CIVIL APPEAL NO 218 OF 2022 JOSEPH SYLVESTER MARIANGWE VS JONAS SAMSON NDAWAVYA Copy

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM; WAMBALI- J.A.. KIHWELO. J.A. And ISSA. J.A.T CIVIL APPEAL NO. 218 OF 2022 JOSEPH SYLVESTER MARIANGWE.....................................APPELLANT VERSUS JONAS SAMSON NDAWAVYA (As an Administrator of the Estate of the Late PAULINA SAMSON NDAWAVYA).....RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Mwanza) (Mqevekwa. J.l Dated the 21st day of July, 2020 in Miscellaneous Land Application No. 44 of 2020 JUDGMENT OF THE COURT 11th & 19thJuly, 2024 WAMBALI. 3.A.: Paulina Samson Ndawavya, who passed away on 3rd May, 2017 instituted a suit against Theresia Thomas Madaha in the High Court of Tanzania at Mwanza which was registered as Land Case No. 44 of 2012. The dispute between the parties involved ownership of piece of land on Plot No. 202, Block "U" Rwagasore Street within the City and Region of Mwanza. At the end of the trial, the High Court dismissed Paulina Samson Ndawavya's suit with costs in favour of Theresia Thomas Madaha. Aggrieved, she successfully challenged the decision of the High Court to this Court vide Civil Appeal No. 45 of 2017. The Court declared that the sale of the disputed land on Plot No. 202, Block "U" Rwegasore Street to the late Paulina Samson Ndawavya was lawful. The Court thus ordered that the transfer of the title to her should be done subject to payment of TZS. 10,000,000.00 to Theresia Thomas Madaha within sixty days after the delivery of the judgment, that is, 11th December, 2019. It is noteworthy that the decision of the Court in Civil Appeal No. 45 of 2017 prompted Theresia Thomas Madaha to lodge Civil Application No. 31/08 of 2023 seeking review of the judgment. Nevertheless, the said application was found meritless and dismissed with costs on 6th June, 2024. It is also not out of place to point out that after the decision of the Court in Civil Appeal No. 45 of 2017, on 30th December, 2019, Mr. Jonas Samson Ndawavya, the administrator of the estate of the late Paulina Samson Ndawavya having been so appointed by the Mwanza Urban Primary Court on 9th September, 2018 filed an Application for Execution No. 1 of 2020 before the High Court which was determined by the Deputy Registrar who issued the ruling on 5th May, 2020 in favour of the respondent. Following the said decision, Mr. Joseph Sylvester Mariangwe, the respondent in this appeal, who was not a party to both the suit and Civil Appeal No. 45 of 2017 between Theresia Thomas Madaha and the late Paulina Samson Ndawavya, but alleged to be a bonafide claimant lodged Miscellaneous Land Application No. 44 of 2020 before the High Court in which he prayed that Paulina Samson Ndawavya be summoned for the purpose of investigating the ownership of the property which was in dispute between the former parties. As it were, the High Court declined to exercise jurisdiction after it sustained a point of objection raised by the respondent. It particularly declared that since the Court of Appeal in Civil Appeal No. 45 of 2017 had ordered that the property which was the subject of the application, had to be transferred to the respondent, it had no jurisdiction. Indeed, the High Court proceeded to dismiss the appellant's application in its entirety with costs. It is the High Court decision which prompted the appellant to approach this Court armed with a memorandum of appeal comprising three grounds of appeal. However, for the reason to be apparent shortly, we do not deem it appropriate to reproduce the respective grounds of appeal herein. It is noteworthy that, this appeal, like the application before the High Court, was lodged by the appellant against Paulina Samson Ndawavya who died on 5th May, 2017 as intimated above. Therefore, Jonas Samson Ndawavya, the administrator of her estate was joined as his legal representative in her place after he successfully applied to the Court in Civil Application No. 358/8 of 2023 as per the order dated 11th July, 2024. Jonas Samson Ndawavya was so joined pursuant to rule 92 of the Tanzania Court of Appeal Rules, 2009 which states: "92 (1) An appeal shall not be instituted in the name of a person who is dead but may be instituted in the name o f his legal representative. (2) An appeal shall not be incompetent by reason only that the respondent was dead at the time when it was instituted but the Court shall on the application of any interested person cause the legal representative of the deceased to be made a party in place o f the deceased." Following the joining of the legal representative in the appeal and upon scrutiny of the record of appeal, we required parties to address the Court whether the proceedings in Civil Application No. 44 of 2020, the subject of this appeal which commenced and completed against Paulina Samson Ndawavya, the deceased, were properly conducted. Responding, Ms. Jacquline Rweyongeza, learned advocate who appeared for the appellant at the hearing, readily conceded that the proceedings before the High Court were null and void. She submitted that according to the record of appeal, there is no doubt that the application was lodged and determined by the High Court against the deceased respondent who had passed away in 2017 contrary to the requirement of the law. She added that though Jonas Samson Ndawavya lodged a counter affidavit to contest the application as the administrator of the estate of the late Paulina Samson Ndawavya, there is no indication in the record that he was formerly joined in the proceeding by the High Court. In the circumstances, Ms. Rweyongeza submitted that the proceedings before the High Court were null and void. In this regard, she implored the Court to nullify the respective proceedings and remit the file to the High Court for conducting proceedings afresh in accordance with the law. In the end, she prayed that in the circumstances