shukuru elias nyaringa shukuru elias vs haidary hemed sumry 2 others 2024 tzhc 14 11 january 2024

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND CASE NO. 6 OF 2023 SHUKURU ELIAS NYARINGA @SHUKURU ELIAS ................ PLAINTIFF VERSUS HAIDARY HEMED SUMRY....... .................................... ..........1st DEFENDANT w4' KIVA MPANDA MUNICIPAL COUNCIL ...... ...2nd DEFENDANT ATTORNEY GENERAL .....M........... 3rd DEFENDANT RULING r.._ -z._ ’%/’:■ ■ ;<:i ■ ■> 13” December 2023. & .1b' January, 2024 y ' 4 ■' -’• ’ MRISHA, J. ’ This is/a land dispute whereby the plaintiff claims against defendants severally and jointly; for declaratory order that the defendants are trespassers of his land with Plot No. 222 Block "DD'" (LD) located at Kisimba-Ilembo area Mpanda Municipality, in Katavi Region (the disputed land). i He also seeks the declaration of the court that he is a lawful owner of the disputed land, permanent injunction against the defendants from entering into or doing any human activities into the disputed land, an order nullifying the tittle deed issued to the 1st Defendant on disputed land, general and exemplary damages together with interest as a result of the acts done by the trespassers over the disputed land. He claims that on diverse dates between the years 2006 and 2009 via purchasing from different people, he acquired twelve (12) acres, the disputed land being inclusive. That subsequent to those purchases, he applied to the 2nd Defendant for the said land to be surveyed and registered in his name as the owner thereof so that he could build a nursery school on that land. That his application was granted the said land was dully surveyed and registered into two plots Plot No. to wit;; Plot 222 Block "DD" (LD), the disputed land and Plot Nd: 223 Block A'DD"(LD). That on 30th March, 2012 the 2nd Defendant issued the 1st Defendant with tittle to and allocated the disputed land to that defendant without any justification whatsoever. Following the incident, the plaintiff undertook several diplomatic ways by consulting the 2nd Defendant in different occasions for a long period of time in order to rectify the situation but in vain. Again, the plaintiff made some follow 2 ups in rectifying the wrong allocation and issuance of tittle over the disputed land to the 1st Defendant who applied to the 2nd Defendant for re-surveying Plot No. 222 Block "DD" (LD), and the 2nd Defendant re-surveyed the same which resulted into 63 plots of different density with numbers between Plot No. 732 to 794 Block "DD" Kasimba-Ilembo Area Mpanda Municipality.- . That after longtime initiatives by the plaintiff, the. plaintiff served a . statutory ninety (90) days' notice to the defendants which was not acted upon, hence this matter. When the respondents were served with the plaint, the 1st Defendant filed a Written Statement of Defence .whereas the 2ndand 3rd Defendants filed MUy 'MM their joint Written Statement of Defence'along with a notice of preliminary objections. In the notice of preliminary objections, the 2nd and 3rd Defendants raised four grounds of objections, as hereunder: 1. That/ this su/tms frivolous and vexatious for failure to attach the sale agreements in the Plaint as essential documents contrary to the law. 2. This Suit is untenable in law for offending the Defendants' right of being heard. 3. This Suit is untenable in law for nonjoinder of Registrar of Titles as a necessary party. 4. This Suit is untenable in law for having defective verification clause. 3 Practically/ the court had to stop hearing of the main suit in order to deal with such preliminary objections. At the hearing/ the plaintiff was represented by Mr. Deogratias Sanga, learned Advocate whereas the 1st Defendant was absented himself/ and 2nd and 3rd Defendants were represented by Mr. Mujahidi Kamugisha and Siyumu Shabani, both learned State Attorneys. As per the rule of thumb/ the defendants who raised preliminary objections, were the first to address the court regarding their objections.' ‘ Mr. Mujahidi Kamugisha began his submission by praying to the court to abandon ground 4 of the preliminary objection and proceed with grounds VS:? number 1, 2 and 3 of the same. In the first limb of the preliminary objection, Mr. Kamugisha submitted that the. suit is frivolous and vexations for failure to attach the