JUDG

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA, J.A., MAIGE, J.A. And MURUKE, J.A.^ CIVIL APPEAL NO. 208 OF 2022 S.M. SAEED LTD ..............................................................................APPELLANT VERSUS CORPORATE SECURITY L T D .................................................. 1st RESPONDENT MRS PARVIZ AZAD POONJA BHANJI..................................2nd RESPONDENT EQUITY BANK TANZANIA L T D ............................................. 3 rd RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania (Land Division at Dar es Salaam) (Magimbj, J.) dated the 28th day of May, 2021 in Land Case No. 381 of 2017 JUDGMENT OF THE COURT 17th & 28th March, 2025 MAIGE, J.A.: The second respondent and her husband Azad Poonja Bhanji are the registered owners of 1/199 undivided share over Plot No. 16 Block "55" Kariakoo with certificate of title No. 4724, hereinafter referred to as "the suit property". It is com m on ground that by an agreem ent dated 6th July 2012 (exhibit PI) which was followed by a transfer deed and other related conveyance documents (exhibit P3), the second respondent and her said husband sold the suit property to the appellant at the purchase price of USD 60,000. It is also common ground that, on 16th May, 2014, the second respondent and her said husband mortgaged the suit property to secure a loan of USD 960,000.00 which their son Shaizad Azad Bhanji procured from the third respondent (exhibit D3, collectively). While the appellant claims that he had at the time of creation of the mortgage paid the purchase price in full, the second respondent claims that she had only received USD 30,000. In its decision, the trial court held that the mortgage under discussion was legal and effectual as the suit property was, at the time of the creation of the mortgage, in the name of the second respondent and her husband. It, therefore, declined the appellant's invitation to have the respective mortgage nullified. In reaching to such a conclusion, the trial court framed an issue as to whether the sale agreement in exhibit PI was absolute and answered it negatively. Though it was hesitant to determine ownership of the suit property, the trial court ordered the respondent to pay the appellant the sum of USD 45,000.00, which on assessment of the evidence, it found as a fact that they were received by the first respondent and her husband from the appellant as partial purchase consideration of the suit property. Now that the appellant is aggrieved by the decision, he has preferred the instant appeal criticizing the trial court for: oner not holding that the mortgage in question was created while the suit property had been sold to the appellant; two, not holding that the appellant paid full purchase price of the suit property; three, holding that the mortgage was illegal because it was created after the appellant and the second respondent had executed a deed of transfer; four, conducting the trial in the absence of assessors without the consent of the parties; five, not holding that despite the fact that the transfer of the suit property was still incomplete, the entire property was incombered; six, not taking into account the testimony of DW1 that the original cheques were returned by the second Respondent to the appellant after receiving cash in lieu thereof; seven, not holding that the appellant paid the full purchase price of the suit property; and eight, not holding that the payment of USD 15,000 made to Naheed Merali were as per instruction issued by the 2nd Respondent. At the hearing of the appeal, Mr. Ashiru Hussein Lugwisha, learned advocate, appeared for the appellant whereas Mr. William Fungo, learned advocate appeared for the first two respondents and Mr. Stephan Axwesso, also learned advocate for the third respondent. Ahead of the hearing date, both Mr. Lugwisha and Axwesso presented written submissions in support and opposition of the appeal, respectively, which they each fully adopted to read as part of their oral arguments with some clarifications. Mr. Fungo who did not have the advantage of lodging a prior written submission presented an oral submission to oppose the appeal. As we were preparing ourselves for composing our judgment, we entertained doubt as whether the instant appeal can be determined in its merit in the absence of the second respondent's husband who is according the record, is registered joint owner of the suit property and he was a party to both the contract for sale of the suit property and the deed of mortgage whose legality is the main theme of the dispute. So that we cannot deny the parties a right of hearing, we summoned the counsel to appear which they did, so as to address us on that pertinent question. As we expected, the counsel were of concurrent submission that as the second respondent's husband was one of the owners of the suit property and was a party in both the purchase agreement and mortgage deed the legality and validity of which were the subject of dispute at the trial court, was a necessary party without whom no decree capable of being executed could been issued. As such, they further submitted, in proceeding with the trial in his absence, the second respondent's husband was denied a right to be heard. In their concurrent contention, the omission was fatal with effect that, it rendered the judgement and the whole proceedings of the trial court a nullity. They advised us to set aside the judgment of the trial court and remit the record to the trial court to be dealt with by another judge in accordance with the law as non-joinder of a party under Order I Rule 9 of the Civil Procedure Code is curable. Having heard the concurrent submission by the counsel we entirely agree with them. The second respondent's husband being both the vendor in the sale agreement in dispute and the mortgagor in the mortgage in dispute was, as rightly submitted by the counsel, a necessary party. In law, therefore, the suit could not proceed in his absence without curtailing his basic right to be heard. More to the point, an effective decree capable of being executed could not issue without him being involved in the litigation. It is trite law that omission to join a necessary party in a suit is a fatal irregularity which renders the whole proceedings and the decision arising therefrom a nullity. See for instance, Abdulatif Mohamed Hamis v. Mahboob Yusuf Othman & Another (Civil Revision No. 6 of 2017)[2018] TZCA 25 (1 August 2018; TANZLII) and G apco Tanzania Limited & Another v. Ramzan D. Walji Company Ltd (Civil Appeal No. 381 of 2020) [2024] TZCA 558 (15 July 2024; TANZLIII). In view of the foregoing discussion, we invoke our revisional powers under section 4(2) of the Appellate Jurisdiction Act and set aside the judgment of the trial court and quash the proceedings thereof. We further remit the record to the trial court to be dealt with by another judge in accordance with the law. We shall not, in the circumstances of this case, give any order as to costs. DATED at DAR ES SALAAM this 28th day of March, 2025. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL Judgment is delivered this 28th day of March, 2025 in the presence of Mr. Ashiru Lugwisa, learned counsel for the Appellant, Mr. William Fungo, learned counsel for the first and second Respondents and Mr. Godwin Nyaisa, learned counsel for the third Respondent all through visual court, is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL