Equity Bank Tanzania Limited vs Iddi Ally Msumagilo & Others (Civil Appeal No. 454 of 2023) [2025] TZCA 1216 (26 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: SEHEL. 3.A., RUMANYIKA, J.A, And ISMAIL. 3.A.) CIVIL APPEAL NO. 454 OF 2023 EQUITY BANK TANZANIA LIMITED, ...................................... APPELLANT VERSUS IDDI ALLY MSUMAGILO (Suing as Administrator of the Estate of the Late LYDIA ELISALI MUSHI @ LYIDIA MUSHI) ..... 1st RESPONDENT TIB DEVELOPMENT BANK LIMITED.................................2 nd RESPONDENT NORBERTY DONATUS KAYUGWA .................................... 3 rd RESPONDENT (Appeal against the Judgment of the High Court of Tanzania (Land Division) at Dar es Salaam) fManvanda, 3.) dated 9th day of October, 2020 in Land Case No. 161 of 2016 JUDGMENT OF THE COURT 7th & 26th November, 2025 RUMANYIKA, J.A.: The first respondent, Iddi Ally Msumagilo, is the widower and administrator of the estate of the late Lydia Elisali Mushi @ Lydiya Mushi who passed away on 10th January 2016 (the deceased). That deceased lawfully owned the landed property known as Plot No. 368 Block 'D' at Kigogo area in the city of Dar es Salaam (the property), vide a Certificate of Occupancy under Title No. 26596 issued on 16th July, 1981. It is alleged that during her lifetime, the deceased had secured a loan from the defunct Tanzania Housing Bank (THB) using the said Title Deed as security. That she fully repaid the loan and THB issued her a letter of such satisfaction on 17th July, 2014. Further, it is said that the THB, whose liquidator is the second respondent herein did not return to her the respective Certificate of Title discharging the mortgaged property. It was reported lost. However, sometime in 2014, it came to the first respondent's knowledge and that of the deceased that the property had been mortgaged to the appellant by the third respondent who secured a loan of TZS. 80,000,000.00. As a result, the first respondent successfully instituted Land Case No. 161 of 2016 at the High Court of Tanzania, Land Division (the trial court). He sued the appellant and the rest of the respondents, seeking a declaratory order that, from its inception the said mortgage was null and void, payment of general damages, interests, costs of the suit and an order that the appellant hand over the Title Deed to him unconditionally. Dissatisfied, the appellant has filed the present appeal with six grounds. However, for reasons that will come to light shortly, we shall neither reproduce those grounds nor shall we address them in any way. At the scheduled hearing of the appeal, Messrs. Karoli Tarimo and Litete Ndungo, learned counsel appeared for the appellant and the first respondents, respectively, whereas IMses. Luciana Kikala, Emma Ambonisye and Tausi Swedi, both learned State Attorneys represented the second respondent. The third respondents had the services of Armando Swenya, learned counsel respectively. On set, we invited the parties' learned counsel to address the Court on the validity or otherwise of the impugned proceedings and decision, with respect to non-joinder of the Commissioner for Lands and Registrar of Titles, in terms of Order 1 rule 9 of the Civil Procedure Code Cap. 33 (the CPC). Mr. Tarimo readily admitted to there being a mishap in the impugned proceedings raised by the Court suo motu. He contended that, the joining of the said two government officials in the proceedings as necessary parties and hence their evidence was inevitable for the trial court to reach an effective and sustainable decision, which was not done. He, therefore urged the Court to nullify the proceedings and quash the decision ordering a retrial, where the said necessary parties would be joined in accordance with the law. To Mr. Tarimo's contention and prayers, counsel for the respondents had no qualms as it depicted the true position of the law. Upon hearing the learned counsel's concession as observed above, the issue arising for our determination is whether non-joinder of the Commissioner for Lands and Registrar of Titles vitiated the impugned proceedings rendering the appeal before the Court incompetent. As a matter of fact, the 1s t respondent and the appellant do not have competing titles over the property. Rather, according to the first respondent, the dispute of ownership could involve the appellant on one side and Lyidiya Mushi, who had not been a party before the courts below on the other side. By analogy, therefore, that one reminds us a long-established legal principle that where two persons have competing interests in land, the person holding a Certificate of Title on it is presumed to be the lawful owner, unless it is proved that he procured it unlawfully. For