Yahaya Mandia vs Kalim Soa (Civil Appeal No. 122 of 2023) [2025] TZCA 896 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TANGA fCORAM: LILA. J.A.. KENTE 3,A. AND MGEYEKWA 3.A.) CIVIL APPEAL NO. 122 OF 2023 YAHAYAM ANDIA.......................................................................... APPELLANT VERSUS KALIM SOA ................................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tanga) (Mkasimonawa. 3.) Dated the 23rd day of October, 2019 in Land Appeal No. 33 of 2018 JUDGMENT OF THE COURT 20th May & 28th August, 2025 KENTE. J.A: This appeal emanates from the decision of the High Court of Tanzania, sitting at Tanga dated 23rd October 2019 in Land Appeal no. 33 of 2019 by which, the High Court dismissed the appellant's appeal challenging the decision of the District Land and Housing Tribunal for Lushoto District (the DLHT) in Land Application No. 8 of 2017. A brief background giving rise to this appeal is that, initially, the appellant lodged an application (Application No. 08 of 2017) in the DLHT seeking to be declared the lawful owner and the respondent to be stopped from alleging ownership of a piece of land whose net acreage was not specified, but was generally said to be located at Kweminyasa - Mponde village in Lushoto District

In support of his claim, the appellant contended that, he is the lawful owner of the said piece of land having acquired it by way of inheritance from his father the late Idd Mandia before his demise. According to the appellant, in the year 2016, the respondent begun trespassing on the disputed land claiming to own it. For his part, the respondent testified and this was not disputed that, he is the 'Imam' of a mosque located near the disputed land. He went on stating that, the said mosque is the property of the National Muslim Council of Tanzania (BAKWATA) and that, the piece of land in dispute was acquired by BAKWATA from one Soa Mgala and Hamis Kaleghe who were the original owners of that land. After hearing the parties, the DLHT made a finding that the respondent was not a proper party to sue, as he was a mere Imam at the mosque and that the appellant was supposed to sue BAKWATA the alleged owner of the disputed land. The suit was thus dismissed (sic) for being preferred against a wrong party. Dissatisfied, the appellant appealed to the High Court. After hearing the parties, the first appellate court upheld the decision by the DLHT on the grounds that, indeed the appellant ought to have sued BAKWATA and not the respondent. 2

Stilt aggrieved by the decision of the High Court, the appellant has preferred the present appeal to this Court. He has fronted nine grounds of appeal which read as follows; i. That ; the learned Judge o f the High Court erred in iaw and in fact for failure to take into account that the land in dispute was originally owned by the Mandia dan to which the appellant belongs. ii. That ■ the Judge o f the High Court erred in law and in fact fo r not taking into consideration that the appellants father had sometime allocated part o f the dan land to the Muslim s for erecting o f a mosque. Hi. That, the Judge o f the High Court erred in law and fact for failure to consider that the appellants claim was not over the piece o f land where the mosque is located but rather the claim was for a piece o f land found between the mosque and the appellants house which is trespassed on by respondent in his personal capacity. iv. That, the Judge o f the High Court erred both in iaw and in fact for failure to consider that in his dedsion the chairman o f the Lushoto D istrict Land and Housing Tribunal did not give reasons as to why he was not in agreem ent with the opinion o f the assessors with whom he sat in this matter. v. That, the Judge o f the High Court erred in iaw and fact for failure to hold that the respondent was personally sued for he had led people into trespassing on the 3

disputed land and he was not authorized by BAKWATA to do what he did. vi, That, the Judge o f the High Court erred in law and fact to hold that the respondent was wrongly sued by the appellant as the proper party to sue was the mosque w ithout specifying the registration's name (sic) o f the said Mosque. vii. That, the Judge o f the High Court erred in law and fact to fin d that the respondent was wrongly sued by the appellant without giving any particulars o f a proper party recognized by the law who could sue or be sued. i /Hi. That, the Judge o f the High Court erred in law and fact to find that BAKWATA was a proper party to be sued by mere allegation by the respondent without p roof o f that fact ix. That, the Judge o f the High Court erred in law and fact to fin d that, the tria l assessor's opinion is not m andatory and does not require the Chairman o f the DLHT to give reasons when dissenting from them. In reply the respondent filed written submissions strongly opposing the appeal. At the hearing of the appeal, both the appellant and the respondent appeared in person, unrepresented and, after fully adopting their respective written submissions, they had nothing substantial to say in augmentation. In his written submissions, the appellant combined and argued the grounds of appeal generally saying in the first place that, the respondent

merely alleged that the suit property belongs to BAKWATA, without going further to give evidence of proof of BAKWATA'S registration or certificate of incorporation of the Board of trustees of BAKWATA under the provisions of the Trustee Incorporation Ordinance, Chapter 318 of the Laws which would give him (the appellant) the power to sue BAKWATA. In this connection, the appellant was emphatic that, most importantly, it is the respondent and not BAKWATA which had unlawfully trespassed on his property. He thus prayed for the appeal to be allowed with an attendant order directing the respondent to give him vacant possession of the disputed piece of land. For his part, the respondent submitted in reply that, the assertion by the appellant lacks basis since the appellant had an opportunity before the DLHT to join or sue a proper party, but he refused to do so. That, even after being advised, he chose to proceed with the prosecuting of the case against the respondent only. He added that, since BAKWATA was not sued, he could not purport to do anything in this matter on its behalf. Having gone through the memorandum of appeal, together with the written submissions, we wish to address the grounds of appeal in the following manner: the 1st, 2n d and 3rd grounds will be determined together, followed by the 4th and 9th grounds of appeal which are related, and finally, we will concurrently determine the 5th, 6th, 7th and 8th grounds which are essentially correlated. 5

