CIVIL APPEAL NO 534 OF 2021 HUMPHREY MOSHA VS ABDUL MAJID YAHAYA

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM fCORAM: MUGASHA, J.A.. MASHAKA, 3.A. And NGWEMBE. 3.A.) CIVIL APPEAL NO. 534 OF 2021 HUMPHREY M O S H A ........................................................................... APPELLANT

VERSUS ABDUL MAJID Y A H A Y A ..................................................................RESPONDENT [Appeal from the judgment and decree of the High Court of Tanzania, Land Division at Dar es Salaam] fMzuna. J.) dated the 25th day of August, 2017 in Land Appeal No. 153 of 2015

RULING OF THE COURT 17th February & 03rd March, 2025 MASHAKA. 3.A.: Before the District Land and Housing Tribunal of Kibaha at Kibaha (the DLHT), in Land Application No. 45 of 2010 the respondent claimed for ownership of a ten acres farm located at Msolwa Village, Chalinze Bagamoyo (the disputed land) against the appellant who had allegedly trespassed thereto. The DLHT decided in favour of the appellant and he was declared the lawful owner of the disputed land which was allocated to him by the Msolwa Village Council in 1996. The DLHT decision was reversed by the High Court of Tanzania Land Division in Land Appeal No. 153 of 2015 and it did not amuse the appellant. The facts underlying the present appeal goes as follows: the respondent claimed to have acquired the land in 2008 from three related persons at the price of TZS. 7,000,000.00 and that by following the due procedure, the Bagamoyo District Council eventually permitted the appellant to survey the said land after receiving the minutes of the meeting conducted by the Msolwa Village leaders. The Survey plan indicated the disputed land as Farm Number 6048. Before a certificate of title could be issued, he found the appellant in the disputed land constructing buildings claiming to have been allocated the same by the Msolwa Village Authority since 1996. The respondent reported the matter to the Police at Chalinze, where he was

advised to refer the matter before a Tribunal. On the other side, the appellant filed a written statement of defence disputing all the facts and claimed that he was the rightful owner of the land. He further stated that he secured allocation from the village authority at the time when the land had not been allocated to anybody and was still under the ownership of the Msolwa Village authority. At the end, the Tribunal was satisfied that though each party alleged to have involved the Msolwa Village authority at one point, but the evidence of the appellant was more reliable and credible than that of the respondent. It held that the respondent failed to prove that the appellant trespassed on the disputed land in September 2010. It also considered the fact that at the time the respondent was purchasing the land, the appellant was already occupying the same since 1996, hence the invocation of the doctrine of adverse possession. Dissatisfied, the respondent preferred his appeal before the High Court. The High Court reversed the decision of the DLHT and held that the respondent is the lawful owner of the disputed land since the said land was not a bare land. Therefore, the survey process conducted by the village authorities ought to have involved the neighbours and without it, the survey plan was illegally obtained. In addition, it made a finding that all the exhibits tendered by the

appellant were for identification purposes hence lacked evidential value. At the end, it held that the principle of adverse possession was wrongly invoked as there was a presence of fraud and allowed the appeal. The appellant was aggrieved by the decision of the High Court and has preferred this 3 appeal assailing it. For reasons to be explained later in this Ruling, we will not list the grounds of appeal. At the hearing of the appeal, Mr. Eliezer Eliakunda Kileo, learned counsel represented the appellant whereas, Mr. Hassan Abdallah Kilule, learned counsel appeared for the respondent, who was also present in person. In the course of hearing, we required the parties to address us on the propriety or otherwise of non-joinder of the Msolwa Village Council at the trial before the Tribunal. This is on account of its involvement in the allocation of the disputed land to the appellant for construction of a fuel station while the respondent had purchased the same from some villagers of Msolwa village and the Msolwa Village Council was aware, informed and involved having witnessed the respective sale agreement. We probed the parties to address us whether the appeal can be fairly and conclusively determined without the necessary party, that is Msolwa Village Council. Mr. Kileo, conceded to the fact that there would be no such fair and conclusive determination because on 20 /6/1996, the

Msolwa Village Council is alleged to have allocated the disputed land to the appellant for construction of a fuel station. The same disputed land which the respondent purchased in 2008 and Msolwa Village Authority oversaw and witnessed the sale process. Mr. Kilule strongly resisted the requirement to join the Msolwa Village Council as a necessary party under Order 1 Rule 10 (2) of the Civil Procedure Code Cap 33 R.E. 2019, (the CPC) bolstering his stance by referring the case of Abdi M. Kipoto v. Chief Arthur Mtoi, (Civil Appeal No. 75 of 2017) [2020] TZCA 26; (28 February 2020 TANZLII), that the Village Council has no interest in the suit. He contended that the determination of this appeal can be reached conclusively and fairly by the Court without joinder of the said Village Council because the village executive officers (PW4 and DW2) had testified for the appellant and the respondent. Rejoining, Mr. Kileo emphasized that Order 1 Rule 9 of the CPC has regard to the rights and interests of the parties to the suit and not only the interests of the Msolwa Village Council. He further explained that the case of Abdi M. Kipoto v. Chief Arthur Mtoi, (supra) is distinguishable to the present case as it originated from the Ward Tribunal where the Civil Procedure Code CAP 33 R.E. 2019 (the CPC) is not applicable. Having examined the record of appeal and considered the submissions for

