CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: SEHEL J.A., MAIGE, 3.A. And ISMAIL J.A.^ CIVIL APPEAL NO. 381 OF 2020 GAPCO TANZANIA LIMITED ......................................................... APPELLANT ATTORNEY GENERAL....................................................... INTERESTED PARTY VERSUS RAMZAN D. W AU I COMPANY LTD .............................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mbeya) (Karua, J.) dated 22nd day of May, 2015 in Land Case No. 1 of 2010 RULING OF THE COURT 9rd & 15th July 2024 MAIGE, J.A.: The dispute at hand relates to a landed property on Plot No. IB and IC within Tukuyu Township in Mbeya Region with the building thereon and underground tanks of petroleum storage, herein after referred to as "the suit property". By a lease agreement executed in 2010, the Rungwe District Council (the Council) leased the suit property to the appellant for a period of 60 months from July, 2009. In the pleadings, the appellant i alleged that, sometime in 2004, she entered into a license agreement with the respondent under which the latter would, in terms and conditions therein stated, operate and use the service station and station equipment for petroleum products related business. On 19th October 2009, it was further alleged, the appellant terminated the license agreement with the respondent and entered into a license agreement with a new dealer. As a result of the respondent's disruptive actions, the new dealer was unable to operate the business. Therefore, the appellant commenced a suit at the trial court claiming for two substantive reliefs. One, declaration that the license agreement between her and the respondent was legally terminated; and Two, perpetual injunction to restrain the respondent from interfering with the business of the new licensee at the suit property. In her written statement of defence, the respondent disputed the relevancy of the lease agreement between the appellant and the landlord and contended that; she had been in continuous occupation of the suit property for over 23 years. On top of that, she raised a counterclaim seeking for, among others, an order for repossession of the licensed premises. In his considered judgment, the trial judge found the appellant's claim without merit and the respondent's counterclaim with merit. 2 Henceforth, he dismissed the appeal and awarded the claims in the counter claim. In relation to the claim for repossession of the licensed premises, the trial judge stated: "Having made the illegally term inated license agreem ent legally valid, the defendant is pu t back to the retail station, holding the same position earlier held, that is the license o f the p la in tiff in the petroleum product trade. To put it into a strong legal flavor, the p la in tiff is ordered to hand over the retail station and the entire building to the defendant im m ediately." Aggrieved, the appellant instituted the current appeal faulting the correctness and validity of the said judgment in a number of grounds. For the purpose of this ruling, however, it may not be necessary to mention them. Worth of a mention is the fact that, subsequent to the institution of the appeal, the Attorney General procured leave of the Court, vide Civil Application No. 719/06 of 2022, to be joined into the appeal as an interested party in terms of section 17(1) and (2) of the Office of Attorney General (Discharge of Duties) Act, 2019 (the OAGA). Upon being joined, the interested party informally applied, which was granted, for leave to 3 file points for consideration. In the ruling granting the respective leave, the Court stated: 7/7 view o f that position ; we direct the interested party to present points o f interest which, when a r g u e a w iii enable the Court to determine whether the judgm ent and the orders o f the High Court in relation to the interests in the disputed prem ises can be assailed." Pursuant to the direction, as aforestated, the interested party filed her points for determination containing three complaints. However, during hearing, the first complaint was abandoned and the following two points for determination remained. One, the trial court erred in law and facts in ordering the appellant to hand over the retail station and the entire building to the defendant immediately, and, any dealer found to be occupying the suit premises to be ejected. Two, the trial court erred in law and facts in adjudicating on the matter in the absence of Rungwe District Council who was a necessary party. At the hearing, Mr. Libent Rwazo, learned advocate appeared for the appellant while Mr. Ndanu Emmanuel, also learned advocate, appeared for the respondent. The interested party enjoyed the services of a team of three learned State Attorneys, namely; Ms. Jacqueline Kinyasi, Mr. Joseph Tibaijuka and Ms. Edina Mwamlima. Before we could proceed, we asked the counsel as which between the points for determination by the interested party and the points in the memorandum of appeal should start first; they all agreed that, we should start with the points for determination. We shared the same view with them. In her oral arguments, Ms. Kinyasi fully adopted the written submissions in support of the points for determination with some clarifications and prayed that the judgment of the trial court be set aside and the proceedings thereof quashed. Likewise, Mr. Ndanu adopted the written submissions in opposition to the points for determination and urged us to dismiss the same with costs. On his part, Mr. Rwazo fully supported the points for determination. The counsel, it would appear, had a common understanding on when does a person become a necessary party in civil litigation. They all agreed that a necessary party is the one in whose absence an effective decree cannot be made. That position was stated in the case of Abdulatif Mohamed Hamis v. Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018; TANZLII) 5 relied upon by the interested party, wherein the Court explained who is a necessary party in the following words: " ..a necessary party is one whose presence is indispensable to the constitution o f the su it and in whose absence no effective decree or order can be passed. Thus, the determination as to who is a necessary party to a su it would vary from a case to case depending upon the facts and circum stances o f each particular. Among the relevant factors for such determination include the particulars o f the non-joined party, the nature o f the re lie f claim ed as well as whether or not\ in the absence o f the party, an executable decree m ay be passed." In her submissions, Ms. Kinyasi combined the two grounds and argued them under the proposition that; the trial court wrongly determined the suit without joining the Council which was a necessary party. She started her submission by drawing our attention to items 2 and 3 of the decree which ordered the appellant to hand over the service