faraja magesa 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 11094 OF 2024 (Arising from District Land and Housing Tribunal for Ukerewe in Application No. 04/2020) FARAJA MAGESA (Administratix of estates of the late SUDI JUMA KASSIM) ……………………………………..………. APPELLANT VERSUS DEONATUS MAGUMBA ...………………………………….…………. RESPONDENT JUDGEMENT 30th July & 30th September 2024. CHUMA, J. The appellant herein is aggrieved by the decision of the District Land Land and Housing Tribunal for Ukerewe (hereinafter the tribunal) in Application No. 04/2020. Before the tribunal the appellant sued the defendant claiming ownership and arrears of rent on Plot No. 3 Block Old Layout Nansio area within Ukerewe District of Mwanza region (the suit property). It was alleged that the suit property belongs to the late SUDI JUMA KASSIM who died on 29th September, 2017. That, the deceased before his demise entered into a lease agreement with the respondent for consideration of Tshs. 1,000,000/= as rent per annum for a period of 10 years from 9/3/2007. That, upon the death of Sudi Juma Kassim, the respondent neglected to pay rent and the appellant came to know that the latter is claiming ownership of the suit property relied on forged 1 documents that the deceased bequeathed the same to him together with the deceased son one SAID SUDI. On his part, the respondent alleged to have requested the suit property as a gift together with the deceased son as co-occupiers. That the transfer process was conducted and the new offer of right of occupancy was issued by the land authorities in the name of the respondent and Said Sudi. That the process of transfer, was made by the deceased himself in his lifetime in May, 2007 and that there is no criminal charge filed against him for forgery allegations. Having heard the matter, the trial tribunal decided in favor of the respondent and declared the suit property to be rightly owned by the respondent and SAID SUDI. The appellant was aggrieved by the decision of the trial tribunal hence this appeal which is pegged on four grounds as follows; 1. The trial tribunal erred in law and facts by holding that the respondent was a lawful owner of the disputed land; 2. The trial tribunal erred in law and fact to arrive to the decision that the respondent and one Said Sudi are lawful owner of the disputed land basing on exhibit D1 and D2 which were tainted with illegality; 3. The trial tribunal erred in law and fact by disregarding the opinion of assessors without assigning reasons; and 4. The trial tribunal erred in law and fact by failure to weigh out the evidence adduced by the appellant. 2 This appeal was disposed of via written submissions. The submissions were filled by Messrs. Madulu B. Madulu and Stephen Solyambingu both learned advocates for the appellant and respondent respectively. In the cause of submission, two legal issues were raised by the respondents; the matter before the trial tribunal was time-barred; and the matter before the trial tribunal is tainted with illegalities for failure to add SAID SUDI as the co-defendant or necessary party. These points of law were argued by the counsel for the respondent and the appellant replied to them on rejoinder submissions. As a matter of practice, I will determine the raised points of preliminary objection before I delve into the merit of the appeal. With regards to the first point, it was submitted by Mr. Solyambingu that, the matter was time-barred before the trial tribunal because the cause of action about this matter survived the deceased person since the suit property was transferred to the Respondent and Said Sudi since May, 2007. According to item 22 of the schedule to the Law of Limitation Act, Cap 87 R.E 2019 suit for recovery of land needs to be brought within 12 years. That, counting from 2007 the cause of action ended in May 2019. Furthermore, the appellant in his pleadings failed to specify the time spent prosecuting for letters of administration for the time spent 3 prosecuting the matter be automatically excluded under sections 25(1) and 35 of the Law of Limitation Act. I was referred to the case of Mshamu Saidi (Administrator of the estate of Saidi Mbwana Vs. Kisarawe District Council and 4 others, Land Appeal No. 177/2019, and M/S P&O International Ltd Vs. the Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020 (both unreported). In reply, Mr. Madulu was of the view that the cause of action arose in 2019 when the Appellant while performing her duties of collecting debts as Administratrix of the late Sudi Juma Kassim, knew that the respondent claimed to be a lawful owner and not a tenant through deed of gift. That, according to sections 24 (1) and (2) of the Law of Limitation Act, [Cap 89 R.E 2019] (1) Where a person who would, if he were living, have a right of action in respect of any proceeding, dies before the right of action accrues, the period of limitation shall be computed from the first anniversary of the date of the death of the deceased or from the date when the right to sue accrues to the estate of the