Judgment IgungaDC AG Necessary Party Tabora 24

TTHE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA APLICATION FOR REVISION No.3 of 2023 (Original, District Land Housing Tribunal of Tabora Land application no.47 of 2022 IGUNGA DISTRICT COUNCIL …………………………1st APPLLICANT THE ATTORNEY GENERAL…………………………….2nd APPLLICANT VERSUS GILYA MKINGWA (The Administrator of the Late Stephan Mkingwa) …………………………………………… 1st RESPONDENT ENOCK SAMWEL …………………………………. 2nd RESPONDENT RULING Date of Ruling: 23.09.2024 1 A.J. MAMBI, J. The applicants through chamber summons made under section 41(1), 43(1) (b) and (2) of the Land Act, filed an application for revision. The applicants through the learned State Attorneys Mr Samwel and Ms Grace prayed for this court to revise and set aside the judgment and decree made by the trial tribunal. In their brief submissions, the learned State Attorneys averred that the first applicant herein referred as Igunga District Counsel was not given the right to be heard as they were not joined on the matter at the tribunal while they had interest on the disputed land. They argued that the disputed land is an open space used for children’ activities and health purposes. In response, the learned counsel for the first respondent Mr. Goodluck briefly submitted that the District Land and Housing Tribunal (DLHT) was right in its decision as the land belonged to the first respondent. In their rejoinder, the learned State attorneys for the applicants submitted that the land belonged to the first applicant, and they referred page 6 of the judgment by the DLHT in which the tribunal was admitting that the land in dispute belonged to the first applicant. I have considerably gone through the trial tribunal records. My perusal has revealed that there was omission that goes to the root of the case. My reasons are based on the fact that the matter at the lower Tribunal was not properly dealt since the applicant 2 did not include the necessary party. This is due to the fact that since the District Council had an interest on the disputed land it was necessary for both the applicants to be to be involved on the suit. The evidence shows that initially the land was reserved by the District Council as an open space. This can be indicated by the second respondent who admitted that the land belonged to the District Council, and he was using it for business with approval from the District Council. It is also on the records that the Tribunal at page 6 of the judgment recorded that the land belonged to the District Council. I wish to quote page 6 of the judgment as follows: “Mzee Ezra Lema yeye anatoa maoni yake kuwa ni vema kila mmoja aendelee kutumia eneo lake alilowekeza hadi mwenye eneo (Halmashauri ya Wilaya) atakapoamua vinginevyo, na Bi Magreth Ndegeya yeye anatoa maoni yake kuwa sheria itazamwe kuwa ni nani anayestahili kupewa eneo hilo au libakie mali ya Serikali”. The above statement extracted from the judgment which implies that the land was under control of the first applicant (Halmashauri ya Wilaya Igunga/Igunga District Council) was not disputed or commented by the chairman of the DLHT in his judgment. This in my view implies that the land which seems to be open space is under the control of the District Council of Igunga (The first applicant). Now, since it appears that the first applicant (Halmashauri ya Wilaya Igunga/Igunga District Council) had an interest it was 3 supposed to be joined as necessary party under the DLHT. Again, since the first applicant was the Government Agency, it was mandatory to join the second applicant (Attorney General) as necessary party. Failure to do so meant that all proceedings and judgment of the DLHT of Igunga were fatally defective. It follows that since there were irregularities on all proceedings before the trial tribunal this court finds it proper to exercise its revisional powers under the law. Generally, the High Court can exercise its revisional jurisdiction either sou motu or on application as done in this matter. In this matter, this court has been moved by the applicants through their application to revise the decision of the DLHT. Indeed, the High Court has the power to revise the proceedings of the District Land and Housing Tribunals if it appears that there has been an error material to the merits. The inherent revisionary powers of the High Court are enshrined under both section 43 (1) (b) of the Land Disputes Courts Act, Cap 216 [R.E 2019] and Section 79 of The Civil Procedure Code (CPC) Cap 33 [R.E. 2019] respectively. Indeed, this court has power on its own motion or sou mottu even if it is not moved by any party if it appears that there has been an error material to the merits of the case involving injustice, to revise the proceedings and make such decision or order therein as it may think fit. See Benedict Mabalanganya v Romwald Sanga civil Application 1 of 2001, Court of Appeal of Tanzania at Mbeya (2004) (unreported). The inherent powers of this court are found under both section 43 (1) (b) of the Land Disputes Courts Act, Cap 216 4 [R.E 2019] and Section 79 of CPC Cap 33 [R.E. 2019] respectively as rightly cited by the applicants. More specifically, section 43 (1) (b) the Land Disputes Courts Act provides that; “In addition to any other powers in that behalf conferred upon Supervisory and the High Court, the High Court (Land Division) (b) may in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit”. The rationale of the above provisions of the two laws are to prevent subordinate courts from acting arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction. Reference can also be made to persuasive decisions from India in Major S.S Khanna v. Vrig. F. J. Dillon, Air 1964 Sc 497 at p. 505: (1964) 4 SCR 409; Baldevads v. Filmistan Distributors (India) (P) Ltd., (1969) 2 SCC 201: AIR 1970 SC 406. The provisions of the law’s cloth the High court with the powers to see that the proceedings of the subordinate courts are conducted in accordance with law within the bounds of their jurisdiction and in furtherance of justice. This enables the High Court to correct, when necessary, errors of jurisdiction committed by subordinate courts and provides the means to an aggrieved party to obtain rectification of non-appealable order. In other words, for the effective exercise of its superintending and visitorial powers, 5 revisional jurisdiction is conferred upon the High Court. See C.K.Takwani in Civil Procedure in India, 7 th edition, New Delhi 2015 at page 587-612.. See also Manick Chandra v. Debdas Nandy, (1986) 1 SCC 512 at pp. 516 -17: AIR 1986 SC 446. Looking at the records, I am of the settled mind that having moved by the applicants, this court has satisfied itself that there is a need of revising the legality, irregularity, correctness and propriety of the decision made by the trial and appellate tribunals. The parties through their learned counsels also observed the irregularities on the omission of the necessary party. Now looking at the trial proceedings from the beginning of filing the case, the Tribunal failed to notice that it was not properly moved by the first respondent (the applicant by then) by not including the both the First applicant (Igunga District Council) and the second applicant (Attorney General) as Necessary Parties. It should be noted that a necessary party is one whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed. In other words, in the absence of a necessary party no decree can be passed. Their presence (The first and second applicants in our case), however enables the court or Tribunal to adjudicate more “effectually and completely”. See also Shahasa Mard vs Sadahiv ILR (1918) 43 Bom 575 at p 581 and Kasturi v Iyyamperumal (2005) AIR 2005 at P.738. 6 In various decisions, the court have laid down two tests for determining the question whether a particular party is a necessary party to a proceeding or not as follows: (i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and (ii) It should not be possible to pass an effective decree in absence of such a party. (See also C.K.Takwani on Civil Procedure at page 162-163) Basing on the above legal principles, I am of the considered view that the first applicant and second applicant (the Attorney General representing the government) meant that it should not be possible to pass an effective decree. There is no doubt as the position of law stands that all government agencies are owned by the government and they are under the supervision and ownership of the government. This means any person who wishes to sue the Government entity must as well sue the Attorney General. However, even the tribunal failed to notice and observe such omission and it proceeded illegally determining the matter. In this regard, I am of the settled view that the Tribunal was wrong in determining the matter that was instituted without involving the necessary parties. I am of the considered view also as argued by the learned State Attorneys that failure to involve the applicants at the District Land 7 and Housing Tribunal meant that the applicants were denied right to be heard. This implies that the right to be heard was not fully availed to the applicants. The consequences for the failure to avail a party fair opportunity to be heard was underscored by the Court of Appeal in DPP VS. SABINIS INYASI TESHA AND RAPHAEL J. TESHA [1993] T.L.R 237 where the court held that such denial would definitely vitiate the proceedings. See also EMANUEL NAISIKE VS. LOITUS NANGOONYA, MISC. LAND CASE APPEAL NO.22 OF 2011 High Court at Arusha. The position of the law with regard to the importance of right to be heard was also underscored in the case of MEYYA-RUKWA AUTO PARTS & TRANSPORT LIMITED vs. JESTINA GEORGE MWAKYOMA Civil Appeal