Mbulilana versus Dodoma City and others Ruling

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND CASE NO. 17424 OF 2024 FARAJI HASSAN MBULALINA.………………………….………………….. APPELLANT VERSUS THE CITY COUNCIL OF DODOMA ……………..……………….……..1ST DEFENDANT THE ATTORNEY GENERAL ………………………………………..…….2NDDEFENDANT MWANAISHA MOHAMED NGOSHA …………………………………..3RD DEFENDANT EMMANUEL WILLGEOFREY MASSAWE………………………..…….4TH DEFENDANT RULING Date of the last Order: 09/09/2024 Date of the Ruling: 19/09/2024 LONGOPA, J.: On 19th July, 2024, the Plaintiff sued the Defendants for a declaration that the Plaintiff is the lawful owner of a piece of land being Plot No. 508 block 'C' located at Ilazo Extension, within Dodoma City Council which is registered under Certificate of Title No. DOM004482 and that intention of the 1st Defendant to issue notice to surrender a certificate of title and stoppage of construction is unlawful. The reason for such intention to 1|Page allow the title to be issued to the 3rd Defendant who is allegedly was the customary owner of the land that was granted to the Plaintiff. The counsel for the 1st and 2nd Defendants raised two points of preliminary objections on point of law, namely: 1. That the suit is bad in law for failure to join the Commissioner for Lands and Registrar of Titles. 2. That the suit has failed to comply with mandatory provisions of section 6(2) of Government Proceedings Act, Cap 5 R.E. 2022. On 9th September 2024, the counsel for parties appeared in this Court for oral hearing of the preliminary objections. The Plaintiff enjoyed the legal services of Mr. Constantino Gwivaha, learned advocate. The 1st and 2nd Defendants were ably represented by Mr. Omari Ngatanda, learned State Attorney and the 3rd and 4th Defendants enjoyed the representation of Ms. Lilian Mwanemile, learned advocate. Mr. Omari Ngatanda, State Attorney submitted that the preliminary objection has two points of the preliminary objection. The first one is that 2|Page the suit is bad in law for non-joinder of necessary parties namely the Commissioner for Lands and the Registrar of Titles. The Plaintiff claims ownership of land in Plot No 508 Block C Ilazo Extension under Certificate No, DOM 004482. As the disputed land is surveyed and registered land, its administration and issuance of certificate of title is under supervision of two institutions namely the Commissioner for Lands and Registrar of Titles hence they should be part of the proceedings so that the decree arising out of the decision can be effectively executed. The learned State Attorney argued that the Court of Appeal in the case of Nestory Msoffe and Others versus the Registered Trustees of Catholic Archdiocese of Arusha (Civil Appeal 254 of 2019) [2024] TZCA 537 (10 January 2024) at pages 4-5, reiterated that joining the Commissioner for Lands and the Registrar of Titles is necessary for conclusive determination of the matter before the Court for the surveyed and registered land. Also, the case of Jued Homes Ltd versus Samuel Zabriel Tarimo, Land Case No 210 of 2020 [2020] TZHCL 4026 (24 March 2020), 3|Page was cited at page 4 the High Court noted the Commissioner for Lands is necessary part in surveyed and registered land. It was submitted that the joining of the duo is important / necessary for the determination of the case. In addition, failure to join the Commissioner for Lands and Registrar of Titles must has legal implications. I am aware of Order I Rule 10(2) of the Civil Procedure Code, Cap 33 R.E. 2019 provides for powers of court to join the necessary persons. It was submitted this Order should be read together with the provision of Section 6(2) of the Government Proceedings Act, Cap 5 R.E. 2022 that provides that no suit shall be instituted unless a 90 days’ notice is issued prior to suing the Government entity. On 2nd ground of the preliminary objection, it was stated that section 6(2) of the Government Proceedings Act, Cap 5 R.E. 2019 requires that the statutory nature of 90 days must be complied with. The necessary parties were not served with the required notice; therefore, the suit is unmaintainable. All these must be served with 90 days’ notice. In the 4|Page circumstances, this suit be struck out for the Plaintiff to comply with the requirements. It was further reiterated that on Reply to Written Statement of Defence has included an attachment that intends to pre-empt the preliminary objection by stating that the annexure is in the Plaint but perusal of the Plaint does not show that document indicating service. It was argued further that the pre-emption contained in the Reply to WSD is illegal and uncalled for. The principle in decision by Court of Appeal in the Standard Chartered Bank versus VIP Engineering and Marketing Ltd and Others (Civil Appeal No 222 of 2016) [2021] TZCA 344 (2 August 2021) (TANZLII) was cited that at page 8 noted that “It is trite principle that where a party has raised preliminary objection, the other party cannot be allowed to rectify the defect complained off by the other party who raised the objection. This is because to do so would amount to pre-empt the preliminary objection.” 