Grace Felix Temu vs Grace F. Mrosso (Civil Appeal No. 294 of 2025) [2026] TZCA 150 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. 3.A.. MASOUD. 3.A. And FELESHI. J.Ail CIVIL APPEAL NO. 294 OF 2025 GRACE FELIX TEMU (Administratrix of the Estate of the late Felix Jonathan Temu) .......................................... APPELLANT VERSUS GRACE F. MROSSO (Administratrix of the Estate of the late Felix Tesha/Fidelis Mrosso)......................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dodoma) (H assaiLi) dated the 10th day of December, 2024 in Land Case No. 36 of 2022 JUDGMENT OF THE COURT 23rd & 27th February, 2026 FELESHI. J.A.: In this appeal, the appellant, Grace Felix Temu, the legal representative of the late Felix Jonathan Temu, challenges the ex parte judgment entered wholly in favour of Grace F . Mrosso, administratrix of the estate of the late Felix Tesha, alias Fidelis C. Mrosso (the respondent), by the High Court of Tanzania sitting at Dodoma (the trial court) in Land Case No. 36 of 2022. i

The above land case concerned the ownership and possession of Plot No. 54, Block 25, Majengo, within Dodoma Municipality (Dodoma City), comprised in Certificate of Title No. 383-DLR and valued at approximately TZS 350,000,000.00 (hereinafter referred to as "the suit property"). In her plaint, the respondent claimed to trace her ownership from her late husband, Felix Tesha, who lawfully acquired the suit property in 1986 from one Hassan Salumu Mtua and developed it in 1987 by constructing the lodge building presently standing thereon. According to the respondent, Felix Tesha thereafter remained the lawful owner of the property. The genesis of the dispute is said to have arisen in 1999, when the suit property was used as security for a loan obtained by the respondent's brother-in-law, Laurence Mrosso, from CRDB Bank. Upon default in repayment, the suit property was transferred to the Loans and Advances Realisation Trust (LART) as a non-performing asset. The charged property was subsequently sold by public auction conducted by Kondoa Auction Mart on 26th May, 2001, at which auction it was knocked down to Frank Valerian for a purchase price of TZS 6,360,000.00. The respondent avers that this transaction was subject to an informal redemption arrangement and that, notwithstanding the auction, the certificate of title remained in the name of Felix Tesha.

It is further pleaded that, in order to redeem the property, Felix Tesha later borrowed TZS 9,000,000.00 from Temu (the appellant's husband). In the course of that financial arrangement, the certificate of title was allegedly handed over to Temu on a temporary basis. The respondent contends that Temu, in collusion with an officer of Kondoa Auction Mart, procured or caused to be procured a forged certificate of sale and, on the strength thereof, caused himself to be registered as proprietor of the suit property in 2009, purportedly by way of transmission through operation of law. The matter was subsequently placed before the Assistant Registrar of Titles, who on 8th February 2012, ruled that Temu's registration had been fraudulently effected. The Registrar ordered that Temu's name be struck off from the register and substituted with that of Frank Valerian. Temu, being dissatisfied with that determination, lodged an appeal to the High Court in Land Case Appeal No. 6 of 2012. By judgment delivered on 27th May 2014, the High Court quashed the Registrar's ruling together with the proceedings founded thereon. Later on, following the respondent's official search conducted on 7th September, 2022 it was revealed that, the Right of Occupancy had expired and that the title had reverted to the President. The search

further indicated Tesha as the former registered proprietor, his name had been struck off in accordance with the Registrar's decision of 8th February, 2012. On the basis of the foregoing facts, the respondent sued the appellant seeking declaratory relief that she is the lawful owner of the suit property and that the appellant's continued occupation amounts to trespass. She claimed special damages in the sum of TZS 2,700,000,000.00, calculated as alleged loss of rental income at the rate of 25 rooms at TZS 30,000.00 per day for a period of ten years from 2012, together with general damages of TZS 1,000,000,000.00. She further prayed for vacant possession, eviction of the appellant, costs of the suit, and any other relief the trial court could deem fit to grant. The appellant's written statement of defence resisting the respondent's claims was expunged on the grounds of being lately filed for a single day. The High Court, therefore, ordered the matter to proceed ex parte. The appellant's effort to have the ex parte order vacated bore no fruit as the application (Misc. Land Application No. 84 of 2023) was struck on technical grounds that it was made under the wrong provisions of law.

