mubelwa james mutabiilwa administrator of the estate of the late ferdinand mutagwaba mutabiilwa vs ms riziki lulinda and another 2021 tzhclandd 861 24 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 472 OF 2021 MUBELWA JAMES MUTABIILWA (as Administrator of the Estate of the Late FERDINAND MUTAGWABA MUTABIILWA).......... APPLICANT VERSUS M/S RIZIKI LULIDA...................... 1st RESPONDENT THE IMPERIAL ROAD HAULAGE LIMITED.................... 2nd RESPONDENT RULING 04th November, & 24th November, 2021 A, MSAFIRL J: The applicant has preferred this Application under Order 1 Rule 10(2) of the Civil Procedure Code, Cap 33 R.E. 2019 seeking to be joined as a Defendant in Land Case No. 62 of 2019 pending before this Court. The Application is supported by the affidavit of applicant himself. The second respondent did not oppose the Application. The 1st respondent contested the application by filing a counter affidavit deponed by 1st respondent herself. The brief facts leading to this Application as extracted from the affidavit of the applicant are that; the applicant has recently became aware of a Land i Case No. 62 of 2019 instituted by the 1st respondent (therein as plaintiff) against the 2nd respondent (therein as the defendant). Among other things, the 1st respondent is claiming ownership of the suit premises against the 2nd respondent alleging that she bought the same through public auction conducted in 2006 by Order of Kisutu Resident Magistrates Court in Civil Case No. 137 of 1996. The applicant is claiming that the property described as suit premises in the said Land Case No. 62 of 2019 was registered in the ownership of Ferdinand Mutagwabwa Mutabiilwa, deceased. That, the said deceased passed away in 1994 and he, the applicant was appointed as administrator of the deceased estate, so in that capacity, he is the registered owner of the suit premises so he is an interested party in the Land Case No. 62 of 2019. At the hearing of the application, the applicant was represented by Mr. Wilson Ogunde, learned advocate, the 1st respondent was represented by Mr. Abubakary Salim, learned advocate and Mr. Wilson Ogunde was holding brief of Mr. Selemani Almasi, learned advocate for the 2nd respondent. The application was heard orally. As hinted earlier, the 2nd respondent did not oppose the Application. Mr. Ogunde prayed to adopt and rely on the affidavit and reply to the counter affidavit to form part of his submission. Submitting on the substance of the application, Mr. Ogunde contended that this Court is empowered under Order 1 Rule 10 (2) of the Civil Procedure Code, to order joinder of an 2 interested party to a suit and this can be done at any stage of the proceedings provided that, the joinder will enable the Court to determine effectually the issue in controversy as between the parties. He submitted further that the applicant is the registered owner of the suit premises which is Plot No. 9 Kurasini Area in Dar es Salaam, under Certificate of Title No. 186100/82. That being the case, the applicant has interest over the suit premises. If the Land Case No. 62 of 2019 is allowed to proceed without joining the applicant, the applicant's interest with regard to ownership of suit premises will not only be prejudiced but also he will be denied of the right to be heard. It was Mr. Ogunde's further contention that the contents of 1st respondent's counter affidavit that she bought the disputed piece of land in a public auction which was conducted by the order of Resident Magistrates Court at Kisutu area is seriously disputed by the applicant. That the applicant has provided evidence before the Court that Civil Case No. 132 of 1996 at the Resident Magistrate Court at Kisutu which is the source of purported Certificate of Sale was struck out for want of prosecution. He substantiated that the applicant's inclusion will be vital as any order in Land Case No. 62 of 2019 will seriously affect him. He referred this court to the case of Tang Gas Distributors Limited vs. Mohamed Salim Said & 2 others, Civil Application for Revision No. 68 of 2011, CAT Dar es Salaam (unreported). A 3 Contesting the application, Mr. Salim : started by praying to adopt the contents of the counter affidavit deponed by Riziki Lulida, the 1st respondent. He submitted that, this Court has powers to order joinder of an interested party to the suit but only to enable the Court to effectually determine the issue in controversy. He argued that the issue in main Case No. 62 of 2019 is not on ownership of the suit property, but the plaintiff (who is now the 1st respondent) is claiming rent from the defendant (2nd respondent) who does not claim