Registered Trustees of Tanzania Assemblies of God (TAG) vs Selestino Simon Siwiti (Civil Appeal No. 356 of 2024) [2026] TZCA 536 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. FELESHI. J.A. And NANGELA, J.A.) CIVIL APPEAL NO. 356 OF 2024 THE REGISTERED TRUSTEES OF TANZANIA ASSEMBLIES OF GOD (TAG) ................................ APPELLANT VERSUS SELESTINO SIMON SIWITI ............... ................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mbeya) (Sinda, J.) dated the 21s t day of November, 2023 in Land Appeal No. 62 of 2023 RULING OF THE COURT 28th April & 12th May, 2026 MKUYE, J.A.: In this appeal, the appellant, the Registered Trustees of Tanzania Assemblies of God (TAG) is challenging the decision of the High Court of Tanzania (Mbeya Registry) which reversed the decision of the District Land and Housing Tribunal (DLHT) for Songwe at Mbozi. The gist of the dispute hinges around the lawful ownership of a half acre piece of land with two houses built in the suit land, (a church and a residential house), located at Chilulumo village in Momba District of Songwe.

The genesis of this dispute dates back to 2008. The appellant alleges that the disputed land was allocated to the church by the Chilulumo village council in 2008. Then, the church and the pastors residential house were subsequently built on the land. According to the appellant, the respondent, Selestino Simon Siwiti, who previously served as a pastor for the church rebelled and ceased his pastoral duties in 2016 and left. On 19th October 2021, he resurfaced and unlawfully trespassed on the suit land and took over the premises. On the other hand, the respondent alleges that, the disputed land was allocated to him personally by the Chilulumo Village Council in 2008 for his residential use. He contended that, as at the time he was a pastor of TAG, the church lacked a dedicated building for worshiping, he voluntarily permitted the congregation to use his premises for that purpose. That, upon his resignation from the church in 2016, dispute erupted over the ownership of the suit land (property) culminating in the appellant initiating eviction proceedings. The suit was initiated by the appellant seeking a declaration as owner of the suit land and the eviction of the respondent. During trial, the appellant relied on oral testimonies from its church members asserting that the land was given to the church.

The respondent defended the suit land by producing documentary evidence, specifically, a letter from the Social Welfare Committee of the Chilulumo Village Council (Exh. Dl) indicating that the suit land was surveyed and allocated to him upon payment of a fee of TZS. 5,000.00. He also called independent witnesses: Cretus Martin Mkoma (DW2), the Village Chairman at the time of allocation and Apolonia Mponda (DW3) a Village Council member who testified that the suit land was allocated to the respondent in his personal capacity and not to the church. Upon hearing from both parties, the DLHT decided in favour of the appellant and ordered the respondent's eviction. Aggrieved, the respondent appealed to the High Court and his appeal was successful where he was declared the lawful owner of the land and ordered the eviction of the appellant. Also, the respondent was awarded TZS. 4,000,000.00 as general damages due to the wrongful attachment and sell of the suit property following the execution of the DLHT's decree. Aggrieved, the appellant has lodged this present appeal on six grounds of appeal which for a reason to be apparent shortly, we shall not reproduce them. When the appeal was called on for hearing, the appellant was represented by Ms. Pamela Kalala, learned advocate. On the other side, the respondent appeared in person without any representative.

Before the hearing could commence at the earnest, Ms. Kalala, after having been granted leave by the Court, pointed out that in the course of her preparation for hearing, she noted some anomalies which makes this appeal incompetent before the Court. She mentioned the anomalies among others that, the original case Application No. 36 of 2021 filed on 1/12/2021 before the District Land and Housing Tribunal of Songwe at Mbozi (the DLHT) bypassed the Ward Tribunal as required by law. Also, although both parties claimed to have been allocated with disputed land by the Village Council of Chilulumo Village, the said village council was not joined in the dispute as per Order I rule 3 of the Civil Procedure Code, Cap 33 R.E. 2023 (the CPC). She added that, in terms of section 6 (5) of the Government Proceedings Act, Cap 5 R.E 2023 the Attorney General also ought to have been joined in the case as a party. She also argued that, though the record of appeal, shows the remark by the Chairman that the assessors opinions were read over, the same were not incorporated in the record of appeal. The learned counsel was of the view that, given the said anomalies, the proceedings and resultant judgments, decree and orders before the DLHT and the High Court were a nullity. She, therefore, urged the Court to invoke section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 (the AJA) to nullify all proceedings of the DLHT and the