deceased, whichever is the later date. (2) Where a person against whom, if he were living, a right of action would have accrued, dies before the right accrues, the period of limitation shall be 4 computed from the date when there is a legal representative of the deceased against whom such proceeding may be instituted or from the date when the right of action accrues against the estate of the deceased, whichever date last occurs. Mr. Madulu submitted further that, section 25 of the Law of Limitation Act was misapplied and misconstrued by the respondent’s counsel likewise the cases cited are distinguishable from the case at hand because the Appellant knew that the respondent was a tenant of the disputed land until 2019 when the Respondent claimed to be lawful owner. In my view, this point of preliminary objection need not detain me for long. According to the application filed by the appellant before the tribunal, the cause of action arose in 2019. Before that, the appellant knew the respondent as the tenant in the suit property. The appellant instituted this matter as an administrator of the estates of Sudi Juma Kassim. Further, according to the facts stated in the application, she believed that at the time of death, the deceased was still the owner of the suit property and the respondent was a mere tenant. I agree with the position stated by Mr. Madulu under sections 24 (1) and (2) of the Law of Limitation Act. However, in respect of the suit 5 for recovery of land, the proper provision is section 9 of the Law of Limitation Act. According to section 9(1), when a deceased person was in possession of land at the time of his death the cause of action arose on the date of his death. Section 9(1) reads; 1) Where a person institutes a suit to recover the land of a deceased person, whether under a will or intestacy and the deceased person was, on the date of his death, in possession of the land and was the last person entitled to the land to be in possession of the land, the right of action shall be deemed to have accrued on the date of death. Therefore, the first point of preliminary objection is barren of fruits, the matter before the trial tribunal was not out of time. On the second point, the counsel for the respondent is of the view that SAID SUDI was a necessary party to be added to proceedings before the trial tribunal. I was referred to the case of Abdulatif Mohamed Osman Vs. Mehboob Yusuf Osman, Civil Revision No. 6 of 2017, (Unreported) which set out two tests; whether there is the right of relief against such a party in respect of the matters involved in the suit; and whether the court is not in a position to pass an effective decree in the absence of such a party. 6 It was argued further that, in the instant matter, the appellant alleges that she does not recognize exhibits D1 and D2 which bear the name of SAID SUDI alongside the respondent, therefore the appellant had no right of relief against SAID SUDI. That, the appellant had a right of relief for nullifying the letter of offer and an affidavit to transfer the suit property in favor of both SAID SUDI and the respondent. To him, the tribunal was not in a position to pass an effective decree in the absence of such SAID SUDI because if the court nullifies the letter of offer against the respondent the said decree shall not be enforceable as it also bears the name of Said Sudi who was not a party and no order of the court can be passed against a stranger to the suit. In reply, Mr. Madulu submitted that the appellant was a dominus litis hence, she cannot be compelled to sue a person against whom he does not claim any relief. He subscribes to the legal position stated in the cited cases by the counsel for the respondent as well as the position stated in the case of Jacqueline Ntuyabaliwe Mengi and 2 others Vs. Abdiel Reginald Mengi and 5 others, Civil Application No.332/01 of 2021 (Unreported) but, the circumstances of this case are different because SAID SUDI appeared before the trial tribunal as a witness and testified affirmatively that he knew nothing about the disposition of 7 disputed land to anyone else as reflected on page 30 to 32 of the proceeding. Therefore, according to him, there was no need to join the SAID SUDI as a necessary party and the court’s decree could be easily executed even in the absence of Said Sudi. Having considered the submission of the parties, I will now determine whether SAID SUDI was a necessary party. The counsel for the respondent was correct on two tests of a necessary party as enunciated in the case of Abdulatif Mohamed Osman Vs. Mehboob Yusuf Osman, (supra). Another test is stated in the case of Farida Mbaraka and Farid Ahmed Mbaraka Vs. Domina Kagaruki, Civil Appeal No. 136 of 2006 that when without his presence, the question in the suit cannot be completely decided. In the instant matter, there is no dispute that according to the documents of which the respondent claims ownership (exhibit D1 and D2), SAID SUDI a son of the deceased is stated to be beneficiary as a co- occupier of the suit property with the respondent. It is also not in dispute that, SAID SUDI testified as PW2 before the trial tribunal, and in his testimony, he denied to have bequeathed the suit property by the deceased. He further denied having signed any document that transferred the suit property to him and the respondent. 