Massay Qamunga vs Samwel Surumbu Massay & Another (Civil Appeal No. 258 of 2023) [2025] TZCA 1168 (23 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: SEHEL, J.A.. MAKUNGU, 3.A. And FELESHI. J.A.^ CIVIL APPEAL NO. 258 OF 2023 MASSAYQAMUNGA ................................................................................. APPELLANT VERSUS SAM WE LI SURUMBU MASSAY................................................. RESPONDENT MARTIN MARMO ERRO.t........................... . .................. . ...........2^® RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Arusha) CGwae. J,^ dated the 27th day of January, 2023 in Land Case No. 33 of 2022 JUDGMENT OF THE COURT 10th & 23rd October, 2025 FELESHL J.A.: Massay Qamunga (the appellant) is assailing the ruling of the High Court sitting at Arusha (the trial court) in Land Case No. 33 of 2022 dated 27.1.2023, which struck out her suit for want of jurisdiction and non-joinder of necessary parties. The facts giving rise to this appeal are that the appellant had instituted a suit against Samwel Surumbu Massay, her purported spouse (the 1s t respondent) and Martin Marmo Erro (the 2n d respondent) claiming for joint ownership of Plot No. 1210, Block "G" Karatu Urban, covered under Certificate of Title No. 34736 (the disputed land). The appellant's grievance was that the 1s t respondent had fraudulently transferred the property to the 2n d respondent without her knowledge or consent. She prayed for declarations confirming joint ownership, an injunction restraining any transfer, damages and costs. Previously, before the appellant instituted Land Case No. 33 of 2022, there were various earlier proceedings involving the same land mostly initiated by the appellant. These were: Land Application No. 2 of 2012, Land Application No. 6 of 2021 and Miscellaneous Land Application No. 68 of 2021 before the District Land and Housing Tribunal for Karatu (the DLHT); and Criminal Case No. 100 of 2017 before Karatu District Court. There was also some administrative correspondence including a letter by the Registrar of Titles dated 17.5.2022. Before Land Case No. 33 of 2022 went to a full trial, the respondents raised five points of objection. While in respect of the 1s t point of objection they argued that the trial court lacked jurisdiction as the matter fell within the purview of section 102 of the Land Registration Act, Chapter 334, which requires such challenges to be made by a petition of appeal against the decision of the Registrar of Titles, they contended on the 3r d point of objection that the Registrar of Titles, Commissioner for Lands and Karatu District Council were necessary parties without whose participation the court could not have effectively adjudicated the dispute. The trial court, as aforesaid, sustained the two preliminary points of objection and struck out the suit. It held that the appellant's suit, having mainly premised on the deletion of her name from the land register, had been wrongly instituted as a plaint rather than a petition. And that, a failure to join the aforementioned authorities rendered it incompetent. Aggrieved, the appellant preferred this appeal on the following five grounds of appeal: 1. The trial High Court Judge was wrong in deciding that the plaintiff was challenging the removal or erasing o f her name from the land register. 2. The trial High Court Judge erred in law and facts when he decided that filing Land Case No. 33 o f2022 was a misuse of the court process. 3. The trial High Court Judge erred in fact when it decided that the suit should have been filed as a petition of appeal. 4. The trial High Court Judge erred in law and facts in dismissing the suit 5. The trial High Court Judge erred in law and facts in ruling that the Karatu District CouncilCommissioner for Lands and Registrar o f Titles were necessary parties in Land Case No. 33 o f2022. During hearing of the appeal, M r. Bungaya Matle Panga, learned advocate represented the appellant, whereas Messrs. Emmanuel Safari and Geophrey Mollel, both learned advocates teamed up representing the respondents. Both parties sought to rely on their respective written submissions filed prior to the hearing which they adopted. In essence, submitting in support of the appeal, Mr. Panga focused on three issues, that is, whether in striking out the suit the trial court was proper to hold that: one, the appellant's complaint was about the deletion of her name from the certificate of title (from the 1s t, 2n d and 4th grounds); two, the suit ought to have been filed by way of petition (in relation to the 3r d ground); and three, there was non-joinder of parties (from