of the appeal before the Court, parties should be ordered to bear their respective costs. On the other side, though Mr. Elias Ruchonyo Hezron, learned advocate who appeared for the respondent blamed the appellant for lodging the application in the name of the deceased Paulina Samson Ndawavya, he fully concurred with Ms. Rweyongeza that, the proceedings before the High Court were null and void because the legal representative was not formerly joined as required by law. He also joined hands with her and prayed that the respective proceedings be nullified followed by an order remitting the file in Civil Application No. 44 of 2020 for hearing afresh after joining the legal representative of the respondent. He equally agreed that parties should bear their respective costs. According to the record of appeal, there is no dispute that the appellant lodged at the High Court Civil Application No. 44 of 2020 on 22nd May, 2020 against the respondent, Paulina Samson Ndawavya who passed away on 5th May, 2017. Moreover, it is in the record of appeal that the application was heard and determined on 21st July, 2020 against the deceased respondent. Indeed, though the record of appeal show that Jonas Samson Ndawavya lodged the counter affidavit to contest the application as the administrator of the estate of the late Paulina Samon Ndawavya, and was represented by Mr. Hezron, learned advocate during the hearing, there is no evidence on the record to show that he was formerly joined in the proceedings by the High Court. We therefore agree with the learned counsel for the parties' concurrent submissions that the proceedings before the High Court were improperly conducted. The proceedings were therefore null and void because the omission to cause the legal representative to be made a party in place of the deceased respondent constituted a serious irregularity. Unfortunately, both the appellant and Mr. Jonas Samson Ndawavya did not prompt the High Court to rectify the anomaly and thus, the application proceeded for hearing as if the deceased fully participated in the proceedings. This is despite the fact that Jonas Samson Ndawavya who lodged the counter affidavit opposing the application deposed that he was the administrator of the estate of the deceased and attached a copy of letter of appointment to that effect. In the circumstances of the appeal before us, since the application was filed against the respondent who had passed away almost over three years, it was wrongly presented and entertained by the High Court. Indeed, it was a nullity because the deceased respondent could not be taken to have been a party. Besides, her legal representative could not be joined in the proceedings in which the application was lodged in her name. For this stance, see for instance, the decision of the Court in Juma A. Zomboko and 42 Others v. Avic Coastal and Development Co. Ltd and 4 Others (Civil Application No. 576/17 of 2017) [2021] TZCA 3541 (16 November 2021, TANZLII) and Exim Bank (Tanzania Limited v. Yahaya Hamis Musa (As the Administrator of the estate of the late Hamisi Musa Mohamed t/a MAPILAU GENERAL TRADERS) (Civil Appeal No. 275 of 2019) [2022] TZCA 598 (30 September 2022, TANZLII). In the latter decision, apart from making reference to the decision of the High Court of Tanganyika in Babubhai Dhanji v. Zainab Mrekwe [1964] 1 E.A. 24, the Court was inspired by the decision of the case from India in Prestige Finance P Ltd v. Balwant Singh and Another 1978 48 CompaCas 459 Delhi, where it was stated, among others, that: "If a suit is filed against a dead person, then it is a nullity and you cannotjoin any legal representatives; you cannot even join any other party because it is just as if no suit had been filed. On the other hand, if a suit is filed against several persons, one of whom happens to be dead when the proceedings were instituted, then the proceedings are not nuii and void, but the court has to strike out the name of the party who has been wrongly Joined. Such a person would be deemed to be wrongly joined, because he was dead on the date o f the institution o f the suit and, therefore, incapable of beingjoined." [Emphasis added] In the circumstances, since it is settled that the appellant's application before the High Court was against a deceased party, it was a nullity. Equally important, the legal representative could not be joined. The proper remedy was for the High Court to strike out the application to enable the appellant to lodge a fresh application in which he would have joined the legal representative of the deceased Paulina Samson Ndawavya. We are supported in this stance by the decision of the Court in Juma A. Zomboko and 42 Others (supra) and Exim Bank (Tanzania) Limited (supra). In this regard, we decline an invitation by the counsel for the parties who pressed us to simply nullify the proceedings and remit the file in Civil Application No. 44 of 2020 to the High Court for conducting fresh proceedings after joining the legal representative of the deceased Paulina Samson Ndawavya. This is because the respective application had to be struck out as it was filed against a dead person. It follows that, the entire proceedings were a nullity. Consequently, we hereby nullify, and quash the proceedings in Civil Application No. 44 of 2020, set aside the order of dismissal and substitute thereof with an order striking out the application in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141. In the end, in the circumstances of the appeal before the Court, we make no order as to costs. DATED at MWANZA this 19th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 19th day of July, 2024 in the presence of Mr. Elias R. Hezron, learned counsel for the respondent also holding brief for Ms. Jackline Rweyongeza, learned counsel for the appellant; is hereby e copy of the original. Z D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL