OTHUMAN MIRAJI MKUMBWA

% THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA LAND APPEAL NO.37 OF 2023 OTHMAN MIRAJI MKUMBWA COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS JOSEPH ABEL RWAKEZA & 2 OTHERS RESPONDENT / DEFENDANT JUDGMENT BADE,J, 20/09/2024 & 04/10/2024 The matter at hand commenced at District Land and Housing Tribunal for Arusha at Arusha (herein referred to as “the tribunal”), vide Application No 120 of 2014 culminating in a judgment that was delivered on 13/04/2023 by Hon. G. Kagaruki. The background leading to this appeal can be traced from the record of this file. The Applicant brought an Application before the tribunal claiming that he is a lawftil owner of Plot No. 2 Block “A” and Plot No. 4 Block “A”, both located at Mateves Ward within Arusha City. The Applicant claimed that he bought the said Plots from the 1st Respondent on 02/01/2010 on the understanding that the 1st Respondent was required to process Title Deeds of the said Plots within 90 days. The 1st Respondent did not lieed the promise to secure title deeds for the Appellant. In the process of procuring the said Title Deeds by himself in June 2014, he discovered that the 2nd and 3rd Respondents trespassed into the said Plots and are in fact registered in their names, as well as proceeded to develop the same. Before hearing the suit, there was raised a legal issue that there was non-joinder of a necessary party, that is the commissioner for lands together with the authority which surveyed, measured and transferred the land to the 2nd and 3rd Respondents. The trial Tribunal invited the parties to submit on the raised issue and ruled that there was a non-joinder of necessary parties. The tribunal goes on to opine that joining the Commissioner for Land as a principal officer of the government makes it necessary to also join the Attorney General as per the Government Proceedings Act, Cap 5 R.E 2019. The trial tribunal further held that the act ofjoining the Attorney General will automatically the deprive the tribunal its jurisdiction to hear and determine the matter as all suits against the Government are required to be instituted in this Court, proceeding to strike out the Application so that it can be brought in a proper forum. It is this decision that has aggrieved the Appellant and prompted him to bring the instant Appeal on three grounds as presented in his Memorandum of Appeal, to the effect that: 1. The trial Chairperson grossly erred in law and in fact in declining to accept the Appellant’s ground that he bought the disputed plots before the survey and does not challenge the propriety of the Certificate of Occupancy issued to the 2nd and 3rd Respondents. 2. The trial chairperson grossly erred in law and in fact in finding that, since the 2nd and 3rd Respondent obtained certificates of occupancy over the disputed plots, the dispute cannot be conclusively resolved without joining the Commissioner for Lands and the District Council that surveyed the disputed plots and register them in the names of the 2nd and 3rd Respondent. 3. The trial chairperson grossly erred in law and in fact in finding that it was necessary for the Appellant to join the Commissioner for Land, the authority responsible for land survey and the one responsible for issuing Certificate of Title as well as the Attorney General. Both parties in the Appeal had the services of a legal counsel, with Mr. Kipanga Kimaay, learned advocate appearing for the Appellant, while Mr. Mhyelah and Ms. Zalfina appeared for the 1st Respondent. Mr. Kimaay submitted that the Appellant bought the suit plots from the first Respondent as per agreement of 22/01/2010 which were not surveyed. The plots came to be surveyed by the 1st Respondent as the seller. In fiirther argument, he offered that in 2014, the Appellant was informed by a neighbor that the plots were being invaded. It is Mr. Kimaay’s contention that the Application was instituted against the 1st Respondent, but unexpectedly the 2nd and 3rd Respondent also filed Written Statement of Defence and they had a title of ownership. Obviously, their knowledge was based on the summons that was affixed on the suit plot, with an allegation that the said land was given to them by the original owner of the land who was not part of the Application, but that the same person is the one who sold the land to the first Respondent who in turn sold the land to the Appellant. Mr. Kimaay further argues that the certificate of title show that they were obtained on 9th Mach, 2012 which is two years after the Appellant bought the land, adding that the 3rd Respondent obtained the Certificate of Title on 15/04/2010, three months after the Appellant bought the suit land from the 1st Respondent. Moreover, he explained that it was not necessary to join the Commissioner for Land, District Council and Attorney General, because the Appellant did not challenge the validity of the title, rather he wanted to be declared a rightful owner for the suit land which was bought from the 1st Respondent before the 2ndand 3rd Respondent acquired their ownership. His further contention is that the Appellant did not challenge the process of survey and obtaining certificate of titles of the 2nd and 3rd Respondent, but rather the legality of the said acquisition. In his view, the order to join the Government authorities were not founded in law, adding that the trial tribunal was called to establish who was the rightfiil owner of the suit land without the need of going further to declare the validity of the title deeds. Opposing the appeal, counsel for the 1 st Repondent submitted that the 2ndand 3rd Respondent claimed to have bought the suit land from one Olodi Katamboi who is not a party to this suit. Meanwhile, the 1st Respondent claimed to have been sold the suit land from Olodi Katamboi. They further argue that they conceded to the fact that the Appellant was sold the suit land by the 1st Respondent. It is their further contention that joinder of parties require necessary parties to be joined