john vitalis ngonyani vs fanyeje ally 2018 tzhclandd 15 19 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPEAL NO. 37 OF 2017 (From the decision of the District Land and Housing Tribunal of Kinondoni in Land Case Appeal No. 96 of 2011 and Original Ward Tribunal of Msigani Ward Application No. 22 of 2015) JOHN VITALIS NGONYANI.......................................... APPELLANT VERSUS FANYEJE ALLY........................................................ RESPONDENT Date o f last order: 07/11/2017 Date o fJudgment: 19/02/2018 JUDGMENT Makuru. J.: In the Ward Tribunal of Msigani in Application No. 22 of 2015 the Appellant John Vitalis Ngonyani successfully sued the Respondent, Fanyeje Ally and one Method Anthony, who are alleged to be husband and wife. Dissatisfied with the decision of the trialTribunal,the Respondent appealed to the District Land and Housing Tribunal onthe ground that the trial Tribunal erred by recognizing a Sale Agreement which did not involve the Spouse, who is the Respondent in this case. The first Appellate Tribunal allowed the Appeal and the transaction was declared to be a nullity. The Appellant was aggrieved by the decision, hence this appeal. He preferred the appeal on the following grounds: i 1. That the District Land and Housing Tribunal for Kinondoni erred in law and fact for entertaining the appeal that had different parties from original proceedings at the Msigani Ward Tribunal. 2. That the District Land and Housing Tribunal for Kinondoni erred in law and fact for its failure to hold that the Respondent's claim in the land in dispute had already been determined in another case previously instituted by the Respondent and concluded by the Msigani Ward Tribunal. 3. That the District Land and Housing Tribunal for Kinondoni erred in law and fact for holding that the Respondent and one Method Anthony were wife and husband and the land in dispute was matrimonial asset without the said Method Anthony being a party to that appeal. When the appeal was called on for hearing Mr. Katemi, learned counsel, appeared for the Appellant while the Respondent appeared in person, unrepresented. The Respondent prayed that the matter be disposed of by way of written submissions. There being no objection from the learned counsel for the Appellant, the application was granted. Hence, the Appeal was disposed of by way of written submissions. Submitting in support of the appeal, Mr. Katemi started with the first ground and argued that, Method Anthony was a party in the original case, it was alleged that he was the Respondent's husband as well as the seller of the land in dispute but he was not joined on appeal. Citing the case of Juma Kadala Vs Laurent Mnkande (1983) TLR 103, Mr. Katemi stated that the presence of the seller, Method Anthony, in the appeal was crucial. It is therefore the learned counsel's contention that the first Appellate Tribunal was wrong to entertain the appeal with different parties. As for the second ground of appeal, it was argued that this matter has already been determined by Msigani Ward Tribunal in Land Case No. 37 of 2017 and the Respondent was ordered to give vacant possession. Method Anthony was also ordered to build another house for the Respondent. According to Mr. Katemi, this decision was never challenged. Hence, Land Case No. 17 of 2011 before the Ward Tribunal was res judicata. The learned counsel went on to state that the issue of res judicata was raised on appeal in District Land and Housing Tribunal (DLHT) but it was ignored by the Chairman. On the last ground of appeal it is submitted that it is wrong to deliberate on the marital status of the Respondent and Method Anthony in the absence of the latter. In rebound, regarding the 1st ground of appeal the Respondent contended that the DLHT properly entertained the matter for which it had different parties. She referred to Order 9 of the Civil Procedure Code, Cap 33 R.E. 2002 which provides that: "No suit shall be defeated by reason o f the misjoinder or non-joinder o f parties, and the court may in every suit deal with the matter in controversy so far as regards this right and interests o f the parties actually before it". 