sale agreement in the plaint as-the essential document, contrary to the law. He said . the gist of their preliminary objection is on paragraph 6 and 7 of the ; rj'' < ‘ r \ . plainti .That according to.paragraph 7, the plaintiff's claim is trespass to the land and paragraph 6 shows how he acquired the land. According to the second and third defendants counsel, the two paragraphs contravene the provisions of Order VII, Rule 14(1) of the Civil Procedure Code R.E. 2019 (the CPC). Again,.Mr. Kamugisha argued that the plaintiff was required to produce in court the entire document in his power when the plaint was presented in court. He 4 added that the provision of the law cited above, is coached in mandatory terms due to the use of the word "s/7a//z,and that is according to section 56 of the Interpretation of the laws Act, [Cap 1 R.E 2019]. He went on submitting that by virtue of the above provision of the law, the word "s/?a//zzmean that function must be performed. He also said it is not in dispute that the plaintiff when preparing a plaint, was in possession of sale agreement and his failure to attach the sale agreement on the plaint^made the plaint to become incompetent and the remedy thereof, Is to stuck out the suit. ' . J •I-J 4*• r ' 'iv,jjT ■ ■< I - C-' - •’-‘I ■' To cement his stance, the learned counsel for the second and third defendants, cited the case of Ali Chamani v. Karagwe District Council and Others, Civil Appeal No. 148 of 2020 (unreported) CAT Buko ba at page 14 where it was held that: V'., ’■'-■'i "The remedy foran incompetent appeal or application is to strike it OUt" W On the second lirnb, the learned State Attorney contended that the suit is untenable in law for offending the defendants' right of being heard. He submitted that the right of the defendants to be heard was offended under Order VIII Rule 2 of the CPC. According to him, the provision requires the defendant to 5 raise all grounds of defence in the Written Statement of Defence. Conversely, the learned counsel submitted that Order VIII, Rule 3 of the CPC prevents the defendant from making a general denial; hence failure of the plaintiff to attach/annex the sale agreement on the plaint amounts to infringement of the fundamental right to be heard on the part of the defendants., He cited the case of Martin Fredrick Rajab v. IlemelaDistrictCouncil and another, Civil Appeal No. 197 of 2019 CAT at Mwanza at page ll?to support his argument. He also cited the case of Makori Wasaga v. Joshua Mwaikambo [1987] TLR 88 where the Court held inter alia,'that: "Parties are bound byhis pleadings and he can only succeed accordingly to what was averredrin his plaint and proved in evidence; hence is not allowed to set upa new case".‘A j ,-.k;.? r. ’l' ■: •J >. Yet again; Mr.'; Kamugisha referred to paragraph 6 of the plaintiff's plaint and argued that the plaintiff- has averred therein that he could tender the sale agreement during hearing. According to him, this is not allowed because by doing so, the plaintiff will be setting up a new case. He denoted the word "hearing'' which was defined in Academics Legal Dictionary, by S.L Salwan at page 164 to mean: 6 "'Hearing a proceeding wherein evidence is taken for the purpose of determination of an issue of fact and reaching a decision on the basis of that evidence". He contended that, the hearing stage has been mentioned under Order XIV, Rule 1(5) of the CPC; hence, if the plaintiff is allowed to submit the documents at the first hearing, then those documents will set up aAnew case. Moreover, the learned counsel submitted that this suit will pass to the mediation stage, as per Order VIII, Rules 24, 25, 26, 27 up to 33 of CPC. That, at the mediation stage, M A.. 'Ah As r>.A *"■ '' the mediator will be appointed; the mediation process will rely on the pleadings filed in court. Hence, failure to annex document in the plaint amounts to abuse of court process. W "hK He also submitted that the right .to be heard is a fundamental right under Article 13(6)(a)of the Constitution of the United Republic of Tanzania. To bolster his A, argument, he cited the case of M.B. Business Ltd. v Almas David Kasada and 2 others, Civil ^Application No. 429/17 of 2019 CAT Dar es Salaam at page 8, and the case of Crescent Impex (T) Ltd v. Mtibwa Sugar Estates Ltd, Civil Appeal No. 455 of 2020 CAT Dar es Salaam,: and added that in the latter case which is a very current decision, the Court held inter alia, at page 13 that: 7 ''Probably it is worth mentioning at this juncture to say the purpose of annexing documents either to the plaint or to the written statement of defence is to enable the other party to the suit to know the case he is going to face. The idea behind is to do away with surprises. But annexures are not evidence". Hence, he prayed to this Court to strike out the suitAwith costs because it is incompetent. In regards to the third limb of objection, Mr.Siytimu Shabani, learned State Attorney chipped in and submitted that it is a requirement of the law that every person can be join in the plaint. According to the plaintiff's prayer, the order cannot be performed if the Registrar of the Titles is not among of the parties to -•i' ‘ . s'!.1 this suit. He argued that, the Registrar of the Titles has the mandate to rectify the title deed under section 99(1) of the Land Registration Act [Cap 334 R.E 2019] (the Land Registration Act). Thus, the counsel argued, failure to join the Registrar of Titles to the main suit is fatal and unmaintainable. To fortify his stance, he cited the case of Stanlaus Kalokola vs. Tanzania Building Agency and another, Civil Appeal No. 45 of 2018. 8 Additionally, Mr, Siyumu Shabani argued that the Registrar of Tittles has the power of maintaining Land Register of the Registration of Titles and recording disposition of the title and disposition of the title document under Section 3(2) of the Land Registration Act. In response, Mr. Sanga proposed to merge grounds number 1 and 2 of the preliminary objections and argued them together, while ground number 3 was argued by him separately, vT " On the first set, Mr. Sanga submitted that the first and second limbs of preliminary objections do not qualify to be preliminary objection which normally stands only where it is based on a point of law and not facts which require some evidential proof, as it was stated in the case of Mukisa Biscuts Manufacture Ltd v. Westend Distributers Ltd [1969] EA 696. From his perspectivey.both the preliminary objections raised by the learned State Attorney.; were caused by wrong interpretation of provisions of Order VII, Rule 14(1) and'Order VIII, -Rule 2 of the CPC. He maintained that the basis of the present suit is stated under paragraph 5 of the plaint, whereas the cause of action is a trespass, and the proper provision to cure the situation, is Order VII Rule 14(2) of the CPC. He also submitted that 9 albeit the documents were not annexed, the law still allows the plaintiff to bring the document by filing list or added documents under Order VII, Rule 14(2) of CPC and Order VII, Rule 18(1) read together with Order XIII, Rule 1(2) of the CPC. He added that the essence of having ail those provisions of the law, is avail the parties with an opportunity to know their case ‘before hearing, of the suit. However, it was his submission that the defendants -were mot; taken by any surprise as they have awareness of the case and they know the nature of the case. "W. "W-,. Regarding the allegation that defendants were infringed their rights to be heard, Mr. Siyumu Shaba ni contended that such ground does not hold water because the defendants.filed their written statements of defence in which they replied to what was .stated in .the plaint. He added that, the documents which were supposed to be annexed bn the plaint, were not in possession of the plaintiff as required under Order VII, Rule 14(1) of the CPC. He therefore, distinguished the case of Crescent Impex (supra) and prayed to this court to strike out the objections, proceed with the hearing of the main suit on merits, and consider the application of section 3A (1) and (2) and section 3B (1) the CPC. Alternatively, he prayed for amendment of plaint. io Regarding the third limb preliminary objection, the learned advocate for the plaintiff conceded that the Registrar of Titles was not joined as a necessary party to this case, but that does note defeat the suit under Order 1, Rule 9 of the CPC. He added that the remedy it to allow the plaintiff to make amendment under Order 1, Rule 10(2) and (4) of the CPC. To cement his position, he cited the cases of Mariam Amir Milinga and 3 others v Peter Peter Junior and 11 others, Land Case