land case no

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM LAND CASE NO. 3188 OF 2025 JOSEPH CHILEY MAYENJE............................................................ 1stPLAINTIFF SABRINA PAUL KYARA..................................................................2ndPLAINITIFF SILVESTER ADAM KYANDO.......................................................... 3rdPLAINTIFF

VERSUS ABRAHAMU GODWIN MSYETE....................................... DEFENDANT

RULING Date of last Order: 3/3/2025 Date of Ruling: 3/3/2025 LALTAIKA, J, The plaintiffs herein JOSEPH CHILEY MAYENJE, SABRINA PAUL KYARA and SILVESTER ADAM KYANDO (hereinafter referred to as the 1st, 2nd and 3rd Plaintiff or simply "Plaintiffs") instituted this suit against the Defendants named above seeking the following orders and/or reliefs: 1. A declaratory order that the 1st, 2nd and 3rd Plaintiffs are lawful owners of the three plots, one Plot no P41560 located at Mpiji Magohe with a size of 845.97square meters to the 1st Plaintiff, two, Plot no P41555 located at Mpiji Magohe with a size of 225.13 square meters to the 2nd Plaintiff and three, Unsurveyed Land with a size of 2,000 square meters located at Mpiji Magohe 1 adjacent to the two plots P41560 and P41555 both located at Mpiji Magohe, Ubungo Municipality, Dar es Salaam to the 3rd Plaintiff.

2. An order of eviction of the Defendant from the disputed land.

3. An order of demolition of building structures established by the defendant on the disputed land.

4. Permanent Injection against the Defendant, its assignees or any person acting on behalf of the Defendant from trespassing to the disputed land.

5. Genera! damages to the tune of TZS 300,000,000 arising from unlawful possession and development of the disputed land.

6. Costs of this suit be borne by the Defendant.

7. Any other reliefs this Court may deem fit and just to grant on the Circumstances of this case. When the suit was called for mention today 3/3/2025 Messrs. Benson Kuboja and Shundi Mrutii, learned Advocates appeared for the Plaintiffs and Defendant respectively. Mr. Kuboja informed the court that the matter was coming up for mention and that there had been an order to file an amended plaint, which had already been complied with. However, he stated that he had additional prayers to make. He explained that while preparing the amended plaint, he came across a decision of the Court of Appeal in Hassan Ally Wasama (Administrator of the Estate of the Late Ally Wasama) v. Mr. Haybe Ahmed Dudeh (Administrator of the Estate of the Late Ahmed Haj Mohamed) Civil Appeal No. 518 of 2020. He highlighted that, according to the ruling at page 8, paragraph 2, the Court had determined that in matters involving registered land, the Registrar 2 of Title and the Attorney General must be joined as necessary parties. He emphasized that that the decision was delivered on 4th December 2024 and was uploaded on TANZLII on 4th February 2025. In light of this ruling, Mr. Kuboja prayed for leave under Rule 17 of Order 6 of the Civil Procedure Code Cap 33 RE 2019 to further amend the plaint to include the Registrar of Title and the Attorney General as necessary parties to the application. He noted that

since the law required a 90-day notice to these parties, he was also seeking an order from the court waiving this requirement. To support his argument, Counsel cited this Court's decision in Mariam Amiri Milinga and 3 Others v. Peter Peter Junior and 11 Others Land Case No. 23 of 2023 in which a similar notice requirement had been waived by the court on 5th May 2023. In response, Mr. Mrutu stated that he had carefully listened to his learned friend but held a different view. He pointed out that this was the second amendment sought by the plaintiffs, who were now attempting to add a necessary party. He observed that the case had been filed in February 2025 and argued that the legal requirement to join the said parties had been in existence all along. 3 According to Mr. Mrutu, the omission to join the necessary parties rendered the case incompetent. He contended that the situation would have been different if the omitted parties had not been necessary. However, Counsel reasoned, since there was a procedural requirement that needed to be followed, the plaintiffs ought to have adhered to it. He further argued that the plaintiffs were effectively trying to craft their pleadings through the court, instead of preparing a complete case file before filing. On that basis, he prayed for the case to be struck out with costs. In rejoinder, Mr. Kuboja clarified that the first amendment had

been necessitated by the fact that a title deed had been obtained after the case had already been filed in court, specifically on 12th February 2025. On the second point, he argued that the plaintiffs had not previously had any facts justifying the inclusion of the Registrar of Title until they became aware of the Court of Appeal's decision. Mr. Kuboja emphasized that none of the plaintiffs had initially held a certificate of title, but they now did, making it appropriate to include the Registrar of Title in order to provide the court with a more comprehensive perspective. He further pointed out that no written statement of defense had been filed in the matter and refuted the assertion that the plaintiffs were 4 crafting their case through the court. Instead, he maintained that the plaintiffs were assisting the court in reaching a fair decision. Having carefully considered the submissions of both parties, the main issue for determination is whether the plaintiffs' suit should be allowed to proceed despite the failure to initially join necessary parties. It is a well-established principle that a suit must be properly constituted at the time of filing. In Lujuna Shubi Balonzi Senior v. Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203, this Court (Nyalali J. as he then was) emphasized that courts will not "make any determination of any issue that is academic,

hypothetical, premature or dead." In my opinion this particular suit, brought without necessary parties, is not only incompetent, as the absence of such parties affects the court's ability to grant effective relief but also premature. Failure to join a necessary party is not a mere procedural irregularity but a fundamental defect that may warrant striking out the suit. In the present case, the plaintiffs filed their suit in February 2025, yet they failed to join the Registrar of Title and the Attorney General, despite their evident interest in the matter. The argument that the plaintiffs only realized the necessity of their inclusion after the Court of Appeal's decision 5 is unpersuasive. The requirement to join these parties was not newly created by that decision but was an existing legal principle governing matters of registered land. I have invited Mr. Kuboja to conduct his research properly on both statutory and case law on the matter. Moreover, the plaintiffs' attempt to amend the plaint for the second time suggests that they are gradually shaping their case through the court rather than ensuring it was properly framed at the outset. This practice is inconsistent with the principle that litigation must be conducted in an orderly and efficient manner. The learned Advocate only needed to realize that he started on a wrong footing, pray to withdraw the suit without cost and

wait for the court to decide. That is what his learned friends have been doing as a courtesy to one another and serving the court's time. For these reasons, I am persuaded by the defendants' arguments that the suit is fatally defective. Since a suit filed without necessary parties is incompetent, the appropriate remedy is to strike it out rather than allow further amendments. Accordingly, the suit is struck out with costs for failure to join necessary parties at the time of filing. 6 It is so ordered. E.I. LALTAIKA

JUDGE 03.03.2025 Court: Ruling delivered in Court Chambers this 3rd day of March 2025 in the presence of Messrs. Benson Kuboja and Shundi Mrutu, learned Advocates for the Plaintiffs and the Defendants respectively. 7