Land Case No 147 of 2022 30 8

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO.147 OF 2022 PHILIMINUS M. NJOJOLI................................................PLAINTIFF SWALEHE SALMIN MSEMO..................................... 1st DEFENDANT STEPHENE ELISANTE........................................................................ 2ndDEFENDANT AIDAN HAULE................................. 3rd DEFENDANT CONSOLATHA RESTO..........................................................................4thDEFENDANT DOMINIC MOSHA........................................................ 5th DEFENDANT MARIAM LUGENGA..................................................... 6™ DEFENDANT DICKSON ELIBARIKI MELIARA....................................................... 7™DEFENDANT HASSAN MUSSA................................................................................... 8thDEFENDANT JACOB MASHANGA NGOWI.............................................................. 9™DEFENDANT VYUVIAN JONES KATALA................................................................. 10™DEFENDANT FREDRICK PATRICK KIANGANGIO............. ........11™ DEFENDANT 1 MONICA ROBERT KIANGIO........................................................ 12™DEFENDANT FORTUNATUS HILLARIA FWEMA................................................ 13™DEFENDANT WISLEY SHADRACK SHOO........................................................... 14™DEFENDANT EMMANUEL BULDA SAYI..................................... 15™ DEFENDANT STEPHENE ELISANTE................................................................... 16™DEFENDANT STELLA JALIA MSANGI................................................................17™DEFENDANT MAKAWA NEWA LAURENT.......................................................... 18™DEFENDANT ALLY POSSI.................................................................................... 19™DEFENDANT DOMINICK RESTO MOSHA................................ 20™ DEFENDANT DEBORA GODWIN SUMARI......................................................21stDEFENDANT PHILIP AABDEDNAGO KIN ASHA............................................ 22ndDEFENDANT DEOGRATIAS MOSHA......... ............................ 23rd DEFENDANT STELLA SHANGALI...................... 24™ DEFENDANT ANNACLARA MOHAMED KIABI.............................................. 25™DEFENDANT LAZARO OLE KING'ORI............................................................ 26™DEFENDANT AGNESS MIHAYO MONGELLA................................................. 27™DEFENDANT 2 CONSOLATHA MORINGI RESTO............... ..28™ DEFENDANT PILLY MARAZUKU MAGONGO.............................................. 29™DEFENDANT DANIEL JOHN KIRENGA........................................................ 30™DEFENDANT HAMIS SHAABAN KISUKARI................................................ 31stDEFENDANT PETER A KAYANZA.................................................................. 32ndDEFENDANT TABU KIJALA THIKHA............................................................33rdDEFENDANT COMMISSIONER FOR LANDS.............................................. 34™DEFENDANT ATTORNEY GENERAL........... ............ 35™ DEFENDANT RULING 19" & 3ffh August, 2024 L, HEMED, J, In this ruling the court is invited to determine whether the Registrar of Titles is a necessary party to the instant suit. The preliminary objection was raised orally on 15th August 2024 by Ms. Inviolata Wangoma, advocate of the 2nd 4th, 5th, 16th, 20th, 21st, 28th and 32nd defendants and supported by 3 Mr. Bonaventure Mwambaja, Principal State Attorney and Mr. Stanley Mahenge, learned State Attorney that:- "This suit is incompetent for non-joinder of the Registrar of Tided' The preliminary objection was argued orally. Ms. Inviolata Wangoma, acted for the 2nd, 5th, 16th, 20th ,21st, 28th and 32nd defendants while the 34th and 35th defendants enjoyed the service of Mr. Bonaventure Mwambaja, learned Principal State Attorney. Mr. Boniface Erasto, learned advocate, actively represented the Plaintiff. Ms.Wangoma was the first to be called to address the court. She argued that the Registrar of Titles is necessary to the instant matter considering the fact that the suit property is a registered land. Reliance was put on Order I Rule 10(2) of the Civil Procedure Code, [Cap.33 RE 2019] which requires joining a party who is necessary to the proceedings. The learned counsel insisted that the reliefs sought by the Plaintiff for revocation of the certificate of occupancy issued to the defendants requires the presence of the Registrar of Titles as necessary party. Fortification of the point was done by citing the decision of the Court of Appeal of Tanzania in 4 Nestory Msoffe & 5 others vs Registered Trustees of Archdiocese of Arusha, Civil Appeal No. 254 of 2019 on the necessity of joining the Registrar of Titles. The counsel for the 34th and 35th defendants, Mr. Mwambaja, learned Principal State Attorney supported the submissions made by Ms. Wangoma by insisting that the Registrar of Titles is necessary party as is responsible for registration of every parcel of land in Tanzania. According to him, the principle of joinder of parties intends to assist the court to avoid multiplicity of suits and to bind that necessary party to the decision of this court. He invited the court also to look at the case of Juliana Francis Nkwabi vs Laurent Chimwaga, Civil Appeal No. 531 of 2020 where the Court of Appeal of Tanzania insisted on the importance of joining the necessary party to the proceedings. He submitted further that in the instant case there are more than 34-registered parcel of land, which require the involvement of the Registrar of Titles. He ended up praying the matter to be struck out. In response thereto, Mr. Erasto, learned advocate for the Plaintiff argued against the preliminary objection. He stated that the instant matter 5 is not on the legality of the certificate of titles, rather on trespass to land. It was also contended that the Plaintiffs claims are centered on a farm, which has no certificate of title and nowhere in the Plaint, the Plaintiff has impleaded against the Registrar of Titles. Mr. Erasto was of the view that the Registrar of Titles is not the necessary party to the instant matter as the Commissioner for Lands has already been made a party as allocating authority. He proceeded to distinguish the decision in Nestory Msoffe(supra) on the ground that the disputed land in Nestory Msoffe's case was surveyed and the commissioner for Lands and the Registrar of Titles were not part to the proceedings and thus it was proper for the court to find them necessary parties. With regard to the remedy for nonjoinder of necessary party, Mr.Erasto was of the view that it is not to strike it out rather to order parties to join such necessary party pursuant to Order I Rule 10(1) of the CPC. He supported his assertion with the decision in CRDB Bank Public Co. Ltd vs. UAP Insurance Co.Ltd, Civil Appeal No.32 of 2020 that the suit cannot be defeated by the nonjoinder of parties. Mr. Erasto averred that if the court finds necessary to join the Registrar of Titles, should evoke the provision of section 95 of the CPC to direct joining of the necessary party without 6 requirement of issuing 90 days' notice. He glued his argument with the decision of the court of Appeal of Tanzania in Gabriel Mathisa Michael & Another vs Halima Feruz & 2 others, Civil Appeal No.28 of 2020. He ended praying the court to overrule the preliminary objection. In their short rejoinder submissions, Ms. Wangoma and Mr. Mwambaja, reiterated their submissions in chief by insisting that that the Registrar of Titles is necessary to the instant suit. Having gone through the rival submissions, it is apt to determine whether the preliminary objection holds water. In other words, the court has to determine whether the Registrar of Titles is a necessary party to the instant proceedings and if found in affirmative, what the consequences thereof are. Before delving to determine whether the Registrar of Titles is necessary party to the instant case, it is pertinent to answer a question as to who is "a necessary party". This, same question was to be answered by the Court of Appeal of Tanzania in Abdulatif Mohamed Hamis v. Mehboob Yusuf Othman & Another, Civil Revision No.6 of 2017. The apex court borrowed the description laid down in an Indian case of Baranes 7 Bank Ltd v. Bhagwandas, A.LR,(1947)AII 18, wherein it was guided as fol lows:- "...two tests for determining the questions whether a particular party is necessary party to the proceedings. First, there has to be a right of relief against such party in respect of the matters involved in the suit and; second, the court must not be in a position to pass an effective decree in the absence of such a party." In the end, the Court of Appeal of Tanzania went to conclude thus:- "l/Ve, 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 on upon facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars of the non-joinder party, the nature of relief claimed as well as whether 8 or not, in the absence of the party, an executable decree may be passed." Having got a snapshot of who is a necessary party as per the authorities aforecited, let me now turn to determine whether the objection has merit. Of course, it is now settled that preliminary objection raises pure point of law, which is argued on the assumption that all facts pleaded are correct. It cannot be raised if any fact has to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. In other words, a preliminary objection has to be ascertained from the pleadings and not otherwise. This position has been stated in plethora of cases one of them is the case of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd(1969) EA 696, where it was held thus:- "...a Preliminary objection consists of a point of law which has been pleaded or which arises by dear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. "[Emphasis added] In the instant case, the question to be addressed is whether there are facts being pleaded against the Registrar of Titles or any other necessary 9 parties. In paragraph 38 of the plaint, the Plaintiff claims to be the owner of the suit landed property alleged to have been acquired by him way back in 1977 and registered as a farm No.3248 under survey Plan No.34046. The Plaintiff has also pleaded under paragraph 44 of the Amended Plaint that while visiting his land he noticed some new beacons being erected on his land. Having discovered the said beacons, the Plaintiff inquired to the Ministry for lands in Dar es Salaam where it was confirmed that the Ministry recognized the numbers of the said beacons and that, title deeds were issued to some other persons in respect of the landed property. In paragraph 45 of the amended Plaint, the Plaintiff is accusing the 1st Defendant for having conducted survey and in paragraph 46 he alleges to have lodged complaints to the National Council of Profession Survey (NCPS). From paragraph 45, the Plaintiff appears to be unhappy with the re-survey that created the disputed pieces of land. I have also noted from the Amended Plaint that one of the relief sought readth as follows: "(k)That the honourable court be pleased to order the 34h Defendant revoke certificate of Titles issued to the Defendants over the disputed land, i.e Certificate of Title No.128449, Certificate of io Title No.133485, Certitle No.126355 (sic), Certificate of Title No.128086, Certificate of Title No.135689...Block "H" at Boko Area Kinondoni Municipality within Dar es Salaam Region as per purported new survey map. '[Emphasis added] It is very clear from the amended Plaint that there are facts pleaded against the entire process of creating the suit pieces of land and registration of the same in the names of the 2nd up to 33 defendants. In my view, the accusation against the process of creating the suit pieces of land that is, the resurvey alleged to be conducted by the 1st Defendant, cannot be determined without the presence of the authority charged with mandate to conduct land survey. According to the Land Survey Act, Cap.324, the duty to conduct land survey is shouldered upon the Director of Survey and Mapping. The director is also the custodian of original cadastral survey plans and is the one with mandate to make corrections and adjustments to them. This being the case, the matter cannot be conclusively determined without the involvement of the Director of survey and mapping as a party. I have also noted that amongst the reliefs sought, is for revocation of the certificate of titles which were issued and registered in the names of the of the 2nd up to the 33rd defendants. It goes without saying that the process ii of deregistration or removal or deletion of the names of the defendants from the land register must involve the Registrar of Titles. In my firm opinion, the order to revoke and removal of the names of the defendants from the land register cannot be issued or being effective without the involvement of the Registrar of Titles. It is thus clear that, what the Plaintiff has pleaded in his amended Plaint necessitated the joining of the Registrar of Titles and the Director of Survey and Mapping as necessary parties. I feel to insist that the outcome of ignoring the necessary party, in the case like the one at hand, touches the right to be heard as was held by the Court of Appeal of Tanzania in Ngerengere Estate Company Limited v. Edna William Sitta, Civil Appeal No. 209 of 2016 thus:- "7/7 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 Titles as prayed by the appellant without availing her opportunity to be heard. In this regard, we agree with Mr. Lutema that, the Registrar of Titles ought to have been joined as a party in the application before the High Court failure of which amounted to fundamental procedural error and Y2. occasioned a miscarriage ofjustice which cannot be condoned..." The discussion on the absence of the necessary party and the adverse resultants that it carries manifested prominently in Abdullatif Mohamed Hamis v. Mehboob Yusuf Osman & Another (supra). The Court emphatically observed thus:- "There is no gainsaying the fact that the presence of a necessary party is, just as well, imperatively required in our jurisprudence to enable the courts to adjudicate and pass effective and complete decrees. Viewed from that perspective, we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and nonjoinder of non-necessary parties. On the contrary, in the absence of necessary parties, the court may fail to deal with the suit, as it shall, eventually, not be able to pass an effective decree. It would be idle for a court, to say, to pass a decree which would be of no practical utility to the plaintiff." The holding of the apex Court, as quoted above, binds me to hold that the Plaintiff's failure to implead the Registrar of Titles and the Director of Survey and Mapping to the instant matter constitutes a non-joinder of 13 necessary parties. The omission renders the entire suit incompetent. It deserves to be struck out. In the upshot, the preliminary objection is sustained and the suit is hereby struck out with no orders as to costs. Order accordingly. DATED at DAR ES SALAAM this 30th st 2024. JUDGE 14