instance, see- Amina Maulid Ambali & Others v. Ramadhani Juma, Civil Appeal No. 35 of 2019 [2020] TZCA 19. For the instant appeal, and without running risks of preempting anybody, it was alleged that the deceased Lydia Elisali Mushi @ Lydiya Mushi owned the property by way of a Granted Right of Occupancy. That relying upon such a seemingly valid Title Deed the appellant secured a bank loan. However, the first respondent questioned validity of the mortgage as the respective property was not free from encumbrances as the appellant also claimed a title on it. As it stands, therefore, there would be no miracles to have the said conflicting titles resolved, without the Commissioner for Lands and Registrar of Titles being impleaded as necessary parties and their evidence tested in court. These are the dictates of Order 1 rule 9 of the CPC. That done, one would easily establish whether or not the alleged mortgagor lawfully owned the property. For clarity, the said provisions of the CPC cited read thus; 4 "A suit shall not be defeated by reason o f misjoinder or non-joinder o fparties, 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". Without joining the said necessary parties, therefore, the first respondent's claims remain to be a nightmare. Put in other words, from the word go, the suit was unmaintainable most unlikely to result into an effective and executable decree. The Court has maintained this position several times and repeatedly, for instance in Stanslaus Kalokola v. Tanzania Building Agency & Mwanza City Council, Civil Appeal No. 45 of 2018 (unreported). It is common knowledge that unlike in cases, where Deemed Right of Occupancy is being pleaded, which is not the case here, only the Commissioner for Lands and Registrar of Titles, for that matter had an answer to the predicament. It is so, because it is common ground that the two government officials had exclusive custody of the respective land register hence capable of identifying the true owner of the property with a mandate to mortgage it. Therefore, to us, whether or not they said "Lyidiya Mushi" who is alleged to have mortgaged the property impersonated the late Lydia Elisafi Mushi @ Lydiya Mushi counts nothing but the joinder of the said two as necessary parties. Without that being done, therefore, we see no any practically binding order for them to deregister the property or rectify the register being issued in favor of whoever is its rightful owner. See- Tang Gas Distributors Ltd. v. Mohamed Salim Said & 2 Others, Civil Application for Revision No. 68 of 2011 [2011] TZCA 583. All things being equal, therefore, the said necessary parties are better placed to know who exactly owned the property at issue, having a right to mortgage it legally. Therefore, as alluded to before, this is where the need to join the two government officials referred above arises, much as no two conflicting Title Deeds can co-exist. That said, we agree with the learned counsel's common stand that from the inception, the suit was bad in law and hence unmaintainable on account of non-joinder of necessary parties. The foregoing shortfall apart, we need not to stress more than is necessary on a long settled legal principle that misjoinder or non-joinder of parties, for that matter cannot defeat a suit. It is provided so under Order 1 rule 9 of the CPC which we have tested times a number, such as in Ongujo Wakibara v. Beatrice Gryson Mmbaga, Civil Appeal No. 122 of 2021 [2024] TZCA 74. Equally worth noting is that, in any judicial proceedings the rule against misjoinder or non-joinder of parties is never cosmetic. It optimizes chances of suing a wrong party causing any litigation swift and practicable, let alone executability of the resultant decree, among others, symbolizing legitimacy of any court of law. In the upshot of it all, the proceedings of the trial court in Land Case No. 161 of 2016 are hereby nullified in terms of section 6(3) of the Appellate Jurisdiction Act Cap. 141. We quash the judgment and set aside the resultant decree and orders. We also order a trial de novo before a competent court after joining the said necessary parties in accordance with the law. Under the circumstances, we make no order as to costs. DATED at DODOMA this 24th day of November, 2025. Judgment delivered virtually this 26th day of November, 2025 in the presence of Ms. Victoria Gregory, learned counsel for the appellant, also holding brief for Mr. Sweya, learned counsel for the 3rd respondent, Ms. Emma Ambonisye, learned State Attorney for the 2n d Respondent and Mr. Issa Chenga, the Court Clerk; is hereby certified as a true copy of the original. B. M. A. SEHEL JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL y 7