Judgment LAURENT LITO MSULA v DEOGRATIAS KUMALIJA and 4 others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MWANZA

AT MWANZA LAND CASE NO.27 OF 2022 LAURENT LITO MSULA…………………………………………….…… PLAINTIFF

VERSUS 1. DEOGRATIUS B KUMALIJA……………………….…….…….…1st DEFENDANT 2. SHIJA KADALA............................................................. ....2nd DEFENDANT 3. MISUNGWI DISTRICT COUNCIL.......................................3rd DEFENDANT 4. COMMISSIONER FOR LANDS………………………..…..…….4th DEFENDANT 5. THE ATTORNEY GENERAL………………………...……… …...5th DEFENDANT

JUDGMENT 3rd October and 13th December, 2024 ITEMBA, J. The plaintiff, Laurent Lito Msula, has instituted this case against the five defendants with regard to ownership of a piece of land which has been described in paragraph 6 of the plaintiff’s case as ‘disputed land at Nyashishi, Misungwi District, covering plots number 203, 204, 289, 290 and 291 Block A through certificates number 69110, 69112, 69096 and 69117 respectively’, herein the suit property. From the plaint and the plaintiff’s testimony, it is suggestive that the suit property was unsurveyed and unregistered up to 2017 when it was registered in the name of the first defendant. 1 In this suit, the plaintiff in essence has pursued an action for recovery of possession of the suit property and he is praying for the following reliefs: i. The Declaration that the Land in dispute which is situate at Nyashishi Misungwi District Covers Plot 203-204, 289, 290 and 291 BLOCL “A” vides Title Deeds No. 69110, 69096 and 69117 respectively were obtained unlawful and the court ordered to rectify the title deeds as mentioned above and announcing the plaintiff is legal owner of the Land in dispute. ii. 7% per annum interest on (b) above at Commercial rate from the date of accrual of cause of action to the date of judgment. iii. The defendant be condemned to bear costs of this suit. iv. Any other reliefs this Honourable Court deems

fit to grant in the interest of justice. The plaintiff traces the title of the suit property from Msula Kilima, his biological father, who allegedly, originally owned it customarily. The plaintiff claims that he inherited the suit property from his father who died in 1976, leaving behind eight children. According to the plaintiff, the 2nd defendant unlawfully sold the suit plot to the 1st defendant. He stated under paragraph 6 of the plaint that;- 2 ‘THAT, the plaintiff is claiming against the Defendants for the declaration that sale of disputed Land of Nyashishi, Misungwi District Cavers Plot No. 203-204,289,290 and 291 Block “A” vides Certificates 69110,69112,69096 and 69117 respectively are unlawful due to the fact that the 2nd defendant had no legal capacity/locus stand to sale the land on which the plaintiff had been inherited from the estate of deceased parents' (emphasis added) Further, that, the 3rd and 4th defendants were not diligent when they were issuing the title deed to the 1st defendant because they were supposed to find the real owner of the disputed land before doing that. That, they were also supposed to engage the local leaders and the neighbours. The plaintiff also explained that, following the death of his father in 1976, around 2017, the deceased’s family convened a meeting and he was appointed an administrator of estate. He filed a probate cause at

Bukumbi Primary Court where he was appointed an administrator of the deceased’s estate in Probate cause number 5 of 2017. That, after collecting the properties, he distributed them to the beneficiaries who were the heirs and among those there were Kadala Msula who is the father of the 2nd defendant, Harim Msula, the sons of Emelensiana Msula and himself. That, he inherited a piece of land which was bordered with another piece of land belonging to Maria Msula in the south. He explained that after distributing the 3 properties, he went back to his workplace in Morogoro and when he arrived there, he got seriously sick. He suffered a stroke which led to paralysis for several years. Then when he got better, went back to his home in Nyashishi Mwanza where he noted that his portion of land which he inherited from his late parents has been sold by his relative to unknown persons. That, he filed a suit before the District Land and Housing Tribunal for Mwanza which Case number 670 of 2017 and an ex parte judgment was issued in April 2019. That, before he did an execution, the first defendant filed objection proceedings and he was successful. Then, in February 2021, he filed a fresh suit before the same court, he could not proceed, he withdrew that suit and then filed the present suit. In his defense, the first defendant stated that he is the lawful owner of the disputed land having

purchased it in 2014 and then he did the survey which produced 4 plots. That, out of that survey, the certificates of titles were issued with the numbers 69110, 69112, 69096 and 69117 which has been explained above. The 1st defendant just said in his WSD very generally, that the sale was lawful. Yet, he did not attach the sale agreement in his WSD, until later when he brought the same as an additional document on 27/09/2023. It was until the time of hearing when he produced the 4 agreement showing that he bought the disputed land from one Magreth Luhendeka who is the mother of second defendant. At the hearing, the plaintiff had the pro bono services of Mr. Renatus Makori learned counsel, through legal aid. The 1st and 2nd defendants were represented by Mr. Abel Ngalaba learned counsel while the 3rd to 5th defendants were represented interchangeably Mr. Felician Daniel, Sabina Yongo, Grace Mwaliwale and Allen Mbuya learned state attorneys. The issues were framed on 9/8/2023. The plaintiff testified as PW1 in support of the plaint and his testimony was supported by Theresa Msula (PW2) who is the biological sister of the plaintiff. She testified to the effect that the plaintiff being an administrator of estate of their father’s estate, he distributed the suit land to 8 heirs including the father of the 2nd defendant. That, later, the 2nd defendant sold the suit plot and as a

result the plaintiff do not have any piece of land which he owns. In the other side, the 1st defendant, while agreeing to have bought the suit property, he added that the sale was lawful. He insisted that he actually bought the suit property from Margaret Luhedeka and not Shija Kadala, 5 the second defendant. Magreth Luhedeka is the mother of the 2nd defendant. The first defendant also produced the copy of a sale agreement (Exhibit D1) which showed that the seller of the suit property was Margaret Luhedeka. Evidence reveals further that, the said Margret Luhedeka who was also the wife of the plaintiff’s brother is now deceased. And according to the testimony by the second defendant, the suit’s property was owned by Margret Luhedeka on her personal capacity. It was not a matrimonial property. Having made this observation, at the time of composing this judgment, I was forced to abandon the issues framed and consider whether the issue of legality of ownership of the suit land by one Magreth Luhedeka would be completely resolved without having the said Magreth Luhedeka as a party. Before that, I asked the parties to address the court on that issue. The plaintiff counsel was of the view that there is no harm in not including Magreth Luhedeka, that she is not of important because the one who sold the piece of land is 2nd defendant. That, the defendants never bothered to produce

representative of the said Magreth who is allegedly 6 dead. That, the 1st defendant is in good position to show the necessity of Magreth Luhendeka because he is the one who introduced her to be the vendor of the disputed land. That in the case of Abdulatif Mohamed Hamis vs Mehboob Yusuf Osman and another, Civil revision No.6 of 2017 (Unreported) The Court of Appeal said; “The determination as to who is necessary party to the suit would vary from a case to case depending upon the facts and circumstance of each particular case. Among the relevant factors for such determination include the particulars of the non-joined 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 that connection, the plaintiffs’ counsel was of the view that, the court may direct the defendants to call Magreth Luhendeka or her representative to come and clarify on how such disputed piece of land came on her ownership and how it was transferred to the first defendant, since the 1st and 2nd defendant in their written statement of defence recognize Magreth Luhendeka. He further argued that the 1st and 2nd defendants never produced death certificate to prove the death of Magreth Luhendeka. The first and second defendants argued that Margaret Luhedeka may not need to be a party in this case because according to Section 10 of

the 7 Law of Contract Act, Cap 345 R.E 2019, all agreements are considered contracts if made with the free consent of the parties for lawful consideration and object. That, Margaret Luhedeka had already sold her land, transferring the title to the purchaser, Deogratias Kumalija, who is the first defendant. Consequently, her former title ceased to exist. And that, upon completing all surveying procedures, a new title was issued. That, mere possession as an occupant does not equate to ownership; a transfer of title deed is necessary as established in a case cited of Farida Mbaraka & Farid Ahmed Mbaraka vs Domina Kagaruki, Civil Appeal No. 136 of 2006 (unreported). That, since Deogratia Kumalija is recognized as the lawful owner and given that Margaret Luhedeka sold the land in 2014 and passed away in 2017 after finalizing that sale, her title ceased to exist at that point. They added that, there is no legal requirement for joining any party in a land dispute unless they have a direct interest distinct from commercial interests. Furthermore, even the personal representative of Margaret Luhedeka cannot be included in this suit because the disputed land was not part of her estate at her death in 2017 and it ceased to belong to her after its sale in 2014. Meanwhile, the counsel for the third, fourth and fifth defendants submitted in brief that, considering the fact that the plots in

