Glory Shifwaya Samsoni vs Adilibon Raphael Mwinuka and Another (Civil Appeal No. 357 of 2022) [2025] TZCA 973 (18 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A.. MGONYA. J.A. And FELESHI, J.A/1 CIVIL APPEAL NO. 357 OF 2022 GLORY SHIFWAYA SAMSONI .................................................... APPELLANT VERSUS ADILIBON RAPHAEL MWINUKA & GRACE SOLOMON LUFUNGA (As Joint Administrators of the estate of the Late RAPHAEL JAMES MWINUKA) .................................. ......... ......... ........ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Mutunqi, 3.) dated the 30th day of June, 2015 in Land Case No. 247 of 2008 JUDGMENT OF THE COURT 23rd June & 18th September, 2025 MGONYA. J.A.: This appeal arises from the decision of the High Court of Tanzania at Dar es Salaam, declaring the respondent, Raphael James Mwinuka, a lawful owner of Plot No. 879 (2298), Block H, Mbezi Beach (suit plot). The High Court further ordered the appellant to vacate and demolish his house built therein. The appellant was aggrieved with that decision hence, this appeal. The brief background to this appeal is as follows: On 26th August, 1987, the respondent was allocated the suit plot by the Kinondoni Municipal Council (the allocating authority). Having been allocated the suit plot, the

respondent sought to develop it, that is when he discovered that the land had already been cleared and a structure erected therein. Upon follow up, the respondent came to know that, it was the appellant who developed the suit land following a separate allocation made to her mother before she subsequently transferred it to the appellant. The respondent reported the matter to the allocating authority, Kinondoni Municipal Council. Upon investigation, the authority confirmed that, both Plots No. 879 and Plot No. 953 referred to the same parcel of land, henceforth indicating a double allocation to the parties. Having found that the suit plot was first allocated to the respondent, the allocating authority ordered the appellant to vacate on it on a promise to allocate him with another plot. Despite several directives from the allocating authority and the Ministry of Lands confirming the respondent's ownership over the suit land and instructing the appellant to vacate, the appellant remained adamant and went on to develop the land. That, the efforts to resolve the matter administratively proved futile. Henceforth, the respondent was instructed to sue the appellant for disrespecting the order made by the allocating authority. Initially, the respondent sued the appellant before Kawe Ward Tribunal which found both parties were allocated the suit plot by the allocating

authority. Upon his appeal to the District Land and Housing Tribunal at Kinondoni (the DLHT), the DLHT quashed the Ward Tribunal decision for the reason that, the Ward Tribunal had no jurisdiction. Hence, the respondent instituted a land matter before the High Court. Having heard the witnesses from both parties, the High Court found that, the respondent was the first allocatee of the suit plot which was renumbered as Plot No. 2298. The court also found that, the respondent's offer had never been revoked by the allocating authority. As a result, the matter was decided in favor of the respondent. Aggrieved, the appellant lodged the present appeal to challenge the High Court judgment and the decree on the following grounds:

1. That, the Honourable High Court Judge grossly misdirected herself in fact and in law in failing to hold that the suit by respondent was time barred.

2. That, having regard to the evidence on record and the circumstances o f the case, the honourable High Court Judge grossly misdirected herself in law in failing to order the Commissioner for Lands to be impleaded.

3. That, the honourable High Court Judge grossly misdirected herself in fact and in law in finding that the appellant had trespassed in the disputed plot

4. That, having regard to the evidence on record and the circumstances of the case, the honourabie Judge misdirected herself in fact and in iaw in faiiing in to find for the appellant "During the hearing of the appeal, both the appellant and the respondent enjoyed the legal services from Mr. Robert Rutaihwa and Messrs. Laurent Ntanga and Innocent Paulos Mwelelwa, learned counsel, respectively. It came to the knowledge of the Court that, the respondent passed away on 28th January, 2020, while the appeal was still pending. That, Adilibon Raphael Mwinuka and Grace Solomon Lufunga were duly appointed to be the joint administrators of his estate. Following the prayer made before the Court by Mr. Ntanga, we granted leave and the joint administrators were joined in this appeal and the respondent's name was substituted with the names of the administrators. For reasons to be apparent shortly, we propose to begin with the second ground of appeal and proceed with other grounds if necessary. Submitting on the second ground of appeal, on misjoinder of the Commissioner for Land, Mr. Rutaihwa submitted that, this is a matter of double allocation where both parties claimed the same land. Therefore, it was the learned counsel's stance that, there was a need to join the Commissioner for Lands as a necessary party to the suit. To bolster his

