DCT VS CCT 2 others

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGITRY AT DODOMA LAND CASE NO 18 OF 2023 REGISTERED TRUSTEES OF THE DIOCESE OF CENTRAL TANGANYIKA………………..………………………PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF THE CHRISTIAN COUNCIL OF TANZANIA……………….……1ST DEFENDANT DODOMA CITY COUNCIL…………………………...………2ND DEFENDANT THE ATTORNEY GENERAL……………………….………….3RD DEFENDANT RULING Date of the last Order: 25/07/2024 Date of the Ruling: 30/07/2024 LONGOPA, J.: This ruling originates from the desire of the Plaintiff to withdraw a suit with leave to refile on ground of formal defect for non-joinder of the Registrar of Titles and Commissioner for Lands as necessary parties to the suit on ownership of the landed property in surveyed land, and missing of some evidence in pleadings. 1|Page The facts of the case are that sometimes in 5th May 2023, the Plaintiff instituted a suit against the 1st Defendant for the orders of declaration that the Plaintiff is the rightful owner of the piece of Land described as Plot No. 6, 7, and 8 Block 1, Madukani Area in Dodoma City, order declaring the 1 st Defendant as trespasser to that Plot of Land; order restraining the 1st Defendant or any other persons claiming interests whatsoever on that land from interfering with the disputed land and punitive damages against the 1st Defendant. Sometimes in March 2024, the Plaintiff prayed for amendment of the Plaint which was in essence was granted and on 2nd April 2024 the amended Plaint was filed in Court pursuant to the amendment order. This time around the latitude of claim was changed significantly. The Plaintiff prayed for the following orders, namely: First, to declare that whole process of the 2nd Defendant permitting 1st Defendant to occupy and undertake construction at Plaintiff’s Plots No. 6,7 and 8 Block 1 Madukani Area Dodoma City was illegal contrary to Registered Survey Plan No. 4759. Second, to declare illegal process to alternate any Plaintiff's rights over Certificate of Title Number 15325 dated 20th April 1956 for 99 years with intention to favour the 1st Defendant. Third, to declare the 1st Defendant as a trespasser to the suit premise. Fourth, an order of demolition of any structures that might have been so built on the suit premises; and Fifth, order of vacant possession against the 1st Defendant on the suit Plot; and sixth, costs of the suit jointly and severally against all the Defendants. 2|Page The Defendants throughout have refuted the claims by the Plaintiff on account that 1st Defendant is the rightful owner of Plot No. 4&5 Block 1 Madukani Area, Hatibu Road Dodoma City through Certificate of Title No 8381 DLR as per Registered Survey Plan No 12162. This is for term of 99 Years from 1st January 1990. Thus, according to Defendants at no point in time did either of the Defendant acted in any manner that impaired or affected the Plaintiff’s right in Plots No. 6,7 and 8 Block 1 Madukani Area within Dodoma City. On 29th May 2024, the First Pre-Trial Scheduling and Settlement Conference was conducted and the parties willing submitted themselves for Court annexed mediation process. The mediation period was extended by 15 days to allow the parties resolve the matter amicably. However, at the end of extended period, on 24th July 2024 mediation was marked failed and the parties were ordered to appear before trial Judge for necessary orders on 25th July 2024. All the parties appeared before me as scheduled on 25th July 2024. I called upon the parties to address the court on the next course of action after the mediation had failed. It was at this juncture, that the Plaintiff and 1st Defendant stood up to reiterate on the defectiveness of the Plaint for non-joinder of necessary parties for determination of the issues regarding ownership of land in dispute. 3|Page To commence the arguments, Mr. Ally Nkhangaa, learned advocate stated that the Plaintiff has found that there are weaknesses on the Plaintiff's pleadings having failed to join the Registrar of Titles and the Commissioner for Lands. This was for the reasons that there is question to be determined whereas any decree cannot be executed fully without the presence of the duo. Second, the Plaintiff stated that there is missing evidence in terms of documents that was not included while filing the Plaint. The Counsel for Plaintiff prayed that the matter be withdrawn with permission to reinstitute a fresh suit under Order XXIII Rules 1 and 2 of the Civil Procedure Code, Cap 33 R.E. 2019. On the other hand, Mr. Josephat Mbeba, learned advocate for the 1st Defendant stated that there exist defects including failure to join the Commissioner for Lands and the Registrar of Titles. The duo are necessary parties to the suit as the reliefs claimed especially the first and second prayers may affect the Commissioner for Lands and Registrar of Titles. The land in question is surveyed land with certificate of title thus in absence of the Registrar of Titles and the Commissioner for Lands who are responsible for issuing the titles and proper administration of land in Tanzania, an effective decree would not be passed and enforcement of same would be impossible. It was 1st Defendant’s argument that this court cannot pass an effective decree in absence of those two parties. 