3 Considering the provisions of the above quotation, she submitted that this court should not use technicalities to defeat justice but protect the rights and interests of parties. With regard to the second ground of appeal, she argued that the Appellant failed to meet the parameters set for res judicata. She submitted that, Misc. Land Application No. 194 of 2007 was dismissed and the entire proceedings of Land Case No. 37 of 2007 were quashed and set aside on the ground that the Ward Tribunal had no jurisdiction to entertain a matrimonial cause. According to her, it was absurd and a waste of the court's precious time. She further argued that there was no document tendered by the Appellant showing that the matter was determined to its finality between the same parties and subject matter. As for the 3rd ground that it was wrong to deliberate on marital status between the Respondent and one Method Anthony in the absence of the said Method Anthony himself, she argued that the ground lacks merit and is supported by baseless arguments. In determining this appeal I will consider only the first ground of appeal as it disposes of the appeal. Upon perusal of the record, the parties at the trial Tribunal were John Vitalis Ngonyani Vs. Method Anthony and Fanyeje Ally. It is alleged that the Respondent, Fanyeje Ally is the wife of the said Method Anthony. Unfortunately, Method Anthony was not a party in the appeal to the DLHT. Consequently, he is not a party in this appeal. It is also on record that the said Method Anthony is the one who sold the disputed land to the Appellant and that he bought the same from one Saidi Mfaume for Tshs. 120,000/=. There is a Sale Agreement to that effect. The Respondent in this case was not privy to the Sale Agreement between the Appellant John Vitalis Ngonyani and Method Anthony. There is no evidence that the Respondent was married to Method Anthony or that there was presumption of marriage. In addition, there is no proof that the Land in dispute was matrimonial property and the Respondent had an interest. During Trial, one Tabu Ally testified to the effect that, she and Method Anthony together bought the land in dispute. She did so as Method Anthony's fiancee. This evidence was not challenged during trial and that the Tribunal's record is silent on whether the Respondent was given an opportunity to cross examine the said Tabu Ally. Yet, the appeal at the DLHT was based on the fact that the Ward Tribunal wrongly considered the Sale Agreement which did not involve the alleged vendor's spouse. I am of the considered view that the Sale Agreement constitutes the terms and conditions of the sale of the disputed land by the seller Method Anthony to the buyer John Vitalis Ngonyani, who is the Appellant in this case. It is only a party to the Sale Agreement who is bound by obligations to which he/she consented and not any other person. Thus, it was not proper to join the Respondent in the trial court. I am of the considered view that the terms of the Sale Agreement determine the content of the contractual obligations, whereby the Respondent has no contractual obligation as she is not a party. Hence, it is not an issue of misjoinder or non-joinder of parties as alleged by the Respondent but it is a matter of contractual obligation. Therefore, it was incumbent that the seller Method Anthony, the first Respondent in Application No. 17 of 2011 in Msigani Ward Tribunal, proceedings ought to have been instituted against him because he was a party to the Sale Agreement. The Appellate Tribunal noted this incurable irregularity by holding that: "The proper order would not have been ...to give the Appellant an alternative land, rather the trial Tribunal ought to have nullified the sale transaction which was not connected by the Appellant" From the above quotation it is obvious that the Appellant in the first appellate Tribunal, who is the Respondent in this case, Fanyeje Ally was not involved in the Sale transaction of the land in dispute. As rightly submitted by Mr. Katemi, the absence of the person who sold the land in dispute to the Appellant rendered the entire proceedings fatal defective. Therefore, the case of Juma Kadala (Supra) is relevant. It is impossible to make orders in this matter without affecting the rights of Method Anthony who will not have an opportunity to be heard. I am of the stand that he has the right to be heard on matters which will affect him, considering that he is the seller of the disputed land. Consequently, for the reason of fatal defect in the proceedings of the trial Tribunal, I find that there was nothing to move to the Appellate Tribunal. In the final analysis, I find that the anomaly occasioned miscarriage of 6 justice. Therefore, the proceedings of the trial Tribunal and the subsequent appeal are hereby quashed and set aside. In the event, I direct that the trial Tribunal's file be remitted back to Msigani Ward Tribunal with direction that the matter proceeds against Method Anthony in accordance with the law. That held, I do not find any useful purpose in considering the other grounds of appeal. In the final result, this appeal succeeds to the extent indicated herein above. I make no order as to costs. JUDGE 19/02/2018 Court: Judgment delivered in court this 19th day of February, 2018 in the presence of Mr. Pius Musiba holding brief for Mr. Katemi, learned counsel for the Appellant and the Respondent in person. C.W. Makuru JUDGE 19/02/2018