final judgment PETER SEKAO WERIA TANzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI

AT MOSHI LAND CASE NO. 4264 OF 2024 PETER SEKAO WERIA@ PETER SEKAO MSELE……………………….PLAINTIFF

VERSUS GABRIEL GODSON MACHA………………………………………….1STDEFENDANT COMMISSIONER FOR LAND..……………………………………...2ND DEFENDANT MOSHI MUNICIPAL COUNCIL.………..…………………………..3RD DEFENDANT ATTORNEY GENERAL.………………………………………………..4TH DEFENDANT

RULING 3rd October & 11th December, 2024. A.P. KILIMI, J. The plaintiff hereinabove is suing the defendants jointly for the ownership of a landed property in plot No. 67 Block K Moshi municipality ‘the suitland.’ He stated that he acquired the same on 5/10/1989 through a letter offer as annexed to his plaint and marked as ‘M1’. The plaintiff further avers that he continued owning the disputed property peacefully without any disturbance where he leased and rented to interested tenants. In 2008, he rented the disputed property for 12 months period to one Deo Macha, but sometime in the year 2009 he suffered a stroke and was hospitalized for more than five years up to 2013. 1 He further stated that while at hospital paralyzed and continuing with medication, one Gabriel Godson Macha the first defendant herein secretly filed the case against him at the District Land and Housing Tribunal for Moshi at Moshi Application No. 2 of 2012 which proceeded ex parte. The claims in that application were that he was the one who had sold the disputed property to the 1st defendant. The case proceeded ex parte and the first defendant was declared the lawful owner of the disputed property. He then affected the changes to the title to his names. On 18/6/2018 the plaintiff wrote a letter to the Executive Moshi Municipal who informed him that the disputed land title has already been transferred to the

first defendant. The above grasp prompted the plaintiff to file an application No. 301 of 2019 at the District Land and Housing Tribunal for Moshi in order to set aside the said ex parte judgment wherein he succeeded. Upon restoration, the first defendant prayed to withdraw application No 2 of 2012 where he was allowed. The plaintiff then wrote several letters to the Municipal of Moshi to affect the changes on the title where his efforts proved futile. Thus, he has filed this suit praying for judgment and decree against the defendants as follows; (a) A declaration that the plaintiff is the lawful owner of the property in dispute 2 (b) An order that, the 2nd defendant do effect(sic) changes in respect of the plot No. 67 Block K Moshi Municipality in favor of the plaintiff herein Peter Sekao Weria as was before illegal changes effected in 2012 vide the already withdrawn application No. 2 of 2012 of the District Land and Housing Tribunal for Moshi (c) An amount of Tshs. 50,000,000/= being an amount for loss of income from utility of the disputed property by the plaintiff without attracting any income in the form of rents. (d) General damages as may be reasonably assessed by this court (e) Costs of the suit be borne by the 1st Defendant (f) Any other remedies the court may deem fit and just to grant. In reply to the above, the 1st defendant denied the allegations and prayed the

suit to be dismissed with costs and raised one preliminary point of law that this suit is bad in law and incompetent before this honorable court for being hopelessly time barred. Whereas the 2nd, 3rd and 4th Defendant also denied the allegations and raised also three Preliminary Point of objections as follows; first, the suit is bad in law for lacking cause of action. Second, that the suit is bad in law as the court is improperly moved for remedies sought against the 2nd defendant are unattainable, and third, that the suit is bad in law for non-joinder of the necessary party. Submitting in support of the raised first preliminary objection, Mr. Kilasara learned advocate representing the 1st defendant submitted that the 1st defendant purchased the suit property free from any 3 encumbrances from the plaintiff in the year 2006. That he was handed over an original letter offer by the plaintiff and where he then affected the changes of Right of Occupancy. Mr. Kilasara submitted that the 1st defendant has been in quite possession for over twenty (20) years from 2004 and has constructed residential house where he resides with his family. He added that the 1st defendant has been the lawful registered owner of the disputed property since 2012 and pays the requisite fees on the suit property. Further to that the learned counsel added that as per the pleadings the plaintiff firstly sued

