JULIUS CHINOTO MASAGASI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 64 OF 2023 (Arising from Land Application No. 156 of 2018 in the District Land and Housing Tribunal for Dodoma) JULIUS CHINOTO MASAGASI...................................1st APPELLANT MARTIN LUTHER SCHOOL...................................... 2nd APPELLANT VERSUS SHAFII HUSSEIN MNDEME................................ 1st RESPONDENT DODOMA CITY COUNCIL.................................... 2nd RESPONDENT RULING I0 h & 31st July, 2024 MUSOKWA, J. This is a dispute involving two acres of land situated at Iyumbu Village, in Dodoma region. The appellants herein, being aggrieved by the decision issued by the District Land and Housing Tribunal for Dodoma (DLHT), in Land Application No. 156 of 2018, approached this court seeking redress by way of an appeal. Before delving into the merits or otherwise of the appeal and upon close scrutiny of the records, thecourt, suo mottu, directed the parties to address it on the following issues: - 1. Whether it was proper for the 2nd respondent to be a party to the present appeal. 2. If the 1st issue is answered in the affirmative; whether the Attorney General (AG) is a necessary party to the present appeal. The learned state attorney, Mr. Omary Ngatanda, appearing for the 2nd respondent was the first to submit. Mr. Ngatanda referred to page 37 of the typed proceedings of the DLHT whereby it is recorded that the matter was withdrawn against the 2nd respondent. Mr. Ngatanda averred that the said withdrawal, was due to the fact that the DLHT had no jurisdiction to entertain the matter against the 2nd respondent. Submitting further, the 2nd respondent's counsel asserted that before the DLHT, the applicant prayed to drop the 2nd respondent on the basis of Order 1 Rule 3 of the Civil Procedure Code, Cap. 33, R.E. 2019 (CPC), which provides that the applicant has the right of choice on whom to sue. According to Mr. Ngatanda, upon the withdrawal of the matter against the 2nd respondent, it was erroneous for the proceedings thereafter to continue indicating the 2nd respondent as a party. In emphasis, he stated that this was a fatal irregularity. In line with the aforementioned, for the present appeal to include the 2nd respondent who was dropped by the order of the DLHT, is a continuation of the said irregularity. The learned state attorney prayed that on the basis of the foregoing, the appeal should be dismissed. The 1st respondent enjoyed the services of Mr. Robert Owino, learned advocate. Mr. Owino, being in agreement with the counsel for the 2nd respondent, submitted that indeed the proceedings of the DLHT indicate that the matter was withdrawn against the 2nd respondent. This was the result of amendments of the law, therefore the Written Laws Miscellaneous Amendment Act, No. 1 of 2021. The said law amended section 6 of the Government Proceedings Act, Cap. 5, R.E. 2019, by widening the scope of proceedings against the government, to include the local government authorities. This resulted in the requirement for all such proceedings to be instituted in the High Court. The learned counsel proceeded to state that subsequent to the aforementioned amendments, the options that were available to the applicant in the matter before the DLHT were as follows: - a) If it was necessary for the 2nd respondent to be part of the proceedings, then the appropriate legal recourse for the applicant would have been to withdraw the matter at the DLHT and thereafter to file the matter at the proper forum, therefore, at the High Court. b) The applicant to pray for leave to withdraw the matter against the 2nd respondent, and the matter to proceed at the DLHT in the absence of the 2nd respondent. Mr. Owino asserted that, the applicant decided that the 2nd respondent, was not a necessary party and hence, preferred the second option. Therefore, the applicant prayed to withdraw the matter against the 2nd respondent under Orderl Rule 3 of CPC, whereby the prayer was granted. The learned advocate, contrary to the assertions of the counsel for the 2nd respondent, submitted that the proceedings of the DLHT, thereafter, do not indicate the presence of the 2nd respondent. In addition, thereto, no further submissions of the said respondent were recorded. However, the anomaly that transpired was for the 2nd respondent to appear in the judgment of the DLHT. According to Mr. Owino, the possible remedy for the appearance of the 2nd respondent in the judgment was through review, in accordance with section 78 (1) (b) of the CPC. The section provides for review