nyahori safii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 25212 OF 2024 YUSUPH BAKARI NYAHORI............................................................ Ist PLAINTIFF MARY JAMES MKONDYA........................................ ......................... 2nd PLAINTIFF (For and on behalf of 54 others) VERSUS UBUNGO MUNICIPAL COUNCIL................................................... 1st DEFENDANT KISSA M. MBILLA........................................................................... 2nd DEFENDANT GEOFREY MBWANA....................................................................... 3rd DEFENDANT HON. ATTORNEY GENERAL.......................................................... 4th DEFENDANT RULING 10/02/2025 & 18/03/2025 N.E. MAN DI A, J This is a ruling on a preliminary objection taken at the instance of the Defendants, attacking the competence of the suit which is pending in this Court. On 08.10.2024, the Plaintiffs instituted a suit against the Defendants, claiming that they are lawful owners and occupiers of the landed properties comprises of the buildings fames/office/shops/grocery store/"vibanda" constructed thereon covering seven thousand (7000) square meters at Sinza "A" (market place) within Ubungo Municipality in Dar es Salaam and that the 1st, 2nd and 3rd Defendants have trespassed into the said Plaintiffs' landed properties. The suit has encountered impediment, coming by way of preliminary objection raised by the Defendants. The objection is to the effect that: - i i. The suit is incompetent and untenable in law against the 2nd and Jd Defendants as the Plaintiffs have no cause of action against them. ii. The suit is incompetent for failure to join a necessary party. Hearing of the preliminary objection was done through written submission as scheduled by the court and adhered by the parties. The Plaintiff enjoyed the legal service of Ms. Amina Nyahori, learned counsel whereas the Defendants had the legal services of Ms. Caroline Lyimo, learned state attorney. As the practice of the court, I had to determine the preliminary objections first before going into the merits or demerits of the suit. Ms. Lyimo commenced her submission by an observation that in order for a preliminary objection to stand, it ought to be on a pure point of law. She cited the case of MUKISA BISCUITS MANUFACTURING CO. LTD VS. WEST END DISTRIBUTORS LTD. [1969] 1 EA 696, to substantiate that the preliminary objection raised is a pure point of law. In support of the 1st objection that the Plaintiffs does not have a cause of action against the 2nd and 3rd Defendants, Ms. Lyimo contended that the 2nd and 3rd Defendants are neither necessary parties nor do they have interest in the subject matter of the suit hence, the orders sought cannot be granted against them. That the dispute concerns ownership of a landed property located at Sinza 'A' within Dar es Salaam and, the 2nd and 3rd Defendants being employees of the 1st Defendant does not claim any ownership of the suit property but rather were 2 acting for and on behalf of their employer, the 1st Defendant. That in the circumstance, the Plaintiffs cannot include them as parties to the suit since they do not have a cause of action against them. That in the pleading of the Plaintiff's, they stated that the 2nd and 3rd Defendants are employees of the 1st Defendant and hence, the Plaintiffs does not have cause of action against them. She prayed for the court to sustain the preliminary objection and struck out the matter as against the 2nd and 3rd Defendants with costs. On the 2nd objection that the suit is incompetent for failure to join a necessary party, Ms. Lyimo submitted that, since the property in dispute is a registered property, the necessary parties are the Registrar of Titles as well as the Commissioner for Lands who are responsible for the registration of land as well allocation of the same. That the question of who is the real owner of the property in dispute cannot be determined without their presence in the court. She submitted further that a necessary party is an individual or entity whose participation is essential for the court to render a complete and binding judgment. That the importance of adding a necessary party to court proceedings is mainly for purposes of ensuring complete relief. That without involvement of the necessary party, the court may not be able to provide full relief or resolve the case effectively. She cited the case of TANZANIA RAILWAYS CORPORATION VS GBP (T) LIMITED, Civil Appeal No. 218 of 2020, in which the CAT held that: 3 "In ascertaining whether a party is a necessary party or not in the context of Order I Rule 10(2) of the CPC, in Farida Mbaraka and Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006, (unreported), the Court stated that; 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; or (ii)when, without his presence the questions in the suit cannot be completely decided". Ms. Lyimo submitted further that in the instant suit, the court cannot clearly determine issues regarding ownership of the property in question without the involvement of the Commissioner for Lands and Registrar of Titles. That, should a decree be passed, it will not be executable without having the said parties in the suit hence, the proper and necessary parties to this suit are the Commissioner for Lands as well as the Registrar of Titles. She cited the case of CHINESE-TANZANIA JOINT SHIPPING COMPANY VS. RICHARD GORDON MUSIKA, Land Case no. 271 of 2022, where it was held that: "In that regard, the presence in the present suit, of the parties responsible in subdividing the said farm No. 1737 to the other three defendants is of fundamental importance, failure of which the decree of this Court would not be effected as it was ruled in the case ofAbdullatif Mohamed Hamis vs Mehboob Yusuf Osman & Another, (supra) which was referred to this Court by the counsel for the plaintiff". That in the cited case above, the court quoted with approval the case of ILALA MUNICIPAL COUNCIL VS. SYLVESTER J. MWAMBIJE, Civil Appeal No. 155 of 2015 whereby the Court of Appeal made a distinction between 4 misjoinder and non-joinder of parties as provided under Order 1 Rule 9 of the CPC, it held that: "...we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and non-joinder 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, so to say, to pass a decree which would be of no practical utility to the plaintiff". Ms. Lyimo argued that it is true that every plaintiff has the liberty of adding the parties he finds suitable in accordance to the claims he brings in court however, the court has a duty to include parties that are deemed to be necessary for the determination of the matters brought before it. She referred to page 16 and 17 of the decision in the case of TANZANIA RAILWAYS CORPORATION (TRC) (supra). She stressed that if the court notes that some issues raised in the pleadings calls for addition of a party whose absence will lead to such issues of importance to remain unresolved, the court has a duty to take an active role by taking the matter on itself and add such a party or parties in order to facilitate effective and complete adjudication and resolution of all issues in controversy presented before it. She contended further that since the Registrar of Titles and Commissioner for Lands who are necessary parties were not added, she prayed for the court to struck out the suit with costs in order for the Plaintiffs to add the same and bring the suit whilst complete. 5 In response to the 1st objection, Ms. Nyahori replied that the preliminary objection was wrongly crafted as the arguments and issues referred requires evidence to be ascertained by the court contrary to the principle laid down in MUKISA BISCUITS MANUFACTURING CO.LTD's case (supra). That the Plaintiffs does not claim only ownership of the land but also for trespass into their land which was done by the 1st, 2nd and 3rd Defendants as stated in paragraph 7 (b) and 14 of the plaint. That the objection raised is premature because the Plaintiff has a cause of action against the 2nd and 3rd Defendants. On the 2nd objection, Ms. Nyahori replied that not every suit whose subject matter is a registered land, the Register of Titles and Commissioner for Lands ought to be joined as a necessary party. That what determines who should be joined in the suit is the party's involvement in the suit. That in the instant suit, the issue whether or not the land is registered needs evidence. That the dispute originated way back from 1975 where the plaintiffs were undisturbed until 16.02.2023 when the 2nd and 3rd defendants trespassed into the Plaintiffs land. That the issue that the Plaintiffs are seeking before the court is the determination on the manner of acquiring the land in dispute as the Plaintiffs long stay on the said land is enough to prove their ownership against the Defendants' encroachment to the land. That the Register of Titles and the Commissioners for Lands are neither directly involved in the dispute nor their presence to the court will be necessary for the determination of the suit between 6 the Plaintiff and the Defendants. She prayed for the court to overrule on the objection with costs. In rejoinder to the 1st objection, Ms. Lyimo reiterated that the Plaintiffs does not have a cause of action against the 2nd and 3rd Defendants. That in order to establish trespass, the issue of ownership is vital. That one cannot claim for trespass where the land does not belong to him. That since the question of ownership is vital, the 2nd and 3rd Defendants are not concerned as they were only acting on behalf of their employer, the 1st Defendant hence, no cause of action against them. She prayed for the court to sustain the preliminary objection and struck out the suit with costs against the 2nd and 3rd Defendants. Rejoining on the 2nd objection, Ms. Lyimo reiterated her submission in chief that a necessary party is an individual or entity whose participation is essential for the court to render a complete and binding judgment. The rationale is to ensure complete relief. That the land in dispute is currently a registered piece of land for purposes of the suit. That the importance of a necessary party is underscored in the case of TANZANIA RAILWAYS CORPORATION (TRC) (supra). That the Commissioner for Lands and the Registrar of Titles are necessary in this suit in order to provide the court with the necessary answers to the issues or questions that may arise. She reiterated the holding in the case of CHINESE -TANZANIA JOINT SHIPPING COMPANY (supra). She contended that since the Registrar of Titles and Commissioner for Lands who are necessary 7 parties are not added, the suit be struck out with costs to enable the Plaintiff to add the necessary party and refile the same. After examining the record and written submission of the parties, the vital issue for my determination is whether the preliminary objection raised by the Defendants have merits. On the 1st objection that the Plaintiff has no cause of action against the 2nd and 3rd Defendants, it was submitted that the 2nd and 3rd Defendants are neither necessary parties nor do they have any interest in the subject matter of the suit. On the other hand, it was contended that the Plaintiffs does not claim only ownership of the land but also for trespass into their land which was done by the 1st, 2nd and 3rd Defendants. It determining this objection it is important to understand what trespass to land means, and what constitute a cause of action. In GRACE OLOTU MARTIN VS. AMI RAMADHANI MPUNGWE alias AMI MPUNGE alias A.R MPUNGWE, Civil Appeal No. 91, 2020, the CAT defined the word trespass to land as follows: - "Trespass to land means interference with the possession of land without lawful justification and, on this, we agree with the definition given by Lugakingira J. in Frank S. Mchuma vs Shaibu A. Shemdolwa (supra) that trespass is an unjustifiable intrusion by one person upon the land in the possession of another". [Emphasize added] 8 Again the Court of Appeal in the case of JOHN M. BYOMBALIRWA VS. AGENCY MARITIME INTERNATIONALE (TANZANIA) LTD [1983] has defined the term cause of action to mean: "Essentially facts which is necessary for the Plaintiff to prove before he can succeed in the suit". [Emphasize adde] It is trite law that for purposes of deciding whether or not a plaint discloses a cause of action; courts should look at the Plaint. Having looked careful at the fact pleaded in the Plaint particularly paragraphs 3 and 4, I have noted that the 2nd and 3rd Defendants are employees of the 1st Defendant. As alluded to above, trespass to land presuppose ownership to the person claiming the land. In this suit the Plaintiffs are claiming to be lawful owners and occupiers of the suit landed properties while the Defendants also under paragraph 3 and 4 of their joint statement of defence claimed that the 1st Defendant is the lawful owner of the same with certificate of title. It is my observation that the question of trespass needs evidence as both the Plaintiff and the 1st Defendant claim to own the landed property. However, this does not oust the fact that the 2nd and 3rd Defendants were acting on behalf of their employer who claimed to be the owner of the landed property. It is therefore, my considered observation that no cause of action against the 2nd and 3rd Defendants. Whatever they did, in my view was done on behalf of their employer who claimed to be the owner of the 9 landed property in dispute. In the circumstance, i sustain the 1st preliminary objection. On the 2nd objection, joining the Commissioner for Lands and the Registrar of Titles, I disagree with the submission made by the Plaintiffs' counsel. On this part, the Defendants' counsel is right that they are necessary parties. If we read the pleadings, the 1st, 2nd and 3rd defendants have been called trespassers into the landed property. The 1st Defendant however, claim that she is the owner of landed property and she has the Certificate of Titles over it from the land authorities including Commissioner for Lands and the Registrar of Titles. Under these circumstances, it is inevitable to avoid joining these two authorities as necessary parties. The decrees to be passed will not be effective if it does not touch them. Hence, in my opinion, they are necessary parties. That being my findings as far as the positions of the Commissioner for Lands and the Registrar of Titles is concerned, I will therefore, clearly say that, without them, this suit must fall for non-joinder of a necessary party. The effects of non-joinder of a necessary party in land cases has long been settled in a number of authorities, (see Tanga Gas Distributors Ltd vs. Mohamed Saiim Said and 2 Others, Civil Revision No. 68 of 2011, Court of Appeal of Tanzania (unreported) and AbduMatif Mohamed Hamis vs. Mehboob Yusufu Osman and Another, Civil Revision No. 6 of 2017, Court of Appeal of Tanzania, (unreported). In the circumstance, and for the reasons advanced, I sustain the 2nd preliminary objection. io Having said so, and without prejudice to my observation, this suit has met its end, based on the findings given in the objections above. I therefore, sustain the 1st and 2nd grounds of the preliminary objection. Eventually, the plaint is rejected and the suit is struck out with costs. It is so ordered. 11