and against this appeal, the issue for our determination is the propriety of the trial before the District Land and Housing Tribunal (the DLHT) on account of non-joinder of the Msolwa Village Council, a necessary party. In Tanga Gas Distributors Ltd v. Mohamed Salim and Two Others, Civil Revision No. 68 of 2011 (unreported) when considering circumstances upon which a necessary party ought to be added in a suit, the Court had stated: - "...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 o f 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 so as to have him bound by the decision of the court in the suit." [Emphasis is ours] From what we have gathered from the respective pleadings and the memorandum of appeal before us, the conclusive and fair determination of the dispute between the appellant and the respondent 6 cannot be attained without impleading and hearing the Msolwa Village Council. We held in Johnson Leonard Mahururu v. Abdul Nassor Obeid and 3 Others (Civil Appeal No. 23 of 2022) [2025] TZCA 92; (26 February 2025 TANZLII), that in the event the suit premises happens to be the epicentre of the dispute at the trial, it was crucial to join persons whose

presence could have enabled the court to effectively adjudicate the dispute and settle all questions involved in the suit. This is in accordance with Order 1 Rule 10 (2) of the CPC. In the circumstances, as the suit was filed before the DLHT, it was incumbent on the Tribunal to scrutinize the pleadings to determine if at all, the Msolwa Village Council was a necessary party in the context of Order 1 Rule 10 (2) of the CPC which stipulates: "(2) The court may, at any stage o f the proceedings, either upon or without the application o f either party and on such terms as m ay appear to the court to be ju st■order that the name o f any party im properly joined, whether as p la in tiff or defendant, be struck out, and that the name o f any person who ought to have been joined, whether as p lain tiff or defendant, or whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon 7 and settle a ll the questions involved in the suit, be added." See for instance, Nuta Press Limited v. Mac Holdings and Another, Civil Appeal No. 80 of 2016 and Farida Mbaraka and Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006 (both unreported). It was emphasized in Farida Mbaraka and Farid Ahmed Mbaraka v. Domina Kagaruki (supra) the operationalization of the said rule and the Courtsaid thus, "Under this rule, a person may

be added as a party to a suit (i) when he ought to have been join ed as p lain tiff or defendant and is not joined so; or (ii) when, without his presence, the questions in the suit cannot be com pletely decided." It is not disputed that both the appellant and the respondent are clashing horns on the disputed land. They both claim that the Msolwa Village Council was involved in its purchase and the allocation of the disputed land to the respondent and the appellant respectively. In the record of appeal, though it demonstrates that PW4 and DW2 who were Village Executive Officers of Msolwa Village at a certain time testified, that cannot in itself enable a fair and conclusive determination of the land dispute in question and it was incumbent to join the Msolwa Village Council as a necessary party and epicentre of the dispute as both the respondent and the appellant both claim to have been allocated the land in dispute by the respective village authority. Now the question we ask ourselves is could the Msolwa Village Council allocate land which they did not own and at the same had knowledge that it had been sold to the respondent. These critical questions ought to be answered by none other than the Msolwa Village Council which necessitates joinder as a necessary party. In the circumstances, we are satisfied that the non - joinder of the Msolwa Village Council is an omission which

occasioned a failure of justice as the dispute could not be conclusively and fairly determined by the trial Tribunal and so is the appeal before us. Thus, we have no option but to annul the trial proceedings and the impugned judgment. On the way forward, we invoke the powers vested on us under section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E. 2019], and hereby quash the proceedings and judgment and the subsequent orders of the High Court and the DLHT for Kibaha. Thus, if any of the parties so desire, may institute a fresh suit joining Msolwa Village Council in accordance with the law and without being subjected 9 to the requirement of notice of thirty (30) days to sue the Msolwa Village Council not later than six (6) months from the date of this Ruling. Since the issue under consideration was raised by the Court suo motu, we make no order as to costs. DATED at DAR ES SALAAM this 03rd day of March, 2025. S. E. A. MUGASHA

JUSTICE OF APPEAL L. L. MASHAKA

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL Ruling delivered this 04th day of March, 2025 in the presence of Mr. Meshack Mwanasenga, holding brief of Mr. Elieza Kileo, learned counsel for the Appellant and also holding brief for Mr. Hassan Kilule, learned counsel for the Respondent, is hereby certified as a true copy of the original.