4|Page It was further reiterated that in resolving the land ownership disputes, the party who is responsible for administration of land and titles over land should be joined as those persons are key to the determination of the case thus necessary parties. To cement the argument, a case of Jued Homes Ltd versus Samuel Zabiel Tarimo & Another, Land case No 210 of 2020 was cited at pages 2-4, in particular page 4 where the Court stated that the remedy for failure to join the necessary party is to strike out the suit. That is what this court is called upon to do in the instant case. Further, in the Court of Appeal in the case of Nestory Msoffe versus Registered Trustees of the Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019 reiterated the need to join the necessary parties. It stated that the Registrar of Titles is a necessary party and failure to join the same warrants the case to be struck out as failure to join the Registrar of Titles amounts to denial of the right to be heard on the party of the Registrar of Titles thus occasioning miscarriage of justice. According to the 1st Defendant, it is not proper to allow withdrawal of the case with leave to refile as the parties that are not joined are government entities thus the Plaintiff will need to comply with the Government Proceedings Act in case he wishes to reopen the case by joining the Commissioner for Lands and Registrar of Titles. There is a need to comply with such law namely the Government Proceedings Act for there is a requirement of notice to be given to the government institutions before 5|Page institution of the case thus the Plaint should be struck out for failure to join the necessary parties. That was also the position of this Court in the case of Abeed Minazali Manji, Land Case No, 23 of 2022, at pages 12-13 which was cited to cement the position on need to comply with the Government Proceedings Act. There is a need to comply with the Government Proceedings Act, Cap 5 R.E. 2019. With regard to the evidence that is said to be missing within Order XXIII Rule 1 of the CPC, it was the 1st Defendants view that such provision of the law does not cover lack of evidence. It was resisted that allowing the Plaintiff to withdraw the case would be abuse of court's discretion. It was further reiterated that it is against Order VIII Rule 31 of the CPC that prevents communications from mediation to be used in the enhancement of party's case thus it appears that the Plaintiff wishes to use the information to correct the case considering that such missing evidence is raised immediately after failure of mediation. It was further submitted that the matter be struck out with costs as the parties have been in court corridors since April 2023. Given that at all material times, the Plaintiff was represented by two Senior Counsels, it ought to have considered the position of the law on joinder of parties. It was 1st Defendant’s view that this matter deserves to be struck out with costs as the 1st Defendant had incurred costs in defending the matter. 6|Page Mr. Omary Ngatanda, learned State Attorney reiterated that though it was Plaintiff’s discretionary powers to withdraw the suit, the 2nd and 3rd Defendants objects the consequences of withdrawal of the matter with leave to refile. It was submitted that leave under Order XXIII Rule 2 of the CPC has conditions that must be met before such prayer is granted. The first, the Court must be satisfied that the suit must fail for some formal defects. Second, there are other sufficient ground to allow the Plaintiff to institute a fresh suit. The Counsel for 2nd and 3rd Defendants argued that non-joinder of the necessary party cannot fall with the formal defects as that requirement is not new to warrant formal defect given that the Plaintiff was fully represented by learned advocates. He cited a case of Edina Kibona versus Swebe, Civil Appeal No. 286 of 2017, the Court of Appeal of Tanzania reiterated on the need to join the Registrar of Titles and Commissioner for Lands as necessary parties to the land disputes in surveyed land. It was stated that this is also the position in the Jued Homes Ltd case. According to 2nd and 3rd Defendant’s counsel, formal defect would entail circumstances where legal position changes after institution of suit thus making the existing suit defective as a result of the intervening events/ position. As the mandatory