CIVIL APPEAL NO 254 OF 2019 NESTORY MSOFFE OTHERS V THE REGISTERED TRUSTESS OF CATHOLIC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MUGASHA. J.A., LEVIRA. J.A. And MAKUNGU. J.A.^ CIVIL APPEAL NO. 254 OF 2019 NESTORY MSOFFE.................................................................. 1ST APPELLANT HONEST MSOFFE.................................................................... 2nd APPELLANT GASPER MASSAWE .............................................. .................. 3rd APPELLANT ESTHER MZIRAY (Personal Legal Representative of the late PROVATUS STEVEN............................................... 4™ APPELLANT EVANS LEMAMA..................................................................... 5™ APPELLANT ILLUMINATA TEM BA .............................................................. 6th APPELLANT VERSUS THE REGISTERED TRUSTEES OF CATHOLIC ARCHDIOCESE OF ARUSHA...................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Opiyo, J.) dated the 22nd day of August, 2016 in Land Case No. 46 of 2014 RULING OF THE COURT 5th & lffh July, 2024. MAKUNGU. 3.A.: The respondent, The Registered Trustees of Catholic Archdiocese of Arusha, instituted a suit in the High Court of Tanzania at Arusha in Land Case No. 46 of 2014 claiming that the land property with Title No. 15936 FARM No. 1119 L.O No. 178460 situated at Olorein Village, Arumeru District in Arusha Region, belongs to her. She implored the High Court to i issue an eviction order against the appellants; permanent injuction, mesne profit, general damages and cost of the suit. The material facts as may be gleaned from the record of appeal is as follows. The appellants were once the respondent's employees at one of her projects by the name of Arusha Diocesan Development Office (ADDO), when she rented disputed houses as service tenants during the existence of their service contracts. However, the project was crippled with financial difficulties which led to its closure in 1998, culminating to retrenchment of all the employees. Upon termination of their employment contracts, the appellants were requested to vacate the disputed houses but refused, claiming ownership through house loan agreements. They maintained to have purchased the disputed houses on a credit basis. They further claimed that the purchase price was directly deducted from their monthly salaries. This is where the parties wrangle, each claiming to be the lawful owner of the disputed houses. Having amicably failed to get possession, the respondent initially filed Land Case No. 8 of 2002 against the appellants. The High Court struck out the plaint on technical grounds. Again, the respondent filed Land Case No. 46 of 2014 where in the final analysis, the respondent emerged a winner and was declared the lawful owner of the disputed 2 houses. The appellants were ordered to give vacant possession of the disputed houses and to pay the respondent TZS. 30 million as general damages. That holding did not amuse the appellants, hence this appeal. In this appeal, the appellants have accessed the Court seeking to impugn the High Court decision through a memorandum of appeal premised on seven grounds. A notice of intention to add two more grounds was, in terms of rule 113(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), subsequently lodged to make a total of nine grounds. However, we declined to grant permission, and the appeal was predicated on the initial 7 grounds. However, for a reason to be unfolded shortly, we see no compelling reason to recite the said grounds of appeal. Before us for hearing of the appeal, Mr. Innocent Mwanga and Mr. Peter Nyamwero, learned advocates, appeared representing the appellants. On the other side, Ms. Neema Mtayangulwa and Ms. Rehema Kitaly, both learned advocates, appeared representing the respondent. The parties respectively, lodged written submissions in terms of rules 106(1) and 106(8) of the Rules and lists of authorities to be relied upon during the hearing of the appeal in terms of rule 34(1) of the Rules. However, given the course we have taken in resolving the appeal which does not call for a resort to them, we think that it will be unjust if we will not commend them for the thorough research. 3 In terms of paragraphs 6 and 7 of the amended plaint at page 33 of the record of appeal, the respondent claims exclusive ownership of the suit land vide the Certificate of Title No. 15936 L.O 178460. However, this was contested by the appellants who in the written statement of defence at page 80 of the record of appeal challenged the validity of the grant of the said Certificate of Title. Thus, since the dispute revolves over registered land, we noted that the Registrar of Titles was not involved in the trial of the case. This prompted us to raise suo motu a question to the learned counsel of the parties who were engaged to address us on that infraction. Expounding on the question raised by the Court, both counsel were in agreement that it was not proper not to join and hear the Registrar who is responsible with task of land registration and as such, the trial was vitiated and the respective impugned judgment of the High Court cannot stand. Commenting on the way forward, they urged the Court to nullify the trial proceedings, the resulting judgment and proceed to remit the matter to the High Court for it to hear the same after the Registrar of Titles is joined as one of the parties. We found the aforesaid raising the question of non-joinder of a necessary party and the issue for our determination is the propriety of the trial before the High Court on account of non-joinder of the Registrar of Titles. From what we have gathered from the respective pleadings and the 4 memorandum of appeal before us, the conclusive and fair determination of the dispute between the appellants and the respondent cannot be attained without impleading and hearing the Registrar of Titles. In the circumstances, as the suit was filed before the High Court, it was incumbent on that court to scrutinize the pleadings in order to determine if at all, the Registrar of Titles was a necessary party in the context of Order 1 Rule 10 (2) of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC) which stipulates as hereunder: "(2) The court may, at any stage o f the proceedings, either upon or without the application o f either party and on such terms as may appear to the court to be just, order that the name o f any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name o f 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 effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added". See -Tanga Gas Distributors Ltd v. Mohamed Salim and Two Others, Civil Revision No. 6 of 2011 and Nuta Press Limited v. Mac Holdings and Another, Civil Appeal No. 80 of 2016 and Farida Mbaraka and Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006 (all unreported). In the latter case, the Court emphasized as follows: 5 "Under this rule, a person may be added as a party to a suit (i) when he ought to have been joined as plaintiff or defendant and is not joined so; or (ii) when, without his presence, the questions in the suit cannot be completely decided". See also- Claude Roman Shikonyi v. Estomy A. Baraka and Four Others, Civil Revision No. 4 of 2012 and Abdulatif Mohamed Hamis v. Mehboob Yusuf Osman, Civil Revision No. 6 of 2017 (both unreported). In the premises, in view of the state of the pleadings and the stated position of the law, it was incumbent on the High Court to be keen enough and require the parties to amend the pleadings and join the Registrar of Titles who is alleged to have registered the respondent's property in question held under Certificate of Title. Since it is clear that the Registrar of Titles had a role in the registration of the land in question, the non-joinder of her in the suit before the High Court it means that the Registrar was not heard which occasioned a miscarriage of justice which cannot be condoned by the Court by hearing and determining the present appeal. In the result, we have no option but to annul the trial proceedings and the impugned judgment. In the event, we accept the invitation extended to us by the learned counsel of the parties and hereby invoke our power of revision bestowed upon us under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 of the Revised Edition 2019. We quash and set aside the entire proceedings and 6 judgment of the trial court together with subsequent orders. We further direct that Land Case No. 46 of 2014 be set down for trial after the Registrar of Titles is joined as a party in terms of Order 1 Rule 10 (2) of the CPC. As this matter was raised suo motu by the Court, we make no order as to costs. DATED at ARUSHA this 9th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 10th day of July, 2024 in the presence of Mr. Peter Kuyoga Nyamwero, learned counsel for the Appellants and Ms. Neema Mtayangulwa, learned counsel for the Respondent, is hereby certified as a true copy of the original. 7