No. 21 of 2023 CAT Dar es Salaam ;at page 7 & 9 and CRDB Bank Public Company Ltd vs UAP Insurance Company Ltd, Civil Appeal No. 32 of 2020 CAT Dar es Salaam attpage 2(both dnr^^^^^ He also, distinguished the case of Ali Chaniani's (supra) with the present case, and in Manani's case(supra) where the Court of Appeal discussed about appeal or application and not a suit. Hence, he prayed for amendment of the plaint in order to join the Registrar of the Titles. WfeL Wife. In rejoinder, the learned; State Attorney submitted that the plaintiff's advocate conceded on ground 3 of preliminary objection and prayed reiterated his previous prayer to the court to strike out the plaintiff's suit. Regarding the argument that the raised two limbs of preliminary objection do not qualify to be a preliminary objection, he submitted that the plaint has contravened the provisions of Order VII, Rule 14 (1) of the CPC. He further submitted that Order VII, Rule 18 of the CPC is applied when the court grants leave, but it is not automatic, where Order XIII, Rule 1(2) of the CPC is applied upon a good cause been established by the plaintiff. Again, he reiterated what he had submitted earlier with his learned friend. With the foregoing submissions from all the parties in relation to the preliminary points of objection, I now delve into addressing the rival submissions of the learned counsel. The issue before me is the plaintiff's suit is competent before the court, % I find it relevant to make reference to -Order VII, Rule 14(1) of the CPC which provides that, and I quote: ; "Where a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented and shall at the same time deliver. the document or a copy thereof to be filed with the plaint." From the above provisions of the law, it is obvious that the law requires the plaintiff to produce the document in his possession or annex copy of the document when the plaint is presented in court for filing. In his submission, the learned State Attorney has argued that the plaintiff failed to annex sale agreement in the plaint which is essential documents in the present suit. He has 12 also submitted that the claim of this suit is a trespass, this revealed at paragraph 7 of the plaint and paragraph 6 which shows how he acquired the disputed land. He has further contended that Order VII, Rule 14(1) of the CPC is coached in a mandatory term which means a function must be performed. The Plaintiff's advocate has argued otherwise to the effect that Order VII, Rule 14(1) of the CPC is applied to the suit where the cause of action is a breach of contract, but the circumstances are different in the present suit. He added that, the proper provision to cure the defect is Order VII, Rule 14(2) and Order XIII '.y rule 18(1) of the CPC which provides for alternatives or exceptions to Order VII, Rule 14(1) of the CPC when it appears that the document was not annexed or brought in court before commencement of a trial. Order VII, Rule 14(2) of the CPC provides as hereunder: "14(2) Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. "[Emphasise mine] Again, Order VII, Rule 18(1) of the CPC provides as follows:- 13 "18(1)A document which ought to be produced in court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing ofthe suit." [Emphasise mine] My reading of the above provisions of the law depicts that the provisions of Order VII, Rule 14(1) of the CPC cannot.be said to,be mandatory, rather it is qualified when read together with Order VII, Rule : 14(2) of the CPC, which provides that in case any document ought to be produced is not produced when '-’ L; •. , ’-Cl the plaint is presented, the Same can be listed in a separate list to be filed in court and, once, that is done, they shall form part of the plaint The Court of Appeal made cleat position in the .case of Eusto K. Ntagalinda vs Tanzania Fish Processors Ltd, Civil Appeal No 23 of 2012 CAT Mwanza (unreported) at page 11, where it held, inter alia, that: .