Vicent John Mmasi @ Vincent vs Amani Elifatio Lyimo (Civil Appeal No. 458 of 2022) [2025] TZCA 883 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. J.A.. MASOUD, J-A. And AGATHO, J.AJi CIVIL APPEAL NO. 458 OF 2022 VICENT JOHN MMASI @ VINCENT .............................................. APPELLANT VERSUS AMANI ELIFATIO LYIMO................. ........... ........................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Land Division at Dar es Salaam) (GwaeJ.) dated the 12th day of July, 2022 in Land Case No. 98 of 2021 JUDGMENT OF THE COURT 28th July & 27th August, 2025 LILA. J.A.: Breach of the terms and conditions of memorandum of understanding and joint venture agreement (henceforth the MOU and JVA) signed on 1/4/2020 by the parties and Eunice Issack Siwa Mosi as administrator of the estate of the late Issack Vehaeli Siwa Mosi (henceforth Mosi) to jointly use the property situate on Plot no. 24 Block 20 with Certificate of Title No. 35964 Land Office Number 118355 in Kariakoo Dar es Salaam Region (the disputed land) formed the crux of litigation between the parties in the High Court (the i

trial court). According to the two documents, the manner of sharing the property to be built on the land, as provided in the JVA, was for the appellant to construct a storey building and then allot one business frame/room measuring 12 meters by 9 meters at the ground floor and the whole of the second floor with two complete apartments to the respondent for the unexpired rental period between Mosi and the respondent. In the plaint, the respondent (then plaintiff) claimed that the appellant processed certificate of title on the said plot without consulting him at the prejudice of his interest on the land emanating from the joint venture agreement between him and Mosi. The respondent, therefore, sued the appellant seeking for, among other reliefs, specific performance of the terms and conditions stipulated in the JVA. The High Court found for the respondent granting him a number of reliefs as shall be shown later. The appellant felt aggrieved hence the present appeal. The appeal before us met a snag as the respondent, through his counsel Bernard E. Massimba, raised a point of objection challenging appearance, drafting and lodging various documents for the appellant done by Mr. Edward Peter Chuwa, learned advocate without first having lodged in Court a notice of change of advocate as imperatively provided under Rule 24

and 32(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The objection runs thus: " 1 , The appellant and the appeal itself have violated Rules 24 and 32(1) o f the Tanzania Court o f appeal Rules, 2009." In observance of the long-established practice, the point of abjection was to be heard first. But, to avoid summoning the parties again for the hearing of the appeal in the event the point of objection is overruled, we heard the parties on both the point of objection and the appeal. At the hearing before the Court were Mr. Edward Peter Chuwa and Anna Lugendo, learned advocates who represented the appellant and for the respondent were Dr. Chacha Murungu and Mr. Bernard Massimba, also learned advocates. In supporting the point of objection, it was Dr. Murungu's contention that the appeal process was put in motion on behalf of the appellant, in terms of Rule 83 of the Rules, by Mr. Dennis Michael Msafiri, learned advocate, who not only applied to be supplied with certified copies of proceedings, judgment, decree and exhibits in terms of Rule 90(1) of the Rules, but also lodged a notice of appeal in terms of Rule 90(1) of the Rules 3

as reflected at pages 158 and 160 of the record of appeal. According to him, Mr. Dennis Msafiri was an advocate on record known to represent the appellant in the appeal and Mr. Edward Peter Chuwa, who came later to replace Mr. Dennis Msafiri ought to have, in terms of rules 24 and 32(1) of the Rules, lodged a notice of change of advocate. In the absence of the notice, he forcefully argued, Mr. Edward Peter Chuwa lacked locus stdndi to draft documents, lodge them in Court and also enter appearance to prosecute the appeal for and on behalf of the appellant. Vigorously submitting, Dr. Murungu invited the Court to appreciate that Rules 24 and 32(1) of the Rules are couched in mandatory terms making compliance non- optional. He insisted that the Rules are not there as cosmetics but must be respected as was held in the case of Mondorosi Village Council and Two Others vs Tanzania Breweries Limited and Four Others, Civil Appeal No. 66 of 2017 (unreported). Relying on the Court's unreported decisions in National Housing Corporation and Two Others vs Kevin Lee (the administrator of the estate of late Jing Lang li), Civil Appeal No. I l l of 2022, CRDB Bank PLC vs Symbion Power (T) Limited, Civil Application No. 496/16 of 2022, Sabena Technic Dar Limited vs Michael J. Luwunzu, Civil Application No. 184/18 of 2022, Edson Oswald Mbogoro vs Dr. Emanuel John Nchimbi and Another, Civil Appeal No. 140 of 2006, Araf

