CHELU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM-SUB-REGISTRY ) AT DAR ES SALAAM. MISC. CIVIL APPLICATION NO. 28790 OF 2024 (ARI SI N G FROM CI VI L REVI SI ON N O. 14682 OF 2024 BEFORE THE HI GH COUR T OF THE UN I TED REPUBLI C OF TAN ZAN I A AT DAR ES SALAAM ) REHEMA WILLIAM MBULUMI @REHEMA MBULUMI MFALILA ………………………………………...APPLICANT VERSUS 1. CHELU MFALILA ------ ---------------------1st RESPONDENT 2. LENNA MFALILA ---------------------------2nd RESPONDENT 3. LAMECK SAMSON MFALILA ---------------3rd RESPONDENT RULING MKWIZU, J The Applicant seeks leave to join in Civil Revision No. 14682 of 2024 between Chelu Mfalila (applicant) and Lenna Mfalila and Lameck Samson Mfalila (respondents) through chamber summons under Order I, Rule 10(2) and Section 95 of the Civil Procedure Code, Cap. 33 R.E. 2019 as follows: 1 a. This Honourable Court may be pleased to order the Applicant to be joined as a necessary party in Civil Revision No. 14682 of 2024 between Chellu Mfalila vs. Lenna Mfalila and Lameck Samson Mfalila. b. Any other relief(s) or orders that the Honourable Court may deem fit and proper to grant. c. The application is, as usual, supported by the affidavit of Rehema William Mbulumi, the applicant. According to the affidavit in support of the application, the applicant is Lameck Mukava Samson Mfalila's legal wife, married on October 20, 1979, at the Moravian Church in Sikonge District, following the death of his first wife, Esther Godfrey Mlela, the mother of his children, including the first respondent, Chelu Mfalila. The applicant regularly visits Justice Mfalila at his home in Tabora, where his daughters care for him. She has traveled abroad with him for medical treatment, utilising her expertise as a medical officer. It is deposed further that the first respondent has also contributed to the 3rd respondent’s care and medical expenses. In March 2023, she took him to two hospitals for treatment and kept the applicant updated on his health. 2 On October 19, 2024, the first respondent informed the applicant that she had filed a case to challenge a December 1, 2023, ruling that declared the second respondent as Justice Mfalila's wife. The applicant was shocked to learn that the second respondent falsely claimed to be married to Justice Mfalila and stated he suffers from dementia.The applicant believes the court incorrectly accepted the second respondent's claims, allowing her to manage Justice Mfalila's affairs. She contends that she should have had a chance to present her side, as she is the legal wife and was not involved in these proceedings. The applicant emphasizes that the first respondent has taken good care of Justice Mfalila, while the second respondent has not. She intends to ask the court to permit her to join the ongoing case. She believes joining the case is essential to protect her rights as Justice Mfalila's legal wife, as failing to do so would result in grave injustice. The first respondent supports the application, stating that her father, Justice Mfalila, was first married to her mother, Esther Godfrey Mlela. She confirms that Justice Mfalila's Christian marriage to the applicant occurred on October 20, 1979, at the Moravian Church in Sikonge District, Tabora Region. She and her siblings have cared for Justice Mfalila and covered his medical expenses. In contrast, the second respondent misrepresents 3 her marital status and obtained a court order from the Resident Magistrate Court of Dar es Salaam in Civil Application No. 181 of 2023, granting her unlimited access to Justice Mfalila's bank accounts, harming both the applicant and Justice Mfalila. The second respondent opposes the applicant's claim, arguing that the applicant is not the wife of Justice Mfalila (the third respondent). She states that under Christian beliefs, a married woman cannot leave her marriage, marry someone else, and still claim to be the wife of her first husband. She explains that the applicant separated from the third respondent in the early 1980s and then married a man named Mathew Kayenga, with whom she had two children, Andrew Kayenga and Osimiel Kayenga. The second respondent argues that since the applicant has not been living with the third respondent for over 40 years, she cannot claim to be his legal wife. She questions the applicant’s interest in the case, as the applicant is now married to another person and has no claim against the third respondent, insisting that the arranged trips abroad with Justice Mfalila for treatment do not indicate a marital relationship. She further claims to have lived with Justice Mfalila from September 17, 1983, until December 2018. She describes a 2014 incident while caring for the third respondent at Muhimbili Hospital, where it was decided, he 4 should go to India for treatment. The first child of Justice Mfalila manipulated the situation, allowing the applicant to accompany him. After returning from India, the third respondent lived with the second respondent at Mbezi Beach until 2018, when the first respondent moved him from Mbezi Beach to Kigamboni and then to Tabora without her consent. The second respondent states that the applicant appears to be confused about the nature of the current application, mixing up issues related to estate management and marital disputes. She notes that the applicant has not claimed that the second respondent has misused her powers as an estate manager. She accuses the applicant of misleading the court and failing to reveal the intention behind Civil Application Number 181 of 2023. In that application, the second respondent explained that she wished to regain custody of Justice Mfalila because he had been taken without her knowledge, and she felt that he was not being adequately cared for. At the very early stages of the proceedings, the 3rd respondent expressed his intention not to file a counter-affidavit in this application and did not participate in countering any legal issue raised in the affidavit. 