20151125 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA LAND APPEAL NO. 40 OF 2015 (Fr.om the Decision of Mwanza District Land and Housing Tribunal at Mwanza ., In Land Appeal No. 288 of 2012) MRS SYLICHERIA MACH ERA ....................... .APPELLANT VERSUS EDWARD MGOYL ............. u••······ .. ····••eo••····RESPONDENT .~·. JUDGlVKENT OF THE COURT. 28/09/2015 & 25/11/2015 GWAE, J This is an appeal against the judg1nent _and order of the District Land and Housing Tribunal (herein referred to as the DLHT) of Mwanza at M\;vanza. vide· Application No.228 of 2012. The background giving rise to the appeal will shortly be apparent. Suffice it to say that the appe11ant instituted a land suit against the respondent, Edv,rard Mgoyi claiming for declaration that she .is a Ja,-1,:\'fu1 owner of the disputed farm, vacant possession and eviction order of the respondent from the suit land, paym.ent of Tshs ~· 1 ;. (•,;; 2· ' 0~ . );f'\ : " 15,000,000 /=being value · of the trees cut by the ~ ,. respondent, general damages, costs of the case and any ,_ relief as may be deemed fit to grant. The DLHT, having heard both parties, rendered its decision dated 3 rd March 2015 where the appellant's land application was struck out vvith leave to refile for non- joinder. Going through the record of the DLHT, it is plainly established that the appellant purchased the disputed piece of land (estimated to be one to two acres) from Haruna Philiph who is related to the respondent, it is also clear that . the appellant bought the di?puted land from a vendor,known by names of Haruna Philiph in 2006. It is also very clear that it is the respondent who is the son · of the deceased, Pili Mhingwa who was the only daughter of the_ respondent's grandfather, Ju1na _Mhing'Ara and that the respondent happened to li_ve vvith his grandfather now deceased. · The appellant being aggrieved by the. DLHT's order striking out his application for non-joinder hence this appeal· praying for his appeal be allovved and a declaration that he is a lawful owner of te disputed land and grant of reliefs a s ~ . 2 prayerd 1n the application before the District Land and Housing Tribunal. The appellant's memorandum of appeal is comprised of four grounds of appeal, nan1ely 1. That the Honourable trial chairperson erred in law and fact failure to analyse evidence on record and find that the appellant prove her case over her ownership of the dispute premise and as such occasioned failure of justice. 2. That the Honourable trial chairperson. erred in law and fact for failure to appraise the dispute before him and deliberately framed issues which were n(?t agreed between parties at the commencement of hearing. 3. That, the honourable trial chairperson erred in law by raising an issue of misjoinder and / or non joinder and base his decision qn the same alone, while a suit cannot be defeated by misjoinder or non joinder. 4. That the honourable trial chairperson erre_d in law not ass1gn1ng reasons for differing with the opinion of assessors who justly opined according to evidence on ~ record. i i I 3 r " ri The respondent's reply to the mernorandum of appeal is to - the effect that the appellant's grounds of appeal are devoid . of merits in that the evidence adduced by the appellant and the alleged vendor, · Haruna Philiph is contradictory in terms of purchase pnce adding that the purported subseqent framing of issue did not prejudice the appellant and that the trial tribunal chairman was not bound by opinions of the assessors. At the hearing, the appellant was represented by Mr . . Magoiga (adv) who also appea,red before the tribunal and the respondent appeared in person, unrepresented. Mr.Magoinga vehemently submitted that appellant's application was wrongly strike out for non-joinder with leave to refile for reason that the seller of disputed land was summoned as a witness (PW2) adding that tribunal did not pay its attention to order 1 rule 1 of Civil Procedure Civil Cap 33 of R. E 2002. Secondly, Mr. Magoiga further submitted the tribunal erred in law in framing issues different from the ones jointly~ framed during hearing. 4 Mr. Magoiga also submitted that the trial tribunal ought to have sat with assessors and considered their opinions and given reasons for its departure from the assessors' unanimous opinion. Responding to the verbal subn1ission by the appellant's counsel. the respondent stated that the trial tribunal was correct in finding that the alleged seller was to be joined. Replying to the respondent's oral submission, Mr. Magoiga stated that the appellant was suing the respondent and not Haruna Philiph (PW2). According to the nature of the trial tribunal Order, I think it is prudent and wise to start with the 3 rd ground of ·appeal as the same may dispose of this appeal withought venturing in other grounds of appeal, 'the honourable trial chairperson erred in law by raising an issue of misj oinder and / or non joinder and base his decision on the same alone, while a suit cannot be defeated by misjoinder or non joinder'. Non- joinder of parties being an omission to join a person as a party to a suit, whether as plaintiff or defendant who ought to have been joined in accordance with the law. ~ 5 . .0 ; That being the meaning of non-joinder, I am of the considered opinion that if a case had been struck out for non-joinder as was the case before the trial tribunal, the I plaintiff would have filed a fresh case, of course resulting "in multiplicity of ligation, in order to avoid the multiplicity of ligation and wastage of time for both courts and litigantsas courts and litigants abhor prolongation of litigation of cases, a court or tribunal may add a party on its own or direct plaintiff to do so at the time of trial. . The general principle of law is. that pleas of non-joinder should be raised at the earliest possible opppurtunity (see order 1 rule 13 of CPC) While it is true as rightly submitted by Mr. Magoiga that the case should be not be defeated by non-j oinder or mis- joinder of the said Haruna Philipph as provided for under rule· 9 of order 1 of the CPC which is provides that: 9. 11 No suit shall be defeated by reason of the 1nis- . joinder or non-joinder of parties)· and the court may· in every suit deal with. the 1natter. i!1 con.troversy so far as regards the right and interests of the parties· actually ~ . before ir. UPIIJ/6 6 .J However, there is another provision of the law (see rule 10 (2) of order 1 of CPC) which allov-1s court at any stage if it deems just and fair to order any person to be joined as plaintiff or defendant as the case may be, so that it can effectively and completely adjudicate and settle all the questions involved in the case. In our present matter I think the trial tribunal chairperson was of the opinion that the right to dispose of a property must go with clear and certain O\,Vnership of subject matter for disposal. While it is true that issue of joining the vendor or not was neither framed nor discussed or raised during pre- trial and trial sessions as precisely subIT1itted by the appellant as issues framed were only two, notably, 'whether or not the suit plot belongs to the applican.t and any reliefs the court n1ay deem fit to grant' but the 01~der seemingly to be in tended or aimed at occasioning substantial justice moreover, to my view, it did not prejudice the appellant. I have also looked at Order XL of the CPC during preparation of this judgment and I came to discover, two serious issues, Of course, I have invited the appellant's counsel to see if this matter is appealable or not, the ff'@_ 7 DLHT's order striking out the appe11ant1s application and if the respondent is duly appointed as administrator. Mr. Magoiga in these controversial legal issues submitted that he is aware· of law applicable that is order XL of CPC however he did not say with certainty if the order of the tribunal below is appealable or not, 1n regard to the respondent's status, Mr. 1\/Iagoiga stated that what he knows is that the respondent has a letter of appointment as administrator by his clan and not a court. Admittedly, the respondent submitted that he has locus standi by virtue of being appointed by his clan members eventually by Primary Court of Nyamagana - as ·administrator of his deceased mother. Looking at the nature of order made by the tribunal striking out the application and ·with due scrutiny of the provisions of Order XL of CPC, I an1 unable to hold that the trial tribunal order was appealable as the learned tribunal chairman felt compelled to have that application struck out so that the vendor, Haruna Could be joined as defendant and not a mere witness, that direction might have been associated with different reasons, for instance, failure· to closely assess demeanor of the said Haruna Philiph ~rho appeared in court as PW2 during his trial, if it was right t o ~ 8 make a witness (PW2) liable· in case which he stood as a witness and. not a party and the hke which could ably assist the tribunal to arrive at a just decision, thought that ought to have been done earlier that is during pre-limihary . hearing however for ends of justice and the merit of this particular case, this order ought not to have been appealed. It goes without saying that the purported order striking out the application with leave to re file is not an order that affects the merits of the case, such order merely ensures a hearing upon the merits, ascertaining if the vendor, Haruna Philiph had a good title to dispose of the land in dispute or not.· I am the refore of the considered op1n1on that the judicial determination of issue whether the vendor was a lawful owner of suit land and therefore with good title or other\vise was of paramount importance in· th-e n1ind of the learned chairman as the evidence adduced during trial clearly depicts that there is no dispute that the appellant bought the land in question from Haruna Philiph (PW2) despite contradictions in ter1ns of purchase price. In_ Paul Kweka and another v. Ng,orika Bus Service and another, Civil Appeal No 129 of 2002, where exparte~ 9 judgment and decree were set aside in favour of the " respondent. aggrieved by that order of the High Court the appellant sought and granted a leave to appeal, hence an appeal before the Court of Appeal, the Court of Appeal dismissing the appeal on the ground that order setting aside exparte judgment was not appeal.able in terms of Order XL and XL 1 of CPC, had this to say: "The rationale for making the orders non-appealable is not hard to find. Firstly, it promotes an expeditious. administration of justice., that is) it ensures timely justice) at the same time rnaking access to justice affordable) which is less costly. Secondly, and more importantly) it affords both parties in the case equa_l opportunity to be heard at the full trial ..... . It should also be recalled that the right of appeal is a creation of a statute. There is therefore no automatic right of appeal to this Court". In our case it is evident that the tribunal's order is not appealable as earlier stated and that the order was aimed at arriving at effective justice rather than procedural justice or technicalities moreover it did not determine merit of the~·ttttttff,b----+-l .case in either side. 10 With regard to the 2 nd observed irregularity, I have come to learn that the resp on dent had· been appointed administrator of his · deceased 111.other' s estates since 19/2/2013 (Kasubi-Magistrate). It follows therefore that the respondent has locus star1di to stand as deceased's re pre sen tative. Having taken this course· of action, it therefore becomes unnecessary to deal any further \Vith other of grounds appellant's appeal. For the reasons given herein above, this appeal 1s struck out for being pren1aturely filed and for the ends of justice in respect ·of costs of this appeal; ea.ch party shall bear its costs. / ... Order.£~- . I V ! f . . /.~· / I(~--:! r· f ·"'-; i ...... l '"'·,[ 25 \~\ .. \·,.-:, I ' Rig.'bt d - ·." · .::':e;a: fu1ly· explai .... " ..... ---:✓-;,. / ..... ~~--•-..,;."'W,.;,~•'''"'· /"" . -~~=------- 25. 25/11/2015 Coram: M. R. Gwae J Applicant: Present with information Respondent: Present in _person B/C: Nazarena Court: Judgment is ready for delivery. Respondent: I am ready for the intended delivery: !J~,J 25/tt/2015 Court: Judgment delivered 1n the presence of the respondent and absent of the applicant. !J~,J 25/11/2015 Court: Copies of proceedings as well as of Judgment are I'· ! ready for collection as per Order xxxix Rule 36 of CPC. i