Judgement Land Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI LAND CASE APPEAL NO. 66 OF 2023 (Originating from Land Application No. 100 of 2021 in the District Land and Housing Tribunal for Moshi at Moshi) EWALD ALOYCE MARSHAY (As Administrator of the estate of the late Aloyce Paul Marshay) …............................................ APPELLANT VERSUS PATRICK VICENT RIMOY…………….……………………1ST RESPONDENT INNOCENT AVELINI MARSHAY…………………………2ND RESPONDENT JUDGEMENT Date of Last Order : 14.08.2024 Date of Judgement: 11.09.2024 MONGELLA, J. The appellant herein was the applicant in Application No. 100 of 2021 in the District Land and Housing Tribunal for Moshi at Moshi (the tribunal, hereinafter). He claimed that the respondents had invaded a landed property located at Kariwa village, Uru Kusini ward within Moshi district and Kilimanjaro region (hereinafter, the suit land). He alleged that the respondents interfered with the suit land under the claim that they were given the same by previous administrator of the estate of the late Aloyce Paul Marshay, whose Page 1 of 17 appointment was revoked. He claimed further that the 1st respondent had built a house and the 2nd respondent cultivated crops on the land. The appellant sought for the tribunal to: issue an order to permanently evict the respondents from the suit land; award damages resulting from loss of use of the suit property; costs of the suit and any reliefs the tribunal deems fit. The respondents denied the claim alleging that the applicant was not the owner of the suit land. Upon hearing the matter, the tribunal found that the suit land never belonged to the late Aloyce Paul Marshay, thus not part of his estate. It also found that the suit land belonged to one Metilda Vicent Rimoy. In those premises, it declared the appellant a trespasser to the suit land and ordered him to vacate. The appellant was also required to pay costs for the matter. Aggrieved, the appellant has preferred this appeal on the following grounds: 1. That, the Honourable Chairman erred in law and fact by refusing to accept, analyse and evaluate the evidence adduced before it by the applicant upon reaching his decision. 2. That, the Honourable Chairman erred in law and fact by failure to evaluate and recognize that all exhibits which were adduced before him were valid. Page 2 of 17 3. That, the Honourable Chairman erred in law and fact by relaying on the Respondent's witness testimony without considering the applicant evidence. (sic) 4. That, the Honourable Chairman erred in law and fact by ordering that the land in dispute belongs to the 1st Respondent's mother while it's among of the Estate of the late Aloyce Paul Marshay before and after his death. (sic) 5. That, the Appeal is in time since judgment was delivered on 29th September, 2023 and copies for the same availed on 11th October, 2023. (sic) The appellant further filed a supplementary memorandum of appeal with the following grounds: 1. That, the Honourable trial tribunal erred in law and in facts for determining un-pleaded facts, hence reached at erroneous decision. 2. That, the Honourable trial tribunal erred in law and in facts for determining the application in favour of one Metilda Vicent Rimoy [DW-4] while she was not a party to the suit. 3. That, the Honourable trial tribunal erred in law and in facts for failure to issue an order to join one Metilda Vicent Rimoy as a necessary party in the suit before determining the case in favour of Metilda Vicent Rimoy as the lawful owner of the suit land. Page 3 of 17 4. That, the Honourable trial tribunal erred in law and in facts for granting un-pleaded reliefs. The appeal was argued orally whereby the appellant was represented by Mr. Emmanuel Anthony while the respondents fended for themselves. Prior to making his submission, Mr. Anthony prayed to abandon the grounds filed in the initial memorandum of appeal. He opted to argue on the second set filed on 14.03.2024 following leave of this Court to file the same. In his submission, he merged the 1st and 2nd grounds and the 3rd and 4thgrounds. He as well provided a brief background of the case whereby he said that before the tribunal, the following issues were raised from the pleadings: one, who is the lawful owner of the land in dispute and; two, whether the land in dispute is part of the estate of the late Paul Marshay. He said that during the hearing, the appellant was the only witness in his case and testified on oath. The respondents, on their part, furnished four (4) witnesses including themselves. He thereafter moved to address the 1st and 2nd grounds of