requirement to join the Registrar of Titles and Commissioner for Lands existed prior to institution of the suit, it cannot be said to be an intervening event leading to formal 7|Page defect thus that reason cannot be accommodated within the ambits of Order XXIII Rule 2 (a) of the CPC as it is not the formal defect envisaged. Furthermore, on the grounds of evidence, it was submitted that it is not a defect allowing withdrawal given the parties immediately came out of the mediation process that failed. There should be no leave to refile the case at this juncture as the 2nd and 3rd Defendants have been in court since April 2023 todate. Order XXIII Rule 1(3) of the CPC was cited that the Court may award costs. The learned State Attorney reiterated that costs be awarded as the Defendants have filed their Written Statement of Defence and have appeared throughout the proceedings since April 2024 to date on part of the 2nd and 3rd Defendant. In rejoinder, Mr. Ally Nkhangaa, learned advocate reiterated that Plaintiff prayed for withdrawal of the suit on grounds falling within Order XXIII Rule 1 and 2 which is within discretionary powers of the court. To his surprise, the 1st Defendant’s counsel ransacked this court with a preliminary objection that was not filed before the Court that the suit is incompetent for lack of joining the Registrar of Titles and the Commissioner for Lands as necessary parties. It was the Plaintiff’s counsel lamentation that such preliminary objection was irregular as there existed a prayer by the Plaintiff and that there was no formal raising of the objection prior to Plaintiff prayer. 8|Page Accordingly, the Plaintiff emphasized that in terms of Order XXIII Rule 1 and rule 2 (a) and (b) of CPC withdrawal of a suit may be allowed for reason of the formal defects. Such absence of joining the Registrar of Titles and the Commissioner for Lands makes the suit defective and the law allows the suit to be withdrawn. The Court may permit withdrawal with leave to refile. It was reiterated that Order I Rule 10 of the CPC deals with joinder of parties, and that non-joinder or misjoinder of the parties is nowhere provided in that Order that its effect was striking out the suit. Further, Plaintiff responded that in respect of Order VIII Rule 31 of the CPC, it is submitted that the Plaintiff has not pointed out that he wishes to use the information obtained from the mediation process. The intention of the Plaintiff is to join the Registrar of Titles and the Commissioner for Lands. On consequences of the withdrawal, it was contended that the defect under Order XXIII Rule 1 and 2 is so wide. It covers all types of defects including the non- joinder or misjoinder of parties who is necessary to the proceedings. It is not the requirement of the law that an existing legal position that makes the defect to be barred from restricting the parties to withdraw a suit. Emphatically, the Plaintiff stated that joinder of the necessary party could have been done by the court. The Court was also duty bound to ensure that necessary party is joined to determine the real issues in controversy. He cited the Msoffe’s case to reinforce that position. 9|Page According to the Plaintiff, it was his view that the suit could not be possibly amended given that this Court had allowed amendment previously thus the best way was to withdraw with leave to refile. He argued that costs are not awardable under Order XXIII except when withdrawal is not preceded by an order of the court. I have dispassionately considered the submission by the parties in respect of the matter at hand. Essentially, the parties are not at issue regarding the suit being defective for non-joinder of the necessary party to the case. The main point of departure is the effect of the defectiveness of the suit for non-joinder. On one hand, the Plaintiff is of the firm view that this court permit withdrawal with leave to refile. The Defendants are of the view that allowing refiling would be improper and that costs ought to be awarded. To address the divergent views, it in crucial to address pertinent aspects relevant to the matter. The first one is on the parties to the suit. Order I Rule 3 of the Civil Procedure Code, Cap 33 R.E. 2019 is illustrative on who can be joined as defendants. It states that: 3. All 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 jointly, severally or in the alternative where, if separate suits were brought 10 | P a g e against such persons, any common question of law or fact would arise. It should be pointed at the outset that it is the duty of the parties to a case to draft their own pleadings and join all the parties against whom claims are made. That duty was emphasized in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII), at pages 11-12, the Court stated that: By way of emphasis, we wish to