land appeal no

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 21481 OF 2024 (Originating From Application No. 8 of 2019, Mkuranga District Land and Housing Tribunal) SELINA GODFREY LETARA.................................................................... APPELLANT VERSUS SOSTHENES ANESIO MUKAMA (Administrator of the Estate of the Late Faustine Patrick Mukama & Guardian of Pascal Ihunda Mkuma)........................................... RESPONDENT JUDGMENT 15th to 18th October, 2024 E.B. LU VAN DA, J The Appellant named above is appealing against the decision of the Tribunal which declared the Respondent as the lawful owner of sixteen acres of land (suit property) located at Mwanagenda Area Vianzi Village. At the Tribunal the Respondent sued the Appellant claiming to be declared the lawful owner of the suit property, where he pleaded to have been allocated two pieces of land: one piece of land had ten acres which he later disposed to one Noel (is not on issue) and sixteen acres (suit property). In the pleadings and at a trial, the Respondent attached and tendered hati ya uthibitisho wa kugawiwa ardhi Halmashauri ya Kijijicha l//a/?z/exhibit Pl. The Appellant faulted exhibit Pl to have been forged to reflect sixteen acres instead of ten acres. The Appellant tendered minutes of the meeting for dispute between her and the late Faustine Hunda Mukama, i exhibit D4 vindicating that the Vianzi Village Council allocated ten acres to the Respondent. The Respondent also faulted the Vianzi Village Council for re­ allocating the suit property to the Appellant for the alleged failure of the late Faustine Hunda Mukama to attend the meeting dated 10/03/2010, while the late Faustine Hunda Mukama passed away on 27/02/2010. The Respondent in his application had sued the Appellant along the Serikali ya Kijiji cha Vianzi (as Second Respondent). The latter's name was struck out by the learned presiding Chairperson on 30/03/2020 after sustaining the preliminary objection raised by the Second Respondent therein that her name was wrongly impleaded as Serikali ya Kijiji Vianzi instead of the proper name of Halmashauri ya Kijiji Vianzi. Thereafter the matter proceeded between the Appellant and Respondent. In the petition of appeal, the Appellant raised seven grounds of appeal. But for purpose of this appeal, as per the above introduction, I will pick and adjudicate on the first ground of appeal only. That, the Honorable Chairperson erred in law and facts by allowing the suit to proceed in the absence of Vianzi Village Council, which was a necessary party to the suit. Mr. Josiah Noah Samwel learned Counsel for Appellant submitted that the contentious matter in the dispute is the suit property alleged that it was double allocated by the Vianzi Village Council to the Appellant and Respondent at different occasion. He submitted that, recognizing that he had a cause of action 2 against Village Council, the Respondent sued the Appellant as the First Respondent and the so called Serikali ya Kijiji cha Mianzini (sic, Vianzi) as the Second Respondent. He submitted that it was not disputed that the Appellant on her defence and during hearing at the Tribunal mentioned the same Village Council that allocated the suit property to the Appellant. He submitted that during trial, all witnesses for both parties mentioned the Village Council as the main cause of the dispute between the parties. He submitted that the liability of the Appellant against the Respondent's claim at the Tribunal was all dependent on the acts of the Village Council as the main cause of the dispute between the parties. He submitted that it was not proper for the Respondent to claim directly from the Appellant who was just allocated the suit property by the Village Council-without joining the Village Council which was responsible organ for allocating lands. He submitted that the Village Council was a necessary party, arguing it ought to have been joined in the suit for purpose of defending itself and explaining the accusation respecting double allocation of the suit property. He cited Order 1 rule 3 of the Civil procedure Code, Cap 33 R.E. 2019; Equity Bank Tanzania Ltd & Another vs State Oil Tanzania Ltd, Civil Appeal No. 294 of 2022, CAT, for a proposition that the court has jurisdiction to order an addition of a defendant to a suit even where it is against the will of the plaintiff 3 or even where the plaintiff does not think that he has a cause of action against him. In reply, Mr. Shogholo R. Charo learned Counsel for Respondent submitted that going through the records of the Tribunal it is clear that the issue to be determined before the Tribunal was about ownership of the suit property between the Appellant and Respondent. He submitted that the Respondent had no cause of action against the Village Council, arguing that it is the reason he sued the Appellant as a trespasser to its land. He submitted that the Respondent successful managed to establish and prove the fact that he come into possession of the suit land way back in 2006 while the Appellant claimed to have acquired it in 2009. He submitted that there was no need for the Village Council to be joined as the part to the suit for the Respondent to prove ownership as the facts are very clear that it was the Respondent who first acquired the suit land, he