5|Page It is submitted that the Plaintiff’s action to pre-empt the preliminary objection is bad in legal practice and the decision of the Court of Appeal of Tanzania on prohibiting pre-emption should be applied and must prevail to contain such action. On these grounds, it was reiterated that the suit be struck out with costs for the two grounds argued above as it is categorically clear that the suit has violated the law. Ms. Lilian Mwanemile, advocate supported the Preliminary Objection raised by the 1st and 2nd Defendants. It was stated that failure to join the Commissioner for Lands and the Registrar of Titles makes it impossible for the Court to determine the matter effectively. Thus, hearing the matter without the Commissioner for Lands and Registrar of Titles involvement would violate the right to fair hearing as the dispute involves a registered land. Also, it was averred that service of 90 days’ notice was not complied with and such non-compliance with Section 6(2) of the Government 6|Page Proceedings Act makes the suit being violative of mandatory procedure thus the Plaint should be struck out with costs. On the other hand, Mr. Constantino Gwivaha argued that both the Commissioner for Lands and Registrar of Titles were not necessary parties to the instant suit. The necessary parties have been defined in the case of Julian Francis Nkwambi versus Lawrent Chimwaga, Civil Appeal No 531 of 2020, at page 9 defined the necessary party and stated categorically that Dodoma City Council was not a necessary party. It was submitted that the facts of the instant suit do not touch the Registrar of Titles or Commissioner for Lands as the cause of action is clear in paragraphs 9 and 10 of the Plaint, the 1st Defendant issued notice to the Plaintiff to surrender the certificate of title and stoppage of construction ongoing at the site. According to the Plaintiff, there is nothing in the prayers touching on the Commissioner for Lands or Registrar of Titles to exercise their respective powers. 7|Page The Plaintiff argued that cited cases are distinguishable as in the Nestory Msoffe’s case the material facts are different as in that particular case the Court was dealing with ownership of land. In the circumstances of the current case, the facts are different and there is no dispute on the ownership of land. On the second ground of the preliminary objection, it was submitted in that pleadings, the 90 days’ notice was filed but there is no pre-emption as the evidence of signed service of 90 days’ notice is contained in the Reply to WSD as part of the Plaint. In conclusion, the Plaintiff urged that this Court is called upon to avoid technicalities as per Article 107A(2)(e ) of the Constitution of the United Republic, Cap 2 R.E. 2002 and section 3A(1) of the Civil Procedure Code, Cap RE 2019 on the overriding objectives and oxygen principle, the Plaintiff prayed that the preliminary objections are without merits thus the same should be dismissed. 8|Page In rejoinder, the learned State Attorney was of the view that Plaintiff had misconceived facts of the case in the Plaint. It deals with ownership of land in question, the reliefs relate to ownership of the disputed land thus determination of the case cannot proceed without active participation of s registered and without the Commissioner for Lands and the Registrar of Titles as the land in question is registered land. It was stated that principle in Juliana’s case is categorically distinguishable as it dealt with a matter of customary ownership of land originating from the Ward Tribunal. On the second preliminary objection, there is pre-emption or otherwise there is clear one as the Reply to WSD contained a 90 days’ notice with proof of service. The Plaint does not have proof of service. This is clear pre-emption as the same was not attached to the Plaint. It was argued that as per Order VI Rule 1 of the CPC on pleadings, Reply to Written Statement of Defence is not part of the pleadings but subsequent pleadings under Order VIII Rule 13 of the CPC. The documents attached to Reply to WSD cannot be challenged by Defendants as such they are lucid pre-emption. 9|Page On the applicability of the Article 107A (2) (e) of the Constitution of the United Republic of Tanzania and Section 3A (1) on overriding objectives, it is submitted that such provisions apply only where there are no mandatory requirements of the law. It was the 1st and 2nd Defendants’ view that where there are mandatory provision requirements, the overriding objectives principle do not apply. Having heard all the parties in respect of preliminary points of objection, it is pertinent for this court to determine the validity of the preliminary objection. On the first ground of preliminary objection is on non-joinder. There are two main provisions of the Civil Procedure Code that may guide the joinder and non-joinder of necessary party. The first one is Order I Rule 3 of the Civil Procedure Code, Cap 33 R.E. 2019 is illustrative on who can be joined as defendants. It states that: 3. All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or 10 | P a g e transactions is alleged to exist, whether jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact would arise. Ordinarily, it is the first and foremost duty of the party to the case namely the Plaintiff to join all the proper and necessary parties to the case for the proper administration of justice. Another relevant provision is that of Order I rule 9 of the CPC which states as follows: 9. A suit shall not be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it. The second mandate to deal with non-joinder of necessary parties is the Court. This is revealed in Order I Rule 10(2) of the Civil Procedure Code, Cap 33 R.E. 2022. It states that: 11 | P a g e (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. Accordingly, the Court has power to order that a name of the person improperly joined be struck or the name of a person who ought to have been joined to be included for the Court to adjudicate the matter effectively and completely in settlement of all questions involved in the suit. It is lucid that as a general rule the non-joinder of the party appears to have no effect. However, that general rule is limited to situation where the non-joinder does not involve necessary parties to the case. This was a 12 | P a g e principle articulated in the case of Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018) (TANZLII), at pages 27-28 where the Court of Appeal of Tanzania stated that: Our CPC does not have such a corresponding proviso but, upon reason and prudence, there is no gainsaying the fact that the presence of a necessary party is, just as well, imperatively required in our jurisprudence to enable the courts to adjudicate and pass effective and complete decrees. Viewed from that perspective, we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and nonjoinder of non-necessary parties. On the contrary, in the absence of necessary parties, the court may fail to deal with the suit, as it shall, eventually, not be able to pass an effective decree. It would be idle for a court, so to say, to pass a decree which would be of no practical utility to the plaintiff. 13 | P a g e It is certain that where there is non-joinder of necessary party, such suit should be struck out. Illustratively, for the registered land, Commissioner for Lands and the Registrar of Titles are necessary parties. In the case of Ongujo Wakibara Nyamarwa vs Beatrice Gryson Mmbaga (Civil Appeal No.122 of 2021) [2024] TZCA 74 (20 February 2024) (TANZLII), at pages 5-6, the Court noted that: However, we are similarly aware of a settled position of the law that non-joinder of a necessary party is bound to defeat a suit. The learned counsel for the parties were in agreement that the non-joining of the Commissioner for Lands, the Registrar of Titles, the Temeke Municipal Council and the Attorney General rendered the suit unmaintainable. We agree with them. Effect of failure to join a necessary party has been enumerated in plethora of authorities. For instance, in the case of Nestory Msoffe & Others vs The Registered Trustees of Catholic Archdiocese of 14 | P a g e Arusha (Civil Appeal No. 254 of 2019) [2024] TZCA 536 (10 July 2024) (TANZLII), at page 6, the Court of Appeal restated that: In the premises, in view of the state of the pleadings and the stated position of the law, it was incumbent on the High Court to be keen enough and require the parties to amend the pleadings and join the Registrar of Titles who is alleged to have registered the respondent's property in question held under Certificate of Title. Since it is clear that the Registrar of Titles had a role in the registration of the land in question, the non-joinder of her in the suit before the High Court it means that the Registrar was not heard which occasioned a miscarriage of justice which cannot be condoned by the Court by hearing and determining the present appeal. In the result, we have no option but to annul the trial proceedings and the impugned judgment. It is on record that the Plaint asserts issue of Plaintiff being a rightful owner of the land in question and the 1st Defendant has categorically 15 | P a g e issued notice of its intention to revoke/cancel the same in favour of the 3 rd Defendant as per Paragraph 12 of the Plaint. It is settled view of this court that ownership of registered land and its cancellation or otherwise cannot be achieved with involvement of the Commissioner for Lands and Registrar of Titles as there are responsible for proper administration of the surveyed land and titling of the same to the owners. As such, in absence of the duo it might be difficult to enforce the court decree specially to stop cancellation of the title. Conclusively, on the first issue on the non-joinder of necessary parties, namely the Commissioner for Lands and the Registrar of Titles is fatal thus making the suit before this court unmaintainable. I uphold this point of the preliminary objection. The second preliminary objection is couched on violation of section 6(2) of the Government Proceedings Act, Cap 5 R.E. 2019. The Plaintiff is challenged to have failed to serve a mandatory notice of ninety (90) days’ notice to the Government prior to institution of the civil suit. The Plaintiff vehemently argued against this point of preliminary objection. The Plaintiff 16 | P a g e called upon this Court to be guided by the provision of Article 107B(2)(e ) of the Constitution of the United Republic of Tanzania not to delve into technicality rather on substantive justice. In particular, section 6(2) of the Government Proceedings Act, Cap 5 R.E. 2019 provides that: (2) No suit against the Government shall be instituted, and heard unless the claimant previously submits to the Government Minister, Department or officer concerned a notice of not less than ninety days of his intention to sue the Government, specifying the basis of his claim against the Government, and he shall send a copy of his claim to the Attorney-General and the Solicitor General. The use of phrase “No suit against the Government shall be instituted” signifies a mandatory requirement for the party intending to sue the Government to comply with the requirement of serving a notice of 90 days’ prior to the institution of such suit. 17 | P a g e In the case of Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 (18 July 2022) (TANZLII), at page 12, the Court of Appeal stated that: By the use of the word 'shall', the above provision implies that, compliance with section 101 above is mandatory except where there is evidence of existence of extraordinary circumstances making it impracticable for the parties to refer their dispute to the Board. It is on record that there is a document dated 15th October 2022 with Reference No LA/O. L /2022/VOL 1/11 from LawPath Attorneys to the City Council Director titled: Uamuzi wa Ofisi Yako Kufuta Hati Miliki na Kuzuia Ujenzi wa Kiwanja Na. 508 Kitali “C” Eneo la Ilazo Extension, Jiji la Dodoma.” This was attached as Annexure FHM 7 to form part of the Plaint. The same indicates that copies were directed to be served on Minister for Lands; Deputy Minister for Lands; Permanent Secretary, Ministry of Lands, Housing and Human Settlements Development; the Office of the Attorney General; the Office of the Solicitor General; and 18 | P a g e Assistant Commissioner for Lands. However, there is nothing indicating that the notice was served to any of the persons included in the list. Furthermore, having realized this anomaly the Plaintiff prayed to file a Reply to WSD whereas he attached two documents namely the notice that had been signed to indicate that they were served and copy of dispatch book. These were not in the Plaint. The contents of Annexure FHM 7 in the Plaint and that in the Reply to WSD are not the same documents. In accordance with Order VI Rule 14(1) of the Civil Procedure Code, Cap 33 R.E. 2022 it is illustrative that documents to be relied on Plaint are the one necessary must be attached to the Plaint. It states that: 14.-(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. As the Plaint was filed without a document showing that the Government department, officer and all other persons who were required 19 | P a g e to be served had been served. That aspect was conspicuously missing in the Plaint. I am of the settled view that attaching a proper document in Reply to WSD was in violation of the mandatory requirement of Order VI Rule 14(1) of the CPC. The law requires such documents to be attached to the Plaint which is part of pleadings not the Reply to WSD which is considered as subsequent pleadings as per Order VI Rule 1 of the CPC. I concur with the Counsel for the 1st and 2nd Defendants that attempt by the Plaintiff to attach the documents to Reply to WSD on awake of existence of preliminary objection on the same intended to correct the error committed by the Plaintiff is a lucid pre-emptive in nature and it should not be condoned. On the other hand, the Plaintiff urged this Court to avoid technicalities by entrenching the substantive justice. It is true that adhering to substantive justice is one of the cornerstones of the administration of justice. Article 107A(2)(e) of the Constitution of the United Republic of Tanzania, Cap 2 which requires that 20 | P a g e judiciary to dispense justice without being tied up with technicalities provisions which may obstruct dispensation of justice. It is a settled position of the law that not every rule of procedure amounts to technicality. The Court had ably demonstrated the need to adhere to prescribed rules. In the case of Mohamed Enterprises T. Limited vs Masoud Mohamed Nasser (Civil Application 33 of 2012) [2012] TZCA 219 (27 August 2012) (TANZLII), the Court of Appeal stated that: In our considered view, that Article as well as the Rule (supra) do not, in any way, subjugate the power and intention of relevant provisions of laws and rules of procedure duly enacted. In fact, the latter obtained their validity from the very provisions of the Constitution. Therefore, it is not the intention of the Constitution to command departure from those provisions of Cap 33 or the Rules of this Court in order to advance what may be termed as substantive justice. If it were the intention of the Constitution to do so, then in our humble opinion, the affected provisions of the law or Rules would have been 21 | P a g e deleted from our statute books for being ultra vires the Constitution. Which is why Art. 107 A (2) (e) uses the words "technical provisions which may obstruct justice". Those words are carefully crafted in our view, meaning that not all technicalities obstruct justice. Laws and Rules are intended to promote and guarantee consistency in the dispensation of justice in society. They imply fairness to parties who seek justice before the courts of law. It will therefore, be improper and dangerous to the settled tenets of our judicial system to ignore them for the so called "interest of justice" or "substantive justice". Some of those norms and rules are so fundamental to the cause of justice that they go to the very roots of justice itself. To ignore them therefore will cause greater injustice to the parties. Justice implies fairness to all parties to a case (Emphasis added). 22 | P a g e The suit was filed without strict compliance to the legal requirements namely failure to serve a ninety days’ mandatory notice to the Government prior to institution of the suit is thus violative of mandatory provisions of the law. The second point of preliminary objection is valid and it is upheld. The effect of upholding the two points of preliminary objection is to make the suit unmaintainable before this Court. I shall therefore proceed to strike the same with costs. It is so ordered. DATED at DODOMA this 19th day of September 2024. E.E. LONGOPA JUDGE 19/09/2024. 23 | P a g e