the 5th ground). Regarding the 1s t issue, M r. Panga argued that the appellant's claim was not against the administrative actions taken by the Registrar of Titles but rather on the fraudulent transfer of the property by the 1s t respondent to the 2n d respondent. He referred us to paragraphs 8 to 11 of the plaint, which set out a distinct cause of action based on fraud rather than on removal of names from the land register. He emphasized that Land Application No. 6 of 2021 and Land Case No. 33 of 2022 before the DLHT and the trial court respectively, were two separate matters founded on different causes of action, hence the latter was not an abuse of court process as it was held by the trial court. About the 2 d issue, M r. Panga was brief that there was no decision or order of the Registrar of Title capable of being appealed against. He held the view that section 102 of the Land Registration Act was inapplicable. On the 3r d issue on non-joinder of parties, Mr. Panga contended that the Karatu District Council and Registrar of Titles were not necessary parties since they were not implicated in the alleged fraud and no relief was sought against them. However, M r. Panga later changed his mind and conceded to the trial court's holding in relation to the 3r d issue that, indeed, the Registrar of Titles, Commissioner for Lands, and Karatu District Council were necessary parties. He thus urged the Court to allow the appeal, quash the trial court's ruling, and order that Land Case No. 33 of 2022 be restored for hearing on the merits. In reply, Mr. Safari, counsel for the respondents, opposed the appeal and supported the ruling of the trial court. He argued that the 5 dispute was not new but rather a continuation of previous litigation over the same property, obtained in Land Application No. 2 of 2012, Land Application No. 6 of 2021 and Miscellaneous Land Application No. 68 of 2021 before the DLHT; and Criminal Case No. 100 of 2017 before Karatu District Court, all involving the same plot. It was the counsel's view that, the trial court was proper when it found the suit before it constituted an abuse of the court process. To reinforce his argument, he cited the case of The Registered Trustees of Kanisa la Pentekoste Mbeya v. Lawson Sikazwe and 4 others [2021] TZCA 713. It was Mr. Safari's further contention that the trial court rightly invoked section 102 of the Land Registration Act, as the appellant had challenged the Registrar of Title's administrative act contained in a letter dated 17.05.2022, which was appealable through a petition. As to the issue of non-joinder of necessary parties, M r. Safari maintained that both the Karatu District Council and the Registrar of Titles were essential parties since their participation was necessary to conclusively determine the legality of the transfer and registration of the disputed title pursuant to Order I rule 10 (2) of the Civil Procedure Code, Chapter 33 (the CPC). He also referred to the case of Tanzania Railways Corporation (TRC) v. GBP T. Ltd [2021] T7CA 198. 6 The respondents' counsel thus prayed for dismissal of the appeal with costs. However, when probed on the consequence of his submission that referred the Court to Order 1 rule 10 (2) of the CPC and the decision in Tanzania Railways Corporation (TRC) v. GBP T. Ltd (supra), M r. Safari quickly changed his final prayer and urged the Court to order joinder of the Commissioner for Lands, the Registrar of Titles and the Karatu District Council as necessary parties after issuance of a statutory notice. In rejoinder, M r. Panga insisted that the matter be remitted to the trial court to be heard on merits noting the fact that necessary parties should be joined. He also prayed for each party to bear their own costs. Having examined the record and the twisting submissions by the parties' counsel which all ended with a concession that the trial court properly decided that there was non-joinder of parties, we deem it appropriate to begin by addressing the issues whether the trial court had jurisdiction to hear the suit, and whether it was proper for it to be filed as a normal land suit. While the appellant's counsel argued that the trial court erred to find that the appellant's claim was about deleting her name in the certificate of right of occupancy, the respondents' counsel maintained that the trial court correctly decided so. We find this issue is straight forward and with straight recourse. It is common knowledge in litigation that, pleadings represent a litigant's facts upon which he or she claims a legal relief or disproves the claims of the opponent. Pleadings constitute the