^.jrz.vv; "Other documents that need not be attached at that stage, must be listed (Order VII rule 14(2)) and the list annexed to the Plaint." Despite the fact that the document was not annexed to the plant and the plaintiff indicated he would want to rely upon such document later on, then it is my 14 considered opinion that the plaintiff can do so only with the leave of the court as per Order VII, Rule 18(1) of the CPC. In this case, the records reveal that when the plaint was filed with the court, the Plaintiff did not annex the sale agreement on the plaint in to prove ownership of the disputed land. However, it is revealed therein that he reserved the right of filing the document during trial. The underlined reason is that the said document is not in his possession. M • ■1'7-' 5. /AV'Tr. •Si-’! A- On my part, I subscribe to the submission of the plaintiff counsel that Order VII, Rule 14(2) and Order VII, Rule 18(1) of the CPC together with Order XIII, Rule 1(1) of the said procedural law, fill the gap When the document was not annexed to the plaint. Iv­ in my opinion/the plaintiff has the avenues available under the law to produce in court a document not; initially filed or annexed with the Plaint; and the avenues are under Order VII, Rule 14(2) or Order VII, Rule 18(1) or even under Order XIII, Rule 1(1) of the CPC. Still, it appears to me that the plaintiff made a prayer to reserve the right to file a document at paragraph 5 of the plaint, and the same could be considered to 15 be under Order VII, Rule 18(1) of the CPC. I thus, find that the first limb of preliminary objection has no merit and I dismiss it. Regarding the second ground of preliminary objection/ I will not spend much time on this ground of preliminary objection because the law allows any documents ought to be produced and is not produced when the plaint is represented, to be produced in court, but with lhe leave" of the court subsequently. Arguing that failure to annex sale agreement to the. plaint contravened fundamental rights to be heard under Article 13 of the URT Constitution, in my view such argument is misplaced; the law allows both parties to produce at the first hearing of the suit, all the documentary evidence of every description in their possession or power, or-which they intend to rely and which has not ■'i::: :s 'V •: ■•v ■ already been filed in court. C ■ ':V&: i .'Hi: c- Under the provisions of Order XIII, Rule (1) (1) and (2) of the CPC, it is stated as follows: JJ/ "1(1) The parties or their advocates shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has 16 not already been filed in court, and all documents which the court has ordered to be produced. (2) The court shall receive the document so produced provided that they are accompanied by an accurate list thereof prepared in such from as the High Court directs." [Emphases mine] The learned State Attorney defined ..the word hearing by referring to the Academic Legal Dictionary, by S.L. Sa’lwan,’ which I find to be helpful; the >. '■•!. '1 '-x?:; ;>*:<vT' definition gives a position that; -M. "Hearing is a proceeding wherein evidence is taken for the purpose of the determination ofan issue offact and reaching a decision...." ;■ r-'.-C,; •' * ••• •;VrX1$.' - •; -’•U.' •. ‘S 'f-:: t' ' re.;> '■? :7 • r-; J y' Thus, the document can be filed before the court draws up issue for determination. The term hearing which is used under Order XIII, Rule 1(1) was discussed in our jurisdiction in the case of Latifa Hassan Alibhai vs Jayendra J. Amrchand and Another, Land Case No. 199 of 2019 HC Dar es Salaam(unreported), whereby my learned brother Hon. Nangera J, had an opportunity of discussing the issue of Order XIII, Rule 1(1) of the CPC and held that: 17 "'Production of all documents is a step which needs to be observed before the Court draws up issues to be determined. This is particularly so, because, all such documents intended to be relied upon by the parties, will have a bearing on the issues drawn by the court." Therefore, on the above-mentioned reasons, it is my settled view that the plaint filed by the plaintiff has not contravened the fundamental right to .be. heard on the part of the defendants which is enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. Vt The plaintiff has the avenue to file the. documents intended to be used before the court draws up issues for determination, as per Order XIII, Rule 1(1) of the CPC. Hence, due to the above reasons, I find that the second limbo of preliminary objection'has no merit and Tdismiss it as well. Regarding the third limb of preliminary objection, the plaintiff's advocate has conceded that the Registrar of Titles was not joined while he is necessary part to the present.