submitted that since the matter at the Tribunal was about trespass, argued that the law is very clear that whoever appear to be the first to acquire land is recognized as the owner of the same, cited Ombeni Kimaro vs Mishili t/a Catholic Charismatic Renewal, Civil Appeal No. 33 of 2017, CAT. As I have prefaced above, the Viani Village was joined at the time of suing as Second Respondent, only that the learned Chairperson struck out her name on 4 account that the same was improperly named. Thereafter the matter proceeded without impleading Vianzi Village. Order I rule 3 Cap 33 (supra), provide, 'AH 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 against such persons, any common question of law or fact would arise' At paragraph 6(a) of the application filed at the Tribunal, the Respondent pleaded the following facts, 'On the 0h March 2010 four years later, the same Village Counsel (sic, Council) addressed a letter to Faustine Patrick Mukama and Charles Erasto Mbui to appear before the Village Council to settle a land dispute with Selina Godfrey Letara, failure of which would confer land right to the party attended. Unfortunately, Faustine Patrick Mukama passed away before the date set for mediation. He did not appear before the Village Council as directed. Accordingly, the land right was conferred to Selina Godfrey Letara the party that had attended' In her written statament of defence to the above facts, at paragraph six the Appellant averred that, 'Basing on the facts stated herein paragraph 5 above, it is not true as asserted by the Applicant in paragraph 6(a) of the application that the 1st Respondent was allocated land by the 5 2nd Respondent after the deceased being summoned and failed to appear on a meeting convened by the 2nd Respondent in 2010-the 1st Respondent was allocated that land in 2009 after following the due process as stated herein paragraphs 5.1 to 5.5 above' From the above discerned facts, it can be said that Vianzi Village Council was a necessary party for the determination of the dispute between the parties. In the case of Nuta Press Limited vs MAC Holdings and Another, Civil Appeal No. 80 of 2016, CAT Dar es Salaam, at page six, the apex Court ruled, 'From what we have gathered from the respective pleadings, the conclusive and fair determination of the dispute between the appellant and the 1st respondent could not be attained without impleading the defunct THB. In the circumstances, as the suit was filed before the High Court, it was incumbent on that court to scrutinize the pleadings in order to determine if at all THB was a necessary party in the context of Order I rule 10(2) of the Civil procedure Code [Cap 33 R.E. 2002]. This was emphasized in the case of Farida Mbaraka and Farida Ahmed Mabaraka vs Domina Kagaruki, Civil Appeal No. 136 of 2006 (unreported), where the Court said: "Under this rule, a person may be added as a party to a suit (i) when he ought to have been joined as plaintiff or defendant and is not joined so; (ii) when, without his presence, the questions in the suit cannot be completely decided' 6 Herein, Vianzi Village was impleaded and joined as Second Respondent, only that her name was struck out of the pleadings by the learned presiding Chairperson. In so doing there is nothing suggesting that the presiding Chairperson had embarked on scrutinizing pleadings to ascertain whether the suit and dispute between parties could be conclusively decided without the presence of the Vianzi Village. In its finding in the impugned judgment the Tribunal ruled, third line at page fourteen first paragraph, 'Kulingana na kielelezo Pl na D3 mwaka 2009 mmiliki wa eneo la mgogoro atikuwa mdai. Kwa mwaka 2009 ha/mashauri ya Kijiji haikuwa na mamlaka ya kugawa eneo hi/o kwa mdaiwa kwani umiliki ulishahama tangu 2006 kutoka ha/mashauri ya Kijiji cha Vianzi Kwenda kwa mdai kama msimamizi wa mirathi ya Faustina na miezi wa Paschal' It can be said with certainty that Vianzi Village Council was a necessary party for fair and conclusiveness determination of the question of ownership between the parties. This is because the Appellant had faulted and queried exhibit Pl to have been marred with elements of forgery for inserting wordings to read sixteen acres. In the pleading and at the trial, the Respondent never produced a document for allocation often acres subject for disposition to the alleged Noel. To my view, the truth could be ascertained by impleading and joining Vianzi Village Council (the allocating authority) to clarify on this issue. 7 As intimated at the beginning that I will deal with the first ground of appeal, which invariably suffices to dispose the entire appeal. The proceedings of the Tribunal are quashed and judgment set aside along its award. The order of the Tribunal dated 30/03/2020 striking out the name of the Second Respondent is substituted with an order allowing the Respondent to amend his application to join and implead Vianzi Village Council. The matter is remitted back to the Tribunal for re-adjudication as the circumstances will determine. The appeal is allowed to the extent demonstrated above. Each party to bear E.B. LUVAMDA JUDGE । 18/10/2024 Judgment delivered in the presence/of Ms. Glory Kibona learned Counsel for the Appellant also holding brief fori Ms. Benadeta Kinyenje learned Counsel for Respondent.