CIVIL APPEAL NO 263 OF 2022 KASSIM MANSOOR MALLYA ANOTHER VS KULUTHUM ABU MALLYA

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CO RAM: MWARIJA, J.A., KAIRO, J.A.. And FELESHI. J.A.^ CIVIL APPEAL NO. 263 OF 2022 KASSIM MANSOOR MALLYA (As an Administrator of Mansoor Salim Mallya.............. ...... 1st APPELLANT HUBAADAM MALLYA (As an Administratix of Adam Salm Mallya.............. ............. 2nd APPELLANT VERSUS KULUTHUM ABU MALLYA (Legal Personal Representative of the estate of Salim Mallya..................... ....RESPONDENT (Appeal from the Judgment and Decree of the Resident Magistrate's Court of Moshi at Moshi) (Massati, SRM, Extended Jurisdiction) dated the 30th day of December, 2020 in Extended Jurisdiction Land Appeal No. 33 of 2020 JUDGMENT OF THE COURT 4th November, 2024 & 14th March, 2025 KAIRO, J.A.: At the District Land and Housing Tribunal for Moshi at Moshi, (the Tribunal), the respondent jointly sued the above-named appellants together with Moshi Municipal Council (not a party in this appeal) as a 1st and 2nd and 3rd respondents respectively. The dispute revolved around the ownership of a property located on Plot No. 43 Block E, Section III with Title No. 2240, in Moshi Municipality (the property), left behind by the late Salim Mallya, the initial owner who i passed away intestate in 1961 and survived by four issues namely; Adam, Mansoor, Abu, and Zabibu who were considered as his heirs. Following the demise of their father, none of the issues filed a probate cause to distribute his estate, instead, that being family house, they continued to occupy the property in dispute by sharing the rooms on equal basis. According to the record of appeal, the dispute arose when Adam Salim Mallya in 1978 secured a certificate of title solely in his name after presenting an affirmed affidavit to the 3rd respondent claiming that, his siblings had no objections. Later, Mansoor Salim Mallya's name was added at the request of Adam Salim Malya. As a result, the estates of Adam Salim Maiya and Mansoor Salim Malya claimed exclusive ownership of the property, leaving out Abu and Zabibu. This fact was testified by the respondent at the Tribunal where she stated that, she became aware of the said transactions when she was about to distribute the estate of the late Salim Mallya equally among his heirs following the grant of the letters of administration to administer the same. She argued that the duo's acquisition of ownership of the suit property was done without the consent of the other two children of the late Salim Malya, thus denied them rightful inheritance from their late father. The respondent thus prayed for a declaratory order that, the suit property belongs to the late Salim Malya and further to order the 3rd respondent to include the names of Abu Malya and Zabibu Malya into the ownership of the suit property, among other orders. The appellants disputed the claim in their joint reply to the application claiming that the suit property belongs solely to the estate of the late Mansoor Salim Malya and Adam Salim Malya. Together with their reply, the appellants also raised two points of preliminary points of objection (POs) against the application filed to the effect that: one; the suit is res judicata and two; the suit is time barred. The Tribunal on 11th September, 2017 ordered the parties to argue the POs raised by written submissions following the consensus of the parties to do so. It is on record that the parties complied with the order and the Tribunal delivered its ruling on 7th September, 2017 into which the PO on time limitation was overruled and the matter proceeded with the hearing. The record is silent as regards the determination of the other raised PO on res judicata. We shall come back to this point latter. After hearing and reviewing the evidence from family members together with one from, Michael Kilawila, a tenant of Zabibu Salim Malya, the Tribunal concurred with the court assessors' opinions and allowed the claim. In its decision, the Tribunal ordered that, all four children of the late Salim Malya be included in the ownership with each child entitled to a 25% share of the suit premise. The tribunal ordered each party to bear their own costs due to the family nature of the dispute. Disgruntled with the Tribunal's decision, the appellants appealed to the High Court where the appeal was transferred to the Hon. Senior Resident Magistrate with extended jurisdiction, grievances, mainly being that the case was time bared and failure to prove the case by the respondent to the required standard. The 1st Appellate Court ruled in favour of the Respondent hence this joint appeal containing the following grounds: - 1. The 1st Appellate Court erred in law in holding that the suit Filed by the Respondent before the Tribunal was within time. 2. The proceedings o f the Trial Tribunal and the 1st Appellate Court are nullity on the ground that a preliminary objection on res judicata was left undecided by the two Courts below despite being raised and argued by the parties. 3. The Proceedings o f the Trial Tribunal and the 1st Appellate Court are nullity as the opinion o f the assessors were not read out in the presence o f the parties. 4. The Proceedings o f the Trial Tribunal and the 1st Appellate Court are nullity on the ground that the evidence o f PW2f PW3 and DW2 were taken without oath as required by the law. 5. The 1st Appellate Court misdirected itself in deciding ground 2 and 4 o f the 1st Appeal as it is hence the grounds were left undecided. 6. The 1st Appellate Court erred in law and fact in holding that the case by the Respondent was proved as required by the law. At the hearing of the appeal, the appellants were represented by Mr. Jally Willy Mongo, learned counsel, while on the other hand, Mr. Emanuel Anthony, learned counsel, appeared for the respondent. Before proceeding with the hearing of the appeal, Mr. Anthony prayed leave of the Court, which was granted, to address it on the irregularity of the record of appeal before the Court, which according to him, rendered the appeal incompetent. Expounding, he submitted that, the observed flaw is centred on the difference of the parties to the suit as pleaded at the Tribunal whereby Moshi Municipal Council was sued along with the appellants herein as the 3rd respondent. He referred the Court to pages 8 and 186 of the record of appeal where the plaint and the judgment of the case at the Tribunal appear respectively, to validate his submission. However, he went on submitting that, the record filed at the High Court as appears at page 196 of the record of appeal omitted to include Moshi Municipal Council as a party to appeal lodged therein which according to him, the omission spilled over to the present appeal, hence, rendering it incompetent before the Court as well. It was the argument of Mr. Anthony that, the omission is an anomaly which defeats the principal that, court records are considered authentic and should not easily be questioned. As such, the parties in the proceedings should appear as they did in the previous proceedings unless there is a reason to the contrary. He added that, the Court cannot therefore proceed with the determination of this appeal without joining Moshi Municipal Council, being a necessary party. Cementing his argument, he cited to us the case of Isack Wilfred Kasanga vs Standard Chartered Bank Tanzania Limited, Civil Application No. 453/01 of 2019, [2022] TZCA 22. On that basis, the learned counsel, he was supporting the appeal though on different ground as above submitted. When probed as to the way forward in the circumstances the Court concurs with his argument, Mr. Anthony prayed the Court to quash the proceedings of the High Court together with its proceedings and order a party aggrieved to take necessary steps. Responding to the observation by Mr. Anthony, Mr Mongo conceded to be true that, Moshi Municipal Council was sued together with the appellants herein as the 3rd respondent at the trial Tribunal. But, when the matter went for appeal, the 3rd respondent was not joined as a party to the said appeal. He went on to submit that, the issue was discussed by the Magistrate with extended jurisdiction, after being raised by the respondent and found that, the appeal was competent before the court since the 3rd respondent had no intention to proceed with the matter. Distinguishing the case of Isack Wilfred Kasanga (supra) cited by Mr. Anthony, Mr. Mongo argued that, the dropped party in the said matter (the Attorney General) was cited in the notice of appeal which indicated that it was a party to the intended appeal, and thus, dropping it when lodging the memorandum of appeal was improper, while it is not the case in the instant appeal. He pleaded with the Court to proceed with the hearing of the appeal because including Moshi Municipal Council in this appeal would amount to forcing it to appeal. On whether or not non-joinder of the 3rd respondent in this appeal is fatal, we wholly agree with Mr. Mongo's arguments. Indeed, the issue was thoroughly discussed by the Hon. Magistrate with extended jurisdiction and we join hands with her that, the omission to enjoin the 3rd respondent neither rendered the appeal therein incompetent nor the appeal before us, as argued by Mr. Anthony. Essentially, the right to appeal is discretionally exercised by an aggrieved party, as such, one cannot forcefully join another party to appeal. We understand that Mr. Anthony has cited to us the case of Isack Wilfred Kasanga (supra) to back up his arguments, but with respect, we find it distinguishable as rightly submitted by Mr. Mongo. Going through it, we observed that, a notice of appeal therein mentioned the Attorney General to be the respondent, but when the appeal was filed, the Attorney General was dropped and Standard Chartered Bank Tanzania Limited was sneaked in, in its place. These changes were ruled out by the Court to be incurable defects and we still maintain that position. Unlike in the case at hand, the 3rd respondent was not pleaded as a party in the notice of appeal. We therefore find the appeal before us, competent. We now turn to the grounds of appeal, starting with the first ground which is centred on time limitation. It is the appellants' contention that, the suit was instituted out of time by the respondent. Clarifying, Mr. Mongo submitted that, the suit which concerns the recovery of the suit premise was instituted on 30th May, 2017 while the owner of the suit, the late Salim Mallya passed away on 25thJune, 1961. He contended that, basing on the nature of the claim, the same was required to be instituted within 12 years from the demise of the late Salim Mallya. He referred us to section 9 (1) and 35 of the Law of Limitation Act, Cap 89 R.E. 2002 (Limitation Act). He added that, from 1961 to 2017, 56 years have lapsed, thus out of the prescribed time of 12 years and the Tribunal ought to have dismissed it in terms of section 3 (1) of the Limitation Act. He added that, the High Court case of 8 Benedicto Rutaihwa vs Emmanuel Bakundukize Kendurumo, Land Appeal No. 23 of 2020 [2021] TZH 6162 when discussing an akin scenario cited the case of Haji Shomari vs Zainabu Rajabu, Civil Appeal No. 91 of 2001 (unreported) which discussed both sections 9 (1) and 35 of the Law of Limitation Act to the effect that, time limitation of the recovery of land owned by a deceased person starts to accrue on the date of his death regardless of when the letters of administration were obtained. In the alternative, Hr. Mongo argued that, since the late Adam Salim Malya and Mansoor Salim Malya were registered in 1978 as owners of the property, then they are the rightful owners under adverse possession. Mr. Mongo further stated that, though both the trial and 1st appellate courts discussed this point when raised and dismissed it, the appellants still maintain that the claim was instituted out of time and beseeched the Court to sustain the argument and allow this appeal. Mr. Anthony was brief in his reply and categorically refuted the arguments by Mr. Mongo arguing the same to be a misconception of the Limitation Act. The learned counsel argued that, section 5 of the Limitation Act provides that, time begins to run when the cause of action arises. It was his contention that, according to section 24 (2) of the same Act, the cause of action in the matter at hand started to accrue when the legal representative of the late Salim Malya who was the owner of the property was appointed. He went on to submit that, the respondent was appointed to administer the estate of the iate Salim Malya in 2013 and instituted the claim in 2017, therefore within 12 years set by the law. Mr. Anthony further argued that, both the Tribunal and the Hon. Magistrate with extended jurisdiction dealt with the issue when raised and overruled it for want of merit. He implored the Court to take a similar stance and dismiss it as well for being unfounded. After hearing the arguments advanced by the parties, we will begin with the issue as to whether or not the suit was instituted out of time. The appellants contended that, even if the cause of action would be considered to have accrued on the date of death of the late Salim Malya in 1961, or when the appellants acquired ownership of the property in 1978, both boils down to one conclusion; that the claim was instituted beyond 12 years and according to the appellants, the doctrine of adverse possession operates in their favor. It is on record that, the property at issue is a registered (and. The appellants contended that, having acquired the ownership of the property in 1978 while the claim was instituted after the lapse of 39 years, then 10 the doctrine of adverse possession operates in their favor rendering the institution of the claim at hand time barred. With respect, we do not subscribe to the said argument. It is the legal stance that, the adverse possession over the registered land is not automatic, but there are procedure to be followed as observed in the case of The Hon. Attorney General vs Mwahezi Mohamed and 3 Ors, Civil Appeal No. 391 of 2019 [2020] TZCA 27 (26 February 2020) TanzLII wherein the Court observed as follows:­ ..application of the doctrine of adverse possession in a registered iand is not automatic. One has first to apply to the High Court for an order that he be registered under the relevant law as the holder o f the right o f occupancy in place o f the person then registered as such holder..." In the matter at hand, the appellants contended that they acquired adverse possession following the attainment of the ownership of the property since 1978. The assertion in our considered opinion is incorrect. We say so because the appellants cannot acquire the ownership of the property by adverse possession without following the required legal procedure considering