SOMOYE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO.27713 OF 2024 (Originating from the Judgment and Decree of the District Land and Housing Tribunal for Kinondoni District at Mwananyamala, in Application No.132 of 2022 delivered on 23rd August 2024) SOMOYE RAMADHANI KILONJI……….……………….... APPELLANT

VERSUS ANOLD JONATHAN………………………………………….RESPONDENT

JUDGMENT 27th & 28th March, 2025 L.HEMED, J The suit landed property is Plot No. 495 Block E, Tegeta Area, in Dar es Salaam. The Appellant herein, SOMOYE RAMADHANI KILONJI instituted a suit against the herein Respondent, ANOLD JONATHAN, claiming ownership of the said suit property. Among the reliefs she sought before the trial Tribunal was for her to be declared owner of the suit piece 1 of land and that the respondent be found the trespasser therein the suit piece of land. The herein respondent, who was also the respondent at the trial Tribunal resisted the claims by filing the written statement of defence alleging to be the owner of the suit piece of land as well. The trial was conducted, witnesses paraded and evidence scrutinized and found in favour of the respondent by dismissing the suit. The appellant was aggrieved by such decision hence the instant appeal on the following grounds: - “1. That the Trial Chairperson grossly erred in law by holding that the Appellant here in is not the lawfully owner of the property in dispute without considering the fact that she was given the said property by her Mother and the relevant document to prove the said transaction was tendered before the Court and admitted as Exhibit P-2 2. That the trial Chairperson grossly erred in law and fact by ignoring all evidences adduced by the Appellant in this case and his witnesses hence reached into unfair decision against the Appellant herein. 2 3. That the trial Chairperson grossly erred in law and fact by failure to analyze properly the evidence adduced by the parties herein hence arrived into erroneous decision.

4. That the trial Chairperson grossly erred in law and fact by ignoring assessor’s opinion without giving the reason as to why he failed to agree with them.

5. That the trial Chairperson grossly erred in law and fact by failure to declare the status of the respondent herein in her judgment instead she declared that the Appellant herein that, she not the rightfully owner of the property by failure to prove her case against the respondent herein.” Hearing of the appeal was by way of written submissions and were filed timely as per the filing schedule directed by the court. The Appellant was duly represented by Mr. Hassan Salum, learned advocate while the respondent enjoyed the legal service of Mr. Yiga Joseph, learned counsel. Having managed to read the rival submissions presented by the parties through their advocates and after thorough perusal of the records of the trial tribunal, I came to realize that the suit property is a surveyed land and both 3 parties were and are still claiming ownership of the same. Each of the parties claim to have been properly acquired the suit property. In the circumstance of this case which involves a surveyed land, I am moved to believe that it was important to join the land authorities. I invited the learned counsel for both parties to address the court as to whether the suit before the trial Tribunal was competent in the absence of the said necessary parties. The learned counsel for the appellant supported the point raised by the court suo moto where he asserted that the suit was incompetent

for failure to join the necessary parties including the registrar of titles. He prayed the court to quash the judgment, decree and the proceedings of the trial tribunal so that to enable the parties to start afresh. On his part, the learned counsel for the respondent was of the view that since the suit land has been surveyed, it was necessary to join all parties involved in the process of survey, allocation and or registration of the said suit land. He also prayed for the court to quash the decision and the proceedings of the trial tribunal. 4 Before delving to determine whether the land survey, land allocation and land registration authorities were necessary parties to the instant suit, I need to explain as to who is a ‘necessary party’. A necessary party is one whose presence is indispensable or against whom relief is sought and without whom no effective decree can be passed. Evidence on the records clearly shows that both parties have erected their houses in Plot No.495 Block ‘E’ Tegeta Area in Dar es Salaam and are both living therein. As already pointed out, both claim ownership of the said landed property. My firm view is that, where parties are disputing on survey of a piece of land, it implies that one is challenging the survey plan that created the disputed land. According to the Land Survey Act, Cap.324, the Director of Survey and Mapping is the one responsible with

the survey of land and is the custodian of all cadastral survey plans on behalf of the Government. Therefore, it is necessary to join the Director of Survey and Mapping where the dispute involves survey of land. Where the dispute involves allocation of land, the Commissioner for Lands becomes the necessary party as according to the Land Act, Cap.113, he is the authority in allocation of land on behalf of the President. In case the dispute concerns with registration of land in 5 accordance with the Land Registration Act, Cap.334, the Registrar of Titles becomes the necessary party to the particular suit. Having read the pleadings and evidence on record, I have found that the dispute concerns the survey and allocation of the disputed land. In that regard, the matter could not conclusively be settled without the involvement of the authorities responsible for survey and allocation of land who are the Director of Survey and Mapping and the Commissioner for Lands. Evidence on record also shows that the Kinondoni Municipal Council have been communicating with the parties about the status of the disputed land this also makes the Council a necessary party to the suit. My take is that the involvement of such parties would have helped the trial tribunal to decide the matter conclusively. The presence of the Director of Survey and Mapping would have told the court on how the survey was

made while the Commissioner for Lands and the Municipal Council for Kinondoni would have helped the court with the information as to whom was the land allocated. In plethora of decisions the Court of Appeal of Tanzania has insisted that failure to join the necessary parties vitiates the proceedings. In Chiyanga Enterprises(T)Ltd vs Exim Bank (Tanzania) Limited (as 6 the successor of the First National Bank Tanzania Ltd) & Another, Civil Appeal No. 362 of 2021, the Court held thus: - “Determination of a suit without joining a necessary party is a fatal irregularity which renders the decision and proceedings thereof a nullity.” In Humprey Mosha vs Abdul Majid Yahaya, Civil Appeal No.534 of 2021 the Court further insisted that failure to join land authority in the suit involving double allocation of land is fatal. In the instant suit, one of the issues to be resolved is on allocation of the disputed land, that is Plot No.495 Block E, Tegeta – Kinondoni Municipality, Dar es Salaam. This issue could not be resolved conclusively without the involvement of the land authorities as necessary parties. From the foregoing, I find that the suit before the trial Tribunal was incompetent for failure to join the necessary parties as aforesaid. This makes the entire proceedings, judgment and the decree thereof a nullity. I thus evoke the provision of section 43(1)(b) of the Land Disputes Courts

Act [Cap.216 R.E 2019] and proceed to annul the proceedings, judgment and decree of the trial Tribunal in respect of Application No.132 of 2022. If the 7 parties still wish to relitigate, they are at liberty to institute fresh proceedings in a competent court. The fact that the point suffices to dispose of the appeal I cannot labour to determine the grounds of appeal. As regard the costs of the appeal, each party to bear its own bearing in mind that the point has been raised by the court suo moto. It is so ordered. DATED at DAR ES SALAAM this 28th March, 2025. L.HEMED

JUDGE 8