ownership of the suit property. On there being a certificate of sale, Mr. Salim agreed that there is indeed a Certificate of Sale dated 04/4/2006 which was issued by the Resident Magistrate Court of Kisutu, the same was issued to the 1st respondent. That as long as there is no any other order setting aside that certificate, the same is as good as a Certificate of Title. Mr. Salim submitted further that there is serious allegations in both the affidavit and reply to counter affidavit that the certificate of sale in the hands of 1st respondent is a forged document. He argued that the issue of forgery of Certificate of Sale cannot be determined in Land Case No. 62 of 2019. That the applicant has avenue to pursue his rights either by applying to challenge the Certificate of Sale or institute a fresh suit to claim ownership. Mr. Salim referring to the Case of Tang Gas Distributors Ltd (supra), which was cited by the counsel for the applicant, he stated that the case is distinguishable in the circumstances in this matter. He prayed that this application be dismissed with costs. 4 On a rejoinder, Mr. Ogunde reiterated his earlier submission adding that in the main suit, Land Case No. 62/ 2019/the plaintiff is claiming for possession of the suit property which solely belongs to the applicant. The plaintiff is also claiming for rent derived from the suit property while she has no right over the same as she is not the owner. He concluded that the certificate of sale is seriously challenged and determination of this cannot be done without joining the applicant as party to the main case. I have given considerable weight to the applicants affidavit and the 1st respondent's counter affidavit both in support and against the application and the arguments of the rival counsels for the parties. The pertinent issue for determination is whether the applicant is qualified to be joined as defendant in Land Case No. 62 of 2019. The application is made under Order 1 Rule 10 (2) of the Civil Procedure Code which provides: " 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 or defendant, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and 5 settle all questions involved in the suit, be added".(Emphasis added). From the above provision of the law, the decisive factor to consider before person is joined as a defendant in the suit is whether his presence in this case will enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Therefore, in my view, the person who is to be joined should be a necessary party in that particular matter. In the case of Christina Jalison Mwamlima & another vs. Henry Jalison Mwamlima and 6 others, Land Case No. 19 of 2017 High Court Mbeya Registry (unreported), Hon. Utamwa, J, defining who is a necessary party in a suit had this to say: "The law also recognizes two kinds of parties among those who can be joined in one suit. These are necessary parties on one hand, and non-necessary parties on the other......A non-necessary party is a person who has merely to be joined in the suit. He is also referred as common party. However on the other side, a necessary party is a person who has to be joined in the suit but whose presence before the court is necessary for it to effectively and completely adjudicate upon the questions involved in the suit" kA „ 6 Hon. Utamwa, J went on to observe the two tests which has been set by Courts for determining whether or not a particular person is necessary party (as defendant); (a) "There has to be a right or relief against such a party in respect of the matters involved in the suit and; (b) The Court must not be in a position to pass an effective decree in the absence of such a party". These dual tests were underlined by the Court of Appeal in the case of Abdullatif Mohamed Hamisi vs. Mehbood Yusuph Othman & another, Civil Revision No. 6 of 2017, CAT at Dar es Salaam (unreported) whereby it was observed thus; "... a necessary party is one in whose absence no effective decree or order can be passed. Thus, the determination as to who is necessary to a suit would vary from a case to case depending upon the facts and circumstances 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". 