that, the property is a registered land and was previously owned by the late Salim Malya. We thus find that the appellants' argument to be a misconception of both facts and law. In our ii view, one cannot acquire ownership over a registered land through a transfer and become an adverse possessor at the same time. As such, the complaint that the claim was instituted out of time was misconceived in the circumstance of this case. Thus, the first ground of appeal is without merit and we accordingly dismiss it. The complaint in the 2nd ground of appeal revolves around the failure by the trial Tribunal to determine the PO. It was the contention of Mr. Mongo that, the Tribunal left undecided the PO on resjudicata despite being raised by the appellants therein and argued by the parties accordingly. The contention was conceded by Mr. Antony who added that, the omission went undetected by the Hon, Resident Magistrate with extended jurisdiction. Suggesting the remedy, Mr. Anthony submitted that, the infraction touches the competence of the appeal before the Court and thus, implored the Court to nullify all of the proceedings subsequent to the filing of the written submissions by the parties as regards the POs raised and remit the case file back to the Tribunal for it to determine it. Which was left undecided. Mr. Mongo, joined hands with Mr. Anthony on the way forward. After hearing the parties and scanning of the record of appeal, we observed that, the learned counsel complaint on the non-determination of the PO on res judicata is valid. The record shows that, together with their joint reply to the application, the appellants raised two points of preliminary objection one; the suit is res judicata, and two; the suit is time barred. By consensus, the Tribunal on 11th September, 2017 ordered the parties to dispose the POs raised by written submissions on the agreed time schedule to which the parties complied with. The record further reveals that, the ruling was scheduled to be delivered on 17th October, 2017. However, the Tribunal in its ruling determined only the PO on time limitation into which, she overruled it and the case proceeded with trial on 20th February, 2018 (pages 97-100 of the record of appeal). However, the record is silent as regards the other PO on res judicata. The law is well established that, once a court is seized with a PO, it is required to determine it first before embarking into the merits or substance of the case or application before it. In Bank of Tanzania Ltd vs Devram P. Valambhia, Civil Application No. 15 of 2002, (unreported) in showing how pertinent it is to determine the raised Pos first, had this to say: "The aim o f a preliminary objection is to save the time o f the court and the parties but not going into 13 the merits o f the application because there is a point o f iaw that wiii dispose o f the matter summarily". In the instance case, the Tribunal did not determine the PO on res judicata which touches the court's jurisdiction. In our considered view, it was more imperative for the Tribunal to determine it fully before proceeding with the trial of the main suit, considering that the parties had argued for and against it. The omission was a serious procedural irregularity which went to the root of the matter, resulting to vitiation of the subsequent proceedings and judgments of both the trial and first appellate court. Unfortunately, the irregularity went undetected by the Hon. Senior Resident Magistrate with Extended Jurisdiction. Times without number the Court has insisted that, an issue of jurisdiction on a preliminary objection has always to be determined first. [See: Shahida Abdul Hassanali vs Mahed Mohamed Gulamali Kanji, Civil Application No. 42 of 1999 and Thabiti Ramadhani Maziku & Another vs Amina Khamis Tyela & Another, Civil Appeal No. 98 of 2011 (both unreported)]. Basing on the foregoing reasons, we are compelled to exercise our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act, Cap 141, and proceed to nullify and quash all the trial Tribunal 14 proceedings subsequent to the filing of the written submissions by the parties on the POs raised and set aside its judgment. Otherwise, the proceedings prior to remain undisturbed. For avoidance of doubt, we further nullify and quash the proceedings of the Resident Magistrate Court with Extended Jurisdiction and set aside the judgment and its resultant decree. We further direct that, the case file be remitted to the Trial Tribunal before another Chairman for it to determine the Pos raised expeditiously. In the circumstances, we make no order as to costs. DATED at DAR ES SALAAM this 4th day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 14thday of March, 2025 in the presence of Mr. Emmanuel Anthony, learned counsel for Respondent who took brief for Mr. Jally Mongo, leaned counsel for Appellants, is hereby certified as a true copy of the original. \ A. L. KALEGEYA « DEPUTY REGISTRAR > COURT OF APPEAL 15