LAND APPEAL NO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 312 OF 2023 (Originating from Application No. 3 of 2016 of the District Land and Housing Tribunal for Kinondoni District, at Mwananyamala, Hon. S. H. WambiH, Chairman) FARIDA HELMAN KYASI AND AMINA ABDALLAH LUWAMBO (Joint administratrix of the Estate of the Late Shabani Abdallah Rwambo, Deceased)........................... ..................... ...................... APPELLANTS VERSUS EMMANUEL A. M. MJEMA..................................................................................1stRESPONDENT HARUNA R. MAWALA....................................................................................... 2ndRESPONDENT ALLY SELEMAN................................................................................................. 3rdRESPONDENT MWALIMU JIVUNENI NYANDA............................................... 4th RESPONDENT FATUMA ULIZA................................................................................................. 5thRESPONDENT JUDGMENT 22/8/2024 & 06/09/2024 GWAE, J The judgment and decree of the District Land and Housing Tribunal of Kinondoni at Mwananyamala (trial tribunal) aggrieved the appellants herein. Hence, this appeal with the following of grounds of appeal;- i 1. That, the trial tribunal erred in law by determining the issues not framed by the Tribunal 2. That, the trial tribunal erred in law by failure to properly evaluate evidence leading to an erroneous decision 3. That, the trial tribunal erred in law to make a decision basing on the technicalities of name and signature as appeared on the sale agreement without affording an opportunity to the parties to address the Court on such technicalities and a right to be heard 4. That, the trial tribunal erred in law and fact by deciding against the appellants basing on the failure of the applicant's witness to attend the site visit in quo 5. That, the judgment and proceedings of the tribunal were marred with irregularities which led to a wrong decision in favour of the respondents Originally, one Shabani Rwambo now deceased person filed a dispute against respondents claiming that, the respondents trespassed to his land measuring 8 acres located at Mpiji Magohe, Bunju Ward within Ubungo Municipality. The deceased further claimed to have acquired the suit land through purchase from Zaituni Ally and Mwantumu Fuko at the tune of Tshs. U,000/=on the 2nd day of June 1998 but in the 2014 onwards the 1st and 2 2nd respondent encroached the suit land on the context that they bought the same from 3rd, 4th and 5th respondent. On the other hand, the 1st respondent claimed ownership of the suit land (5 acres) asserting that, he purchased the same from 3rdand 5th respondents in 1992 and that, the 2nd respondent is the 2nd respondent's caretaker of the suit land. The 1st respondent also claimed to have erected cement poles around the whole disputed land since 1992 and had been using the suit land since then without interruption until 2014 when the deceased person claimed to be owner. On 21st May 2024 when this appeal was placed before me for hearing, it was ordered that, the appeal be disposed of by way of written submission despite the fact that, the trial tribunal record was yet to be dispatched. The record was not made available to the Court until on 22nd August 2024 when the same was forwarded for the appeal purposes. Both sides had legal representation to wit; Mr. Mohamed Tibanyerendela Mr. Amon Rwiza, both the learned advocates who represented the appellant and 1st and 2nd represented respectively. While composing judgment especially when going through the parties' evidence on record as the 1st appellate court duty bound to properly re­ 3 assess the evidence adduced before the trial tribunal. (See Philipo Joseph Lukonde vs. Faraji Ally Saidi (Civil Appeal No. 74 of 2019) [2020] TZCA 1779 (21 September 2020). In the exercise of that duty, I came to note that there is legal anomaly regarding the interest of one Simion Raphael Mduma, who appeared before the trial tribunal as DW5 but introduced himself to be the owner of 4 1/2 acres out of the disputed land (8-9 acres). He further testified that he purchased the same from the 4th respondent In such observation, I asked the parties' advocates to address me on the omission implead of the said Mduma who is claiming ownership to the suit land. Addressing the Court, Mr. Mohamed for the appellants subscribed to the finding of the court pertaining the interest of Mduma since he has never been a party to the proceedings before DLHT. He added that, the said Mduma was an interested party; therefore, trial by the trial tribunal was wrongly concluded without him being joined in either the Application or counterclaim. According to the appellants' advocate, the omission in question amounts