Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR-ES-SALAAM MISCELLANEOUS LAND APPLICATION NO 14459 OF 2024 (Arising from Land Case No 131 Of 2016) LANDEV COMPANY LTD................................................... APPLICANT

VERSUS KARAGE SYLVIA KAMULI (1st Administratrix of the Estate of the late Prof. T.L. Maliyamkono) AND VEDASTO MUGYABUSO KUJWALIRE (2nd Administrator of the Estate of the late Prof. T.L. Maliyamkono) ................................................................. 1st RESPONDENT WILHELM SIRIVESTER ERIO................................. 2nd RESPONDENT

RULING Date of Last Order: 19/08/2024 Date of Ruting: 19/08/2024 LALTAIKA, J. The Applicant herein LANDEV COMPANY LIMITED has filed this Application under Order 1 Rule 10(2) and Section 95 of the Civil Procedure Code Cap 33 R.E.

2022. It in the Chamber summons supported by an 1 affidavit deponed by one Noel Peter Mabuga, Principal of the Applicant, the Applicant prays for the following orders: 1. That, the Applicant be allowed to join as Defendant in Land Case No 131 of 2016 for purposes of defending her interest in the land in dispute.

2. Cost of this application be provided for 3. Any other order this Honourable Court may deem fit and just to grant. When the Application was called on for hearing on earlier today, the Applicant appeared through Mr. is so Joseph Kiyumbi Sungwa, learned Advocate. The 1st and 2nd Respondents were represented by Joseph Rugambwa, and Living Raphael, learned Advocates, respectively. Taking the podium, Mr. Sungwa informed the court that the application was scheduled for hearing, but he had not been served with any response from the respondents and he took that to mean acceptance. He stated that the application was brought under Order I Rule 10(2) and Section 95 of the Civil Procedure Code, RE 2019, and was supported by the affidavit of Mr. Noel Peter Mabuga, the applicant's principal officer. 2 The advocate prayed to adopt the affidavit in its entirety and explained that the main case pending before the court was Land Case No. 131 of 2016, involving Wilhelm Sirivester Erio as the plaintiff and the Administrator of the Estate of the Late Professor T.L. Maliyamkono as the defendants, specifically Kerage Sylvia Kamuli as the 1st administratrix and Vedasto Mugyabuso Kujwalire as the 2nd defendant. The dispute in the main case was over a piece of surveyed land, identified as Plot No. 1, Block SS, located at Mapinga, Bagamoyo, in the Pwani Region, with Certificate of Title No. 173194,

L.O. No. 918639. According to Mr. Sungwa, the applicant claimed an interest in this land and believed that she would be prejudiced if the case was decided without her being given the opportunity to be heard, asserting ownership of the property. The learned Advocate further stated that the affidavit indicated the title of the property bore the applicant's name. In the interest of justice, Mr. Sungwa reasoned, the advocate prayed for the applicant to be joined in the case to be heard. Mr. Rugambwa, representing the 1st Respondents, agreed with the submission and stated that he had not contested the same that is why he 3 had not filed a counter-affidavit. He emphasized that the circumstances required that the applicant be given the right to be heard, as argued by the learned counsel. Mr. Raphael, on his part, did not object to the application as such, but pointed out that the main case had been directed by the Court of Appeal to be retried from a specific point. He referred to a specific order from the Court of Appeal in Civil Appeal No. 311 of 2023 between Prof. T. L. Malyamkono and Wilhelm Sirivester Erio, decided on December 7, 2023, which mandated a retrial starting from the stage of admitting Exhibit Pl. The learned Counsel expressed concern about whether this Court had the mandate to proceed, given that this was the second time the case had been referred to the Court of

Appeal for procedural matters. He opined that retrials could generally be broad unless there were specific instructions on where to start, and in this case, there were such instructions. Therefore, Mr. Raphael reasoned, it would be better to adhere to the apex Court's directions Finally, Mr. Sungwa, after considering the views of his learned colleagues and the specific instructions of the apex Court, decided to withdraw the application. 4 Having considered the submissions from all parties, this Court does not need to determine the merits of the application for joinder. The Applicant has, in his own accord, decided to withdraw it albeit after a rich discussion with his fellow learned brothers from a procedural law point of view. I can only add that the Court of Appeal has issued an unequivocal directive for a retrial beginning specifically from the stage of admitting Exhibit Pl. This directive is binding on this Court and must be followed without deviation. Introducing a new party at this stage would not only complicate the retrial process but also potentially contravene the appellate court's order. In the upshot, this application is hereby marked withdrawn. It is so ordered. I. LALTAIKA /JUDGE 19/08/2024 5 Court Ruling delivered under my hand and the seal of this Court this 21st day of August 2024 in the presence of Joseph Kiyumbi Sungwa, learned Advocate for the Applicant and Joseph Rugambwa, and Living Raphael, learned Advocates, for the 1st and 2nd Respondents respectively. 6