submission the case of Tanzania Railways Corporation (TRC) v. GBP T. Ltd (Civil Appeal 218 of 2020) [2021] TZCA 198, was referred. Responding to this ground of appeal, Mr. Ntanga contended that, the allocating authority did its best to resolve the dispute, but the appellant disobeyed the Order. He submitted that, Masing Herman Edward (PW2), the officer from the Commissioner's office, testified clearly that the disputed land was allocated to the respondent and was mistakenly reallocated to the appellant, who was asked to vacate. According to the learned counsel, there was no need to join the Commissioner for Lands in the suit, because he discharged her liability. Rejoining, Mr. Rutaihwa submitted that, the issue of joinder of necessary party is the duty of the plaintiff and the court. Hence the Commissioner was a necessary party considering the nature of the dispute. On our part, having considered the parties' submissions and the record of appeal, the issues for our determination in the second ground of appeal are whether the Commissioner for Lands was a necessary party and failure to implead the same was fatal. As hinted earlier, the dispute between the parties in this appeal, emanated from double allocation of a suit land. Both parties alleged to have legally acquired the suit land. Those allegations were substantiated by PW2, a land officer from Kinondoni Municipal Council, who told the trial court that,

there was double allocation over the suit land. From those facts, the nagging question now is; whether the trial court was right to proceed hearing and determining the case without impleading the Commissioner for Lands as a necessary party. It is common ground as rightly argued by the appellant's counsel that, the issue of joinder of necessary party is the duty of the plaintiff and the trial court. As to who exactly fits the qualifications of a necessary party, the Court in Abdulatif Mohamed Hamis v. Mehboob Yusuf Osman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 956, by adopting the tests laid down in the Indian cases stated that: "Although there is no definite test to be applied in this connection, in the Indian case o f Benares Bank Ltd v. Bhagwandas, A.I.R. (1947) AH 18, the full bench o f the High Court o f Allahabad laid down two tests for determining the questions whether a particular party is necessary party to the proceedings: First, there has to be a right o f relief against such a party in respect o f the matters involved in the suit and; second, the court must not be in a position to pass an effective decree in the absence o f such a party. The foregoing benchmarks were described as true tests by Supreme Court of India in the case o f Deputy Comr, Hardoi v. Rama Krishna, A.I.R. (1953) S.C. 521 ." 6

Equally, the Court in the case of Farida Mbaraka & Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006 [2006] TZCA 257, which was also referred by the Court in Tanzania Railways Corporation (TRC) v. GBP T. Ltd (supra), stated that: "....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 notjoined so; or (ii) when, without his presence , the question in the suit cannot be completely decided Adding to the above excerpt, the Court in Tanzania Railways Corporation (TRC) v. GBP T. Ltd (supra) stated that: "We must stress as wind up, that if a trial court notes that some issues raised in the pleadings call for addition o f a party whose absence will lead to such issues of 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 or parties" Having fully revisited the above tests, we are inclined to agree with the arguments by appellant's counsel that, the circumstances of this case requires the Commissioner for Lands to be impleaded as a defendant. It is common ground as garnered from the record of this appeal that, the dispute at hand stem from administrative errors committed by the allocating

authority that located one plot to two different persons. It is also on record that, both allocatee were promised to be compensated other plots. Under the circumstances, we find the Commissioner for Lands is the originator of the dispute subject to this appeal. Therefore, for effective and enforceable orders which will completely resolve the matter, joining her to the suit was inevitable. Further, it was Mr. Ntanga's stand that, joining the Commissioner for Lands in the suit at the trial court was not necessary, as PW2, the officer from the land authority had testified in place of the Commissioner for Lands. On our part, we tend to disagree with him. Our reasoning is simple, that, PW2 was before the trial court as the witness and not as a party. Therefore, there was no any effective order that could have been decreed against him to remedy the dispute. Hence forth, the trial court erred to proceed without impleading the Commissioner for Lands as a necessary party. Therefore, we find merit on the second ground of appeal. Since our decision on the second ground of appeal suffices to dispose of the appeal, the need for considering the remaining grounds does not arise. In the upshot, we allow the appeal and proceed to quash and set aside the judgment and decree of the trial court. We remit the matter to the High Court for fresh hearing of the case by another Judge after joining the

Commissioner for Lands, in accordance to law. In the circumstances, we make no order as to costs. DATED at DODOMA this 15th day of September, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Ruling delivered this 18thday of September, 2025 in the presence of Ms. Jackline Rweyongeza, counsel for the Appellant, Mr. Japhet Mmuru holding brief for Mr. Laurent Ntanga, for the respondent via virtual Court and Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the COURT OF APPEAL original. R. W. CHAUNGU DEPUTY REGISTRAR