rodrick c shirima vs maulid rajabu mfanga and others 2020 tzhclandd 3925 10 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 39 OF 2017 RODRICK C. SHIRIMA................................................. PLAINTIFF VERSUS MAULID RAJABU MFANGA ......................................1st DEFENDANT KZ SECURITY LIMITED.......................................... 2nd DEFENDANT MTC AUCTION MART............................................. 3rd DEFENDANT OLIVER PROSPER.................................................... 4th DEFENDANT CHRISPIN SHIRIMA...............................................5th DEFENDANT RULING S.M. MAGHIMBI, J: The suit beforehand was filed on the 03/02/2017 by the plaintiff herein against, among others, his biological father the 5th defendant. On 13/10/2017 it was revealed to this court that the said 5th defendant passed away on 02/07/2017 which is just five months after this suit was filed. He however waited up until 05/03/2020 when the plaintiff revealed that the 5th defendant (his biological father) was dead. The plaintiff was given time to procure the administrator of his late father's estate in vain and on the 13/10/2020 when I learnt that the 5th defendant has been dead for the past three years and no application was made to include his legal representative, and having further considered the fact that the information was concealed to the court for unknown reasons, I issued an order abetting the suit against the 5th defendant under the provisions of Order i XXII Rule 3(1) of the Civil Procedure Code, Cap. 33 R.E 2019. Having so abated the suit, I asked the plaintiff's advocate, Ms. Magreth Kisoka to address the court on the competence of her suit in the absence of the 5th defendant. She was ordered to file her written submissions on the issue, which she did accordingly hence this ruling. In her submissions, Ms. Kisoka argued that the lawful heirs have failed to place the administrator of estates of the 5th Defendant despite the knowledge of this matter. She further submitted that the plaintiff failed to affect the summons to the 3rd Defendant for want of physical address and its existence. That on 05th March 2020 the plaintiff prayed for re-service to the 3rd defendant but the order was not honored in March to July 2020 the court proceedings were suspended due to Covid - 19 pandemic. That after the pandemic, on 22nd October 2020 when the matter was called for hearing, the plaintiff prayed for exparte hearing order against the 3rd defendant based on the information of avoiding court summons deliberately. On the impact of continuing with the matter in absence of the 5th defendant's representative, she submitted that from the plaint, the plaintiff alleges that the 5th defendant is not the owner of the suit property which was sold by auction on the allegation that he was the owner. That the 4th respondent successfully sued the 5th respondent, and in executing the decree, they attached and sold the suit property to the 1st defendant and the 1st defendant sold the same 2nd defendant. Ms. Simkoko argued that the matter cannot abate by mere death of the 5th defendant as Order XXII Rule 1 of the CPC provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. She argued that if 2 the lawful heirs fail or are reluctant to have administrator/administratrix in place to prosecute, the matter can proceed in absence of the defendant who died. On the issue whether the Court is eligible to grant ex-parte hearing order against the 3rd defendant on the ground that the 3rd defendant is avoiding summons, Ms. Simkoko submitted that the available remedy is for the court to order fresh summons and service be by way of publication since the plaintiff has failed to find the residence of the 3rd defendant, and not to order ex-parte hearing. Having considered Ms. Simkoko's submissions, here are my findings. The current suit emanates from an execution of a decree of the Primary Court in the matter that was between the 5th defendant as judgment debtor and the 4th defendant as the decree holder. In the said sale the 1st defendant was the purchaser who later on sold the property to the 2nd defendant. Therefore the core of the matter is on the ownership dispute between the plaintiff, the 4th and 5th defendants. The 1st and 2nd defendants are mere purchasers from the feud that did not involve them. Therefore in this case, the person ownership of which has to be proved against the plaintiff is the 5th defendan hence the necessary parties in this suit are the 5th and 4th defendants. Now if the said 5th defendant who is also the plaintiff's father is deceased 5 months after the suit was filed, which is three years ago, and no administrator having been appointed which led to the abetment of suit against him, could a suit proceed against him in his absence as a party? The answer is no. Order I Rule 9 provides that: 3 "/I suit shall not be defeated by reason of the misjoinder or non­ joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it." The cited Order prohibits defeat of the suit by mere non-joinder or misjoinder of parties. However, it goes further to allow the court to deal with the matter in controversy so far as regards the right and interests of the parties actually before it. As for the rights and interest of the parties before me, the whole claim begun when the 5th efendant allowed attachment of the suit property which he is allegedly not the owner, in fulfillment of his decree. He is therefore an indispensible party to determine the rights and interests of the 1st, 2nd and 4th defendants in this suit. Without his being a party, the court shall not be able to determine the interests of the parties herein. Owing to this fact and the very fact that the plaintiff has failed to procure administrator of the estate of his late father for 3 years, I see no reason to proceed with determination of the suit in absence of the 5th defendant whom the suit has abated against him. For the aforesaid reason I hereby struck out this suit. Should the plaintiff still be interested to pursue his rights, he shall do subject to the law of limitation and with inclusion of the administrator of the estate of the 5th defendant. I make no order as to costs. Dated at Dar es Salaam this 10th day of December, 2020 . MAGHIMBI JUDGE 4