Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 6988 OF 2024 (Appeal arising from the decision of the Land and Housing Tribunal at Kinondoni, Mwananyamaia by Honourable Chairman J. W. Sillas dated27/2/2024 in the Land Case No. 116 of 2018) KAWINA HADJI KONDE................................................. APPELLANT VERSUS GEMA GUERINO BROWN............................................... RESPONDENT JUDGMENT 29h August 2024 & 12th September 2024 L, HEMED, J, The suit piece of land is plot No. 25, Block 2 Kwembe - Ubungo. At the District Land and Housing Tribunal for Kinonondoni (DLHT), the Respondent herein, GEMA GUERINO BROWN, instituted Land Application No. 116 of 2018 against the Appellant herein, KAWINA HAJI KONDE claiming ownership of the said piece of land. The Appellant, who was the Respondent during the trial, disputed the claims alleging to be the owner of i the suit piece of land. Having heard the matter, the trial Tribunal ended up declaring the Respondent herein, owner of the disputed land. The Appellant was aggrieved by the said decision, hence the instant appeal under the following grounds: - '7. That the Honorable Chairman erred in law and fact for failure to analyse evidence tendered by the Appellant herein properly. 2. That, the Honourable Chairman erred in law and fact by holding that the Appellant did not comply to the allocation of land requirements on plot No. 251, block 2 Kwembe within Ubungo district in Dar es Salaam while the Appellant complied with all procedural requirement. 3. That, the Honourable Chairman erred in law and fact by not considering the evidence tendered by the Appellant including the Land Commissioners tetter and the Government payment voucher. 4. The Trial Court erred in law and fact for failure to join the commissioner for Lands who is a necessary party to this suit." Appeal was heard by way of written submissions. The Appellant was represented by Mr. Elisante Jumbe, learned advocate while the 2 Respondent enjoyed the legal service of Mr. Yuda Thadei Paul, learned counsel. All submissions were filed timely as directed by the court. Having gone through the records of the trial tribunal and the rival submissions, I opted to start with the 4th ground of appeal on non-joinder of a necessary party. Submitting in respect of this ground, the learned counsel for the Appellant asserted that since both parties claimed to have been allocated the suit piece of land by the Commissioner for Lands, he was the necessary party to the proceedings. According, to the Appellants advocate, the dispute on ownership of the suit piece of land could not be resolved conclusively without the involvement of the Commissioner for Lands as he is at best position to know the rightful owner of the disputed land. He relied on various decisions of courts including the case of Christina Jalison Mwamlima and Another vs Henry Jalison Mwamlima and 6 Others, Land Case No. 19 of 2019 and Mohamed Hamis vs. Meliboob Yesuph Osman and Another, Civil Revision No. 6 of 2017. In reply, the learned counsel for the Respondent contended that the Commissioner for Lands is not the necessary part at all as far as the facts of 3 this case is concerned. In his view the dispute is on trespass to Plot No. 251 Block 2 Kwembe, Ubungo Municipality allocated to the Respondent after the Appellant's failure to comply with the conditions given by the allocating authority including payment of the government fees. He averred further that the Appellant raised the issue at the trial Tribunal but the same was rejected on the ground that the appellant had an option to call the Commissioner for Lands as witness. According to him non­ joinder of Commissioner for Lands cannot render the proceedings nullity. He relied on order 1 rule 9 of the Civil Procedure Code [Cap. 33 R.E 2019] and the decision in Benares Bank Ltd vs. Bhagwandas, A.I.R (1947) All 18. The learned counsel for the Appellant had a brief rejoinder. In fact he reiterated his submissions in chief. Before delving to determine whether the Commissioner for Lands was a "necessary party" to the proceedings, it is pertinent to answer a question as to who is "a necessary party." In fact, a necessary party is one in whose absence no effective decree or order can be passed. In an Indian case of Baranes Bank Ltd vs Bhagwandas, A.I.R (1947) All 18 the court gave two tests in determining whether a person is a necessary party. It observed thus: - "... two tests for determining the question whether a particular party is necessary party to the proceedings. First, there has to be a right ofreliefagainst such party in respect of the matters involved in the suit and; second, the court must not be in a position to pass an effective decree in the absence of such a party." The court of Appeal of Tanzania, in Abdulatif Mohamed Hamis vs Melboob Yusup Othman & Another, Civil Revision No. 6 of 2017, observed that: - "... the determination as to who is a necessary party to a suit would vary from a case to case depending on upon facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars of the non-joinder party, the nature of the relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed." In the instant case, both parties claim to be owners of the suit piece of land. They claim to be allocated by the Commissioner for Lands. The said facts are clearly pleaded in both the Application and the written statement of defence. The tug of war as to the ownership of the said surveyed piece of land between the two parties herein would have attracted 5 adverse orders against the Commissioner for Lands including cancellation of ownership of one of the parties. Such order would not be effective without joining the Commissioner for Lands. I am on the same page with the learned counsel for the Appellant that the joining of the Commissioner for Lands would have helped the court to determine the question of ownership effectively and conclusively. I am also aware that the learned counsel for the Respondent sought refuge to order I rule 9 of the CPC claiming that nonjoinder of the Commissioner for Lands cannot in any way defeat the suit. I do agree with him that nonjoinder of a party cannot defeat a suit. However, the non­ joinder that cannot defeat a suit under Order 1. rule 9 of the CPC, is that of a non-necessary party. Where a party who is necessary to the suit has not been joined, the suit must suffer an adverse resultants. This was discussed at length by the court of Appeal of Tanzania in Abdulatif Mohamed Hamis vs. Meliboob Yusuf Osman & Another (supra), thus: - "... we take the position that Rule 9 of Order I only holds good with respect to the misjoinder and non-joinder of non-necessary parties. On the contrary, in the absence of necessary parties, the court may fail to deal with the 6 suit, as it shall, eventually, not be able to pass an effective decree." The above authority persuades and binds me to hold that, in the circumstance of the suit at hand and facts pleaded, the Commissioner for Lands is a necessary party to the suit. In light of the foregoing, the suit before the trial Tribunal was incompetent for failure to implead the Commissioner for Lands. Having examined and discussed the 4th ground of appeal, I find it sufficing to dispose the entire appeal. In that regard, I cannot labour to determine the remained grounds as it will remain an academic exercise. In the upshot, I proceed to allow the appeal with the following orders:- 1. Proceedings, judgment and decree of the trial Tribunal in Application No. 116 of 2018 are hereby quashed; 2. Parties are at liberty to institute fresh proceedings before a competent court joining all necessary parties including the Commissioner for Lands. 3. Each party to bear its own costs. Order accordingly. DATED at DAR ES SALAAM this 12th September, 2024.