7 Standing by principles set in the herein above authorities, I will determine the pertinent issue in the current application which is whether the applicant qualifies to be joined in Case No. 62 of 2019 as follows: a) There has to be a right or reliefagainst such a party in respect of the matters involved in the suit; To determine this, I went through the pleadings in main Case No. 62 of 2019. In the plaint, the plaintiff's claims against the defendant are for delivery of vacant possession of the suit property located at Plot No. 9 Kurasini Area, Temeke, Dar es Salaam, permanent injunction against the defendant and payment of Tshs. 4,000,000/- as mesne profit for the whole period the defendant has been in unlawful occupation of the suit premises. The plaintiff claims that on 19/2/2009 she was a successful bidder at a public auction conducted on Plot No. 9 Kurasini Area and paid the whole purchase price and was declared the highest bidder from which she was issued with a Certificate of Sale by the Court and later the suit property was handed over to the plaintiff. In the defendant's Written Statement of Defence, the defendant denied the claims by the plaintiff and contends that the suit property has been rented as a yard for office purposes for a period of one year on September, 2018, the suit property being property of one Muchunguzi Mutabirwa/Ferdinand Mutagwabwa Mutabilwa. That the defendant has been a lawful occupier of the leased premises (suit premises) being a lessee of Mutabirwa or Mutagwabwa Mutabirwa a lawful owner of the suit property. 8 From this observation, I am inclined to believe that the applicant is a necessary party in the main case and his rights may be prejudiced with the reliefs sought by plaintiff in the main case. The right or reliefs which may be against the plaintiff in the main suit are found in paragraph (i) on the relief part in the plaint which read as follows; "(1) The Defendant, her workmen and or her agents be ordered to vacate from the suit property known as Plot No. 9 located at Kurasini area, Temeke Dar es Salaam forthwith and the same be handed to the plaintiff, (emphasis added). Looking at the above relief being prayed by the plaintiff, she is seeking for the Court order to hand her the suit property. In my opinion, this will directly affect the applicant who claims to be the lawful owner of the suit property. Furthermore, the defendant is claiming that the suit property was rented to them by the applicant and they were unaware that the plaintiff (1st respondent) is the owner of the same. Without going into the merit of the main case, since the applicant feature-in the defence of the defendant in the main case, his presence in the same will enable the Court to adjudicate and or determine who is the land lord of the suit premises and other issues which might arise during the trial. I have considered the argument by Mr. Salim, the counsel for the 1st respondent that the issue in the main case is not on ownership of the suit 9 property but the plaintiff is claiming rent from the defendant who does not claim ownership of the suit property. However, looking at the contents of the plaint, I believe the plaintiff is claiming ownership of the suit property through purchasing of the same in a public auction. In the circumstance, the applicant has a right to seek to be joined in the matter to protect what he believes to be his right and interest. b) The court must not be in a position to pass an effective decree in the absence of such a party; Having gone through the reliefs which are sought by the plaintiff in the main case, I believe that some of them mays not be executable if the decree will be passed in favour of the plaintiff. Again, in paragraph (i) of the plaint on the decree (reliefs) sought, the plaintiff is asking for the suit property to be handed over to her. This may not be executable since there is a person, who is not a party to the suit claiming to be the owner of the same property. If the applicant will not be joined in the main party, there will be multitude of suits and the execution of decree may not be effected as the applicant will not stand aside and watch what he believes to be his property being handed over to another person. Therefore, I believe that, the presence of the applicant in Land Case No. 62/2019 will bar multiplicity of suits; likely to be filed regarding the same property. An G . 10 From the above analysis, I will answer the earlier raised issue in affirmative i.e. the applicant being a necessary party, qualifies to be joined as a defendant in Land Case No. 62 of 2019. In the upshot, I hereby find that the applicant has an interest in Plot No. 9, Kurasini Area Temeke Dar es Salaam and therefore he is a necessary party in the High Court Land Case No; 62 of 2019. Taking into account the hereinabove analysis of facts and the authorities cited, I find merits in the application. In the event, I allow the Application. The applicant to be joined in the said Land Case No. 62 of 2019 as prayed in the chamber summons within 21 days from the date of this Ruling. Costs shall follow the outcome of the main cause. It is so ordered. li