5 The applicant's counsel argues that during the applicant’s marriage, the 3rd Respondent had an affair with the 2nd Respondent, who is an applicant in Civil Application No. 181 of 2023, which granted her management of the 3rd Respondent’s estate, including control over his bank accounts, properties, pension funds, health insurance, and other assets due to the 3rd Respondent's illness, specifically dementia, which impaired his memory. The applicant's counsel argued that the orders issued by the Resident Magistrate’s Court of Dar es Salaam have a significant impact on the applicant, who is the legal wife of the third respondent and has not divorced or separated from him. He emphasised that, according to the Court of Appeal's decisions in Civil Appeal No. 141 of 2018 Mussa Chande Jape vs. Moza Mohammed Salim and Civil Revision No. 68 of 2011, Tang Gas Distributors Limited vs. Mohamed Salim Said & 2 others, the applicant, as a third party in the original case and the legal wife of the third respondent, has the right to pursue her interests through revision. The Court attention was drawn to paragraphs 1, 3, 4, 5, 6, 8, 9, 10, and 13 of the applicant’s affidavit, which show her legitimate interest in the case and establish her as a necessary party in Civil Revision No. 14682 of 2024. He claimed that allowing the second respondent to 6 manage the third respondent’s estate, including bank accounts and properties, would infringe upon the applicant's rights. Thus, the applicant is entitled to challenge the court's decision. Counsel reiterated that the law mandates the inclusion of any party with an interest in the case as an interested party. He lastly argued for the grant of the application. Having adopted the counter affidavit in opposition to the application, the 2nd respondent’s counsel resorted into arguing three issues: Whether after expiry of the period for filing Revision Application, the Applicant is still legally allowed to jump up into an ongoing/pending Application for Revision and prosecute it in the name of a necessary party; Whether the Applicant has exhausted all remedies available in the Trial Court and whether the Applicant qualifies to be joined as a necessary Party. He argued that the law of limitation prevents the Applicant from being joined as a necessary party. According to him, the applicant's request to be joined in the pending Revision Application Number 14682 of 2024 was made without considering the time limitation, which is within 60 days from the date the decision was rendered. He said, the decision in dispute was delivered on December 15, 2023 but this application was filed on November 13, 2024, more than 11 months after the trial Court’s decision 7 and about 5 months after June 7, 2024, when the 1st Respondent was granted an extension of time to file the pending revision application through Misc. Civil Application no. 5247 of 2024. Citing Sarkar’s The Law of Civil Procedure, Eighth Edition, at pages 531 and 539, he stated that the addition of a necessary party after the period of limitation has elapsed will result in the dismissal of the entire revision application. He urged the court to decline the application for being filed outside the required period. On whether the Applicant has exhausted all remedies available at the trial Court, the counsel said that matters related to the management of estates of a mentally disordered person in Tanzania are primarily based on the Mental Health Act 2008. Section 26 of the Mental Health Act 2008 which allows any party to file an Application by way of Petition to challenge any matters relating to the estate of a mentally disordered person. He maintained that if the Applicant believe that, she has a genuine claim against the appointment of the 2nd Respondent to manage the estate of the 3rd Respondent or that the 2nd Respondent embezzle the estate she should go back to the trial court and utilise the available remedies including revoking and removal of the 2nd Respondent from management of the estate. He relied on Elis Maeda Versus Pia Sylvester Mpasa, Dc Civil Appeal NO. 32 of 2022 TANZLII, and Kezia Violet Mato Versus 8 National Bank of Commerce and three others, Civil Application No. 127 OF 2005 TANZLII, insisting that the Applicant cannot be allowed to join in an application for revision while she has not exhausted all available remedies provided under section 26 of the Mental Health Act. On the last issue, he pinpointed two tests for one to be regarded as a necessary party: (1) that there must be a relief sought against her in a case, and (2) the applicant must demonstrate that a competent and effective decree cannot be issued without her being joined. To him, the applicant fails the tests. Merely asserting she is the 3rd Respondent’s wife is insufficient. To qualify, she must demonstrate a direct interest rather than just a potential one. Unproven claims regarding matrimonial assets do not confer on her the rights or relief necessary for inclusion. Additionally, while the Applicant's application pertains to the trial court's order for managing the 3rd Respondent's property, she has not proven her direct interest in these assets. Therefore, she does not meet the criteria to be a necessary party. In the second test regarding passing an effective decree without the Party present, he stated that the Applicant failed to demonstrate how her absence affects the Court's ability to issue effective Orders. He believes effective orders can be made without the Applicant's presence. He ultimately requested the dismissal of the application costs. 9 Rejoining, the applicant argued that the Applicant cannot be subjected to the rules of limitation at this stage. To him, only the Applicant chooses who to sue, and in this case, in the original Misc. In Civil Application No. 181 of 2023, the 2nd Respondent decided not to sue the Applicant, whether deliberately or bona fide. Given that the applicant is generally permitted to select their adversaries, she may exclude necessary or interested parties and implead an individual of her choosing. This action can result in a collusive decree, which becomes final when the actual interested parties become aware of it, leading to undesirable circumstances as observed in the present case. He contended that the respondent cannot place the blame on the applicant for not exhausting these remedies or advise him to do so, as such a course of action would lead to a proliferation of suits. He posed a hypothetical scenario where, if the applicant were to challenge the decision in Misc. Civil Application No. 181 of 2023 while Revision No. 14682 of 2024 also aimed to achieve the same objective, it would result in multiple suits and conflicting decisions. He reiterated that the Applicant, as a wife, has interests tied to the matter. She has never been divorced, and as a legal wife, the decree in Misc. Civil 10 Application No. 181 of 2023 affects her. By including the Applicant, the parties' controversies can be resolved, avoiding multiple suits that could have been settled in the Misc. Civil Application No. 181 of 2023 had the 2nd Respondent, including her. I have considered the parties' submissions, the only issue for consideration in this matter is whether the applicant has demonstrated sufficient interest in the matter to warrant her being joined as a party. It is undisputed that the applicant was not a party to the proceedings in the trial court. She only became aware of the ruling through the 1st respondent after the revision application was filed in this court. It is a settled principle, as rightly submitted by the applicant's counsel, that a third party or a stranger whose rights were affected by a decision could be redressed through revision. There are a plethora of authorities on this point including the decision in M/s NBC Limited versus Salma Abdallah and another; Civil Application No. 83 of 2001 (CA) (DSM); Halima Hassan Marealle versus PSRC and Tanzania Gemstone Industries Ltd, Civil Application No. 84 of 1999, Court of Appeal of Tanzania;Mohamed Said Seif Versus Abdul Aziz Hager and Another; Civil Application No. 10 of 2010 (Mwanza) (CA) and Denis T. 11 Mkasa versus Farid Hamza & Another, Civil Application No. 46/08 of 2018 ( All unreported) The parties to this application appear to agree with the above position. The 2nd respondent's challenge lies in the timing of this application, suggesting that it is time-barred and was filed before exhausting the available remedies, and by a party without an interest in the matter. The validity of the two challenges posed has indeed engaged my mind, prompting me to wonder how a learned advocate could have raised so many strong points in written submissions in reply, just after the applicant had presented her case in court. Thanks for the applicant's counsel's response to the points in his rejoinder. However, taking everything into account, this court finds no merit. Firstly, no law in our jurisdiction has prescribed a time limit for joining a necessary party to a suit or application, and even the second respondent's counsel has not mentioned one. The 2nd respondent's argument on time limitation would only have gained support had the application at hand been a revision application filed directly by the applicant. However, here the applicant is entering as a third party, but with a vested interest in the matter. To date, I am unaware of any time limitation applicable to such a situation. Secondly, the suggested alternative remedy would not have been appropriate in this situation, 12 where the initial orders issued by the trial court are being challenged for being obtained inappropriately. A key issue under consideration is whether the applicant has established sufficient interest to participate in the ongoing revision application. The second respondent argues that the applicant has demonstrated no such interest. However, the affidavit indicates that the applicant, who is married to Justice Mfalila, has actively cared for him, regularly visiting him in Tabora and accompanying him abroad for medical treatment. The applicant also acknowledges the involvement of her stepdaughter, Chelu Mfalila (the first respondent), in caring for Justice Mfalila, including paying medical bills and keeping the applicant informed of his health status. The applicant seeks to join the revision application to challenge the ruling in Civil Application No. 181 of 2023, which incorrectly recognised the second respondent as Justice Mfalila's wife and granted her authority to administer the estate of the third respondent, based on the second respondent's false claims of marriage and Justice Mfalila's alleged dementia, all made without the applicant's input. Upon thorough examination, the applicant's concerns center on her status as the legal wife of the third respondent, whose estate has been, 13 according to her, erroneously entrusted to the second respondent pursuant to the contested ruling. Given that no substantial objections have been raised regarding the authenticity of the marriage between the applicant and the 3rd respondent, I am firmly convinced that, as Justice Mfalila's legal wife, she possesses a vested interest in the matter, warranting her inclusion as a party at this juncture. The applicant has sufficiently established a legitimate interest in the proceedings, thereby justifying the approval of her application. The application is hereby granted. The revision application, Civil Revision No. 14682 of 2024, is to be amended, joining the applicant herein, Rehema William Mbulumui @Rehema Mbulumui Mfalila, as a fourth respondent. The amended application must be filed within 14 days from the date of this order. Given the nature of the proceedings, each party is ordered to bear its own costs. DATED at DAR ES SALAAM, this 28th MARCH 2025 E.Y. MKWIZU JUDGE 14 15