jina vuai makame vs mwajuma vuai haji others 2015 tzhc 2170 15 june 2015

IN THE HIGH COURT FOR ZANZIBAR HELD AT VUGA CIVIL APPEAL NO. 21 OF 2014 FROM ORIGINAL APPEAL NO. 01 OF 2012 THE REGIONAL MAGISTRATE’S COURT AT MWERA %JINA VUAIM AK AM E .................... APPELLANT VERSUS 1. MWAJUMA VUAI HAJI 2. KHALID KHAMIS ABDALLA 3. ABDALLA KASSIM F A K I .......... RESPONDENTS. Date of last order 08/04/2015 Date of Judgment 15/06/2015 JUDGMENT MWAMPASHI, J. This appeal arises from Mwera Primary Court Civil Suit No. 24/2005 which was filed by the appellant Jina Vuai Makame against Khalid Khamis Abdalla and Abdalla Kassim Faki who in this appeal are the 2nd and 3rd respondents. The suit which was decided in the appellant's favour was over a plot of land from which the 3rd respondent was ordered to remove or demolish his building and handover a vacant plot to the appellant. The Primary Court decision was based on the findings from the ex parte hearing conducted by it against the 2nd and 3rd defendants whereby it was established by evidence adduced by the appellant that the 2nd respondent who sold the plot in dispute to 3rd respondent could not have done so because he had firstly sold it to the appellant. It was found by the Primary Court in its judgment dated 30/09/2005 that the 2nd respondent having sold the plot to the appellant had in law nothing to again sale to the 3rd respondent. In 2008 the 3rd respondent attempt to set aside the Primary Court ex parte judgment proved futile. Even his second attempt before Mwera District Court where he filed an application for leave to file an appeal against the Primary Court decision out of time was refused by the District Court on 07/08/2008. It was after the 3rd respondent’s efforts to set aside and reverse the Primary Court decision had failed when the 1st respondent Mwanajuma Vuai Haji, who was not a party to the above named Primary Court but a wife of the 3rd respondent, did in 2011, file her application in the Primary Court asking the court to join and make her a party to the suit. Her argument was that the 2nd respondent did in fact sale the plot in dispute to her and not to the 3rd defendant. The application was refused by the Primary Court on 25/07/2011. It should also be noted that the application the 1st respondent filed in the Primary Court to be made a party to the suit came as the result^Jher suit in the Land Tribunal which she had filed against the appellant and the 2nd respondent had been dismissed for being res judicatar^ on 24/05/2010. After the Primary Court's refusal to join her to the suit the 1st respondent unsuccessfully appealed against the Primary Court’s refusal to the District Court (Civil Appeal No. 2/2011. Her appeal was dismissed by the District Court on 30/05/2012. Thereafter the 1st respondent appealed to the Regional Court (Civil Appeal No. 1/2012). The Regional Court in its judgment dated 26/06/2013 allowed the appeal, quashed the lower courts’ decision of refusing to join the 1st respondent to suit, set aside the Primary Court ex parte judgment and directed that the 1st respondent may file a fresh suit against the appellant and the other two respondents. It is this decision by the Regional Court that has aggrieved the appellant hence this appeal at hand. In her memorandum of appeal which comprises three grounds of appeal, the appellant is basically complaining that the Regional Court Magistrate did err in quashing the Primary Court ex parte judgment and in ordering that the 1st respondent be joined to the suit while the 1st respondent was all aware of the suit in question since its inception but she never bothered to apply to be joined to the suit till when the suit was finally decided and^hen lcO M * the decree was in the process of being executed. At the hearing of the appeal the appellant who was not represented insisted that it was wrong for the Regional Court to allow the 1st respondentsappeal and order that she be made a party to the suit while the 1st respondent knew about the existence of the suit against the rest of the respondents from the very early stages of the suit. She therefore prayed for this court to consider the grounds raised in support of the appeal and allow the appeal. The 2nd respondent who did appear and ask for an adjournment on 29/10/2014 when this appeal was called for hearing for the first time, failed to appear on the date the hearing of the appeal was adjourned and for that reason the hearing had to proceed in his absence. As for the 3rd respondent the hearing had to proceed in his absence because it was reported that he had passed away. On her part the 1st respondent asked for the dismissal of the appeal arguing that the plot in dispute was bought by her from the 2nd respondent through the 3rd respondent who was 1^ her husband. She also contended that she did not know anything about the appellant’s suit and the decree till when the decree was being executed. It can be observed that in her judgment the learned Regional Court Magistrate who made the decision which is the subject of this appeal based her decision on Order 1 rule 3 of the Civil Procedure Rules, Cap 8. She was of the view that since under that provision it is provided that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist, then the lower courts ought to have allowed the 1st respondent to be joined to the suit. It is my considered vie that the learned Regional Court Magistrate misdirected herself when she applied the said provision to the suit at hand. Order I rule 3 of the Civil Procedure Decree, Cap 8 does not apply where a suit in question has been conclusively decided. The 1st respondent could not have been made a party to the suit which had already been finally determined. It is also not acceptable, under the circumstances of this suit, that the 1st respondent, who claim that she had asked the 3rd respondent to buy the plot in dispute from the 2nd respondent for her and who was the 3rd respondent’s wife, could not have been aware of the suit and the decree in question till when the decree was in the process of being executed. As demonstrated above the 3rd respondent did make several attempts to reverse the Primary Court decision but all in vain. It was after the 3rd respondent’s efforts have proved futile when the 1st respondent came out and filed her suit firstly in the Land Tribunal and then her application in the Primary Court. The circumstances surely suggest that the 1st respondent had knowledge of the suit from its inception but did not take any required legal steps to be made a party to the suit at the earlier stage. The 1st respondent had no any reason, if she really had any legal interests to the plot in dispute not to join the suit at the earliest stage but wait till when the suit has been conclusively decided. It is for the above given reasons, particularly that the 1st respondent could not be joined as a party to the suit which had been conclusively decided, that the appeal is hereby allowed. The Regional Court decision is quashed and the lower courts’ decision refusing to allow or make the 1st respondent a part to Primary Court Civil Suit No. 24/2005 is upheld. The Primary Court ex parte judgment dated 30/09/2005 is also confirmed. The appeal is allowed with costs. Sdg: Abraham Mwampashi J. , Judge, 15/ 06/ 2015. Delivered in court this 15th June, 2015 in the presence of the appellant and the 1st respondent. The right of appeal is explained. Sdg: Abraham Mwampashi, J Judge, 15/ 06/2015 I CERTIFY THAT THIS IS A TRUE COPY OF ORIGINAL rM 1 DEPUTY REGISTRAR HIGH COURT ZANZIBAR Mbs/...