when its complied so that justice be dispensed effectively, as well as being able to execute a decree. That the 2nd Respondent brought into the tribunal a registered title deed Plot No. 2 Block A CT No 35522 LO No 308933. In their opinion, the three Government officials were in fact necessaiy parties for the decree to be properly executed from whoever will be the decree holder. It is their further submission that the Appellant is not challenging registration but rather legality and that at the end ofjustice, the parcel should be transferred to the rightful owner which meant the land will not be registered again but simply be transferred to the rightful owner as shall be declared. They went on arguing that principally he who hold the certificate of title is prima facie the owner, unless the same is fraudulently obtained. They argue that the issue that will be disputed at this juncture is whether the trial tribunal was right to direct that there is a need to join the three Government officials. If that hold true, then it becomes imperative that after joining the Government officials then the matter had to be reinstituted in the rightful forum. To support their position, they cited the cases of Nestory Msoffc and Others vs Registered Trustees of Catholic Archdiocese Church of Arusha, Civil Case No. 254 of 2019 and the case of Ngerengere Estate Co Ltd vs Edna William Sitta, Civil Appeal No. 209 of 2016. Rejoining, Mr. Kimani insisted that he does not think it necessary to join the Government authorities, adding that it is not prejudicial to the full determination of the right of the parties. Having considered the record of this Appeal and rival submission by parties, the issue calling for deteraiination here is whether the trial tribunal misdirected itself by striking out the Application before it on the reason that it has no jurisdiction to hear the matter. As it is already pointed above, it was the holding of the trial tribunal that the circumstances of the Application required joinder of the necessary parties, that is the Commissioner for Lands, the Government authority responsible for land allocation which allocated the land to the 2nd and 3rd Respondents and the Attorney General. Now, before detennining the said issue, it will be insightful to understand who is a necessary party. In the case of Ilala Municipal vs Sylvester J. Mwanibije, Civil Appeal No. 155 of 2015 which cited with approval a persuasive Indian Case of Benares Bank Ltd vs Bhagwandas, AIR (1947) the Court of Appeal laid down two tests to detennine whether a particular party is necessaiy. The first test is that there has to be a right of relief against such a party in respect of the matters involved in the suit, and secondly, the court must not be in a position to pass an effective decree in the absence of such a party. The Court of Appeal further added: “ that 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". It is therefore prudent to examine the record of this Appeal and see whether the Commissioner for Lands, Arusha District Council and the Attorney General are necessary parties in this case. Upon going through the record, I found out that the Applicant claimed to have bought the alleged plots from the 1st Respondent. On the other hand, the 1st Respondent in his written statement of defence claimed that he bought the land which he sold to the Appellant from a person by the name of Ishmail Olodi Katamboi. According to the said Written Statement of Defence, the said Ishmail fraudulently sold the suit land to one John Dungam, who in turn sold the suit land to the 2nd and 3rd Respondent. On further scanning of the record, I could not find anywhere on it where the 2ndRespondent or the 3rd Respondent claiming that they were allocated the suit land by the Commissioner for Land or any Government authorities as it was held by the trial tribunal. The 2nd and 3rd Respondent only claimed that after they duly checked on the suit land, they found it to be free from encumbrances and they proceeded to apply for a Certificate of Title to the required authorities, and was issued with one. The questions like where 2nd and 3rd Respondents got the suit land before making an application for registration, and being actually issued with the Title Deeds, or who is the real owner of the suit land, or whether there was a double allocation are the questions to be answered while determining the suit on merits. In this situation, as con-ectly argued by counsel for the Appellant, I could not see how the Commissioner for Lands or any other Government authority is a necessary party to this suit. I cannot over emphasize the fact that the Appellant is not contesting the process of registration of the suit land, or challenging the Title deeds of the 2nd and 3rd Respondent. His claim is rather that he is the sole and lawful owner of the suit land. So in my view, the major issue of contention here is the ownership and not the registration of the suit land, and which in my view, registering the same to the lawful owner will be an imperative of rights determination. In other words. The Appellant is claiming that whoever passed the title to the 2nd and 3rd Respondents, legally had no such title to pass. As pointed above, its neither the 2nd nor the 3rd Respondent in his pleadings claimed to have been allocated the land by Arusha District Council or Commissioner for Lands. They only stated that after finding that the suit land had no encumbrances, they made an application for them to be issued with the Title Deeds. They did not state that they were given the suit land by the Arusha District or Commissioner for Lands to make them necessary parties to this suit. Having said so, this Appeal is hereby allowed. The decision of the trial tribunal is quashed and set aside. It is further ordered that the file be remitted back to the tribunal before another Chairperson for the suit to be determined on merits. It is so ordered. Dated at ARUSHA this 4th of October 2024. \ \ \ > a:f \ \ — 0 ^ A.Z BADE ■Judge of the high court >