Ruling for misjoinder of parties

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI MISCELLANEOUS LAND APPLICATION NO. 16312 OF 2024 (Originating from Land Case No. 19178 of 2024). OLORUBARE NGINYU …………………………………….……..APPLICANT

VERSUS KILEMPU KINOKA LAISER …………………………………………….RESPONDENT

RULING 24th October & 22nd November, 2024 Kahyoza, J.: Olorubare Nginyu (the applicant) prays this Court to order Kilempu Kinoka Laiser (the respondent) to join Mr. Mohamed J. Aziz, Naberera village council and Landanai village council as necessary parties to the suit. The respondent resists the application contenting that, the affidavit in support of the application raised allegations not stated in the written statement of defence and that there no dispute between him and Mr. Mohamed J. Aziz or Naberera village council or Landanai village. There is only one issue for determination, whether Mr. Mohamed J. Aziz or Naberera village council or Landanai village are necessary parties. 1 After adopting the affidavit, to support the application, Mr. Mwale learned advocate submitted that Mr. Mohamed J. Aziz and Naberera village council were very important persons to be joined to state if they sold the disputed land to the respondent. To support his submission, he cited the case of Thomas Brush Rwebangila, Flora Charles Kautlanga Bakari Gumpi Issa v. Juliana shawn Kadri, the Legal personal representative of Omary Kadri Baksh and others, Land case, No. 36 of 2023 at page 9. This Court in Thomas Brush Rwebangila, Flora Charles Kautlanga Bakari Gumpi Issa v. Juliana shawn Kadri, the Legal personal representative of Omary Kadri Baksh and others held that in land suits, a person who is

alleged in pleadings to have conferred land title to the parties or any of them by one means or another (such as by allocation or sale) and the person to whom the title was conferred are necessary parties to the suit whose presence is indispensable. He argued that in the absence of Mr. Mohamed J. Aziz. and Naberera village council who alleged sold land to the respondent, the Court cannot make proper orders. He argued further that, the applicant prayed to join Landanai village council as under paragraph 11 and 14 of the Plaint the land in dispute is part of that village and the village was established before 2012. He argued that 2 Landanai village council to be joined as the applicant had evidence to show that Landanai village was established in 1978 and Naberera village was registered in 1979. As to the issue whether after the Court orders Naberera village council and Landanai village council to be joined, there will be a requirement to issue a 90 days’ notice, under the Local Government Act, and the Government Proceedings Act, he submitted that there will be no such a need. To support his argument, he cited the case of Mariam Amri Milinga and 4 others v Peter Junior and 11 others Land case No. 21/ 2023 Land Division, where this Court ordered the Commissioner, the Registrar of Title and the AG to be added as party and because it was the court order the requirement for 90 days’

notice was waived. He argued further that, the law is settled that the plaintiff has a right to choose whom to sue and whom not to sue, however, the court may direct the plaintiff to amend pleadings to join a necessary party. He cited the case of Stanslaus Kalokola v Tanzania Building agency and Mwanza City Council, Civil Appeal No 45/2028 and Abdullatiff Mohamed Hamis v. 3 Mehaboob Yusuph Osman and another, Civil Revision No. 6 of 2017 to support of his contention. He prayed the court grant his prayers. Mr Lengai, the learned advocate, who appeared for the respondent vehemently resisted the application. After adopting the counter affidavit, he submitted that the cases the applicant’s advocate cited are distinguishable and that the application has no merit. He contended that there is no cause of action against Landanai village council. The applicant’s allegation that Landanai village council allocated to him 50 acres of land was not enough to raise a cause of action against the village council. He added that the annextures the applicant attached to the affidavit do not indicate or reflect that the applicant is one of the persons to whom land was allocated to. In determining whether the cause of action has been disclosed, the Court of Appeal in John Byombalilwa vs. Agency Maritime Internationale Ltd [1983] TLR 1, held that the court may look at the plaint and not to the

reply. As to the parties to be added to the main case the Plaint must be looked at and not any other pleading. The applicant did not describe the suit land, which is an important element to constitute a cause action. To support his contention, he referred to Olurubare Nginyu v. Kilempu Kinoka Laizer 426/2012 CAT, at page 17 & 18 hold briefly that where the suit 4 involves immovable property the plaint should include description of the property sufficient to identify it. In the present case, the applicant did not give description of the land given to him by Landanai village council. The Plaint and the WSD do not disclose a cause of action of the parties to be added. The main case will be decided based on the Plaint and the WSD and not the affidavit and counter affidavit. The parties sought to be added are not necessary parties. A necessary party is one whose absence an effective decree cannot be passed by the court. Thus, the determination as to who is a necessary party vary from case to case and depends on the facts of each particular case. Among the relevant factors, include the particulars of party to be joined as well as whether or not, in the absence of the party, an executable decree may be passed. He referred the Court to the case of Abdullatiff Mohamed Hamis v. Mehaboob Yusuph Osman and another, Civil Revision No. 6 of 2017 at page 25, where the Court of Appeal developed

two test to determine who is the necessary party, there must be a relief against the party sought to be joined and two, the court must not be in the position to pass an effective decree. 5 The courts over years have made a distinction between the ordinary party and necessary party as shown in the case of Abdullatiff Mohamed Hamis v. Mehaboob Yusuph Osman and another, (supra) which referred to the case of the Supreme Court of Uganda. As we mentioned earlier, the question as to who qualifies to be a necessary party. He prayed this court to consider the tests in Abdullatiff Mohamed Hamis v. Mehaboob Yusuph Osman and another, (supra) and determine whether Mr. Mohamed J.Aziz, Naberera village council and Landanai village council are necessary parties. We contend that there is no relief against them and it is not proved that this court cannot pass an effective decree. No suit shall be defeated by non-joinder or mis-joinder of parties as per Order 1 rule 9. The respondent’s advocate argued further that to determine if there is a cause of action, it is settled to look at the pleadings. In Barclays Bank LTd v Jacob Muro Civil Appeal 357/2019 at page 11, the Court of Appeal held that as general rule parties are bound by pleadings, they cannot be allowed to succeed on case not made up in the pleadings. There is no cause of action against Mr. Mohamed J. Aziz, Naberera village council and

Landanai village council. The function of pleadings is to give a notice to 6 the adverse party, a party must state his case so as not to take the other by surprise and to state precisely and the claim and put clearly the matters to be adjudicated upon by the court. He cited the case of James Funke Gwagilo v. A.G. [2004] T.L.R. 161 to support his contention. The plaintiff/the respondent claims no relief from Mr. Mohamed J. Aziz, Naberera village council or Landanai village council. There is no cause of action against Mr. Mohamed J. Aziz, Naberera village council and Landanai village council. He finally prayed the application to be dismissed with costs. In his rejoinder, MR. Mwale, the applicant’s advocate, submitted tat before this court is an application, hence the contention that no cause of action has been disclosed is misconceived. He added that the respondent’s advocate did not say anything against the applicant’s prayer to join Mr. Mohamed J.Aziz and Naberera village council. He prayed the prayer to be granted. He contended that the respondent did not challenge the application. He contended that the pleadings are to the extent that the respondent was given 1000 acres of land by Landani village council and in the case of Thomas Brush Rwebangila, Flora Charles Kautlanga Bakari Gumpi Issa v. Juliana shawn Kadri, the Legal personal representative of Omary Kadri Baksh and

others Land Case No. 36 of 2023 at page 9, this 7 Court held that persons who passed title by any means to a party to the suit are necessary parties. He prayed the application to be granted. Having heard the rival submissions, it is upon this Court to determine whether Mr. Mohamed J. Aziz, Naberera village council or Landanai village council is a necessary party or that all are necessary parties. As submitted by Mr. Median Mwale, the applicant’s advocate, the Court of Appeal defined the necessary party in Abdullatiff Mohamed Hamis v. Mehaboob Yusuph Osman and another, (supra) (tanzlii [2018] TZCA 25) as follows- “We, in turn, fully adopt the two tests and, thus, on a parity of reasoning, a necessary party is one whose presence is indispensable to the constitution of a suit and in whose absence no effective decree or order can be passed. Thus, the determination as to who is a necessary party 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 relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed.” To determine whether Mr. Mohamed J. Aziz, Naberera village council and Landanai village council are necessary parties, we have to consider whether their presence is

indispensable to the constitution of a suit and in 8 their absence no effective decree or order can be passed. I will consider whether Mr. Mohamed J. Aziz, Naberera village council and Landanai village council are necessary parties. The applicant’s advocate submitted at length, to the extent that persons who passed title by any means to a party to the suit are necessary parties. To support his contention, he cited the cases of Thomas Brush Rwebangila, Flora Charles Kautlanga Bakari Gumpi Issa v. Juliana shawn Kadri, the Legal personal representative of Omary Kadri Baksh (supra). The respondent’s advocate did not comment to the case cited. He argued that since the respondent alleged to acquire title from Mr. Mohamed J. Aziz, to whom Naberera village council allocated the disputed land, Mr. Mohamed J.Aziz, Naberera village council and Landanai village council were necessary parties. The respondent’s advocate opposed the contention that Mr. Mohamed J.Aziz, to whom Naberera village council and Landanai village council are necessary parties as the applicant did not establish any cause of action against them. He contended that Mr. Mohamed J.Aziz, Naberera village council and Landanai village council are not proximate as in their absence, the Court may pass an effective decree and execute it without affecting them. 9 It is trite law as stated by this Court in Oilcom Tanzania Ltd

V. Christopher Letson Mgalla, Land Case No. 29 of 2015, HC at Mbeya (unreported) and quoted in Thomas Brush Rwebangila, Flora Charles Kautlanga Bakari Gumpi Issa v. Juliana shawn Kadri, the Legal personal representative of Omary Kadri Baksh (supra) that “where it was stated that, in land suits a person who is alleged in pleadings to have conferred title to the parties or any of them by way of allocation or sale is a necessary party to the suit whose presence is indispensable”. In the present case, the respondent stated that he procured 1000 acres of land from Mr. Mohamed J. Aziz to which the applicant trespassed onto. It was further alleged that Naberera village council allocated the suit land to Mr. Mohamed J.Aziz in 2005, which he sold to the respondent in 2012. The applicant did not alleged ownership of the suit land in the Plaint but simply averred that the Plaintiff does not own land, hence, there is no way he could have trespassed onto his land. There is no dispute that applicant did not contend in the written statement of defence, that he was also the lawful owner of the suit land. The applicant’s main defence was that the Court of Appeal had conclusively determined the matter. It is in the application where the applicant alleged 10 that he obtained 50 acres of land, which Landanai village council allocated to him. As held in Abdullatiff Mohamed Hamis v. Mehaboob

Yusuph Osman and another, (supra) the determination as to who is a necessary party to a suit would vary from a case to case depending upon the facts and circumstances of each particular case. The facts and the circumstances of this case do not necessitate the joining of Mr. Mohamed J.Aziz, Naberera village council and Landanai village council as necessary parties. Had the applicant been contending that he was the lawful owner of the suit land, then it would have been vital to join persons who conferred title to the respondent. Even if, the applicant had alleged in the WDS that he owned 50 acres of land, which Landanai village council allocated to him, that alone would not have brought into question 1000 acres of land, which respondent procured from Mr. Mohamed J. Aziz. I believe if 1000 acres of land, which the respondent procured from Mr. Mohamed J. Aziz were in dispute, it would have been proper to join Mr. Mohamed J. Aziz and any person who allocated 1000 acres of land to him as the necessary parties. In the circumstance of this case, Mr. Mohamed J. Aziz, Naberera village council and Landanai village council are not proximate as no order regarding the claims or reliefs in the Plaint may extend to them. The applicant is sued 11 for trespassing onto 1000 acres of land, the respondent procured from Mr. Mohamed J. Aziz and he has not alleged that he owns the suit land. There

is no way the order of trespass would affect the seller of the suit land or Naberera village council and Landanai village council. They, Mr. Mohamed J. Aziz, Naberera village council and Landanai village council, are not necessary parties as their absence will not render the decree or order which may be passed ineffective. In the end, I dismiss the application for want of merit with costs. I order accordingly. Dated at Babati this 22nd day of November, 2024. John R. Kahyoza Judge Court: Ruling delivered in the virtual presence of Mr. George Kivuyo advocate holding Mr. Median Mwale advocate’s brief for the applicant, Mr Yoshua Mambo, the respondent’s advocate, and the respondent. B/C. Mr. Shadrack (RMA) present. John R. Kahyoza, J. 22. 11.2024 12