appeal, whereby he averred that the Written Statement of Defence (WSD) filed by the respondents had three things, being: one, it noted some of the facts from the applicant’s application; two, it disputed some of the facts in the application, but the dispute had no additional explanations; three, the respondents prayed for the application to be dismissed with costs. He contended that all the evidence Page 4 of 17 adduced by the respondents during hearing in the tribunal was not on matters covered in their (WSD). He considered that being contrary to the principle settled in the case of Makori Wasanga vs. Mwanakambo & Another [1987] TLR 88, which states that a party is bound by his pleadings and is not allowed to set up a new case. Challenging the defence case, he alleged that the respondents’ defence set up an entirely new case which led the Hon. Chairman to decide upon that new case. He explained that the tribunal stated that one, Metilda Vicent Rimoy, who was the mother of the 1st respondent, was the lawful owner of the suit land as he was given the same by her father, the late Aloyce Marshay. He challenged such declaration on the ground that it was not among the reliefs sought. Referring to several parts of the defence witnesses’ testimonies, Mr. Anthony further averred that the respondents had denied being owners of the suit land. That, they testified that the suit land belonged to SU4, the said Metilda Vicent Rimoy. Referring to the testimony of SU4, he said that the witness sought for the tribunal to decare her the lawful owner of the suit land. That, in consideration of that prayer and the testimonies of the respondent’s witnesses, the trial tribunal found the suit land belonged to the said Metilda Vicent Rimoy. Mr. Anthony faulted the tribunal decision for departing from pleadings. To cement his stance that courts are also bound by the parties’ pleadings, he referred the case of Masaka Musa vs. Rogers Andrew Rumenyela & 2 Other (Civil Appeal No. 497 of 2021) [2023] TZCA 17339 (14 June 2023) TANZLII. Page 5 of 17 Arguing on the 3rd and 4th grounds of appeal, Mr. Anthony referred the Court to Order 1 Rule 10 (1) and (2) of the Civil Procedure Code, [Cap 33 R.E. 2019] and the case of Masaka Musa (supra), averring that the said Metilda Vicent Rimoy was a necessary party in the case. In the circumstances, he contended that the tribunal ought to have ordered pleadings to be amended so she could be joined as a party. In his view, the omission rendered the declaration that she was the lawful owner erroneous. Arguing further, the learned counsel claimed that the tribunal granted reliefs not prayed by the parties. He mentioned the alleged reliefs to be: one, the tribunal declared Metilda Vicent as the lawful owner and two, the tribunal declared the applicant a trespasser and required him to vacate the suit land. In his stance, the granting of reliefs was contrary to the holding in Musa Masaka vs. Rogers Andrew (supra), which settled the position that reliefs granted must be incidental to those sought in pleadings. Concluding, Mr. Anthony prayed for the court to quash and set aside the Judgment and decree of the tribunal. He further prayed for costs if the respondents challenge the appeal. In his reply submission, the 1st respondent briefly stated that he was not the owner of the suit land as the same belongs to his mother, Metilda Vicent Rimoy. In those premises, he alleged to have been wrongly sued. He further disputed the assertion that his testimony varied with the statements in his WSD. Page 6 of 17 The 2nd respondent as well had nothing much to present. He simply contended that the suit land belongs to his aunt, Metilda Vicent Rimoy. In those bases, he prayed to be excluded from the suit. Rejoining, Mr. Athony stated that since respondents did not dispute the costs of the appeal prayed, then they ought to pay the same. After hearing the parties’ submissions, I raised an issue on whether the respondents were rightful parties to be sued in the first place and if the applicant has any cause of action against them. I thus accorded the parties the opportunity to address me on the said issue. Mr. Anthony averred that the evidence on record shows that the respondents were not proper parties, thus it was incorrect for the tribunal to proceed with the matter against them as they declared not being owners of the suit land. As such, he said, their names ought to have been removed from the case. In the premises, he prayed for the Court to step into the shoes of the tribunal and order for the respondent’s names to be removed and that of Metilda to be