parties' own formulation of their respective cases. See- M/S Maximsure Tanzania Limited v. M/S Yukos Enterprises (E.A) Limited & Others [2024] TZCA 24. Upon scrutiny made on the appellant's plaint, particularly paragraphs 8, 9, 10, 11, 12 and 13, it is evident to us that the appellant alleged a fraudulent sale of the disputed land by the 1s t respondent to the 2n d respondent. Therefore, we are inclined to agree with M r. Panga that the claim as presented in the plaint extended beyond the mere erasure of the appellant's name from the title. Based on the distinct cause of actions the appellant was to pursue in her suit against her defendants, we did not find any decision that she could have appealed against. The trial court, therefore, misapprehended the nature of the cause of action when it treated the case as one arising from an administrative act of the Registrar of Titles. Consequently, we are settled in our minds that, holding that the matter fell under section 102 of the Land Registration Act was erroneous. This is because, as aforesaid, as the appellant was challenging fraudulent acts of the 1s t respondent rather than an official decision of the Registrar of Titles, the case was properly instituted by way of a plaint. The finding that the suit was an abuse of court process was therefore misplaced. We thus find merits in the 1s t, 2nd, 3r d and 4th grounds of appeal. On the consensus submissions by the parties' counsel regarding the issue of non-joinder of necessary parties, we respectfully agree with them. This is because 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. 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 later 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 aiways touch the rights or responsibilities of other persons. For example, we held in Tanga Gas Distributors Limited v . Mohamed Salim 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 of suits, his joinder is necessary so as to have him bound by the decision o f the court in the suit "''[Emphasis added]. With this authority in mind in relation with the matter at hand, which the appellant asserted in the plaint that the land in dispute was a matrimonial property which was originally allocated to her, while the 1s t respondent claims that it was his property and allocated to him, we are certain that since the appellant's claims directly implicated Karatu District Council and the Registrar of Titles it thus indirectly implicates the Commissioner for Lands. These authorities' responsibilities play administrative roles in allocation and registration of land which we find are indispensable. As a matter of emphasis, we are of the view that, after the trial court had satisfied itself that necessary parties were not impleaded, it 10 ought to have right away invoked Order 1 rule 10 (2) of the CPC to redress the procedural lacunae obtained in the proceedings before it. It would have added the necessary parties connected to the pleaded cause of action. In Tanzania Railways Corporation (TRC) v. GBP T. Ltd (supra), this Court underscored the following: "We must stress as we wind up, that if a trial court notes that some issues raised in the pleading call for addition o f a party whose absence will lead to such issues o f importance to remain unresolved, then the court cannot fold its arms and assume a role o f an onlooker, a bystander or a passer-by only because parties are resistant or unwilling to apply to join a necessary party. The court has a duty to take an active role by taking matters on itself and add such a party or parties to the proceedings in order to facilitate effective and complete adjudication and resolution of all issues o f controversy presented before it " In the light of the above discussion, we hold the 5th ground of appeal is devoid of merit and uphold the trial court Judge's findings that the Karatu District Council, Commissioner for Lands and Registrar of Titles are necessary parties in Land Case No. 33 of 2022. ii Consequently, we hereby exercise this Court's powers under section 4 (2) of the Appellate jurisdiction Act, Chapter 141 to quash the trial court's ruling and set aside its order dated 27.1.2023. We order the file to be remitted to the trial court for hearing of the suit on merit 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 22n dday of October, 2025. B . M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 23r d day of October, 2025 in the presence of M r. Bangaya Matle Panga for the Appellant, M r. Geophrey Mollel, learned Advocate for the Respondent and Musa Amry, Court Cleark, via virtual Court; is hereby certified as a true copy of the original. 12