station and the entire building to the respondent and for eviction of any dealer found in occupation of the same. She submitted, on that basis that, such order in effect granted the respondent, a mere licensee, exclusive possessory right over the suit property while the appellant's right 6 to license the service station to the respondent emanated from her lease agreement with the Council. She submitted, therefore, that an order for vacant possession against the appellant and whomsoever in possession of the suit property would not be made without the Council as the owner being heard. She further submitted that, since it was express in the pleadings that the suit property belonged to the Council; in view of the nature of the reliefs prayed in items (i) and (ii) of the counterclaim, the joinder of the Council was necessary because the reliefs sought were likely to affect her permanent exclusive possessory right over the suit property as the owner. She submitted, therefore that, the High Court was obliged, before proceeding with the trial, to order for the joinder of the Council as a necessary party. In her contention, the omission rendered the whole trial a nullity, in as much as the Council was denied a right to be heard. She thus urged us to nullify the judgment and proceedings of the trial court and allow the points for determination with costs. In rebuttal, Mr. Ndanu submitted that, the Council was not a necessary party as the reliefs sought in the counterclaim could in no way affect her ownership interest in the suit property. He assigned six reasons to justify his contention. First, the decree for repossession was only 7 limited to the respondent contractual right under the license agreement, and that, it had nothing to do with the ownership of the suit property. Second, the Council was not privy to the license agreement; Third, the license agreement was executed in 2004, five years before the lease agreement. Fourth, the respondent had been in possession of the suit property since 1973, without any interruption from the Council. Fifth, there is evidence on the record that, the Council was the customer of the respondent; and Sixth, that in the Land Case No. 6 of 2013, the High Court declared the lease agreement between the Council and the appellant lawful. In rejoinder, Ms. Kinyasi reiterated her submissions in chief and added that the Council being a customer of the respondent is totally irrelevant to the facts in issue. We have keenly followed the counsel's debate on the issue and we shall hereinafter separate the wheat from the chaff. It is common ground that the suit property belongs to the Council and the appellant is a mere tenant in it. The execution of the license agreement between the appellant and the respondent (exhibit PI), and the fact that, it was repudiated by the appellant for the alleged fundamental breach is equally not in dispute. The dispute in the first place is on whether the appellant's right to create the license in question emanates from the lease agreement. For the respondent, it was submitted, in all forces that, as the lease agreement was irrefutably entered into in 2009, the license agreement having been executed in 2004; it cannot be said to have emanated from the lease agreement. As that was not enough, it was submitted, making reference to the evidence on the record that; the respondent had been in possession of the suit property since 1973. It is not, however, clear from the said submission as to where would the appellant, in the absence of a lease agreement with the owner, derive the power to create the license in question. With this factual allegation, it was not safe for the trial to proceed without joining the owner while the pleaded lease agreement was entered into subsequent to the license agreement. Presence of the owner, in our view, was necessary to ascertain if the creation of the license agreement emanated from any lawful lease agreement between the appellant and the Council. This is because, the reliefs sought related to possession of the suit property against the appellant and any other persons in occupation of the same while in law the Council, as the owner, enjoys, subject to any lease, exclusive possessory right over the same. Another area of the contention is whether the license in question covered the entire building as decreed by the trial court. Mr. Ndanu submitted, basing on the evidence on the record, including the license 9 agreement that, the building was part of the license. Much could have perhaps been said had the Council been heard on the nature of the lease agreement between her and the appellant. However, as we said, the Council was not joined at all. Yet, the trial court pronounced a judgment for recovery of possession by the respondent against the appellant and the new dealer. We agree with the learned State Attorney that, the approach taken by the trial court was wrong because the Council though likely to be directly affected by the reliefs sought, was not joined as a necessary party. As the Council's ownership interest on the suit property was clearly pleaded, the trial court would have not, as it did, issued a decree touching possession of the suit property without the owner being joined as a party in a situation where the relevancy of her lease agreement with the appellant was in dispute. In the absence of the lease agreement between the owner and the licensor, we wonder, how could the trial Judge ascertain if the appellant had mandate to create a lease touching the Council's property and whether the right created was within the purview of the lease. In effect, therefore, the Council was denied a fundamental right to be heard. That in law, was a fatal irregularity which affected the substantial legality of the judgment and proceedings of the trial court. 10 On that account, we find the complaint by the interested party on the point for determination valid. We accordingly, invoke our revisonal powers under section 4(2) of the Appellate Jurisdiction Act and set aside the judgment and decree of the trial court and nullify the proceedings thereof. We further direct that the record be remitted to the trial court for trial before another judge after the Rungwe District Council had been joined as a party. Since this is a long time case, the same should be heard expeditiously, in the circumstances, we do not give an order as to costs in the circumstances. DATED at MBEYA this 15th day of July, 2024. B. M. A. SEHEL JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Ruling delivered this 15th day of July, 2024 in the presence of the Ms. Edna Mwamlima, learned State Attorney holding brief for Mr. Libert Rwazo, learned counsel for the Appellant and also representing the Interested Party and Ms. Beatrice Kessy holding brief for Mr. Emmanuel Ndano, learned counsel for the Respondent is hereby certified as a true J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL ii