of a decree or judgment, in the court or DLHT which issued the decision. In conclusion, Mr. Owino stated that the appearance of the 2nd respondent in the present appeal is an apparent error on the face of the records, considering that this party was dropped at the DLHT. In the circumstances, the learned advocate submitted that the appeal before this court is incompetent and he prayed for a dismissal order. Submitting on the issues raised by the court, Mr. Elias Machibya for the appellant averred that the presence of the 2nd respondent in this appeal is the result of two reasons. The first reason is that the 2nd respondent is part and parcel of the proceedings and the judgment of the DLHT. Accordingly, it was necessary for the appellant to join the 2nd respondent as a party to the present appeal. Proceeding further, Mr. Machibya submitted on the second reason that the manner in which the said respondent was dropped at the DLHT, by an order dated 29th May, 2021 reflected at page 37 of the proceedings, is the gist of the appeal before this court. Mr. Machibya prayed that the court should refer to the 1st and 2nd grounds of appeal. The aforementioned grounds of appeal challenge the jurisdiction of the DLHT, and the course taken to amend the pleading, and allow the withdrawal of the 2nd respondent. According to Mr. Machibya, the contention between the parties is centered on the enactment of the Written Laws (Misc. Amendment) Act, No. 1 of 2021. The aforementioned law, under section 25 and 26, amended the Government Proceedings Act, resulting in the requirement to join the Attorney General in all suits against local government authorities. In addition, such suits ought to be instituted in the High Court. Proceeding further, the appellant's counsel referred to page 37 of the DLHT's proceedings. The applicant at the tribunal, the 1st respondent in the present appeal, preferred to withdraw the matter against the 2nd respondent. According to Mr. Machibya, the reason for the said withdrawal, was to cure the defect of the jurisdiction of the DLHT. The appellant vehemently challenged the procedure for withdrawal, contending that subsequent to the aforementioned amendments of the law, the tribunal lacked jurisdiction even to permit the said withdrawal. Thus, the entire procedure was marred with irregularities. The appellants' counsel asserted that in the circumstances, lodging the present appeal and including the 2nd respondent as a party was the only viable option. In that regard, the instant appeal is competent. Emphasizing on the need to join the 2nd respondent in the present appeal, Mr. Machibya stated that this party has a right to be heard on the issues before this court. 6 In addressing the 2nd issue that was raised by the court, on whether or not it was proper for the 2nd respondent to be part of this appeal without joining the Attorney General; Mr. Machibya responded in the affirmative, that it was proper. The reason being that an appeal should strictly comprise of the parties who were involved in the trial. The cases of Michael George Mahanga and 8 Others, vs Tabora Municipal Council, DC Civil Appeal No. 14 of 2020, HC of Tabora; and The Registered Trustees of Masjid Al-Azhal vs Assistant Registrar of Titles and Another, Misc. Land Appeal No. 4278 of 2024, (all unreported) were preferred by the appellant in support of his position. Without prejudice to the foregoing, Mr. Machibya submitted that in the circumstances that this court finds the Attorney General to be a necessary party to the present appeal, the available remedy is two-fold as follows: - 1) The Attorney General may apply to be joined as a party, as provided under section 17 (1), (2), and (3) of the Office of the Attorney General (Discharge of Duties) Act, Cap. 268, R.E. 2019. The case of The Attorney General vs Mary Peter Otaru and 2 Others, Misc. Civil Application No. 32 of 2020 (unreported) was cited; and 2) This court can order that the necessary party be joined, as provided in the case of The Registered Trustees of Masjid (supra). Finally, the appellant's counsel invited this court to exercise its revisional powers under section 43 (1) (a) and (b) of the Land Disputes Courts Act, Cap. 216 of R.E. 2019 (LDCA Cap. 216), in the event that it finds the present appeal to be incompetent. The cases of Tryphone Elias and Another vs. Majaliwa Daudi Mayaya, Civil Appeal No. 186 of 2017; and Julius George Kibaja vs Mwatanga Omary, Civil Revision No. 37 of 2020 (all unreported) were preferred. In answering the issues raised suo mottu, I will start with whether or not it was proper for the 2nd respondent (Dodoma City Council) to be a party to the present appeal. The DLHT's records will be reproduced for ease of reference; at page 37 of the DLHT proceedings, it is recorded as follows: - "Hamad Said Advocate: We pray to withdraw the case against the 2nd respondent and proceed with the J d and 1st respondents. Mbasha Advocate: We object the same since wiii affect the other respondents thus we object Order: I have heard the submissions it should be known that the applicant is the one who filed this matter and the one who chooses whom to sue as per order 1 rule 3 o f CPC with the fact that this tribunal has no jurisdiction against the 2nd respondent, I can agree with that as on the previous date I asked the counsel to address on that aspect and they have addressed the same. Also, if this order is granted no injustice would be occasioned on the side o f the 1st and J d respondents. Therefore, the matter is marked withdrawn against the 2nd respondent and will proceed against the 1st and 3rd respondents. [emphasis added] Sdg: J.F Kanyerinyeri Chairman 29/05/2021" Similarly, at page 13 of the judgement issued by the DLHT, it is stated that: "it is worth to point at this juncture that the applicant sued the above respondents but later on decided to drop the J d (sic) respondent from this matter and the prayer was granted... In that regard, Dodoma City Council was undoubtedly not a party to the proceedings at the DLHT with effect from 29/05/2021. Mr. Machibya, submitted that Dodoma City Council was included in this appeal because it was part and parcel of the proceedings and the judgment of the DLHT. Another reason advanced by Mr. Machibya is that withdrawal of Dodoma City Council is contentious and it is reflected on the grounds of the appeal and therefore, it is important to join Dodoma City Council so as to afford her the right to be heard. Fortunately, Mr. Machibya is in agreement with the cherished legal principle that an appeal should strictly comprise parties who were involved in the 9 DLHT. In support thereof, he cited the cases of Michael George Mahanga and 8 Others, vs Tabora Municipal Council, DC Civil Appeal No. 14 of 2020, HC of Tabora; and The Registered Trustees of Masjid Al-Azhal (supra). On the part of Mr. Ngatanda, he submitted that upon the withdrawal of the matter against Dodoma City Council, it was erroneous for the proceedings thereafter to continue recording the said party. It was submitted further that the present appeal to include the Dodoma City Council who was dropped by the order of the DLHT, is a fatal irregularity. The learned state attorney prayed that on the basis of the said irregularity, the appeal should be dismissed. The first respondent through Mr. Owino submitted that the appearance of the Dodoma City Council in the present appeal is an apparent error on the face of the records, considering that the said party was dropped at the DLHT. In the circumstances, the learned advocate submitted that the appeal before this court is incompetent and prayed for dismissal. As reflected on the records of the DLHT, Dodoma City Council was withdrawn by the order dated 29/05/2021 and therefore was not heard at the DLHT. It 10 follows therefore that this court being an appellate court cannot afford Dodoma City Council an opportunity for a fair trial and the right to be heard at the appellate stage, while she was not party before the DLHT. Truly, no appeal can exist without a trial; and the right of a party to be fully heard on on an appeal begins at the trial stage and not otherwise. In the case of Mustapha Lyapanga Msovela vs Tanzania Electric Supply Co. Ltd Iringa Regional Manager and Another, Civil Appeal No. 16 of 2020 (unreported), this court held as follows: - "Now, it is not disputed that the second appellant in the present appeal was not a party in the original suit He was thus, obviously not heard in the trial as far as the impugned ruling was concerned...It follows thus, that, permitting the appellant in the present appeal to join her as the second respondent will amount to setting a bad precedent This is because, no fair trial will be afforded to her. Again; this court will be breaching the principles o f Natural Justice because; a party's full right to be heard on an appeal begins at the trial stage. In fact, according to the arrangement under the CPC which governs this matter, no appeal can exist without a trial. The right to be heard therefore, also follows that pattern too. This is also what is underscored by article 13(6)(a) o f the Constitution just discussed