joined. Both respondents opted to refrain from submitting on the issue. I suppose, this was due to their stance from the outset that they were not owners of the suit land. I have considered the submissions of both parties with respect to the grounds of appeal and the issue raised suo motu by the Court. It is my view that the grounds of appeal submitted on, challenge the departure from pleadings by the respondents and the tribunal. Page 7 of 17 The submissions by the parties inclined me to address whether the respondents were proper parties to the suit and whether the appellant had a cause of action against them. Both, the issues in the grounds of appeal and one raised by the court call for examination of pleadings and eventually the evidence on record. Upon perusing the pleadings of both parties, I found it apparent that the appellant had stated that he was the administrator of the estate of the late Aloyce Marshay. He claimed that the estate was vested to him as the administrator and that the respondents were not beneficiaries of the suit land. The appellant alleged that the 1st respondent had illegally built a house in the suit land and the 2nd respondent cultivates crops on the same. The facts are found under Paragraph 6 (a) which I hereby reproduce for ease of reference: “6. (a) Cause of action/ brief statement constituting the claim: i. That the applicant herein has been appointed as the administrator of the estate of the late ALOYCE PAUL MARSHAY. Leave of this Court is craved to annex annexure EWALD 1 "USIMAMIZI WA MIRATHI NA. 09/2016". ii. That, sometimes in 2020 both 1st respondent and 2d started to interfere with the Suitland claiming that the same has been given to them by the first administrator whose appointment is already revoked. (sic) iii. That, neither of the respondents are beneficiary with regard to the estate vested to the applicant as an administrator of estate of the late Aloyce Paul Marshay. iv. That, the first respondent illegally built the house in the suit premises. Page 8 of 17 v. That, the second respondent illegally cultivates crops in the suit premises.” On the other hand, the respondents, in their WSD, neither claimed to be owners of the suit land nor mentioned anyone as the owner of same. Instead, the respondents stated that the appellant was not the owner of the suit land. Evidently, from the pleadings of both parties it appears that there was in fact a contest as to ownership of the suit land. The WSD was couched in terms of the respondents denying the appellant’s ownership and thus the claim against them. It is thus apparent that, contrary to the arguments of the respondents, they never expressly denied being owners of the suit land in their pleadings nor did they disclose as to who was the owner. I suppose this is what prompted the tribunal to raise issues as to who is the rightful owner of the suit land; whether the suit land was part of the estate of the late Aloyce Paul Marshay and; what reliefs are parties entitled to. It appears that initially, from the pleadings, the respondents seemed to be proper parties and that the appellant had a cause of action against them. The respondents’ WSD clearly displayed that there was a dispute of ownership between the parties, thus the tribunal rightfully proceeded to trial, according parties the right to adduce their evidence. I now move on to the grounds of appeal presenting the claim that the respondent and the tribunal departed from pleadings. I have observed the evidence adduced by the respondents and their witnesses. The 1st respondent who testified as SU1 alleged that the Page 9 of 17 suit land belonged to his mother one, Metilda Vicent Rimoy (SU4). He said that her mother being given the same by his father, the late Aloyce Marshay. It was during his testimony in his defence that he expressly denied to be the owner of the suit land. It was also at this point that he claimed to have been wrongly sued. SU2 stated that his father was also given a piece of land, but did not disclose whether it was the suit land or not. He stated that he resides on the land given to his father by his grandfather, the late Aloyce Marshay. He stated further that the said land in which he resides borders with that of his aunt, Metilda Vicent Rimoy (SU4), the suit land. In his defence, he found the claim against him unmerited as he lives on his father’s land. He however, did not mention whether the suit land was part of the land he allegedly lives. SU3, the appellant’s sibling, testified that the suit land belonged to SU4, his sister, and she was given the same on her sendoff party in 1992. In her testimony, she denied the suit land being part of the estate of the late Aloyce Marshay. SU4 testified that she owned the suit land which her son, the 1st respondent, was alleged to have trespassed. She said, she was given the same in 1992 on her sendoff party and the appellant was present when she was given the suit land. She further stated that she has been cultivating on the suit land and eventually built a house in 2014. Concluding her testimony, she sought for the suit to be dismissed with costs and for the tribunal to order that they be allowed to proceed owning the lands allocated to them by their father. Page 10 of 17 From the witnesses’ testimonies, as hereinabove, it is apparent that the respondents somewhat took the appellant by surprise. I reason so because they had not disclosed in their WSD to whom the suit land belonged to, thus it became implied that they were claiming ownership of the suit land. The law is clear that parties are bound by their pleadings See, Zebra International Enterprises Limited vs. Anthony Mrisho Ngai Others (Civil Appeal No 536 of 2020) 2024 TZCA 142 (28 February 2024); Gloria Irira vs. Sudi Mrisho Ngwambi Others (Civil Appeal No 27 of 2021) 2023 TZCA 17774 (23 October 2023); Masaka Musa vs. Rogers Andrew Rumenyela & 2 Other (supra); Ernest Sebastian Mbele vs. Sebastian Mbele Others (Civil Appeal 66 of 2019) 2021 TZCA 168 (4 May 2021) and; Barclays Bank T. Ltd vs. Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) all from TANZLII. The essence behind the rule was well expounded in Barclays Bank T. Ltd vs Jacob Muro (supra) where the Court of Appeal stated: "As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings... For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. This was also well settled by the Court of Appeal in Gloria Irira vs. Sudi Mrisho Ngwambi Others (supra) whereby it was stated: Page 11 of 17 “These are the pleadings by the first and second defendants that cannot easily be departed from or otherwise disowned, because in Civil cases, parties are bound by their own pleadings, not allowed to travel beyond their pleadings. They are therefore bound to take all necessary and material facts in support of the case set up by them in their pleadings. In Civil cases, parties to litigation are the ones who set the agenda, and subject to the rules of pleadings to formulate their own cases in their own ways. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. With this, none of the parties is taken by surprise as to the nature of the case of defence he is going to encounter during trial. The purpose of the rule against departure from the pleading is to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense.” Whether it was a trick or an error on part of the respondents, it is apparent that the facts testified on, were not pleaded. The implication from their pleadings was to the effect that they were denying the allegations levelled against them by claiming ownership of the suit land. However, their evidence expressly displayed that they were totally denying being owners of the suit land rendering them not proper parties to the suit. This shows that they raised a different case during their defence case. Further, as argued by Mr. Anthony, it is settled that as parties are, courts are also bound by pleadings. This was well expounded in the case of Makasa (supra) whereby the Court of Appeal stated: Page 12 of 17 “… it is not only the parties who are bound by their pleadings but the courts are also bound by the said pleadings of the parties. As it is for the parties to suits, who are not allowed to depart from their pleadings and set up new cases, courts are also bound by the parties' pleadings and they are not allowed to depart from such pleadings and create their own case.” In the matter at hand however, it was not the tribunal that raised a new case, but rather, the respondents. Nevertheless, it was the tribunal’s duty to stick to the case before it and not to deviate therefrom. In the premises, I find the 1st and 2nd grounds of appeal having merit. To this point, I move on to the issue raised by the court and addressed by the parties. This is as to whether the appellants were proper parties. From the observation made earlier on, it is apparent from the evidence adduced that one, Metilda Vicent Rimoy was mentioned as the owner of the suit land rendering her with interest in the suit land. In the premises, the tribunal Chairman had the mandate to order amendment of pleadings having so noted the nature of the respondents’ case. Such mandate is granted under Regulation 16 of the