No.45 of 2000 where the court held that: “In this country, natural justice is not merely principle of common law, it has become a fundamental constitutional right. Article 13(6) (a) includes the right to be heard amongst the attributes of the equality before the law, and declares in part” “Wakati haki na Wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa mahakama au chombo kingine kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu”. As the right to be heard is the fundamental constitutional right this court finds the importance of referring more cases in this issue. As there are so many authorities that have addressed similar issues, suffices to refer the case of ABBAS SHERALLY & ANOTHER VS. ABDUL S.H.FAZALBOY Civil Application 8 No.33 of 2002 which was also referred in EMANUEL NAISIKE VS. LOITUS NANGOONYA, MISC. LAND CASE APPEAL NO.22 Of 2011 (supra). The Court of Appeal in ABBAS SHERALLY & ANOTHER VS. ABDUL (supra) reiterated that: “….That right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard, because the violation is concerned to be a breach of natural justice.” From the above authorities, I have no reason for not subscribing and being satisfied that a right to be heard in our case was tempered and denied as the DLHT just rushed into determining the matter that omitted the first and second applicants. Assuming that the respondent could have sued the First applicant (The Igunga District Council) and the Attorney General as the necessary parties still, it was necessary to comply with the requirement of section 6 of The Government Proceedings Act. I wish to refer section 6 (2), (3) and (4). The word “shall” under the provision implies mandatory as per the Interpretation of Law of Interpretation Act Cap 1 [R.E. 2019] of the Government Proceedings Act, Cap 5 [R.E 2019] here under below: “6(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 9 Government, and he shall send a copy of his claim to the Attorney-General and the Solicitor General”. In my considered view, since the respondent did not comply with the mandatory requirements of the law, it is as good as saying there was no suit filed at the trial tribunal. Reference can be made to the decision of the court in Joseph Ntongwisangue another V. Principal Secretary Ministry of finance & another Civil Reference No.10 of 2005 (unreported) where it was held that: “Experience shows that the litigations if not controlled by the court, may unnecessarily take a very long period and deny a party in the litigation enjoyment of rights granted by the court”. Having observed that the first respondent failed to comply with the mandatory legal requirements, I am constrained to hold that both the proceedings and judgement of the District Land and Housing Tribunal were nullity. Reference can also be made to the decision of the court of Appeal in KJ Motors and Three Others Vs. Richard Kashamba and others, Civil Appeal 74/1999 where the court held that: “The rationale for this view is fairly apparent. Where for instance, a person comes forward and seeks to sue on behalf of others persons, those other persons might be dead, non-existent, or otherwise fictitious. Else he might purport to sue on behalf of persons who have not in fact authorized him to do so. If this is not checked it can lead to undesirable consequence. The court can exclude such possibilities only by granting leave to the representative of sue on behalf of persons whom he must 10 satisfy the court that they do exist and that they have dully mandated him to sue him on their behalf…” From the forgoing reasons I am of the settled mind that and I hold so that the trial Tribunal the District Land and Housing Tribunal at Igunga in its decision acted, capriciously and illegally or irregularly in the exercise of its jurisdiction. From the circumstances, therefore this court finds that the trial tribunal did determine the suit that did not include the necessary party. I am of the view that the First and Second applicants’ presence before the DLHT were necessary. In my view, their presence would enable the Tribunal to effectually and completely adjudicate upon the matter at its hand. I am of the considered view and I hold so that the Trial Tribunal Wrongly entertained the matter (in the absence the first and second applicants). In this regard the subsequent proceedings and judgement were illegal thus a nullity. In the premises, both the proceedings and judgment of DLHT are nullified and the decision is set aside. In addition, it is hereby advised that any interested party can institute a case at a competent tribunal/court if he/it thinks has right and he wishes to do so. Considering the circumstance of the case, I make no order as to costs. A. J. MAMBI, J JUDGE 11 23.9. 2024 Ruling delivered in Chambers this 23 rd day of September, 2024 in presence of both parties. A. J. MAMBI, J JUDGE 23.9. 2024 12