-case. However, it is his view that such omission does not defeat the iT' "!C‘: 7-T suit under Order I, Rule 9 of the CPC. He implored the court to apply Order 1, Rule 10(2) and (4) of the CPC to order amendment of the plaint. To cement his proposition, he cited the cases of Mariam Amir Milinga (supra) and CRDB Bank Public Company Ltd (supra). .18 On the contrary, the learned state Attorney referred Order 1, Rule 3 of the CPC and contended that the prayer of the plaintiff cannot be performed if the Registrar of the Tittle is not among of the parties to the case; his role is to rectify the tittle deed and maintain the register of the tittle and record of disposition. A party becomes necessary to the suit if its determination cannot be made without affecting the interests of that necessary party. The term necessary party is defined in the Oxford Law Dictionary, ^^dition^aryd^Ldhgmah, 2002, to mean: ? '/I person whose interests are.affected directly by the outcome of the case./z In Tanga Gas Distributors Limited vs Mohamed Salim Said and 2 Others, Civil Revision No.?68 of 2011(unreported) the Court of Appeal held that: . 'i '’V S v-; j'; - • "...an intervener, otherwise commonly referred to under as a necessary party, would be added in. a suit under this rule [Order I rule 10(2) of the Civil Procedure Code, Cap 33 R.E. 2002] even though there is no distinct cause of action against him where: (a) NA 19 (b) His proprietary rights are directly affected by the proceedings and to avoid a multiplicity ofsuits, his joinder is necessary so as to have him bound by the decision of the court in the suit". Also, in Abdullatif Mohamed Ha mis vs Mahboob Yusuf Osman and Another, Civil Revision No. 6 of 2018 where the Court of Appeal dealt with the ’v • ’ 'VV -iJ - > ■ «'• / • same situation, and the held that: 'The determination as to who isa necessary partyto a suit would vary from a case to case depending upon Thefactsand circumstances of each particular case. Among the relevant factors for such determination include the particular of the nonjoinder partyp the nature of relief claimed as well -■?-J • L’.' • ’ V • •:;J >•. ■> as whether or not, in the absence of the party, an executable decree may be passed." " ' Being guided by the’fabove authorities and having reflected them on the present y.--j case, I am settled that the Registrar of the Tittle was a necessary party who ought to have been joined in the suit. This is so because, in the circumstances of '''' 't''''ft S'V the case the subject of this ruling, the Registrar of The Tittles was necessary party to the constitution of the main suit and in whose absence no effective decree or order could be performed, as I agreed with the submission of the learned state attorneys. 20 From the foregoing discussion, I am of the considered view that, upon making determination that a Registrar of Tittle was not joined in the suit, I was required to order amendment of the plaint and a Registrar of Tittie be joined and the suit proceed from there. I am fortified with the decision of Farida Mbaraka and .4.■''■•A _ Farid Ahmed Mbaraka v Domina Kagaruki, Civil Appeal No. 136 of 2006 (unreported) where the Court held that: "TT /n. "'After detecting that the necessary party was not joined to the su/t, we remitted the matter to the trial court with directions that hearing should proceed afterjoining a necessary party." ' Having been guided by the above decision, I find that the third limb of preliminary objection has merit to the extent that the necessary party be join to the suit and the suit to proceed with hearing on merit. In the upshot, it is ,my considered opinion that after dealing with grounds number one, two and th fee of the preliminary objections, I find that grounds one and two of preliminary objection have no merits and the court dismiss them accordingly. Conversely, I find that the third ground of preliminary objection, has merit to the extent of making amendment of the plaint so that the Registrar of Title can be 21 joined as a necessary party to this case. Hence, the plaintiff is hereby given fourteen (14) days from the date this ruling is delivered, within which to amend and file the plaint as per the directions of the court. Parties to bear their own costs. It is so ordered. DATED at SUMBAWANGA this 11th day of January, 2024. 11.01.2024 22