iringa retco 2000 company limited vs permanent secretary ministry of finance and planning 2 others 2022 tzhc 14506 8 november 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IRINGA DISTRICT REGISTRY AT IRINGA CIVIL CASE NO. 2 OF 2020 IRINGA RETCO (2000) COMPANY LIMITED.......... ........PLAINTIFF VERSUS 1. PERMANENT SECRETARY MINISTRY OF FINANCE AND PLANNING.... ................... ...............1st DEFENDANT 2. TREASURY REGISTRAR...................................... 2nd DEFENDANT 3. ATTORNEY GENERAL.......... ........... ............3rd DEFENDANT ORDER 18th October & 08th November, 2022. UTAMWA, J: This is an order on issues raised by the court suo moto. In this suit, according to the plaint the plaintiff, IRINGA RETCO (2000) COMPANY LIMITED sued the defendants, PERMANENT SECRETARY OF MINISTRY OF FINANCE AND PLANNING, TREASURY REGISTRAR and the ATTORNEY GENERAL (hereinafter referred to as the 1st, 2nd and 3rd defendants Page 1 of 8 respectively). The plaintiff was essentially claiming compensation, general damages and any other reliefs against the defendants. The defendants on the other hand, counter claimed against the plaintiff for among others, orders that the plaintiff breached the sale agreement, a declaratory order that the government is the lawful owner of the landed property located on plot No. 19 Block III Zone IA Gangllonga area of Iringa, a declaration that the plaintiff trespassed the suit property and vacant possession of the said property. The plaintiff's suit was dismissed before another Judge of this court (the predecessor Judge) prior to the re-assignment of the matter to me for the trial of the counter claim. This followed the fact that, the predecessor Judge was blessed with the compulsory retirement age and accordingly retired. When the matter came before me for necessary orders in relation to the surviving counter claim, I suspected that the counter claim was incompetent on the reason that, an important/necessary party was not impleaded in the counter claim. This followed the fact that, the defendants pleaded that the suit property had been disposed of by the plaintiff. Page 2 of 8 However, the person to whom the property was disposed of was neither impleaded nor mentioned in the counter claim. The court therefore directed the parties to address it on the following two issues: i. Whether, the counter claim is competent for the omissions mentioned above, ii. Which order should this court make depending on the answer to the first issue? The parties unanimously agreed to argue the two court issues by way of written submissions. The plaintiff was represented by Messrs. Mpeli Mwakabungu and Omary Khatib, learned advocates and Mr. Bryson Ngullo, learned State Attorney appeared for all defendants. In his written submissions, the learned State Attorney, on behalf of all the defendants conceded with the court's observations that, the counter claim is ambiguous since it does not disclose the person to whom the suit property was allegedly disposed of. Oh the issue of non-joinder of the necessary party, the learned State Attorney also submitted that, joining a necessary party in a suit is a legal requirement.. Order I Rule 9 of the Civil Procedure Code, Cap. 33 RE. 2019 Page 3 of 8 provides that, no spit shall be defeated by reason of mis joinder or non­ joinder of parties. However, this rule does not apply to failure to include a necessary party in cases of the nature under discussion. He thus, urged the court to strike out the counter claim for non-joinder of a necessary party as held by the Court of Appeal of Tanzania (The CAT) in the case of Hamisi Salum Kizenga v. Moses Maliki Sewando and 18 Others, Land Appeal No. 51 of 2019, High Court of Tanzania (Land Division) at Dar es Salaam (unreported) and Oilcom Tanzania Ltd v. Christopher Letson Mgalla, Land Case No. 29 of 2015, High Court of Tanzania at Mbeya (unreported). The plaintiff's counsel submitted by way of reply that, the counter claim is incompetent for not joining the necessary party to the suit and for not disclosing the identity of the person to whom the suit property was disposed of. Order I Rule 9 of the CPC provides for a general rule that, no suit shall be defeated for non-joinder of parties. Nonetheless, there is