refer, with approval, to a passage in an article by Sir Jack I.H. Jacob bearing the title, "The Present Importance of Pleadings," first published in Current Legal Problems (1960) at p. 174 thus: “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings .... For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties 11 | P a g e themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation.” It is an obligation of a party to a case to join all persons that are necessary in determination of the dispute. It is essentially the first and foremost duty of a party to a case to join all necessary parties to the case. The Plaintiff has a sole discretion to choose who to sue and comply with the rules on the parties to suits. Among the parties to be joined in suits are a proper and necessary party. As the parties in this case agree that the Registrar of Titles and Commissioner for Lands are necessary party to the case, it was fundamental obligation of the Plaintiff to join both of them. However, necessary part is not defined under the Civil Procedure Code. But the precedents have enlightened on who is a necessary party. In Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018) (TANZLII), at pages 25-26, the Court of Appeal noted that: Conversely, where a person, who is necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non-joinder. Speaking of a necessary party, a non-joinder may involve an omission to join some person 12 | P a g e as a party to a suit, whether as plaintiff or as defendant, who, as a matter of necessity, ought to have been joined. Although there is no definite test to be applied in this connection, in the Indian case of Benares Bank Ltd. v. Bhagwandas, A.I.R. (1947) All 18, the full bench of the High Court of Allahabad laid down 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 a 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. The foregoing benchmarks were described as true tests by Supreme Court of India in the case of Deputy comr., Hardoi v. Rama Krishna, A.I.R. (1953) S.C. 521. We, 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 upon the facts and circumstances of each particular case. Among the relevant factors for such determination include the 13 | P a g e particulars of the non-joined party, the nature of relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed. Also, in the case of Mussa Chande Jape vs Moza Mohammed Salim (Civil Appeal No. 141 of 2018) [2019] TZCA 490 (12 December 2019) (TANZLII), at pages 8-9, the Court stated that: …there is a clear distinction between the joinder of a party who ought to have been joined as a defendant and the joinder of one whose presence before the court was necessary for it to effectively and completely adjudicate upon the questions involved in the suit. Therefore, 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. As parties submitted by parties, the effective determination of the first two prayers in the Plaint relating to declaration that whole process leading to 1st Defendant occupation and undertaking development on Plots No. 6,7 and 8 Block 1 Madukani Area Dodoma City as illegality contrary to Registered Survey Plan No. 4759; and that there was illegal process to alternate any Plaintiff's rights over Certificate of Title Number 15325 dated 20th April 1956 in favour the 1st Defendant calls for active involvement of the Commissioner for Lands and Registrar of Titles. They duo are crucial as 14 | P a g e the prayers touch on the land administration and registration of land title over disputed land thus necessary parties to the case. The need to join a necessary party to a case was lucidly illustrated in several cases. For instance, in the first place joining of necessary parties is a duty imposed on a party to a case in the first place and sometimes to the Court in rare instances. Tanzania Railways Corporation (TRC) vs GBP T. Ltd (Civil Appeal 218 of 2020) [2021] TZCA 198 (7 May 2021) (TANZLII), at page 15-16, The Court of Appeal stated that: It could also be argued that as the respondent did not join Kigoma Ujiji Municipal Council or the Commissioner for Lands as a party, then there is nothing that the court could have done, because a plaintiff cannot be forced to sue a defendant that it does want to implead. That is correct and indeed, a plaintiff has that unfettered prerogative and freedom not to join a party it does not feel like joining, but if a party not joined is a necessary party, for resolving all issues raised by the pleadings, then the solution is provided by Order I Rule 10(2) of the CPC, which provides as that: -“(2) The court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party 15 | P a g e improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as 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.” Also, the effect of non- joinder of such necessary party was