Starting with the 1st,2n d and 3rd grounds of appeal, the thrust of the appellant's complaint therein is that, the first appellate court failed to determine as to who between the appellant and respondent, was the lawful owner of the disputed piece of land. From the outset, we wish to point out that, after going through the impugned judgment, it is clear that the first appellate court did not determine who between the appellant and respondent is the lawful owner of the suit property. The above observation is distilled from the following extract in the first appellate court's judgment; "It cannot be said from the adduced evidence, if there is direct evidence showing how the appellant's father from whom the appellant acquired the land, had acquired it The respondent on the other hand shows that the land was in itia lly the property o f Soa Mgala and Kham is Kalaghe who gave it to Usambara Muslim Community in 1958. ...the property owned by Usambara Muslim Community later on evolved into being owned by BAKWATAA.... That being the case , as the land belongs to BAKWATA, the appellant had no right to claim against the actions done by the respondent on the land. I f he had any right to claim , that right suggested that a dispute was between him and the owner o f the land that is BAKWATA. It was proper therefore when the tria l tribunal found the appellant to have sued a wrong party." 6

Going by the above extract, there is no gainsaying that the first appellate court simply analyzed the evidence on record and came to the conclusion that the disputed piece of land was owned and essentially occupied by BAKWATA and therefore, the appellant had nothing to claim from the respondent. In that regard, the issue of ownership of the disputed land as between the parties herein, was not decisively determined, properly so in our view. It follows therefore that, in their wholeness, the 1st, 2n d and 3rd grounds of appeal are without merits and we accordingly dismiss them. Next for our consideration are the 4th and 9th grounds of appeal which raise the question as to whether the Chairman of the DLHT is obliged to give reasons when not dissenting from the assessor's opinion. As to the above - posed question, it was the finding of the first appellate court that the assessors who sat with the Hon. Chairman gave their unanimous opinions in favor of the respondent. Notably, as opposed to the appellant's contention, the chairman of the DLHT did not disagree with the assessors with whom he sat, and as such, he was not bound to give reasons why he was in agreement with them. It is worthwhile to also note here that, since the case was not determined on merit in that it was essentially decided on the basis of its competency, the assessors' opinion were basically taken into account. In the circumstances, the 4th and 9th grounds are devoid of merit and, we thus dismiss them.

With respect to the 5th, 6th, 7th and 8th grounds of appeal which raise the question as to whether the respondent was the proper party to be sued, as stated earlier, both the DLHT and the first appellate court made a finding that the respondent was not a proper party to be sued as he was a mere Imam leading prayers at the mosque. That, if the appellant had any claim over the disputed land, he ought to have sued BAKWATA. Through his testimony, the appellant had all along maintained that the respondent is the one who had trespassed onto his land while the respondent averred that the said land was and still is owned by the mosque under the auspices of BAKWATA. In Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another, Civil Revision 6 of 2017 [2018] TZCA 25 (24 July 2018), we observed that, "... a necessary party is one whose presence is indispensabie to the institution o f a su it and in whose absence no effective decree or order can be passed. Thus, the determ ination as to who is a necessary party to a su it wouid vary from a case to case depending upon the facts and circum stances o f each particular case. Among the relevant factors for such determ ination are the particulars o f the non-joined party, the nature o f re lie f claim ed as w ell as whether or not, in the absence o f the party, an executable decree may be passed". 8

In the instant appeal, we find, as correctly held by the two lower courts that, BAKWATA was a necessary party as its presence was crucial and in the event of a decree being passed against BAKWATA, it would certainly be an executable decree. Conversely, the circumstances of this case are very clear that, no execution would benefit the appellant in the absence of the alleged owner of the disputed piece of land. On the totality of the foregoing discussion, it occurs to us that, the view taken by both the DLHT and the first appellate court was proper and we cannot fault them. That, in our view, is sufficient to dispose of the appeal but there is one more thing in this dispute which must be addressed. Even if the suit against the respondent were maintainable, it is as well we remember that, the omission by the appellant to particularise the acreage and neighbourhood of the disputed piece of land, would make it difficult or else impossible to determine the actual size of the piece of land to which he is entitled. Needless to say, the omission violates the provisions of Order VII Rule 3 of the Civil Procedure Code, Chapter 33 of the Revised Laws, which stipulates that, every claim for immovable property must contain sufficient details to identify the property so as to avoid ambiguity. While this requirement admits the fact that, errors or omissions in the description of an immovable property may occur, it is generally required that, if a suit involves land, the plaint should ideally include the land's survey number, if any, its boundaries 9

in the neighbourhood and any other identifying features. In the same vein, a passage by Nyarangi, JA in the Kenyan case of Wangechi Kimita v. Wakibiru Mutahi [1985] K.L.R 317 which, on that aspect, resonates fully with our present situation and from which we can borrow a leaf, reads thus: "In no circum stances should a court o f law make an order to allocate or apportion land whose acreage and location is not specifically stated for the obvious reason that, a description o f land being litigated the acreage o f which is om itted for whatever reason, lacks an essential and crucial particular" Having said that, we find no merit in the appeal which we proceed to dismiss in its entirety with costs. DATED at DODOMA this 22n d day of May, 2025. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 28th day of August, 2025, in the presence of the Respondent in person and in absence of the Appellant, via video link from High Court of Tanzania at Tanga is hereby certified as a true copy of n r i n i n a l D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL