CIVIL APPEAL NO 88 OF 2022 SEKO JIHADHARI KINGOP VS MSASANI APARTMENT HOTEL

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANPAMBO. J.A.. MWAMPASHI, J.A, And FELESHI. J.Al CIVIL APPEAL NO. 88 OF 2022 SEKO JIHADHALI KINGO (As Administrator of the Estate of Jihadhali Khalfan Kingo).................. .................. APPELLANT VERSUS MSASANI APARTMENT HOTEL..........................................RESPONOENT (Appeal from the Judgment and Pecree of the High Court of Tanzania (Land Pivision) at Par es Salaam) (Kalunde. 3.1 dated the 19th day of May, 2021 in Land Case No. 259 of 2017 JUDGMENT OF THE COURT 17th& 28th February 2025 FELESHI. J.A,: In this appeal, the appellant faults the High Court for dismissing his suit for want of merits specifically due to his failure to locate and properly describe his claimed suit land. The facts in a nutshell are to the effect that, the appellant Seko Jihadhali Kingo, a legal representative of the estate of Jihadhali Khalfan Kingu (his father), instituted a land case against the respondent, Msasani Apartment Hotels, claiming that she invaded his land identified as "Hotel Site Masasani Village Block "C" (henceforth the suit land) between 2003 and 2004 which, in the 1960s, was owned by his grandfather before it got vested to his father who successfully got it surveyed in 1987 and was availed with a letter of offer and site plan in 1988. The respondent strongly disputed the appellant's claims and asserted her lawful ownership that she purchased it in 2001 and obtained a certificate of occupancy to that effect. As the dispute could not be amicably resolved, the appellant sued the respondent as aforesaid. During trial, the appellant (PW1), his Mother Herriethrose Gilbert Marisa (PW2) and one Joachim Kitenge (PW3), testified for the plaintiff (appellant) where PW1 also tendered a total of 19 exhibits, many of them being different correspondences on the subject matter. On the other side, Modest Peter Tenga (DW1) testified for the defendant (respondent) and tendered one exhibit (Dl). In essence, the evidence of PW1 and PW2 was on the appellant's ownership of about 6500 square metres suit land bordering with TANESCO offices Kinondoni to the North, ANIF VISLAN to the South, Mama Catherine to the East and its access road through Mzee Kifundo. PW1 deposed that, the suit land that formerly belonged to their grandparent later vested to his late father who got it surveyed by the Dar es Salaam City Council in response to his request dated 15/10/1987 (exhibit PI). That, the appellant was issued with a letter of offer with reference number 607062 and site plan (exhibit P2) in 1988 and paid for survey fees and land rents per exhibits P3 and P4 respectively. He said, between 2003 and 2004 the respondent built her fence encroaching his suit land. That, his efforts to resolve the dispute by engaging respective public authorities and the respondent proved fruitless. His further evidence was that, according to the correspondences he made with the Dar es Salaam City Council (exhibits PI, P2, P3, P4 and P14), the Kinondoni District Commissioner (exhibits P5 and P6), the Principal Secretary Ministry of Land (exhibits P8 and P9), the Ministry of Land (exhibits P12, P13 and P16), the Executive Director Kinondoni Municipal Council (exhibits P ll, P15, PI 7, P18 and P19). The same involved the Commissioner for Lands, Msasani Street office and the respondent. As intimated earlier, Modest Peter Tenga (DW1) who testified for the respondent resisted the appellant's claims and tendered the respondent's Certificate of Occupancy No. 34907 (exhibit Dl) to justify her ownership on Plot No. 1 Block D, Msasani Village. Having scrutinized the parties' evidence, the High Court found that the appellant had failed to provide sufficient description of the suit property being mandatory under Order VII rule 3 of the Civil Procedure Code, Chapter 33 (the CPC) was a fatal omission and rendered his suit incompetent. It thus dismissed it in its entirety with costs. Aggrieved, the appellant preferred the instant appeal raising seven grounds of appeal. However, for a reason to be apparent soon we need not recount them here. When the appeal was called on for hearing/ Mr. Barnaba Luguwa, learned advocate appeared for the appellant. On the other side was Mr. Ngassa Ganja Mboje, learned advocate representing the respondent. When Mr. Luguwa was invited to argue the appeal, upon being probed by the Court, he informed us that, the suit before the High Court was incompetent for non-joinder of necessary parties, mostly those who were involved by the appellant to resolve his complaint per exhibits PI to P19. He thus urged the Court to nullify the proceedings, quash and set aside the judgment and decree. On his part, Mr. Mboje readily conceded to Mr. Luguwa's submission and prayer. To us, we accede to the learned Advocates' consensus regarding the incompetence of Land Case No. 259 of 2017 before the High Court on account of failure by the appellant to join necessary parties. We wish to observe that, though the term "necessary party" is not defined by section 3 of the CPC, we are abreast that, the case law and Order I and Order II of the CPC provide an instructive legal framework about the "parties to suit" and "framing of suit" respectively. They guide litigants how to make an informed legal decision on who to sue and to ensure litigation is conducted according to Order II rule 1 of the CPC to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Connected to that is Order I rule 3 of the CPC which guide them on who may be joined in a suit as defendant. The same provides: "AH persons may be joined as defendants against whom any right to relief in respect o f or arising out o f the same act or transaction or series o f acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question o f law or fact would arise." The above has been a subject of emphasis in a number of decisions including, Tanzania Railways Corporation (TRC) v. Gbp T. Ltd (Civil Appeal 218 of 2020) [2021] T7CA 198 (7 May 2021) TANZLII, Godfrey Nzowa v. Selemani Kova & Another (Civil Appeal No. 183 of 2019) [2021] TZCA 674 (15 November 2021) TANZLII and Abdullatif Mohamed Hamisi v. Mehboob Yusuph Othman and another, Civil Revision No. 6 of 2017, (unreported). In the latter case for example, we were inspired by the decision of the Full Bench of India in the case of Benares Bank Ltd v. Bhagwandas, A.I.R. (1947) All 18 in which the High Court of Allahabad provided two tests for determining whether a party is a necessary party to the proceedings that is, one, there has to be a right of relief against such a party in respect of the matters involved in the suit and; two, the court must not be in a position to pass an effective decree in the absence of such a party. Conversely, joining of parties becomes necessary in order to avoid condemning a person without being accorded the right to be heard which is fundamental in justice adjudication. This is because, there are decisions in their nature that should always touch the rights or responsibilities of other persons. For example, we held in Tanga Gas Distributors Limited v. Mohamed Salim Said and 2 Others, Civil Application for Revision No. 68 of 2011 (unreported) that: "... his proprietary rights are directly affected by the proceedings and to avoid a multiplicity o f suits, his joinder is necessary so as to have him bound by the decision o f the court in the s u it" Besides, while we are aware that non-joinder or misjoinder of parties per Order, I rule 9 of the CPC does not in itself render the suit incompetent, we are similarly not oblivious that, for that to materialize the plaintiff must ensure his suit squarely befits the aforementioned provisions of the CPC so as to avert any unenforceable decision or multiplicity of suits that may be caused by a non-joinder or misjoinder of a necessary party. We underscored this in Stanslaus Kalokola v. Tanzania Building Agency & Another (Civil Appeal No. 45 of 2018) [2019] TZCA 412 (6 November 2019) TANZLII, that: "...there are non-joinders that may render a suit unmaintainable and those that do not affect the substance o f the matter, therefore inconsequential." 7 Likewise, in the above-cited case of Tanga Gas Distributors Limited (supra) we underscored the position that: "... it is now an accepted principle o f law (see Muiia Treatise (supra) at p. 810) that it is a material irregularity for a court to decide a case in the absence o f a necessary party. Failure to join a necessary party therefore is fataf (MULLA at p 1020)". In the case of CRDB Bank Public Company Limited v. UAP Insurance Company Limited (Civil Appeal No. 32 of 2020) [2023] TZCA 19 (16 February 2023) TANZLII we revised the High Court decision, nullified its proceedings and judgment and further ordered the principal debtor (CATA Mining Limited) to be made a party to the case to enable the court to fairly, completely, effectively and adequately adjudicate upon all matters in dispute. In the matter at