the 1st defendant in March 2024 and prior to that no case has ever been brought against the 1st defendant by the plaintiff. He referred to item 22 of the first column of Part I to the first Schedule of the Law of Limitation Act (Cap 89 R.E 2019) which provides for time limitation on proceedings of recovery of land to be of twelve (12) years. He emphasized his point with the decisions of Shaban Nasoro vs. Rajabu Simba (1967) HCD 233, Yusuf Same and Another vs. Hadija Yusuf (1996) TLR 347 and the decision of the Court of Appeal in Mohamed Hassan Hole vs. Keya Jumanne Ramadhan, Civil Appeal No. 1992 at Arusha. He further submitted that as long as the plaintiff sold the disputed property to the 1st defendant twenty years ago, then the plaintiff’s claim was unfounded and 4 hopelessly time barred, he referred also to the decision of Zilaje vs. Fembera (1972) HCD 3 on rights which are not claimed or acted upon, the court cannot interfere and give remedy. Whilst Ms. Khadija Matewele learned state attorney appeared in this court representing the 2nd, 3rd and 4th defendants., In respect to objection that there is no cause of action, she submitted that from paragraph 6 to 21 of the plaint the plaintiff did not disclose a cause of action rather than narrating the historical background of the dispute. She referred to order VII rule 1(e) of the Civil Procedure Code Cap 33 R.E 2019 for the

ingredients constituting the cause of action which the same was not disclosed in the plaint. She also referred to order VII Rule 11 of the Civil Procedure Code, but also bolstered her point by inviting me to consider the decision of Antony Leonard Msanze and Another vs. Juliana Elias Msanze and Another Civil Appeal No. 76 of 2012 (CA). On the Point of law that the suit is bad in law for remedies sought by the plaintiff against the defendants are unattainable. Ms. Matewele submitted that the claims against the 2nddefendant particularly on remedies as in paragraph (b) which is to affect changes of plot No. 67 Block K Moshi Municipality in favour of the plaintiff, she said that was an improper approach and unattainable as the changes made by the 2nd 5 defendant were never illegal rather according to the law. She suggested that the proper remedy was for the plaintiff to bring a new suit against the 1st defendant at the District Land and Housing Tribunal as the same was held ex parte thus was never determined after the restoration orders. Submitting on Preliminary point of non-joinder of the necessary party or suing the wrong party, Ms. Matewele was of the view that the proper part to be sued was the Registrar of titles. She said that even when the plaintiff visited the 3rd defendant office on the effect of the said title, he was advised to approach the office of the Registrar of

titles but failed to do so. She submitted that it was important to sue the right party so as the remedies sought are able to be implemented. The learned State attorney referred to Order 1 rule 13 of the Civil Procedure Code Cap 33 R.E 2019 on objections for non-joinder of the parties to be taken at the earliest possible opportunity. Thus, as the Suitland has the certificate of title, then the registrar of titles was the right party to be joined in the suit. In Reply to the above raised preliminary objections, the plaintiff with the legal aid of Ms. Fransisca Lengeju from Legal and Human Right Centre - Arusha, replying on the Preliminary objections raised that the 6 suit was time barred and incompetent. She argued that the cause of action arose on 10th day of March 2022 after the first defendant withdrew land application number 2 of 2012, therefore the 1st defendant’s ownership over the suit property were legalized after the transfer that was occasioned by the ruling in Land application number 2 of 2012 which was later set aside. She contended that the cause of action never arose in 2004. She was of the view that the 1st defendant PO raised was not a pure point of law in terms of the decision of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd 1969 EA 696, as it requires evidence of the parties in order to prove exactly when the cause of action arose and what

exactly made the plaintiff bring the case in court, she then prayed this objection be dismissed with costs. Rebutting on the objection raised that the suit does not disclose the cause of action. Ms Francisca A. Lengeju learned advocate maintained that the cause of action was displayed in the plaint. She replied that through paragraphs 15 to 20 the plaintiff clearly explained the cause of action to be the disputed land which has been transferred to the 1st defendant after the decision in Land application No. 2 of 2012 which later was set aside. She explained that the requisites for cause of 7 action have been furnished as per the authority of Auto garage & Another vs. Motokov [1971] HCD 53, She further urged this court to see plaint demonstrated the actual involvement of 2nd,3rd and 4th in the dispute. To support her stance, she referred to the decisions of Jeraj Sharrif &Co. Vs Chotai Fancy Stores [1960] E.A. 374, Stanbic Bank Tanzania Limited vs. Abercrombie & Kent (T) Ltd [2006] TLR 261, Kishenlal Jamnadas T/A Jamnadas &CO vs. Kariakoo Auction Mart and Another [1988] TLR 163 and Sospeter Mwihava vs. CRDB (1996) Limited, Civil Appeal No. 118 of 2004 (unreported). Responding to the objection that remedies sought against the 2nd defendant are unattainable, the learned counsel for plaintiff submitted that since the 1st defendant withdrew his case and the 2nd,3rd, and

