Feza Africa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.16674 OF 2024 (Arising from Land Application No. 116 of2023, of the District Land and Housing Tribunal for Kigamboni) FEZA AFRIC LIMITED.................................................. APPELLANT VERSUS PATRICIA CHUWA.............................................. 1st RESPONDENT GOODWILL NAMBAYA...................................... 2nd RESPONDENT RULING Date of Last Order: 30.09.2024 Date of Ruling : 09.10.2024 T.N. MWENEGOHA, J: The instant Appeal emanates from the District Land and Housing Tribunal for Kigamboni, herein after called the Trial Tribunal, vide Land Application No. 116 of 2023. Initially, the respondents were the ones who jointly, sued the appellant, Feza Afric Limited for trespassing into their land, measuring 4.5 acres, located at Kisarawe II, Area, Kigamboni Municipality and Dar es Salaam Region, with an estimated value of 120, 000,000/=. The dispute at the Tribunal was concluded in favour of the two above named respondents. Aggrieved by the Decision of the Trial Tribunal, the appellant filed this Appeal, with 8 grounds of Appeal in her Memorandum of Appeal. For saving this Court's time and for reasons that they are on records, the said grounds will not be reproduced in this Ruling. i The Appeal was heard through written submission, Advocate Edna Bigambo, represented the appellant, while the respondents enjoyed the legal services of Advocate Adam Lazaro Kasengenya. However, as I was composing the Judgment for this Appeal, I noted an issue which goes to the root of the case itself, as filed at the Trial Tribunal. That, there is a necessary party, one David Magambo, the seller of the suit land to the respondent who was neither joined nor called to testify as a witness in the case before the Trial Tribunal. The parties were notified and Ordered to address the Court on the issue raised. They complied with the Order and addressed this Court accordingly. Submitting in favour of the raised issue, Advocate Bigambo for the appellant, maintained that, Mr. David Magambo, being a seller of the suit land to the respondent was a very necessary party to be joined in this case. That, he was supposed to come and clear the controversies and ambiguities and would properly guide the Trial Tribunal in reaching to a fair Decision without jeopardizing the appellant's rights and interests in the disputed plot. To cement her position, the appellant's counsel cited a number of authorities including the case of Khamis A.K Shomari versus The Attorney General and Another, TLR 153 and Abdullatif Mohamed Hamis versus Mehboob Yusufu Osman and Another, Civil Revision No. 6 of 2017, Court of Appeal of Tanzania, (unreported). On his part, Mr. Kasengenya, for the respondents, relied on the case of Ilala Municipal Council versus Sylivester Mwambije, Civil Appeal No. 155 of 2015, Court of Appeal of Tanzania at Dar Es Salaam, (unreported) which cited in approval, the case of Benares Bank Ltd 2 versus Bhagwandas Air (1947). He insisted that, Mr. Daudi Magambo was not a necessary party to the case before the Trial Tribunal. He is just a seller and all issues relating the disputed property were proved on balance of probability during the hearing. Hence his absence affected nothing as far as the case is concerned. Further, his absence did not preclude the Trial Tribunal to pass an effective decree Taking the parties submission in consideration, I reviewed the Tribunal records. The records at hand show that, the respondents, Patricia Chuwa and Goodwill Nambaya, jointly, bought the suit land from Mr. David Magambo, back in 2013, as seen in Exhibit KM1. Therefore, they have traced their ownership of the suit land from the said person, via purchase of the same on the dates stated in their Sale Agreement. By virtue of the Sale Agreement, entered between the respondent and Mr. David Magambo, it was important for the said person to be procured in Court as a party to prove that, the said transaction did exist or as a witness to substantiate what the alleged buyers of the land in dispute were asserting. His absence either as a witness or a party creates doubts on whether the Sale Agreement alleged between the respondents and him real existed. Without proving this fact, it is hard if not impossible to prove what the respondents claimed as far as the ownership of the suit land is concerned. The law is settled, that in land disputes, a seller of the suit land should be joined see Juma B. Kadala versus Laurent Mkande (1983) TLR 103. Non-joinder of these seller is, as the Trial Tribunal could not pass an effective Decree, to be executed by the winning party, Tanga Gas Distributors Ltd versus Mohamed Salim Said and 2 Others, Civil Revision No. 68 of 2011, Court of Appeal of Tanzania(unreported). 3 Therefore, the suit before the Trial Tribunal was not supposed to proceed in absence of Mr. Davi Magomba. What happened at the Tribunal is clearly illegal, hence null and void. That being the case, there is nothing to deal with in this Appeal as technically one can say, it should not exist. In the end and by virtue of the revisionary powers conferred to this Court under section 43(1) and (2) of the Land Disputes Courts Act, Cap 216, R.E 2019, I nullify the whole proceedings of the Trial Tribunal in respect of Land Application No. 116 of 2023, by the District Land and Housing Tribunal for Kigamboni. Quash the Decision of the Trial Tribunal and further, set aside the Orders that followed it. Parties are at liberty to institute a fresh suit. No Order as to costs. T.N. NEGOHA JUDGE 09/10/2024 4