hand, there is undisputed fact that both the appellant and the respondent adduced evidence that they possess valid land ownership documents from the Commissioner for Lands on the same land. The appellant holds a letter of offer with reference number 607062 and site plan (exhibit P2) issued to him in 1988 and he further tendered payment receipts for survey fees and rents (exhibits P3 and P4). On her side, the respondent also holds a Certificate of Occupancy No. 34907 (exhibit Dl) granted to her in 2001. In that connection, part of the appellant's evidence at page 161 of the record of appeal is that: "...in 1988 we were given an offer and subsequently we paid fee for processing o f the certificate o f Title and we used to obtain invoices from the Ministry o f Lands and we were paying land rent. To date we have never been informed or received any information or document from the Government or any authority that the offer has been rejected or revoked." So, in view of the above, we think, and with all due respect to Mr. Luguwa, it was improper for the appellant to rush and sue the respondent alone whilst aware that the Dar es Salaam City Council, the Kinondoni District Commissioner, the Kinondoni Municipal Council and the Ministry of Lands were finding out whether his suit land was affected by subsequent surveys. Some of the measures taken were in the Konondoni Municipal Director per his letters dated 23.11.2015, 29.4.2015 and 30.9.2015 to the Kinondoni Municipal Surveyor and the respondent as shown at pages 232, 233 and 234 of the record of 9 appeal. In his 29th April, 2015 letter for example, he directed the Kinondoni Land Surveyor to find out if the appellant's suit land was affected by subsequent surveys and developments. It reads: "Napenda kukufahamisha kuwa kumekuwepo na malalamiko ya muda mrefu kutoka kwa ndugu Jihadhaii K.Halfani mwenye mi/iki ya kiwanja cha "Site for Hotel" Kitalu 'C' Msasan Village ya kuwa upimaji, umffiki na ujenzi uliofanyika katika kiwanja Na. 1 Kitalu 'D' Msasani Village umefanyika juu ya kiwanja chake. Kwa barua hii tunaomba ututhibitishie iwapo ni kweli upimaji wa kiwanja Na.l Kitalu V ' Msasani Village umefanyika juu ya kiwanja cha "Site for Hotel" Kitalu X' Msasani Village."[Emphasis supplied] Quite clearly, in our view, the excerpts from pages 161 and 233 of the record of appeal above, are a clear manifestation that both the appellant and the Kinondoni Municipal Council were at one that, according to the land office records the appellant's "Site for Hotel" Kitalu 'C' Msasani Village"validly existed save that its actual physical location was suspected to have been extinguished by exhibit 'D l' and 10 other developments thereon hence the inquiry carried out by the Kinondoni Municipal Director through the Kinondoni Land Surveyor. As in the instant matter, the appellant didn't join those charged with administrative and legal mandate to assert his rights vested in his letter of offer (exhibit P2) and very unfortunately, the learned trial judge overlooked that anomaly during the trial of the case, we safely conclude that, the trial proceedings and its resultant judgment and decree undoubtedly offended the provisions of the CPC discussed above. It also means that, our decisions cited above including the ones in Tanga Gas Distributors Limited (supra) and CRDB Bank Public Company Limited (supra) are relevant in this appeal as no relief and final resolution of this land dispute can be realized unless proper parties are joined to enable the court to fairly, completely, effectively and adequately adjudicate upon all matters in dispute. Consequently, based on the discussion above, we hereby invoke the powers vested on us under section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 and nullify the High Court proceedings, quash its judgment and set aside the resultant decree. Subject to applicable laws, the appellant, if minded, is at liberty to institute a fresh suit joining the proper and necessary parties so as to afford a ii fair and effective determination of the case. Since the issue under consideration was prompted by the Court, we make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 27th day of February, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgement delivered this 28th day of February, 2025 in the presence of Mr. Victor Alexander who also holding brief for Mr. Barnabas Luguwa, learned counsel for the Appellant and in the absence of learned counsel for the Respondent, is hereby certified as a true copy 12