dispute have 8 certificates of title, it is inconclusive evidence to prove ownership. And therefore, because there’s no evidence that the ownership was obtained fraudulently, it is enough to say that certificates of title were conclusive evidence of ownership. They cited the case of Kellu Kamo Lucas vs. Dr. Luis B. Shija, Civil Appeal No. 63 of 2022 (unreported) as well as Mwinyihatibu Jumaa Hatibu vs. Ridhiwani Jumaa Hatibu, Civil Appeal Number 70 of 2020 (unreported). I have considered the parties’ submissions, to start with, I must say the case of the cited case of Kellu Kamo Lucas (supra) is distinguishable because when the disputed land was being sold, it was already surveyed and the plot number was issued. But in this case, when the land in dispute was being sold, it was sold as a shamba and it was surveyed later. Moving to the merit or otherwise of the case, I find that the plaintiff hardly proved his case. I say so because; the main complaint by the plaintiff is that Shija Kadala, the 2nd defendant unlawfully sold his land. However, I find that the plaintiff could not prove this fact against Shija Kadala because he just asserted those words in the pleadings and in his testimony without any further proof. Secondly, he has explained that at the time when the alleged unlawful sale was done, he was not in Mwanza, he was in Morogoro and he was seriously sick.

This 9 situation raises the questions as under that position, how was he able to know with certainty that it was Shija Kadala who sold the suit plot? Third, the defendant brought the sale agreement which shows that the seller of the suit plot was a person different from Shija Kadala named Margareth Luhedeka, who was not a party to this case. Considering this situation on non-joinder of a party, parties were given an opportunity to address the court on whether it was proper to proceed with determination of this suit in absence of Margaret Luhedeka however, the plaintiff is insisting that he sued the right person Shija Kadala. At the same time, it means that, the plaintiff is adamant and finds no reason to include Margaret Luhedeka as a party because the land was already sold to the 1st defendant and the tittle had passed to him. Now if that is the reason for not joining Margareth Luhedeka, why did the plaintiff sue Shija Kadala? In other words, if it was not important to sue the seller of the suit land why did the plaintiff sue the 1st defendant when he believed he was the seller? In my view, it was important to join Magreth Luhedeka or her administrator of estate because the defence has stated that is was not Shija Kadala who sold the suit property and they have produced a sale agreement to that effect. The administrator would state whether Magreth Luhedeka sold the suit plot

and under which capacity. Shija 10 Kadala has tried to state that the suit property was owned by Magreth Luhedeka solely, yet I find that Kadala is not the competent person to state that but Margreth herself. Further, I was surprised by the submissions for the plaintiff that he believes the 2nd defendant to be the seller while in previous proceedings before the District Land and Housing Tribunal in Case Number 670 of 2017 he sued Magreth Luhedeka. Either way, we do not know for sure if it was Shija Kadala who sold the suit land and if Margrareth was joined the defence case would have been clear on what transpired. I am alive to the position that, if the plaintiff does not choose to sue a defendant who appears to be a necessary party, the court has a duty to take an active role and make an order for such joinder under, Order I Rule 10(2) of the CPC. The said provision states that: ‘(2) The court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff 11 or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle

all the questions involved in the suit, be added.’ See also: Tang Gas Distributors Ltd v. Mohamed Salim Said and Two Others, Civil Revision No. 6 of 2011 (unreported) and Tanzania Railways Corporation (TRC) v GBP (T) Limited Civil Appeal No. 218 OF 2020, CAT, Tabora. It is unfortunately that the presence of Magreth Luhedeka came up before the court for the first time at defence hearing through a sale agreement which was not pleaded in the beginning but was brought to the court as additional evidence, and the seriousness of her absence as party came up at the time of composing this judgement. It is noted that the said Magreth Luhedeka is dead and probably the plaintiff assumed that her son, the second defendant Shija Kadala will be the fit party to replace her. However, that is not the situation because the plaintiff insisted in his pleadings, under paragraph 6 of the plaint, that it was the second defendant who illegally sold the suit property to the 1st defendant. Therefore, it was necessary to join the administrator of estate of Magreth Luhedeka who also appears not to be the 2nd defendant. Under the 12 circumstance, I find that, one; failure to to join the administrator of estate of Magreth Luhedeka who also appears not to be the 2nd defendant puts this court in a difficult position to decide properly on the proper ownership of the disputed property. In the case of Juma B.

Kadala vs. Laurent Mnkende [1983] TLR 103, it was held inter alia that, in the suit for recovery of land the buyer must be joined with the seller. Two; at this stage, it is too late to order the parties to join the administrator of estate of Magreth Luhedeka as among others, he/she will not be in a position to know the plaintiff’s case and defendant’s cases which are already closed. As a result, the issue raised is answered in affirmative, the court cannot determine the legality of vesting ownership to the 1st defendant without joining Magreth Luhedeka who is the allegedly seller of the disputed land. I therefore proceed to struck out suit for non-joinder. The plaintiff is at liberty to institute a fresh suit by including the administrator of estate of Magreth Luhedeka. Because this matter has been decided largely on the issue raised by the court suo motu, I make no order as to costs. 13 It is so ordered. Right of appeal fully explained. L.K.J. ITEMBA

JUDGE 13/12/2024 14