TIJANI TIJANI SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) \ AT DAR ES SALAAM LAND CASE NO. 78 OF 2016 TIJANITIJANI MAHUNGUHUNGU (Suing as Personal Legal Representative of the late Tijani Mzee Said Mahunguhungu).................................. PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF UAMSHO WA WAKRISTO TANZANIA (UWATA)....................................................... DEFENDANT RULING 17th & 20h September, 2024 L, HEMED, J. In this matter, the court has been called to determine whether the suit is incompetent for failure to join necessary parties to the suit. This follows the notice of preliminary objection which was presented for filing by the Defendant on 30th July 2024 containing two limbs as fol lows:- '7. The plaintiff has no locus of standi to sue the defendant (sic). 2. The suit is both misconceived and bad in law for non-joinder of the necessary parties." i At the stage of hearing of the preliminary objection, which was done by way of written submissions, Mr. Zakayo Njulumi, learned advocate opted to drop the 1st limb of objection. In that regard, parties presented their arguments only on the 2nd limb. In the course of hearing, the Plaintiff enjoyed the legal service of Dr. Abdon Rwegasira, learned advocate. Submitting in support of the preliminary objection, Mr. Njulumi was of the view that there are reliefs sought in the amended plaint that cannot be granted without the involvement of the Commissioner for Lands and the Registrar of Titles. He also asserted that the suit landed property is a surveyed and registered land and so far, the Defendant is accused to commit fraud, the authorities duly engaged in allocation and registration of title, which is the Commissioner for Lands and the Registrar of Titles, are necessary parties in the proceedings. Reliance was put in the case of Nestory Msoffe & 5 Others vs. The Registered Trustees of Catholic Archdiocese of Arusha, Civil Application No. 254 of 2019. He ended praying for the dismissal of the suit. In response thereto, Dr. Rwegasira, learned advocate of the Plaintiff conceded the objection by submitting that the current position of law is that cases involving registered lands with title deeds must also involve the 2 Commissioner for Lands and the Registrar of Titles. However, he was of the different view as to the prayer for dismissal of the suit on the ground that the instant suit was instituted in 2016, prior to the development of the requirement of joining the Commissioner for Lands and the Registrar of Titles as necessary parties in suits involving registered land. Having gone through the rival submissions, it is apt to determine whether the preliminary objection holds water. Before delving to determine whether the Commissioner for Lands and the Registrar of Titles are necessary parties to the instant case, it is pertinent to answer a question as to who is "a necessary party". The Court of Appeal of Tanzania in Abdulatif Mohamed Hamis v. Mehboob Yusuf Othman & Another, Civil Revision No.6 of 2017, borrowing the ratio decidendi'wx an Indian case of Baranes Bank Ltd v. Bhagwandas, A.I.R. (1947) All 18, propounded two tests in determining the necessary party to a suit. It stated thus:- "...two tests for determining the questions whether a particular party is necessary party to the proceedings. First, there has to be a right of relief against such party in respect of the matters involved in the suit and; second, the court must not be in a position to pass an 3 effective decree in the absence of such a party." In the same case, the Court of Appeal of Tanzania went to conclude thus:- "... the determination as to who is a necessary party to a suit would vary from a case to case depending on upon facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars of the non-joinder party, the nature of relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed. "[Emphasis added] In the instant case, the question to be addressed is whether there are facts being pleaded necessitating joining of the Commissioner for Lands, the Registrar of Titles or any other necessary parties. In the course of perusing the pleadings, I came across paragraph 6 of the Amended Plaint reading as follows: "5. That upon death of the owner, the Defendant secretly and without consent of the deceased's surviving family caused 4 the land to be surveyed whereof the Defendant was subsequently registered as the owner of the land, now known as Plot No. 16 Ras Dege Area, Temeke Municipality, CT No.86649... "[Emphasis added] I have also noted that the Plaintiff prays for judgment and decree in the following orders, among others, that; b. Declaration that the survey and subsequent registration of all property on Plot No. 16 Ras Dege Area in Temeke Municipality into the Defendants name was done fraudulently. c. An order that the name of the Defendant be removed from the Land Register." [Emphasis added] In paragraph 6 of the Amended Plaint, the Plaintiff is faulting the process of surveying, allocation and registration of the suit land. The process of survey must have involved the Director of Survey and Mapping whom, according to the Land Survey Act, Cap.324, the duty to conduct land survey is shouldered upon him. One of the reliefs sought is declaring the survey to have been done fraudulently. My firm view is that, such facts 5 pleaded and the relief sought necessitates the joining of the Director of Survey and Mapping in this suit as necessary party. Likewise, the Plaintiffs is challenging the allocation of the suit land to the Defendant and the registration of same land in the name of the Defendant. He also prays for removal of the name of the Defendant from the Land Register. In light of the Land Act [Cap. 113 R.E 2019], the functions to allocate land, fall in the office of the Commissioner for Lands while those related to registration and deregistration of land pursuant to the Land Registration Act, [Cap.334 R.E 2019], fall in the hands of the Registrar of Titles. This makes both the Commissioner for Lands and the Registrar of Titles necessary parties to the proceedings. It is thus clear that, what the Plaintiff has pleaded in his amended Plaint, necessitates joining of the Director of Survey and Mapping, the Commissioner for Lands and the Registrar of Titles to the matter. The question is, what the consequences of non-joinder of necessary party are. This question was answered by the Court of Appeal of Tanzania in Abdullatif Mohamed Hamis v. Mehboob Yusuf Osman & Another {supra). The Court emphatically observed thus:- 6 '"There is no gainsaying the fact that the presence of a necessary party is, Just as well, imperatively required in ourjurisprudence to enable the courts to adjudicate and pass effective and complete decrees. Viewed from that perspective, we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and nonjoinder of non-necessary parties. On the contrary, in the absence of necessary parties, the court may fail to deal with the suit, as it shall, eventually, not be able to pass an effective decree. It would be idle for a court, to say, to pass a decree which would be of no practical utility to the plaintiff. "[Emphasis added] The above authority envisages that, failure to join a party who is necessary to the proceedings renders the suit incompetent before the court. The remedy is thus not to dismiss the suit as suggested by the learned counsel for the Defendant. The proper consequential order is to strike out the entire suit. In the upshot, I sustain the preliminary objection and proceed to strike out the entire suit. Taking into account the circumstance of this matter, I desist from awarding costs. Each party to bear its own costs. Order accordingly. DATED at DAR ES SALAAM this 26*September 2024. 8