New Msowero Farms Limited vs China Civil Engineering Construction Corporation Limited and Another (Civil Appeal No. 229 of 2022) [2025] TZCA 909 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. J.A.. KENTE J.A, AND MANSOOR J.A.l CIVIL APPEAL NO. 229 OF 2022 NEW MSOWERO FARMS LIM ITED ....... . ........................................ APPELLANT VERSUS CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION LIMITED .......................................................1 st RESPONDENT TANZANIA NATIONAL ROADS AGENCY ............................... 2N D RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) f Feleshi. J.^ Dated the 20th day of July, 2016 in Land Case No. 41 of 2011 JUDGMENT OF THE COURT 19th March & 29th August, 2025 KENTE, J.A: The appeal before us arises from the decision of the High Court of Tanzania sitting at Dar es Salaam in Land Case No.41 of 2011 dismissing in its entirety the appellant's claim against the respondents, based on trespass to land. Briefly the factual background of this appeal, goes as hereunder: In 2010, the first respondent China Civil Engineering Construction Corporation Limited and the second respondent Tanzania National Roads Agency (Tanroads) entered into a contract in terms of which, the first respondent was to carry out the construction of the Kilosa Dumila road in

Morogoro Region for an agreed consideration. By virtue of the said contract, it was agreed that the second respondent would be responsible to identify and allocate the sites from which the first respondent would collect road construction materials. It is alleged that, one of the said sites form part of the appellant's farm located at Msowero Village in Kilosa District. During the life of the road construction contract, a dispute arose between the appellant and the first respondent which prompted the appellant to sue the first respondent for allegedly trespassing on its land. Specifically, the appellant claimed that, the first respondent had unlawfully trespassed on her farm and carried out excavation of borrow materiais therefrom and caused significant damage to her land. She accordingly prayed for payment of TZS 691,142,690.00 allegedly being the value of the borrow materials excavated from her farm, an unspecified amount of monetary compensation for what she called "loss of land, crops and business" allegedly caused by the first respondent's diversion of the road reserve and a water pipeline into her farm. Moreover, the appellant claimed payment of general damages for trespass and interest on the decretal sum. In its defence, the first respondent denied the appellant's claims. It also moved the trial court by way of a third-party notice to join the second respondent as its co-defendant. Thereafter, the case proceeded to trial in 2

which the second respondent participated as if the trial court had formerly and procedurally joined her to the action. The learned trial Judge having heard evidence from the parties and received their respective submissions, in his judgment delivered on 20th July, 2016, he made several findings of fact and finally held that: "... Since the m atter has been prem aturely filed before this court as the p la in tiff did not exhaust a ll the a vailable rem edies before the prescribed authorities under the Land Act, and the Land Acquisition Act, and considering that the p la in tiff did not establish the value o f the destructed sisal plants, the su it is devoid o f m erit and is hereby dism issed with costs." Aggrieved by the decision of the trial court, the appellant lodged the present appeal attacking the trial Judge's decision on two fronts: One, that the trial Judge erred both in law and infact by deciding on land ownership contrary to the pleadings and the issues framed for determination; and two, that the trial Judge fell into error both in law and in fact by determining all the issues framed in the negative contrary to the evidence adduced by the parties and the standard of proof required in civil cases. Before us, whereas the appellant was represented by Messrs. Alex Mgongolwa and Kaleghe Rashid learned Advocates, the first respondent was represented by Advocate Thomas Brash who had also represented her

in the trial court. On the other hand, Mr. Deodatus Nyoni learned Principal State Attorney appeared along with Messrs. Ayoub Sanga and Francis Wisdom together with Ms. Victoria Lugendo learned State Attorneys represent to the second respondent. Before we could proceed to hear the appeal on merit, we had to deal with a preliminary issue raised by us suo motu relating to the propriety or otherwise of the procedure adopted by the trial court in bringing the second respondent into this matter as a third party. Submitting in response to our query, Mr. Sanga who addressed us on behalf of the second respondent, begun by referring us to the record of appeal where, on 16/8/2017 the then learned presiding Judge made a ruling allowing the second respondent which was hitherto not a party to the suit to be joined as the second defendant. It is worthwhile to mention here that, the court's ruling was made following a prayer by one Byabato learned counsel who appeared before the trial court rather unceremoniously and told the presiding Judge that, he was representing the second respondent and that, although the second respondent was until then, not a party to the suit, it was likely to be directly affected by the adverse or any other orders that were going to be made by the court in the case. It appears to us that, the second respondent's decision to hurriedly seek to enter the fray without having a locus standi could have been prompted by its anticipation that the

road construction works then being undertaken by the first respondent were going to be halted midway more so as the appellant had already applied for injunctive orders against the first respondent. On behalf of the second respondent, Mr. Sanga submitted that, after hearing the parties and delivering his ruling to the effect that the second respondent be joined in the suit as one of the defendants, the presiding Judge did not end there. That, the learned Judge went on to hear Mr. Brash who dutifully reminded him that, following the ruling by the court directing that the second respondent be impleaded as one of the defendants, the appellant who was the plaintiff then, was required in terms of Order 1 Rule 10 (4) of the Civil Procedure Code, Chapter 33 of the Revised Laws (the CPC) to amend the plaint so as to implead the second respondent and that the second respondent could not simply bring itself into the suit without being impleaded. Accordingly, Mr. Brash prayed for the leave of the trial court to bring the second respondent into the suit by way of a third-party notice. Seeing the procedural snag infront of him which, as it turned out, was of his own making, the learned presiding Judge quickly agreed with Mr. Brash and subsequently ordered thus: "Upon agreem ent by the three counsel\ I hereby review my earlier orders and in lieu thereof, I w ill hear Mr. Brash (for the

defendant) in his application for ieave to apply for a third- party notice." According to Mr. Sanga and this was gracefully conceded by both Mr. Mgongolwa and Mr. Brash, what the learned Judge did was irregular as, except in very exceptional circumstances, a judge generally has no power to revise his or her decision once it is delivered to the parties. On this point, we understood the learned State Attorney to mean that, when a court delivers a judgment or ruling, the issues on dispute are finally disposed of and the judgment or ruling is etched in stone. Even though, we wish to quickly observe that, properly understood, a judgment or ruling of the court usually takes full effect immediately after it is pronounced but, any terms of it can still be changed by the court itself, either suo motu or on application and upon notice to other interested parties. It follows therefore that the argument advanced by Mr. Sanga turns out to be a bit of a generalization. Still on the same subject, it was further contended by Mr. Sanga and conceded by Mr. Mgongolwa and Mr. Brash that, secondly and most fundamentally, the mandatory requirements of Order 1 Rule 18 (1) of the CPC which requires the trial court to give directions on the way forward after a third party has presented a written statement of defence were not complied with. Because of this, the learned State Attorney lamented, the 6

second respondent appears to have been prejudiced as it was not ascertained if in its written statement of defence it had specifically denied the appellant's claims or denied the liability alleged in the third-party notice. Upon those flaws, the learned State Attorney implored us to invoke our revisional powers in terms of section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws, and nullify the proceedings subsequent to the trial court's order dated 16th August, 2011. Consequently, we were urged to quash and set aside the impugned judgment and decree and remit the matter to the trial court with a directive that it should proceed and determine it according to law. We have considered Mr. Sanga's arguments in support of the appeal. As stated earlier, both Mr. Mgongolwa and Mr. Brash were not opposed to Mr. Sanga's position and his subsequent prayers. We have had a look at Order 1 Rule 18 (1) of the CPC together with the jurisprudence arising out of its interpretation. We share the view of the learned State Attorney that the above provision of the law enjoins the trial judge or magistrate, after a third party has presented a written of defence, to next fix a date for giving directions on how the court will proceed to determine the liability or otherwise of the third party either to the plaintiff's claim generally, or particularly against the defendant.

As luck would have it, the present case is not novel. This Court has dealt with similar cases before and developed a legion of authorities expressing ourselves on this vexing subject. For instance, in the case of Omary Fuku (Administrator of the Estate of the late Ally Rajabu v. National Microfinance Bank and Others (Consolidated Civil Appeals No. 135 and 127 of 2020) [2023] TZCA 17759 (16 October 2023, TANZLII) to which we were ably referred by, Mr. Sanga, while determining whether the third party procedure was adhered to and the consequence of its violation, we held that, it was mandatory for the trial Judge to conduct the proceedings in conformity with the third party procedure and to comply with Order 1 Rule 18 (1) of the CPC and that, the omission to do so had the effect of occasioning injustice to the parties. In the present case, the court below did not give directions on the course to be followed after the second respondent had presented its written statement of defence. As stated earlier, because of this omission, it is Mr. Sanga's submission that the second respondent was prejudiced as the trial was conducted to finality without ascertaining if it was specifically disputing the appellant's claim or the liability to the defendant. Having given serious consideration to the solitary issue raised in this appeal, we entirely agree with the argument advanced by the learned State Attorney. Going by the provisions of Order 1 Rule 18 (1) of the CPC together 8

with the emerging jurisprudence, we must at this point say that, the then presiding Judge's approach in the present case was wrong both in law and in principle. It has to be accepted that, the trial ought not to have proceeded without ascertaining the second respondent's position in the dispute before him. It must be very elementary to observe here that, in any litigation a judge or magistrate must be aware of the pleadings of the parties to ensure a fair and efficient trial. The key reason being that, the pleadings define the issues involved in the dispute, providing notice to all parties including the court regarding the case's scope and boundaries. There is no gainsaying that, a judge or magistrate who is unaware of the parties' pleadings cannot make an informed decision and, such a situation, can lead to several negative consequences including unfairness to the parties. Applying the above principles and statements of the law to the present case, it is certainly clear that the position taken by Mr. Sanga is unassailable. It follows therefore that the trial court strayed into a procedural error when it went on to hear and determine the suit without knowing the position of the third party in the matter. In the light of the foregoing discussion, we find that the trial court's proceedings were vitiated by the above-mentioned procedural irregularity. In the circumstances, we nullify the proceedings of the trial court that were subsequent to the second respondent's filing of the written statement of 9

defence and set aside the resultant judgment and decree. In lieu thereof, we remit the record to the trial court with a directive that it should proceed hotfoot to hear and determine the dispute between the parties according to law. Taking into account the fact that the fundamental irregularity in the proceedings was raised by the Court suo motu, we order each party to bear its own costs. DATED at DODOMA this 28th day of August, 2025. F. L. K. WAM BALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered virtually this 29h day of August, 2025, in the presence of Mr. Kalaghe Rashid, learned counsel for the Appellant also holding brief for Mr. Ayoub Sanga, learned State Attorney for the 2n d Respondent, Mr. Thomas Brush, learned counsel for the 1st Respondent and Ms. Hilda Mcharo, Court Clerk; is hereby certified as a true copy of the original. 10