an exception to this general rule as held by the CAT in the case of Abdulatif Mohamed Hamis v. Mehboob Yusuf Osman and another, Civil Revision No- 6 of 2017, CAT at Dar es Salaam (unreported) and Benares Bank Ltd v. Bhagwandas, A.I.R (1947) ALL 18. Page 4 of 8 The plaintiff's counsel thus, urged the court to strike out the counterclaim for the irregularity mentioned above. I have considered the defendants' counterclaim, submissions by both parties and the law. In relation to the first court issue, I hasten to agree with the arguments advanced by both counsel that Order 1 r. 9 of the CPC provides that, no suit shall be defeated by reason of the misjoinder or non­ joinder of parties. However, it should be noted that there is an exception in this general rule especially where land disputes are involved. In the case of Mussa Chande Jape v. Moza Mohammed Salim, Civil Appeal No. 141 of 2018, CAT at Zanzibar, [2019] TZCA 490 the CAT also followed the Case of Departed Asians Property Custodian Board v. Jaffer Brothers Ltd (1999) 1 EA 55 where the Supreme Court of Uganda held that, there is a clear distinction between the joinder of a party who ought to have been joined as a defendant and the joinder of one whose presence before the court was necessary for it to effectively and completely adjudicate upon the questions involved in the suit. It was also underscored in the Oil Com case (supra) that, in land suits a person who is alleged in pleadings to have conferred land tittle to the parties or any of them by one means or another (such as by allocation or Page 5 of 8 sale) and the person to whom the tittle was so conferred are necessary parties to the suit whose presence is indispensable. In the absence of such parties no effective decree or order can be passed. In the instant counter claim, the defendant alleged that the plaintiff had disposed of the suit property though the person to whom the property was allegedly disposed of was neither mentioned nor impleaded. In my view, the said undisclosed person was a necessary party who ought to have been mentioned and joined in the counter claim to enable the court effectively determine all issues related to the ownership of the suit premises. This course would help in avoiding duplicity of suits and costs of trials since ail the necessary parties would be heard and bound by the court's decision. Based on the above reasoning am inclined to answer the first issue negatively that, the counter claim is incompetent. On the second court issue, I am of the view that, the omission to mention and implead the person to whom the suit property was allegedly disposed of, rendered the counter claim incompetent since that person was a necessary party. These legal requirements are based on the understanding that, without such necessary party being mentioned and impleaded, no Page 6 of 8 effective decree or order can be passed by the court. This position was underscored by the CAT in the in the Abdulatif case (supra) and the case of Farida Mbaraka and another v. Domina Kagaruki, Civil Appeal No. 136 of 2006, CAT at Dar es Salaam (unreported). In deciding the Farida Mbaraka case, the CAT took inspiration from a decision of the Supreme Court of India in the case of Razia Begum v. Anwar Begum AIR 1958 SC 886. This court was also of the same view in the case of Kennedy Kamwela v. Sophia Mwangulangu and Director of Mbeya Municipality, Misc. Civil Application No. 31 of 2004, HCT at Mbeya (unreported) and the Oil Com case (supra). Owing to the reasons shown above, I find the counter claim incompetent and I accordingly strike it out. Each party shall bear his own costs since the legal issues were raised by the court suo motu. In case the defendants still wish, they may file a proper suit involving all necessary parties. It is so ordered. JHK UTAMWA JUDGE 8/11/2022 Page 7 of 8 08/11/2022. CORAM; JHK. lltamwa, J. For Plaintiff: absent. For Respondents: Mr. Brayson Ngulo, State Attorney. BC; Gloria, M. Court; order of the court pronounced in the absence of the original plaintiff/now defendant in the counter claim and in the presence of Mr. Brayson Ngulo, learned State Attorney for original defendants/now plaintiffs in the counter claim, this 8th November,. 2022. JUDGE 08/11/2022. Page 8 of 8