Land Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000031808 OF 2024 FALESI NANIYE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF KIPAJI MGARULA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF YUSTA SUNZU .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF LIDIA MAROJA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF ELIKA BALINABASI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF MICHAEL NDAMUYAZWE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF PIUS KATULUMLA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF HAMISI NJENGE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF YOHANA NDAMUYAZWE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF ABEDI RAULENTI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF YOTHAM KISEBWA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF MASUMBUKO KALOZA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS HALMASHAURI YA MJI KASULU .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 13 & 13/03/2025 The appellants are appealing against the ruling of Chinuku, Chairperson of the trial tribunal who dismissed their preliminary objection which is the 3rd limb therein which was to the effect that the Attorney General was not involved. In the land application, the respondent was praying among other reliefs she be declared lawful owner of the disputed piece of land. The chairperson agreed that the ones who ought to join the Attorney General are the appellants who were respondents in the trial tribunal and dismissed the preliminary objections. Aggrieved, the appellants filed this appeal against an interlocutory ruling which did not dispose of the suit. They seek the following reliefs: Page. 1 1. The appeal be allowed. 2. That the decision of the Trial Tribunal be reversed, quashed and set aside. 3. That, the costs of this appeal be in the course of events. 4. Any other relief(s) that this honourable Court may deem just and fit to grant. When the appeal was called on for further orders, for purpose of preparation, I told the parties would be required to address this Court on the following matters: 1. Whether the trial tribunal has jurisdiction to entertain the matter. 2. Where, the respondent fails and is required to pay cost, would she not require the A.G. joined to defend the bill of costs? 3. Whether the appeal is prematurely filed as the decision was on interlocutory ruling. 4. Whether, this Court has no power to suo motu revise the proceedings in the trial tribunal. Fortunately, Mr. Rwekaza readily conceded the concerns of the Court. That means that he admits that the Attorney General ought to be joined to the suit, if parties did not wish to do so, the tribunal itself ought to do so under the authority of Tanga Gas Distributors Ltd v. Mohamed Salim Said & 2 Others, Civil Revision No. 6 of 2011, CAT, in which the Court ruled that: “… settled law is to the effect that once it is discovered that a necessary party has not been joined in the suit and neither party is ready to apply to have him added as a party, the Court has a separate and independent duty from the parties to have him added.” Mr. Rwekaza too admitted that once the Attorney General is impleaded (joined), then the trial tribunal ceased to have the requisite jurisdiction. Consequently, the trial tribunal ought to have returned the application to be presented to a competent Court which is the High Court. But in the High Court, a Land Case is instituted by lodging a plaint which is not used in the trial tribunal therefore, the trial tribunal ought to have struck out the suit and advised the parties to lodge the matter in a competent court as was stated in The National Bank of Commerce Ltd v. National Chicks Corporation Ltd & 4 Others, Civil Appeal No. 129 of 2015 (CAT), where it was underscored that: “There should be placed a mechanism which will ensure that litigants are appropriately advised to lodge in other registries matters not specifically assigned to a particular Division so as to ensure that the purpose for which the Divisions are established is not paralyzed.” Page. 2 It was accepted by Mr. Rwekaza further that the appeal was preferred prematurely, thus it has to be struck out in terms of Pardeep Singh Hans v. Merey Ally Saleh & 3 Others, Civil Application No. 422/01 of 2018 CAT (unreported) where it was ruled that: “It is therefore plainly that the impugned ruling of the High Court was unappealable from interlocutory preliminary objection. We wish to emphasise that no appeal exists when the decision intended to be appealed against does not finally determine the matter.” On the way forward, Mr. Rwekaza proposed that the Court uses it revision powers to quash the proceedings of the District Land and Housing Tribunal and set aside its orders (ruling), the decision. He also beseeched the Court gives them leave to refile the land case in the High Court of Tanzania. As the matter has been raised by the Court (revision) with regard that the appeal is incompetent for being preferred on an interlocutory ruling/order, Mr. Rwekaza prayed that costs should not be awarded to any party. The appellants who were present in Court acceded to the stance held by Mr. Rwekaza. I am impressed by Mr. Rwekaza, not from nothing but the decision of the Court of Appeal in Humphrey Mosha v. Adul Majid Yahaya, Civil Appeal No. 534 of 2021, CAT (unreported) 03/03/2025 where it was held that: “... hereby quash the proceedings and judgment and the subsequent orders of the High Court and the DLHT for Kibaha. Thus, if any of the parties so desire, may institute a fresh suit joining Msolwa Village Council in accordance with the law and without being subjected to the requirement of (30) days to sue the Msolwa Village Council not later than six (six) months from the date of this Ruling. Since the issue under consideration was raised by the Court suo motu, we make no order as to costs.” In the same manner, I nullify the proceedings and quash the ruling of the trial tribunal on the preliminary objection. I proceed to order that if there is any party who wishes to pursue their rights in respect of the land in question may institute a land matter (case) in the Court of Competent jurisdiction after joining all the necessary parties. I make no order as to costs because the ruling has been instigated by the Court suo motu. It is so ordered. Dated at KIGOMA this 13th of March 2025 . J. NKWABI Page. 3 JUDGE OF THE HIGH COURT Page. 4