High Court together with the resultant decisions and order that whoever wishes to pursue his/her right should do so in accordance with the law. On his part, the respondent, though initially, adamantly was of the view that everything was in order. However, upon further, reflection, conceded to the anomalies raised by the appellant's counsel. We start with the issue whether the DLHT had jurisdiction to entertain the matter which did not pass through the Ward Tribunal. Section 13 of the Land Disputes Courts Act, Cap 216 R.E. 2023 (the LDCA) makes it mandatory for land disputes per prescribed value to be first referred to the Ward Tribunal for mediation before being filed in DLHT with a certificate to that effect. This is in view of the amendments of the Land Courts Disputes Act, Chapter 216 through the Written Laws (Miscellaneous Amendments (No 2) Act 2021 (Act No. 5 of 2021) requiring the parties to start with mediation to the Ward Tribunal. The said section 13 (4) of LDCA provides that: "(4) Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceedings affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably:- Provided that, where the ward tribunal fails to settle a land dispute within thirty days from

the date the matter was instituted, the aggrieved party may process to institute the land dispute without the certificate from the ward tribunal" [Emphasis added]. In essence, this requirement touches the issue of jurisdiction of the DLHT. There is no doubt that the above cited provision mandatorily requires the parties to engage the ward tribunal before instituting the case at the DLHT. As there is no proof in this case that the parties complied with section 13 (4) of the LDCA, it means that the DLHT lacked the requisite jurisdiction to try the case. We therefore agree with both parties that such omission amounted to a fatal irregularity which rendered the proceedings and judgment thereof a nullity. It also follows that even the proceedings and judgment of the High Court emanating from a nullity were rendered a nullity. We would have ended here but given the circumstances of the case, for purpose of completeness, we shall address the other anomalies raised by the counsel for the respondent. The next concern is on failure to join the Chilulumo Village Council having complained of by both parties to have been allocated the suit land by it; and the Attorney General as a necessary party. 6

The law governing joinder and non-joinder of proper parties in the suit is Order I rule 1 and 3 of the Civil Procedure Code, Cap 33 R.E. 2023 (the CPC). The said provisions state as follows:- "1. AH persons mayjoin in one suit as plaintiffs in whom any right to relief in respect o f or arising out of the same act or transaction or series o f acts or transactions is alleged to exist, whether jointly severally or in the alternative where, if such persons brought separate suits, any common question o f law or fact would arise. 2. N/A. 3. AH persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series o f transactions is alleged to exist" These provisions were interpreted in the case of Abdulatif Mohamed Hamis v. Mehboob Yusuf Othman and Another, [2018] TZCA 25, where the Court stated as follows:- "The CPC does not specifically define what constitutes a "mis-joinder" or a "non-joinder" but we should suppose, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of Order I rules 1 and 3, respectively, and they are neither necessary nor 7

proper parties, it is a case o f mis-joinder of parties. Conversely, where a person who is necessary or proper party to a suit has not been joined as a party to the suit, it is a case o f non joinder. Speaking of a necessary party a non joinder may involve an omission to join some person as a party to a suit, whether as plaintiff or as defendant, who, as a matter o f necessity, ought to have been jo in e d [Emphasis added]. If we may digress a bit about "a necessary party" the Black's Law Dictionary, 8th Edition defines the term to mean " a party who, being closely connected to a law suit should be included in the case if feasible, but whose absence will not require dismissal o f the proceedings.” In the case of Abdullatif Mohamed Hamis (supra), the Court also expounded as to when a necessary party may be joined in the suit as hereunder:- 'The determination as to who is a necessary party to a suit would vary from a case to case depending upon the facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars o f the non-joined party, the nature o f relief claimed as well as whether or not in the absence o f the party, an extendable decree may be passed." 8

