MISC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA MISC. LAND APPEAL NO. 000002237 OF 2024 REFERENCE NO. 20240206000002237 {Arising from the decision of the District Land and Housing Tribunal for Serengeti at Mugumu in Land Application No. 54 of2023} BETWEEN PAULO TIRINGA............................................. APPELLANT VERSUS NYAKIMORI WAMBURA.................................................................... 1stRESPONDENT CHACHA JUMBE................................................................................. 2ndRESPONDENT MORIBA MACHUNGU................................................ 3rd RESPONDENT JUDGMENT 12th & 24th September, 2024 M. L. KO MBA, J. The appellant Paulo Tiringa filed a land suit against the respondents at the District Land and Housing Tribunal for Serengeti at Mugumu (the DLHT) in Land Application No. 54 of 2023. He claimed the respondents to invade 200 acres of land which is a part of 300 acres he owns after being allocated by the village council in 1994. Before the hearing of the matter at the DLHT, the respondents' counsel raised a preliminary objection on point of law that the application is Page 1 of 9 incompetent for failure to join the necessary party which is the Kenyana village government as the first respondent also claimed to be given the disputed land by the village government and that there is a need of the village government to explain on what capacity they allocated 300 acres to the appellant. After hearing both parties on the PO raised, the DLHT went on dismissing the application for failure of joining the necessary party. The DLHT's decision was not amused the appellant. He then decided to knock the doors of this court determined to challenge the said decision of the DLHT by way of an appeal. He fronted 3 grounds of appeal which can be summarized as follows; 1. That the DLHT erred to entertain and decide on the PO which was not properly raised. 2. That the DLHT erred to dismiss the application for non-joinder of necessary party while was not pleaded in the application. 3. That, the DLHT erred to hold that the appellant had to issue 90 days' notice while the government was not party to the suit. During the hearing of the present appeal, the appellant appeared solo, fended for himself whilst on the other hand the respondents had the legal service of Mr. Marwa Kesanta, the learned advocate. Page 2 of 9 When submitting in support of his appeal, the appellant averred that it is true the 1st respondent said he was allocated the disputed land by the village council but he did not have documents to prove his claim. He proceeded that it was not necessary to join village council because the respondents did not have the documents from the village. He submitted further that the PO had no merit as the issue of village was pleaded by the appellant. The appellant stated that, at Nyakimori Ward Tribunal the respondent informed the Tribunal that the land was not his property. He also submitted that before 1999 the village was allowed to allocate any size of land. He cited section 15 and 16 of the Village Land Act that indicates the land owners who owned the land before 1999 the properties belong to them. On the issue of 90 days' notice he submitted that it was the threat to him by the chairman as they think he cannot manage to sue. He contends that his issue was not wanting that long procedures. He then prayed the decision of the DLHT to be nullified and his appeal to succeed with costs. Responding to the appellant's submission, Mr. Kesanta, the respondents' counsel was of the submission that the record from the DLHT shows Page 3 of 9 when the appellant filed the land application, all respondents replied and raised the PO and one of the issues was non joining of the necessary party. The Chairman found merit on PO and sustained it, the application was struck out and Chairman informed the appellant he has to sue the village council by adhering to the law in suing government. He argued that it was right for the DLHT to sustain the PO. On the 2nd and 3rd grounds, the counsel submitted that when a person files a suit, it is important to join parties who may assist the court to do justice. On the 6th paragraph of the application the appellant explains how he managed to obtain the land and he had the minutes of three different village meetings. The counsel proceeded that the document shows the land was allocated to appellant by the village council and the DLHT found there was organ called Kenyana Village Council which was in good position to assist the Tribunal. He supported his submission with the cases of Tangi Gas Distributaries Limited vs Mohamed Salim Said and Two Others, Civil Application No. 68 of 2021 (unreported) and Abdul Latif Mohamed Hamis vs Mehboob Yusuph Osman & Another, Civil Revision No. 6 of 2017. The respondent counsel went on submitting that, the missing party was the village government which as per amendment of law was not Page 4 of 9 supposed to be sued in the DLHT. Chairman of the DLHT analysed that it is the Government Proceedings Act which require 90 days' notice before any government office is sued. The counsel was of the views that the DLHT Chairman was correct to struck out the application and allow the appellant to sue the proper parties in a court vested with jurisdiction. In rejoinder the appellant insisted that the issue of non-rejoinder was raised before hearing of the matter and he don't have interest on suing village council because they recognize him alone. Having been heard the submissions from both parties and cautiously pass through the records of appeal, my party now is to determine whether the present appeal have merit. The DLHT dismissed the appellant's application for non-joinder of Kenyana Village Council as the necessary party on defence side. Order I Rule 3 of the Civil Procedure Code (the CPC) provides for the necessary party who may be joined as the defendant. The section reads: "AH persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether Page 5 of 9 jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact wouid arise." In ascertaining whether a party is a necessary party or not in Farida Mbaraka and Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006 (unreported), the Court stated that; "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 vs Estomy A. Baraka and Four Others, Civil Revision No. 4 of 2012 and Abdilatif Mohamed Hamis vs Mehboob Yusuf Osman (Supra). The court of appeal in in the case of Tanzania Railways Corporation (TRC) vs Gbp T. Ltd (Civil Appeal 218 of 2020) [2021] TZCA 198 (7 May 2021) stated that; We must stress as we wind up, that if a trial court notes that some issues raised in the pleadings call for addition of a party whose absence will lead to such issues of importance to remain unresolved, Page 6 of 9 then the court cannot fold its arms and assume a role of an onlooker, a bystander or a passer-by only because parties are resistant or unwilling to apply to join a necessary party or parties. Thus, it is my opinion that, apart from the parties' evidence, it is the pleadings which can pave the way to the court or the parties to determine whether there is a need of adding a necessary party. In our case at hand, after being well associated with the records and pleadings filed by both parties before the DLHT, I didn't find a place where any of the respondents claimed to be allocated the disputed land by the village council as the appellant did. The appellant filed the application before the DLHT claimed the respondents to invade his piece of land which is among the land he was allocated with the village council of Kenyana in 1994. He didn't claim whether the village council was involved in instigate the dispute arose between him and the respondents. Thus, he found the village council was not a necessary part on his case. On the other hand, when the respondents replied to the appellant's application, apart from rising the PO, they did not indicate anywhere in the pleadings whether the village council was involved in giving them Page 7 of 9 the land in dispute, that to make her a necessary party in the case. The respondents denied the appellants claims and pleaded that they own the said land in dispute but they didn't plead where they obtained it. I am of the views that, the decision of Chairman of the DLHT was premature. There is no place where the respondents claimed to be given, sold or allocated the land in dispute by the village council of Kenyana. So, it is not right to assume that the village government should be a necessary party for the only reason that they allocated the said land in dispute to the appellant without justification that the said village was allocated the same land to the respondents. As said, the decision of trial Chairman was premature, maybe the respondents would have claimed to obtain the land in dispute by other means rather than from the village council. I am of the firm views that the trial Chairman was supposed to seek the certainty on whether the village council was the necessary party to be added in the case. As the law allow the court at any stage of the proceeding to order the necessary party to be joined if finds the justice is calling, I find the trial Chairman was hasten to dismiss the appellant's case without justification. See Order I Rule 10 (2) of the CPC. Page 8 of 9 In the circumstance I find the appeal has merit and I allow it. The decision of the DLHT in Land Application No. 54 of 2023 is set aside and I order the file to be remitted back to be determined on merit. Appellant shall have his costs. It is so ordered. M. L. KOMBA JUDGE 24th September, 2024 Page 9 of 9