Land Disputes Courts (District Land and Housing Tribunal) Regulations GN No. 174 of 2003, which provides: “16. The Chairman may, on his own motion or on application by either party order amendment of pleadings.” The Regulations however, appear to be silent in relation to striking out, substituting or adding parties. In such circumstances, I am of Page 13 of 17 the considered view that the provisions of Order 1 Rule 10 (1) and (2) of the Civil Procedure Code can be invoked. The said provisions provide: “(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff the court may at any stage of the suit, if satisfied that the suit has been so instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just. “(2) The court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.” The provisions of Order 10 (2) of the Civil procedure Code, which I find more relevant to this matter, were well interpreted by the Court of Appeal in the case of Mohamed Masoud Abdallah Others vs. Tanzania Road Haulage (1980) Ltd (Consolidated Civil Appeals No 150 of 2019) 2021 TZCA 3538 (15 November 2021) TANZLII, whereby the Court stated: Page 14 of 17 “We wish to start our deliberation by asserting a clear position, on the general rule, that the plaintiff is the dominus litis, that is, the plaintiff is entitled to choose the person or persons as appellants against whom he wished to sue. Nonetheless, under Order I rule 10 (2) of the CPC, the Court has discretion to add a person who is not a party to the suit as originally constituted as a defendant against the will of the plaintiff, either of its own motion or at the instance of the defendant or a non-party to the suit. Such a discretion will only be exercised where it is necessary to do so in order to effectually and completely adjudicate and settle all the questions in the suit.” As noted, the addition of the defendant is within the discretion of the court. I believe in circumstances of this case, in the interest of justice, to properly determine the dispute in question, SU4 had to be joined together with the respondents. This is because the 1st respondent, SU3 and SU4 maintained the position that the suit land belongs to SU4. This displayed she had interest in the suit land. For failure to effect the said amendment, clearly the tribunal failed to determine the actual dispute and in fact proceeded to determine the rights of a person that was not a party to the suit, which was a violation of the rules of natural justice to wit; the right to be heard. In addition, courts are also barred from granting reliefs not sought by the parties. It is settled that reliefs granted must be those sought in pleadings or incidental to those sought by a party in pleadings. This was explicitly stated in Makasa (supra) as hereunder: Page 15 of 17 “It is a settled position of the law that a relief not sought on the pleadings and which is not incidental to any specific prayer in the pleadings cannot be awarded. It is evident in the tribunal’s judgement and decree that the relief granted was not the one sought. The Tribunal declared SU4 who was not a party to the claim, the lawful owner and even proceeded to order the appellant to vacate the suit land. Both reliefs were not sought, hence not rightfully granted. Having found the grounds merited, the nagging question is, “what is the way forward.” I have already indicated that SU4, one Metilda Vicent Rimoy, was to be joined as a necessary party. The omission hindered the actual disputants from having their case heard. This was a fatal irregularity in the proceedings of the trial tribunal. Addressing almost similar scenario, the Court of Appeal in the case of Costantine B Assenga vs. Elizabeth Peter Others (Civil Appeal No 70 of 2019) 2022 TZCA 240 (29 April 2022) TANZLII, having found that a necessary party to the case was not joined, nullified and quashed the proceedings and Judgement of the trial court and ordered the matter be remitted to the trial court for fresh trial after the party is joined. Therefore, borrowing wisdom from the above cited decision, I hereby nullify the entire proceedings of the trial tribunal; quash the judgement and; set aside its resultant orders. I order the case file be remitted to the trial tribunal for a fresh trial after the said Metilda Vicent Rimoy has been joined. The fate of the Page 16 of 17 respondents herein shall be deliberated upon in due course by the trial tribunal. Considering the nature of the dispute, I make no orders as to costs. Dated and delivered at Moshi on this 11th day of September, 2024. X L. M.ONGELLA JUDGE Signed by: L. M. MONGELLA Page 17 of 17