not to be possible without visiting the locus in quo. Parties were notified and a date was scheduled for the same. On the visitation date, the advocate for the plaintiff was absent hence a visit to locus was rescheduled for another date. It was during this time where the Court received an Application from Commissioner for i Lands asking to be joined in the case. The Application was not heard on its merit as it was met with objection from the plaintiff for offending the law by not joining the Attorney General. The same was sustained and the said Application was struck out. However, the Court could not ignore the fact that a necessary party who is a custodian of land titles and responsible for allocations and revocations was not a party to the case at hand. Consequently, this Court asked parties to address it on whether there are parties who were supposed to be joined as necessary parties. This Court formed the said opinion based on the pleadings, the testimonies of the witnesses and their exhibits, including the closing arguments filed by the counsels for the parties. Since this fact is an issue of law, the parties were ordered to address the Court on whether the Commissioner for Lands and the Registrar of Titles are necessary parties in this case. The parties agreed and filed their written submissions as ordered, addressing the issue in question. Mr. Mathias Omary Kisegu, Counsel for the plaintiff, in his submission against the issue raised, insisted that the Commissioner for Land is not a necessary party in this case. That, based on the nature of the claim, where the plaintiffs are seeking for a declaration that, the late Joseph Stanley Mbuna is true and lawful owner of the suit land and a permanent injuction against the 2nd defendant and any other person working under her instructions. There is no relief claimed against the Commissioner, therefore no need to join him as a necessary party. To cement his position, Mr. Kisegu cited the case of Abdulatif Mohamed Hamis versus Mehboob Yusuf Othman & Another, Civil Revision 06 of 2017, Court of Appeal of Tanzania (unreported). 2 On the other, Doreen Mhina, the learned State Attorney for the defendants, maintained that, based on the plaint at paragraph 12 and 13th, read together with paragraph 4 and 5 of the Written Statement of Defence, it is obvious that, the Commissioner for Lands and the Registrar of Titles are necessary parties. For this Court to pass an effective decree, their presence is vital, because the question at issue is the legality of the Certificate of Occupancy issued to the plaintiff in 2007. For the Court to know the validity of the said Certificate, the Commissioner for Lands and the Registrar must be joined. Without them, it will be impractical for the Court to determine the issue of ownership of the suit land. That, the pleadings show that the suit land was formerly owned by NAFCO, then transferred to Quality Group in 1990 and later the same was transferred to International Village Ltd by Quality group Ltd. After, in 2020 the President revoked the Title. The revocation is done through the Commissioner's office. Hence, it is inevitable to join the Commissioner for Lands and the Registrar of Title in this suit. She cited the case of Tanzania Railways Corporation (TRC) versus GBP (T) Limited, Civil Appeal No.218 of 2020, Court of Appeal of Tanzania at Tabora, (unreported). I have considered the submissions of the parties. As I have noted herein above, the issue in question was raised suo mottu by the Court. On my part, I am of the settled opinion that, the Commissioner for Lands and the Registrar of Titles are necessary parties. The pleadings are clear, paragraph 12 and 13 shows that the plaintiffs were well informed by the 2nd defendant of the suit land coming into the ownership of the Municipal Council. That was after the Presidential revocation of the previous Title. The authorities concerned with revocation of the Title in question are the 3 Commissioner and Registrar who is the custodian of the land registry. If this case is to be decided properly, the two parties are necessary, see Tanzania Railways Corporation (TRC) versus GBP (T) Limited, (supra). On that basis, as it has been settled in civil cases, there is non-joinder of a necessary party as the Court cannot pass an effective Decree to be executed later, see Abdulatif Mohamed Hamis versus Mehboob Yusuf Othman & Another, (supra). For these reasons, I find this case to be incompetent for non-joinder of necessary parties who are the Registrar of Titles and the Commissioner for Lands. In the end, I strike out the suit with no Order as to costs. I* T.N^WEN EGOHA JUDGE 20/12/2023 4