8 My scrupulous review of pleadings, evidence, and the ruling of the trial tribunal reveals that, SAID SUDI was a necessary party to the proceedings before the trial tribunal. I have also noted that the respondent once included a point of preliminary objection in his Written Statement of Defence (WSD) to that effect but when he filed an amendment to his WSD he omitted that point of preliminary objection. Nevertheless, with regards to who needs to be joined in the proceedings, it is not only the duty or wishes of parties but the duty of the court/tribunal. Order I rule 10 (2) of the Civil Procedure Code Cap 33 R.E 2019 gives the court mandate to add a party who is necessary for the proper dispensation of justice. It reads; “10(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.” (emphasis added) 9 As I have pointed out, SAID SUDI was a necessary party in the proceedings before the trial tribunal because he is stated to have the right by exhibit D1 and D2 as the co-owner of the suit property. To have enforceable judgment for or against him there is a need to include him as a party. It is a legal position that a decree cannot be executed against strangers to a suit. In the case of Tang Gas Distributors Limited Vs. Mohamed Salim Said & 2 Others, Civil Application for Revision No. 68 of 2011 (unreported) cited with approval in the case of Juliana Francis Mkwabi Vs. Laurent Chimwaga, Civil Appeal No. 532 of 2020 (Unreported) the court of appeal stated that: - "...an intervener, otherwise commonly referred to as a NECESSARY PARTY, would be added in a suit under this rule ...even though there is no distinct cause of action against him /where: - (a) NA (b) his proprietary rights are directly affected by the proceedings and to avoid a multiplicity of suits, his joinder is necessary to have him bound by the decision of the court in the suit.” (emphasis added) I further disassociate myself with the reasoning of Mr. Madulu that, since the said SAID SUDI was called as a witness, it was not necessary to 10 add him as a party. On this aspect, I take a humble view of the Court of Appeal in the case Jacqueline Ntuyabaliwe Mengi and 2 others Vs. Abdiel Reginald Mengi and 5 others, (supra) that, a person does not become a party in proceedings merely by being called as a witness. On page 9 the court said that; “In the current application, it is not in dispute that the applicants were not parties to Probate and Administration Cause No. 39 of 2019 which is subject to the revision at hand. Therefore, we are not prepared to go along with Mr. Masumbuko's argument that since the first applicant was called to testify as the court's witness in the said Probate cause; she ought to have appealed against the decision of the High Court … It is common ground that a person does not become a party to a proceeding merely because he testified in the matter as with the 1st applicant in the present case.” (emphasis added) I am also aware of the cardinal law that, a case may not be defeated for non-joinder of party in a proceeding, a proper way has always been to remit the file before the trial court/tribunal, for the matter to be heard afresh after inclusion of a necessary party in the proceedings. In the case of Juliana Francis Mkwabi Vs. Laurent Chimwaga (supra) the court of appeal had the following to say on pages 11 and 12; 11 “Flowing from the foregoing discussion, it is our considered view that, upon making a determination that, a necessary party was not joined in the suit, the learned High Court Judge was required to refer back the matter to the trial court with a direction that a necessary party be joined and the suit proceed from there. We are fortified in this view by our decision in Farida Mbaraka and Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006 (unreported), where, after detecting that the necessary party was not joined into the suit, we remitted the matter to the trial court with directions that hearing should proceed after joining a necessary party.” For the foregoing observation and analysis, the second point of preliminary objection has merit. SAID SUDI was a necessary part of the proceedings before the trial tribunal. I therefore proceed to quash the proceedings and set aside the judgment and orders of the trial tribunal. I further remit back the file before the trial tribunal for the necessary party to be added and the matter to be heard afresh. Owing to the circumstances and outcome of this appeal, I desist to order costs. It is so ordered. 12 DATED at MWANZA this 30th day of September, 2024. W. M. CHUMA JUDGE 13 Judgement delivered virtually in attendance of Mr. Madulu Madulu advocate for appellant and Mr. Dioniz Mwasi Advocates for the respondent this 30th day of September 2024. W.M.CHUMA JUDGE 14