pongwe zone agriculture marketing co operative society vs ms silver general distributors co ltd 2012 tzhc 129 15 june 2012

IN THE HIGH COURT OF TANZANIA AT TANGA DC CIVIL APPEAL N0.20 OF 2008 [Originating from District Court of Tanga, Civil case No.143/2000] PONGWE ZONE AGRICULTURE MARKETING CO-OPERATIVE .............................. APPELLANT SOCIETY VERSUS M/S SILVER GENERAL DISTRIBUTORS CO. LTD.......................................RESPONDENT Date of last order: 18/5/2012 Date of Judgment; 15/6/2012 JUDGMENT Teemba, J; The appellant PONGWE ZONE AGRICULTURE MARKETING CO­ OPERATIVE SOCIETY sued the respondent M/S SILVER GENERAL DISTRIBUTORS CO. LTD. In the District Court of Tanga praying for judgment and decree that:- I. That the court be pleased to declare that the property comprised in plot No.34A Block 1 in Offensive Factory area, Tanga is a property of the plaintiff by virtue of a gift that took place in 1965. II. That the court be pleased to declare that the defendant has nolegal claim whatsoever over the suit property since the property has never been that of Tanga Region Cooperative Union [TARECU] hence not capable of being sold for their debts. III. That the court be pleased to restrain the defendants permanently from claiming any right whatsoever over the suit property by ordering an injunction. IV. Court be pleased to order costs of this suit to be met by the defendants. V. Any other reliefs the court may deem fit and just to grant. It was the plaintiff's case that the suit property was formerly owned by COPRA and the same was given, as a gift, to the plaintiff in 1965. it was further alleged by the plaintiff that TARECU was invited and accommodated in the suit premises since 1975. That in 1988 TARECU asked the Ushirika wa mafundi Seremala na Ujenzi Wilaya ya Tanga, who by then were occupying part of the suit premises to vacate on the ground that the same was about to be sold. The plaintiff was informed of these developments and maintained that it was the owner and TARECU had no right over the premises. Later, TARECU went into liquidation in 1996 and LART was established. It listed the suit premises as one of TARECU properties to be sold to pay debts. Despite resistance from the plaintiff, the premises were placed under Mnkondo Auction Mart and it was finally sold in public auction. The defendant became the successful bidder who bought the suit premises. The plaintiff/appellant had six witnesses whereas the respondent produced two defence witnesses. The trial court finally analysed the evidence on record and 2 dismissed the plaintiff's suit on the grounds that there was no sufficient evidence to prove the claims on the balance of probability. The defendant/respondent was also awarded costs. Aggrieved, the appellant has appealed against the whole judgment and decree. The parties in this appeal are represented by Mr. Ukwonga and Sangawe for the appellant and respondent, respectively! The two learned counsel were also representing the parties in the trial court. The appellant, through Mr. Ukwonga, had raised five grounds of appeal complaining, first, that the trial magistrate erred in both law and fact by holding that the appellant failed to prove ownership of the property in dispute by virtue of inheritance. Second, that the lower court was wrong to legalize the sale of the suit property for reasons of 'alleged bank debt which the defendant was not in a capacity to prove. Third, that the trial court erred in holding that .at the time of sale of the suit property to the defendant, the property was of TARECU who had no title thereto. Fourth, that the property purchased by the respondent is not the property claimed by the appellant and lastly, that the trial magistrate was totally bias especially where he had held based on assumed technical error on land register. The learned counsel agreed to argue this appeal by filing their written submissions. Each side had tried to convince this court by their arguments. In favour and against the grounds of appeal. I acknowledge and appreciate their tremendous job. Having gone through the proceedings as recorded by the trial court, I am. satisfied that the last trial magistrate considered each and every piece of evidence adduced before the court. There is a good summary of evidence given by every witness and his analysis was based on the evidence. The complaints that he was bias are not founded although I agree with the appellant's counsel that this magistrate did not have an opportunity to assess the demenour and credibility of witnesses produced by the appellant. The main complaint in this appeal and the basis of the dispute generally is I that, the sale of the suit property to the respondent was illegal. There is no dispute that the respondent bought the suit property from a public auction. This is according to the pleadings filed in the lower court and the evidence by witnesses from both sides. It is also revealed from record that the appellant was made aware that TARECU had indicated a move to sell the suit premises way back 1988. Furthermore, the record of the trial court and the submission made in this appeal suggested that there was a case filed by the appellant against TARECU in respect of the same subject matter but it was not concluded by a judgment. Page 12 of the typed judgment reproduced the four agreed/drawn issues for determination as follows: 1. "Whether the plaintiff is a lawful claimant. 2. Who was the legal owner of the suit property at the time of sale? 3. Whether the defendant is a lawful claimant. 4 4. To what reliefs are the parties entitled to?" It is my settled view that the issues could/can not be adjudicated upon conclusively by involving only the parties in this case. Indeed, it is hot easy to decide on the issues nos. 2,3 and 4 in the absence of evidence from the 'person' who claimed to be the owner or owed money as a debt. In addition, there is yet another person, the public auctioneer who sold the property. The respondent pleaded that he was/is a bonafide purchaser of the suit property. The history of common facts given above has a meaning. Non-joinder of a person who claimed a right to sell the property in dispute, in my opinion, is fatal in this case. This was done either deliberately or it escaped the attention of the trial court. To appreciate this argument I find it important to borrow/adopt the wise decision of this court by Kalegeya, J. [as he then was] in the case of SURYAKANT D. RAMJI V. SAVINGS FINANCE LIMITED and Others [2002]T.L.R. 121. It was held: "... The plaintiff may decide to join both proper parties and necessary parties;..." The court went further to define them as quoted hereunder: "in litigation; a necessary party is one against whom the relief is sought or without whom an effective decree cannot be passed by the courts, and all those whom the law requires to be impleaded and, on the other hand, proper parties are those whose presence enables the court to decide effectively and finally the dispute presented before it, and these include 5 those who in one way or another are interested in or connected with the relief being sought against others;" [emphases mine]. It is obvious that the appellants were affected by the sale of the premises allegedly belonging to them. On the other hand, the respondent is sued as a result of the same sale. TARECU and/or LART are the once who engaged Mnkondo Auction Mart to sale the property. Thus, the determination of the dispute and releifs will touch on these 'persons' who are not parties in this suit though their presence was relevant. The recent decision by Lugakingira, JA; the issue of non-join3er of parties was emphasized as fatal to the proceedings. This was discussed in the case of NURU HUSSEIN V. ABDUL GHANI ISMAIL HUSSEIN [2000] T.L.R. 217. In this case, the Court of Appeal held inter alia that "the learned court Judge should have made orders for amendments as required under Order 1 rule 10(2) of the Civil Procedure Code, or after failing to do so, he should have struck out the application for being incompetent." Order 1 rule 10(2) of the Civil Procedure Code Cap.33 R.E. 2002 was referred to and it reads: "The court may at any stage o f the proceedings, either upon or without the application o f either party, and on such terms as may appear to the court to be just, order the name of any party improperly joined,. i whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as 6 plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." [emphases added]. I have no doubt that the presence of TARECU or its Receiver Manager U\RT who engaged Mnkondo Auction Mart to auction the house in dispute, was necessary in this case as these would have given facts and evidence to enable the trial court to effectually and completely adjudicated upon the dispute in this i case. The questions as to whether COPRA or Plaintiff was indebted would be better dealt with in the presence of those 'person' who were left out. Likewise, the reliefs the parties are entitled to could easily be determined if TARECU/LART was made a party in the proceedings. The same applies to the Auctioneer who would be answerable to irregularities, if any, during the process of conducting the public auction. In the case of NURU HUSSEIN [supra] the Court of Appeal was satisfied that the learned High Court Judge failed to order the amendment of the pleadings in order to implead other necessary parties. The Court went further and decided that the lower court should have struck out the application for being incompetent. In the present appeal, as I have indicated above, the parties omitted to join or make an application to have the necessary and proper parties joined in the suit. Likewise, the learned trial magistrate(s) fell in the same trap 7 by failing to apply the provisions of Order 1, rule 10(2) of the Civil Procedure Code [cited above]. For these reasons, I partly allow the appeal, quash the decision and orders of the lower court. Its judgment is also substituted by striking out the suit for being incompetent In the circumstances of this case each party should bear own costs. It is so ordered. R.A. TEEMBA, 3. 15/6/2012 Court: The judgment is delivered today in the presence of four members of the appellant/s^fMzee?At'h.umani Bakari, Kasim Abdallah, Abbas Said Kimbunga and *V - \ Daniel. Paulo Haule} and f^r. Sangawe for the respondent. / R.A. TEEMBA, 3. \ •• / 15/6/2012