to material irregularity, going to the root of the case including execution of decree 4 Mr. Mohamed thus prayed that, the anomaly observed by the Court to be rectified by the DLHT by giving the parties an opportunity to join the said Simion Mduma as an interested party who is claiming ownership of 4 1/z acres within the disputed land. Equally, Mr. Amon: endorsed to the finding of the court added that, there is a legal requirement of joining the said Simion Mduma as he is claiming to be owner of the parts of the suit land. He thus prayed for an order of retrial and that each party should bear his or her costs of this appeal and those before the tribunal. Examining the trial tribunal's record especially the parties' evidence, it is plainly clear that one Simion Raphael Mduma is claiming ownership over a piece of land measuring 4 V2 acres, which is within the suit land. He further claims that, he purchased the same from one Mwalimu Jivuneni Nyanga (4th respondent) and he was able to tender the sale agreement dated 13th June 1992, which was admitted as Exhibit D5. In that premise, the said Simion Mduma is an interested party to the land in dispute. For the sake of clarity; parts of the testimony adduced by Simion Raphael is reproduced herein under;- "Nalifahamu eneo la mgogoro kwa kuwa mimi ni mmi/iki wa sehemu wa hiio eneo ambapo mimi na Prof: Mjema 5 tulinunua mwaka 1992.. kwa ujum/a IHe shamba Una ekari 9 1/2. Emmanuel Mjema alinunua ekari 5 na mimi ekari 4 1 /2. ......... NHinunua eneo hiio eneo kwa maandishi....eneo ia mgogoro HnamHikiwa na Emmanuel Mjema na mimi Simion Mduma Mimi ni miongoni mwa wadaiwa katika shauri hili................ " More so, when I examined the testimony of the late Shabani Rwambo who appeared before the tribunal as PW2,1 have noted that he lucidly stated that had sued the said Simion Mduma though his name is not appearing in the pleadings. Therefore, the said Simion Raphael Mduma is not only proper person but also an interested party unless he gives the 1st respondent power of attorney to defend his interest which was to be indicated to that effect. In my view in order to have rights and obligations of Mr. Mduma realized, he ought to have been impleaded. I endorse to the decision of the Court of Appeal of Tanzania in Suryakant D. Ramji vs. Savings and Finance Limited and Others (2000) TLR 121 where it was held that; "The plaintiff may decide to join both proper and necessary parties in litigation, a necessary party is one against whom the relief is sought or without whom an effective decree cannot be passed by the court all those whom the law requires to be impleaded and, andon the other hand proper parties are those whose presence enable the court to decide 6 effectively and finally the dispute presented before and these includes those who in one way or another are interested or connected with the reliefs being sought against others." See also the case of Farida Mbaraka and 6 Farid Ahmed Mbaraka vs. Domina Kagaruki (Civil Appeal No. 80 of 2016) [2021] TZCA 595 (18 October 2021). In the basis of the judicial decisions and reasons given above, as such the trial tribunal proceedings, resultant judgment, and its decree cannot be left undisturbed. The trial tribunal and the parties ought to have caused an amendment of the pleadings in order to implead the said Simion Raphael Mduma. I am of the view, as correctly argued by Mr. Tibanyendela that, if the proceedings are left as they are, possibly an application for execution in a situation where disputed land includes one allegedly owned by a person not impleaded (Mduma) will be problematic as the said Mduma will likely contend that, he was not a party the proceedings. The noted anomaly suffices to dispose of the appeal as rightly argued by the parties' advocates. However, there are other legal anomalies as rightly complained in the 5th ground such as names of the parties, which ought to be rectified in order to 7 put records clear and avoid unnecessary applications of legal technicalities instead of substantive justice. Accordingly, by virtue of section 43 of the Land Disputes Courts Act, Cap 216, Revised Edition, 2019,1 hereby quash and set aside Proceedings, judgment and decree of the trial tribunal. I further order that, the District Land and Housing Tribunal of Kinondoni at Mwananyamala to cause an amendment of the appellant's Application before it, to include the issue on whether the Application is time barred in issues to be framed and expedite hearing and determination of the parties' dispute. Given the fact that, the issue of non-joinder of an interested person in the disputed land was raised by the Court suo moto, I shall refrain from making orders as to costs of this appeal and those before the trial tribunal. It is so ordered. DATED at DAR ESLAAM this 6th September 2024 8