reiterated in the case of Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018) (TANZLII), at pages 27-28, the Court of Appeal stated that: Our CPC does not have such a corresponding proviso but, upon reason and prudence, 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 16 | P a g e would be idle for a court, so to say, to pass a decree which would be of no practical utility to the plaintiff. The principle in this decision of the Court of Appeal is straight forward that a suit will not be affected by the non-joinder if such non- joinder is for a party who is not necessary to the effective determination of the matter at hand. Indeed, the principle cannot serve the Plaintiff’s case as both parties are in concurrence that Commissioner for Lands and Registrar of Titles are vital in effective determination and execution of the orders regarding dispute on ownership of registered land. The effect was to declare that the Plaint was incurably defective for failure to join a necessary party to the suit, that was the legal representative thus struck out the whole proceedings. It is the first and foremost duty of a party to a case to join all necessary parties to that case. The Court’s intervention to step into the shoes of the Plaintiff is secondary and ancillary in nature. The reason is simple. It depends on whether the Plaint had impleaded a necessary party but the same is not joined. In the instance case, the Plaintiff in all clause had stated about the 1st and 2nd Defendants role in trespassing and facilitating the trespass to the allegedly disputed land. That being the case focus, it would be inappropriate for this court to order joining of the Registrar of Titles and the Commissioner for Lands. 17 | P a g e Indeed, the drafting of the provision of Order I Rule 10(2) of the CPC is couched in permissive nature not mandatory nature for the Court to do. The word used is “may” which does not imply mandatory nature. Court’s invocation of the discretionary powers to order joining of any party to the case not preferred by the parties themselves need to be exercised cautiously. A balance must be struck between the principle that the parties are the one who know the parties they wish to sue. Indeed, section 53 (1) of the Interpretation of Laws Act, Cap 1 R.E. 2019 is illustrative on the use of word may. It states that: 53.-(1) Where in a written law the word “may” is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion. The word “may” can be interpreted to imply discretion in exercise of powers. For instance, in Jamal A. Tamim vs Felix Francis Mkosamali & Another (Civil Appeal No. 110 of 2012) [2013] TZCA 342 (3 May 2013) (TANZLII), at page 4, the Court stated that: We interpret the use of the word 'may' in rule 107(2) to give discretion to this Court to hear or to refuse to hear the objector. As such, the powers of the court to join any other person as defendant apart from those preferred by the Plaintiff is not mandatory 18 | P a g e obligations rather a discretionary mandate that must be exercise judiciously. It is certain that where there is non-joinder of necessary party, such suit should be struck out. In the case of Ongujo Wakibara Nyamarwa vs Beatrice Gryson Mmbaga (Civil Appeal No.122 of 2021) [2024] TZCA 74 (20 February 2024) (TANZLII), at pages 5-6, the Court noted that: However, we are similarly aware of a settled position of the law that non-joinder of a necessary party is bound to defeat a suit. The learned counsel for the parties were in agreement that the non-joining of the Commissioner for Lands, the Registrar of Titles, the Temeke Municipal Council and the Attorney General rendered the suit unmaintainable. We agree with them. I have carefully considered the arguments by the Counsel the Plaintiff that two reasons have prompted the prayer for withdrawal with leave to refile. First, the non-joinder of the necessary parties namely the Registrar of Titles and the Commissioner for Lands. Second, that there is some evidence that is missing. It is my settled opinion that reasons advanced do not convincingly enjoin this court to exercise its discretionary powers to allow withdraw with leave to refile. 19 | P a g e The suit is incompetent for failure to join necessary parties to the case to allow this Court to finally determine the issues of controversy between the parties. I concur with the submission by the Counsel for 1st Defendant that this matter fits into appropriate circumstances of striking the same out for being incompetent. I am of the settled view that Land Case No 38 of 2023 is incompetent as result of non-joinder of the necessary party to the case namely the Registrar of Titles and the Commissioner for Lands. As a result, I hereby proceed to strike it out with costs. It is so ordered. DATED at DODOMA this 30th July 2024 E.E. LONGOPA JUDGE 30/07/2024. 20 | P a g e