above. It is therefore my conviction that, in law, an appellate court cannot purport to give to a respondent before it a fair trial and the right to be heard at the appellate stage, if such respondent was not party to the trial" [emphasis added] 11 As correctly submitted by Mr. Machibya, the law regarding the right of appeal by parties is well settled. The said right is exclusively vested to the parties who have been involved in the original suit and not any other person. In the case of CRDB Bank Pic (Formerly CRDB (1996) Ltd) Vs George Mathew Kilindu, Civil Appeal No. 110 of 2017 (unreported) the Court of Appeal of Tanzania (CAT) held that: - We wish to emphasize that the issue o f names o f parties to the case is central for their identification. The right of appeal is for the parties who have been involved in the original suit and not any other person. This was also the position in the cases o f Attorney Genera! v. Maalim Kadau & 16 Others [1997] TLR 69 and Ja/uma General Supplies Ltd v. Stanbic Bank (T) Ltd, Civil Appeal No. 34 of 2010 (unreported) and Inter - Consult Limited (supra)..." [Emphasis added] Based on the deliberation and the corresponding legal authorities, Dodoma City Council was not a party in the original suit. As the result, the second issue raised by this court suo mottu is rendered nugatory. The reason is that since Dodoma City Council was not a party at the DLHT, the role of the Attorney General is uncalled for. Thus, the appellants' act of joining Dodoma City Council in disregard of the clear withdrawal order of the DLHT dated 29/05/2021 is a fatal irregularity and makes the appeal herein incompetent. 12 Being an alternative sword, Mr. Machibya invited this court to exercise its revisional powers under section 43 (1) (a) and (b) of the LDCA Cap. 216, in the event the present appeal is found to be incompetent. The cases of Tryphone Elias and Another and Julius George Kibaja (supra) were cited in support thereof. Section 43 (1) (a) and (b) of LDCA Cap. 216 essentially provides for revisionary powers to this court if it appears that the records of the DLHT indicate an error material to the merits of the case, resulting in the miscarriage of justice. Mr. Machibya ought to have submitted before this court, albeit briefly, how the withdrawal of Dodoma City Council caused injustice to the appellants. That was not done. In any case, the fact that the judgment of the DLHT indicates Dodoma City Council as a party in disregard of the withdrawal order, cannot be said to have caused injustice to the appellants. Indeed, it is merely a slip of the pen or accidental error and accordingly, cannot fault the whole judgment. The reason is that the said clerical error does not go to the root of the decision of the DLHT, neither does it affect the substance of the judgment or decree. The remedy for the slip of a pen is clearly provided under section 96 of the CPC which states that: - 13 "Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may' at any time, be corrected by the court either o f its own motion or on the application o f any of the parties"[emphasis added] In February 2024, the CAT through the case of Victor W. Meena and Another Vs Arusha Technical College, Civil Appeal No. 515 of 2020, deliberated and gave guidance on the scope of "a clerical error" for the purpose of section 96 of the CPC and it was held as follows: - '!'According to Blacks'Law Dictionary ”a clerical error” means "an error resulting from a minor mistake or inadvertence, especially in writing or copying something on the record, and not from judicial reasoning or determination.” (See - Blacks' Law Dictionary\ Ninth Edition Bryan A. Garner at page 622). This implies that for an error to be clerical, it must be minor and should not go to the root of the court's decision or affect the substance of the judgment, decree, or court order", [emphasis added] Accordingly, the prayer by Mr. Machibya to revise the judgment of the DLHT under section 43(1) (a) and (b) of LDCA Cap. 216 is declined for reasons aforesaid. Consequently, the entire appeal is struck out for being incompetent. Each party to bear own costs as the disposal of this appeal was based solely on the point raised by this court suo mottu. 14 It is so ordered. Right of appeal explained. DATED at DODOMA this 31st day of July, 2024. Ruling delivered in the presence of Mr. Elias Machibya, advocate for the appellant, in the presence of Mr. Simon Ng'wigulu, advocate for the 1st respondent; and in the presence of Ms. Kumbukeni Kondo, state attorney representing the 2nd respondent. 15