We are aware that the suit cannot be defeated by reason of mis joinder or non-joinder as per Order I rule 9 of the CPC which provides: " No suit shall be defeated by reason o f mis joinder or non-joinder and the court may in every suit deal with the matter in controversy so far as regards the right and interest o f the parties actually before it " That, notwithstanding, there is an exception to rule 9 of Order I of the CPC in that non-joinder of a necessary party is bound to defeat the suit as was held in Stanslaus Kalokola v. Tanzania Building Agency and Another, [2019] TZCA 412 while relying on the commentary to Mulla's Code of Civil Procedure, 13th Edition No. 1 page 320 as follows:- "As regards non joinder of parties, distinction has been drawn between non-joinder of a person who ought to have been joined as a party and the non-joinder o f a person whose joinder is only a matter of convenience or expediency. This is because Order I rule 9 is rule o f procedure which does not affect the substantive law. I f the decree cannot be effective without the absent parties, the suit is liable to be dismissed ." Applying the above authorities and after considering the circumstances of the case at hand, we are of a settled mind that the 9

Chilulumo Village Council was a necessary party who ought to have been joined in the proceeding of this case due to the fact that it is referred to by both parties to have allocated the suit land to them. It is a crucial party in this case and her absence may lead to inexecutable decree which might be issued by the Court. As regards the Attorney General, he is a necessary party by virtue of section 6 (3) of the Government Proceedings Act which states as follows:- "The suits against the Government shall, upon the expiry o f the notice period, be brought against the Government, ministry, government department, local authority, executive agency, public corporation, parastatal organization or public company that is alleged to have committed the civil wrong on which the civil suit is based, and the Attorney General shall be joined as a necessary party." We thus find merit on this concern. The other point raised was the absence of the assessor's opinion in the court record which is contrary to section 24 of the LDCA. The learned counsel contended that the proceedings of 22/7/2022, at page 37 of the record of appeal, indicates the remark by the Chairperson that opinions of assessors were read out. It was recorded as follows:- 10

"Maoni yamesomwa mbele ya wahusika. Hukumu tarehe 19/8/2022" Literally translated "The opinions have been read over to the parties. Judgment on 19/8/2022 However, counsel asserted that the said opinions of the assessors are not reflected in the proceedings as required by the law, yet, the record shows that on 26/8/2022 the judgment was delivered in the presence of the assessors. (S. Simba and B. Mhosole). The respondent, also in this point conceded that the assessor's opinions were not included in the record of appeal. In the case of Edina Adam Kibona v. Absolom Swebe (Sheli), [2018] TZCA 310, the Court while faced with akin scenario stated as follows:- "... in trials before the District Land and Housing Tribunal, as a matter o f law, assessors must fully participate and at the conclusion o f the evidence, in terms o f regulation 19 (2) o f the Regulations, the Chairman o f the District Land and Housing Tribunal must require everyone o f them to give opinion in writing. The opinion must be in the record and must be read to the parties before the judgment is composed." [Emphasis added] li

Having gone through the record of appeal especially the proceedings of the DLHT, we agree with the learned counsel for the respondent that, much as the Chairperson indicated that the opinions were read over without stating the opinion of the assessor as shown at page 37 of the record of appeal, they were not included in the record. That was contrary to section 24 of the LDCA. The importance of availing the opinions in the record is to enable the parties know the nature of the opinion and moreso, if the same have been taken into account in the composed judgment as per section 24 of the LDCA. The law also requires the Chairperson if he does not agree with the assessor's opinion to assign reasons to that effect. This is important to enlighten the parties on how such opinions were dealt with by the Chairperson. Though the Chairperson stated that assessors opinion were read over, it is unsafe to assume the assessors opinions which are not included in the record of appeal. It cannot be said with certainty that they gave their opinions as required by law. See: Ameir Mbarak and Another v. Edgar Kahwili, [2016] TZCA 2569. This implies that, as the Chairperson did not comply with the mandatory requirement of the law, then the decision he crafted was incurably illegal as it cannot be cured by section 49 of the LDCA. It is obvious that, the omission occasioned miscarriage of justice. 12

Given the infractions we have discussed above, we find that the whole proceedings of the DLHT and High Court together with the resultant decisions were vitiated. Hence, in view of the aforegoing, we invoke our revisional powers vested on us under section 6 (2) of the A]A and accordingly, nullify the proceedings of the DHLT and High Court and quash the decisions thereof. Then, we order that whoever is interested should pursue his/her right subject the law. We make no order as to costs DATED at MBEYA this 12th day of May, 2026. Ruling delivered Virtually this 12th day of May, 2026 in the presence of Ms. Pamela Kalala, learned Counsel for the Appellant, the Respondent in person and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D . 1 NANGELA JUSTICE OF APPEAL D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 13