Having concluded the hearing and the ex parte judgment entered in favour of the Respondent, as hinted before, the Appellant now appeals on three grounds as follows:

1. That the trial Judge erred in law and fact for ordering the matter to proceed ex-parte despite cogent reasons advanced in the application for extension o f time to file Written Statement o f Defence, hence prejudiced the Appellant's right to be heard.
2. That the trial Judge erred in law and fact for entertaining the matter which was filed out o f time and had non-joinder o f necessary parties.
3. That the trial Judge erred in law and fact for declaring the Respondent lawful owner o f the house in Plot No.54 Block 25 Majengo within Dodoma City and giving other orders in her favour basing on her weak and contradictory evidence which was not well scrutinized. When the appeal was called on for hearing, Mr. Fred Peter Kalonga, learned advocate, appeared for the appellant, whereas the respondent appeared in person, unrepresented. The respondent had, however, filed a written submission in compliance with rule 106 of the Tanzania Court of Appeal Rules, 2009 (the Rules). Based on the recapitulated background of the land case whose ex- parte judgment is impugned before this Court, we deem it appropriate

to start with the second ground of appeal on the complaint that there was non-joinder of necessary parties. Submitting in support of the second ground, Mr. Kalonga contended that the matter before the trial court could not be conclusively and justly determined without impleading Kondoa Auction Mart, the Commission for Lands, the Registrar of Titles, and, in that circumstance, the Attorney General. He reasoned that, the appellant had contended (in the expunged written statement of defence) that she purchased the suit land from a public auction run by Kondoa Auction Mart, and that, the respondent's fraud claims were attributed to the same person. That, according to the respondent's official search, the suit land had reverted to the President, and that, there was a ruling of the Registrar of Titles striking out the appellant's name from the register. For these reasons, Mr. Kalonga held the view that, all these parties were supposed to be joined in the proceedings, failure of which rendered the decision a nullity, as it left many questions unattended. He finally implored the Court to order the remission of the file to the trial court to be heard after joining all necessary parties. On her part, the respondent submitted in a single sentence that in the case under consideration (Land Case No. 36 of 2022), the appellant

was only a necessary party and no more. She prayed to dismiss the appeal and uphold the trial court's decision. On our part, we find that the major issue is whether there was a non-joinder of necessary parties. The law on necessary parties is well settled that a necessary party is one without whose presence the court cannot effectively or completely adjudicate the matters in controversy. This is per Order I Rule 3 of the Civil Procedure Code, Chapter 33 (the CPC) which provides that, all persons may be joined as defendants against whom any right to relief which is alleged to exist against them arises out of the same act or transaction, and the case is of such a character that, if separate suits were brought against such person, any common question of law or fact would arise. We had pronounced this stance In various decisions including Tang Gas Distributors Limited v. Mohamed Salim Said and 2 Others [2011] TZCA 583 and Seko Jihadhali Kingo (As Administrator of the Estate of Jihadhali Khalfan Kingo) v. Msasani Apartment Hotel [2025] TZCA 122. In the latter authority, for example, we observed inter alia that: "Conversely, joining o f parties becomes necessary in order to avoid condemning a person without being accorded the right to be heard which is fundamental in justice adjudication. This

is because, there are decisions in their nature that should always touch the rights or responsibilities o f other persons. For example, we held in Tanga Gas Distributors Limited v Mohamed Saiim Said and 2 Others, Civil Application for Revision No. 68 o f 2011 (unreported) that: "... his proprietary rights are directly affected by the proceedings and to avoid a multiplicity o f suits, his joinder is necessary so as to have him bound by the decision o f the court in the suit" [Emphasis added]. In the instant appeal, upon scrutiny made in the respondent's plaint, particularly paragraphs 9, 10 and 11, it is evident to us that, the claims regarding: collusion between the appellant and Kondoa Auction Mart in forging a certificate of sale; the Assistant Registrar of Tiles finding the appellant to have obtained registration of the suit land by fraud; and, the report of the official search at the Land Registry, could not be justly and conclusively determined without joining the necessary parties. For example, if the Registrar for Titles had been a party, she would have gave certain account to the current status of the Right of Occupancy, and how it was entered in the register. We further find that the respondent's plaint had various statements about one Frank Valerian. It is stated under paragraph 10

that the proceedings/objection which prompted the Registrar of Titles to strike off the appellant's name from the register was initiated by Frank Valerian, and that it was ordered his name to be substituted. Also paragraph 7 of the plaint states about an informal agreement between Frank Valerian and the respondent and about purchase from LART by the auction led by Kondoa Auction Mart. In our view, this party is also necessary because without her, the dispute as to who between Frank and the appellant, purchased the suit property from the auction would not be conclusively determined. We, nonetheless, decline to approve M r. Kalonga's contention that the Commissioner for Lands is also a necessary party. The reason is that, scanning the record, no claim which is either directly or indirectly against the Commissioner for Lands, no claim is touching either her rights or responsibilities. The claims were wholly pressed in the office of the Registrar of Titles, which we also find was indeed necessary to explain the entry and exit of the names of the parties in this matter in the land register. In light of the above discussion, we allow the appeal based on the second ground. In that regard, we find it inconsequential to deal with the rest of the grounds. Consequently, we nullify and quash the

proceedings and judgment dated 10 December 2024 and set aside all resultant orders. We order the file to be remitted to the trial court for re hearing upon the appellant joining the aforesaid necessary parties in accordance with the law. Considering the nature of this matter, we make no order as to costs. DATED at DODOMA this 26th day of February, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 27th day of February, 2026 in the presence of Mr. Fred Peter Kalonga, learned counsel for the Appellant, the respondent in person and M r. Oscar Msaki, Court Clerk via virtual Court; is hereby certified as a true copy of the original.