4th defendants acted on the already withdrawn application, then the transfer of disputed land right of occupancy to the 1st defendant remained illegal. Thus, the counsel was of the view that the order to reinstate the parties in their earlier status quo is what the plaintiff was seeking in this court as the 2nd defendant is in a position to revoke the right of occupancy issued to the 1st defendant as per section 10(1) of the Land Act. Further the learned counsel submitted that this objection does not deserve to be a preliminary objection as it was based on facts 8 to be proved, she referred to Mukisa Biscuit (supra) and National Insurance Corporation of (T) Ltd &Another vs. Shengena Ltd [2008] TLD 145. Refuting on the objection of non-joinder of necessary party who is the registrar of titles, the learned counsel replied that the office of Registrar of titles is under the office of Commissioner for Lands, thus the act of suing the 2nd defendant also includes the registrar of titles as the outcome of the case will also affect the Registrar of titles. She also cited order 1 rule 9 of the CPC that the suit shall not be defeated by the reasons of non-joinder or misjoinder of parties. She further cited the decision of Sajida Jamal &Another vs. Mohamed Almas Murtaza &Another, Civil Case No. 52 of 2012 which emphasized that misjoinder can be corrected by parties, she also invited this

court to consider the overriding objective on non- joinder as decided in the case of Yakobo Magoiga Gichere vs. Penina Yusuph, Civil Appeal No. 55/2017. In their brief rejoinder, the first defendant through the service of Mr. Kilasara maintained that the 1st defendant has been in quite possession and use of the suit property since 2004 and has substantially developed the same by constructing residential house thereon. He further submitted that application No.2 of 2012 was never instituted to 9 claim ownership rather was to compel the plaintiff to submit other relevant documents for effective transfer. He added that the plaintiff failed to institute the suit claiming ownership over the suit property after the prescribed period of limitation. He thus cemented by reiterating the law and cases cited in his submission. In her brief rejoinder Ms. Matewele maintained her submission in chief and added that the plaint failed to show the cause of action which could have been seen from the 1st or 2nd paragraphs of the plaint. Ms Matewele added that the actions of the 2nd and 3rd defendants cannot be termed as illegal since in their actions based on the lawful ruling in a cause said No. 2 of 2012. She further said that the inclusion of the necessary party is important as in time of implementing the decision. Having gone through the rival submissions of the parties, the issue for my

determination is whether the raised objections have merits. Starting with the first preliminary objection that the suit is time barred, the 1st defendant argument is that he has been in quite possession of the disputed land for over 20 years since in 2004 and it was until the year 2024 where the plaintiff filed the case at hand, hence hopelessly barred by time as per item 22 of the first column of Part I to the first Schedule of the Law of Limitation Act (supra). Replying to the 10 above, the plaintiff stated that the cause of action arose on 10th day of March 2022 soon after the 1st defendant withdrew his land application number 2 of 2012 at the DLHT. I have considered their rival argument, according to paragraph 13 of plaint the plaintiff is averring that on 20th February 2019 he discovered that there was an ex parte decision against him (Application No 2 of 2012). He applied to set aside with application No 301 of 2019 and upon restoration of application No. 2 of 2012, the 1st defendant chose to withdraw from prosecuting the plaintiff at the District Land and Housing Tribunal. In my considered view this stance of the plaintiff in lieu of the argument of Mr. Kilasara, the claims that the first defendant was in quite possession since 2004 need to be ascertained by evidence, thus cannot venture to be a pure point of law. In Mukisa Biscuits Manufacturing Co. Ltd (supra) a

preliminary objection was defined as follows; “Preliminary Objection is in the nature of what used to be a demurrer. I t raises a pure point of law w hich is argued on the assum ption that all the facts pleaded by the other side are correct. I t cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. 11 [Emphasis added] The import of the principle requires the objection must be a pure point of law and not a fact which must be proved. I am mindful one may acquire title to the land customarily and later seek the right of occupancy as Mr. Kilasara endeavoured above, thus according to that facts I am settled need to be proved by evidence, therefore I hereby find this objection does not feature the requirement of the law stated above, thus according dismissed for want of merit. Coming to the second Preliminary Objection that the suit is bad in law for lacking cause of action. It is a trite law that among other particulars, the plaint has to contain facts constituting cause of action and the date to which it arose (see Order VII Rule 1(e) of the CPC Cap.33 R.E 2019). According to Mulla on the Indian Code of Civil Procedure, Volume 1, and 14th Edition at page 206 define cause of action to mean; “A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right

to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the 12 plaintiff a right to relief against the defendant. ... It is, in other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. But it has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit.” I had an ample time in scanning the filed plaint in order to grasp whether it has revealed the cause of action. I am constrained to agree with the plaintiff that he has established a cause of action; this is because it is through pleadings where parties establish their cases before adjudication. In that context therefore, pleadings are road map which should show the destination the parties to the case intended to reach. (See Registered Trustees of Roman Catholic Archdiocese of Dar es salaam vs Sophia Kamani (Civil Appeal No. 158 of 2015 (unreported). According to the plaint filed in Electronic Case Management System (eCMS) at paragraph 6 the plaintiff avers that is a lawful owner 13 of the landed property in Plot No. 67 Block K Moshi Municipality

since 1989 vide a letter of offer dated 5/10/1989. At paragraph 11 avers that on 18/6/2018 he received a reply letter from Executive Director Moshi Municipality which informed him that, Plot No 67 Block K has been changed from his name and is now registered in the Gabriel Godson Macha (the first defendant hereinabove), moreover according to paragraph 13, 14 and 15 to be very brief the plaintiff states he later realized that the first defendant sued him through Application No. 2 of 2012 in the District Land and Housing Tribunal for Moshi wherein the matter proceeded successfully against him ex-perte. However, he successfully applied to set aside the said ex-perte judgment and before the case proceeded on merits the 1st defendant withdrew for the reason that he had no interest. And lastly at paragraph 16 the plaintiff avows that subsequent to such withdrawal of the Application No. 2 of 2012 by the first defendant, he unproductively wrote several letters to the Land Registry Moshi municipality to undo the changes in Plot No. 67 Block K Moshi that were affected in compliance of the ex parte order the order which has been annulled due to withdraw by the first defendant. As earlier stated above the above has pleaded by the plaintiff in his plaint, in my considered view the above shows his claims against the 14 first defendant that he has acquired his title through a case which

was set aside, which before it was set aside enabled the second and third defendants to change his title to the Suitland. Therefore, I have considered the said facts in that plaint, I am settled are facts which are necessary for the plaintiff to prove against the defendants. Thus, I am inclined by the plaintiff argument and I firmly conclude that he has a cause of action against the defendants. For the foregoing I therefore find this objection wants of merit and is hereby dismissed forthwith. Moving on to the third objection that the suit is bad in law as the court is improperly moved for remedies sought against the 2nd defendant are unattainable. The plaint reveals the following remedies have been prayed for by the plaintiff; “WHEREFORE: the Plaintiff pray for judgment and decree against the Defendants as follows; (a) A declaration that Plaintiff is the lawful owner of the property in dispute. (b) An order that, the 2nd Defendant do effect changes in respect of the P lot No 67 Block K M oshi M unicipality in favour of the P laintiff herein P eter Sekao W eria as w as before illegal changes effected in 2012 vide the already w ithdraw n Application No. 2 15 of 2012 of District Land and Housing Tribunal for M oshi. (c) An amount of Tshs. 30,000,000/= being an amount for lost of income from utility of the disputed property by the Plaintiff without attracting any income in form

of rents. (d) General damages as may be reasonably assessed by this court. (e) Costs of the suit be borne by 2nd Defendant. (f) Any other remedies the court may deem fit and just to grant. [ Emphasis added] Ms. Matewele point of concern in this objection is that since there was an ex parte order against the plaintiff, then there was no case against him at all, thus she was of the view the proper remedy was for the plaintiff to file the new suit at the trial tribunal so that he may claim his rights. With respect, I think this is also a new suit on which the plaintiff is endeavouring to fight for his rights after being successful set an ex parte judgment. Furthermore, the issue in respect to the remedies prayed above whether are tenable or not are facts which need to be ascertained by prove of evidence and not otherwise. Therefore, in the stance of Mukisa Biscuit (supra) I constrained not to agree with the 16 contention of the learned State Attorney that this is a pure point of law as the law requires. In view thereof I also find this objection lack of merit and consequently dismissed. The last objection which entails that this suit is bad in law for non -joinder of necessary party. The learned state attorney submitted that the proper party and who’s responsible in affecting titles is the Registrar of titles whom the plaintiff failed to join as the necessary part. In reply, the

Plaintiff stated that the office of registrar is under the office of commissioner for land. Therefore, the act of suing the commissioner for land also includes the registrar of titles, thus it was not fatal for not- joining him. In Abdullatif Mohamed Hamis vs Mehboob Yusuf Osman and Another, Civil Revision No.6 of 2017 (unreported), the court was of the following observation in respect to the necessary party; " 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 17 absence of the party, an executable decree may be passed." Being guided by the above authorities and having considered the matter at hand, one of his prayer as alluded above the plaintiff is seeking his title which was transferred to the first defendant by virtue of the case to be reverted back to him, in my settled view that is special duty of the Registrar of titles, however not only is required to affect changes, but also he was the one also involved on the previous change, thus I think he has a firm right of being heard. According to the decision of the court in Ngerere Estate co.Ltd vs Edna William Sitta Civil Appeal no. 209 of 2016 [2019] TZCA

137 (TANZLII) in dealing with akin situation though it was on appeal held that non-involvement of the Registrar of Tittles in a dispute requiring his presence as a necessary party rendered the decision of the trial court nullity and the court proceeded to state as follows; “ In view of the settled law on the right to be heard, we are of a serious considered view that, it will be absurd for this court to make any order against the Registrar of tittles as prayed by the appellant without availing her opportunity to be heard.” 18 For the foregoing I am constrained to agree with Ms. Matewele that the Registrar of title is a necessary party, thus ought to have been joined as defendants by the plaintiff under the circumstances of this case. I therefore find this ground meritorious and thus I sustain it forthwith. Nonetheless, I have considered the Plaintiff concern that this court should use overriding Objective established by Civil Procedure Code vide the Written Laws (Miscellaneous Amendments) (No.

3) Act, 2018, which seeks to facilitate the just, expeditious, proportionate, and affordable resolution of disputes, technicalities such as non jo-inder or claims of suing the wrong party should not hinder the substantive determination of the case, he supported this stance by the case of Yakobo Magoiga Gichere vs. Penina Yusuph, Civil Appeal No. 55 of 2017. Thus prayed these preliminary objections be dismissed. I concede with the plaintiff with the spirit envisaged under the above law establishing overriding objective, I am also mindful under Order I rule 9 of the civil procedure code cap 33 R.E 2019 provides the suit shall not be defeated by reason of non-joinder of party. (see Ngerere Estate Co.Ltd vs Edna William Sitta Civil Appeal no. 209 of 19 2016 [2019] TZCA 137 (TANZLII), but under the facts and the finding of this matter as above, Registrar should be joined and other defendants not necessary should be left out. As endeavoured above, it is settled law that the proper defendant is the party against whom the relief is sought, and there is no requirement for including parties who are not necessary for the effective adjudication of the dispute. (See the case of Sajida Jamal & Others vs Mohamed Almas Murtaza & Another, Civil Case No. 52 of 2012.) In the premise where the Plaintiff must exhaust the above remedies available to him and the defendants to have effective reply on it, I consequently hereby struck out this suit with the leave to refile afresh matter within 21 days from this day of the ruling. Costs to be in the cause. It is so ordered. DATED at MOSHI this 11th day of December, 2024.

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JUDGE Signed by: A. P. KILIMI 20 Court: Ruling delivered today on 11th day of November, 2024 in the presence of Ms. Hadija Matewele learned State Attorney for the second, third and fourth Defendants. Ms. Getruda Mrema for Palintiff holding brief of Francisca Lengeju both learned advocate, First defendant also present. Sgd; A. P. KILIMI

JUDGE 11/12/2024 21