Ally Sykes vs Abraham Sykes, Civil Application No. 741/17 of 2022 and Beatrice Mbilinyi vs Ahmed Mabkhut Shabiby, Civil Application No. 475/01 of 2020, Dr. Murungu urged the Court to find the omission to lodge a notice of change of advocate to be fatal and strike out the appeal. In response, Mr. Chuwa was Quite brief. He dismissed the objection as unmerited submitting that there was substantially no change of advocate in this appeal hence the notice of change of advocate was unnecessary. His contention was that an application for copy of requisite documents for appeal and lodging of a notice of appeal does not initiate an appeal in terms of Rule 90(1) of the Rules which expressly states that an appeal is instituted by lodging a memorandum of appeal. He being the one who lodged the memorandum of appeal and indicated in the record of appeal his address for service in compliance with the provisions of Rule 96(1) of the Rules, is the advocate properly representing the appellant in this appeal. It was his view that the cited Rules 24 and 32(1) of the Rules apply after an appeal is lodged if there is change of advocate from the one who lodged it. In concluding his arguments, Mr. Chuwa submitted that an intending appellant is not supposed to bind himself to a certain advocate as that will be against the spirit embraced under Article 13(6)(a) of the Constitution of the Unite Republic of

Tanzania which gives a party a right to be heard and to be represented by an advocate. In that sense, he argued that the appellant was not bound to use the services of Mr. Msafiri who requested from the Registrar of the High Court the appeal documents. He distinguished the cases cited by Dr. Murungu as having no relevance to the present situation. For instance, he said, in the case of National Housing Corporation and Two Others vs Kevin Lee's Case (supra), Mr. Ignas Laswai, learned advocate, did not file the record of appeal and he just emerged at the hearing before the Court saying he was representing one of the parties and he undertook the responsibility to file notice of change of advocate which he did not. More so, he added, the appeal was struck out for being time barred which was the point of objection before the Court in that case. For Sabena Technic Dar Limited vs Michael J. Luwunzu's case (supra), he submitted that it was an application to restore an appeal. The advocate who appeared was not on record and the Deputy Registrar served the previous advocate. The discussion was not that the appeal was incompetent. He distinguished it with the instant one because they are advocates on record. He also distinguished the case of Edson Oswald Mbogoro vs Dr. Emanuel John Nchimbi and Another (supra) because it concerned appearance of an incompetent advocate while he is a competent advocate. Contrary to what Dr. Murungu

argued, Mr. Chuwa argued that Beatrice Mbilinyi vs Ahmed Mabkhut Shabiby's case is at their favour as it insisted that appearance in Court should be by an advocate on record hence as they are the ones on record, their appearance is proper. Lastly, he implored the Court to find the appeal is properly before the Court and the objection be overruled with costs. Dr. Murungu made a brief rejoinder mostly reiterating his earlier submission. He contended that Mr. Chuwa's submissions in respect of Rule 96 are irrelevant as the point of objection is founded on Rules 24 and 32(1) of the Rules. He insisted that address of service in the record of appeal is the address indicated in the notice of appeal which is that of Mr. Dennis Msafiri hence Mr. Chuwa is not known in the record of appeal. As for the cases he referred the Court to, he argued that they are relevant and are in favour of the respondent. He was not ready to accept that a right to a legal representation does override compliance with procedural rules, a position well-articulated in the case of Mondorosi Village Council and Two Others vs Tanzania Breweries Limited and Four Others (supra). He concluded by arguing that even the Constitution recognizes existence of other laws in the administration of justice. As regards institution of an appeal, he i

was firm that it is the letter requesting for appeal documents which institutes an appeal not compliance with Rule 96 of the Rules. We, in the first place, genuinely and heartily appreciate the learned counsel efforts and arguments on the point of objection. It is common knowledge and actually Mr. Chuwa did not dispute that where there is change of advocate and therefore change of address for service, lodging a notice in Court to that effect by the party effecting the change or the advocate taking over the proceedings is governed by Rules 24 and 32(1) of the Rules. We shall therefore begin our discourse by quoting in their completeness the relevant provisions for ease reference as hereunder: " 2 4 . A person who has given an address for service may at any time change his address for service by lodging a notice of such change in the appropriate registry and serving copies o f it on aii persons who have been served with the previous address. 32-(l) Where any party to an application or appeai changes his advocate or, having been represented by an advocate, decides to act in person or, having acted in person engages an advocate, he shall, as soon as practicable, lodge with the Registrar notice o f change and shall

se/ve a copy o f the notice on the other party appearing in person or separately represented, as the case may be. (2) Upon receiving notification o f change o f an advocate, the Registrar shall record the changes accordingly and bring it to the attention o f the Presiding Justice. "(Emphasis added) Given a sober interpretation, the bolded portion of Rule 32 seems to be very clear and requiring no more explanation than that we gave in the case of CRDB Bank PLC vs Symbion Power (T) Limited (supra) cited and supplied to us by Dr. Murungu that: "The above provisions, presuppose that the respective party in an application or appeal was initially being represented by another advocate or that he was appearing in person and that he is now intending to engage an advocate. The application or appeal therefore, must be before the Court. We hold this view because, the rule talks o f a party to an application or appeal who decides to act in person, or having acted in person engages an advocate." We have read tine cases cited by D r. Murungu and satisfied ourselves that in neither of them, the omission to lodge the notice of change of advocate was held to be fatal and able to deny a party a right to be represented in Court or defeats an

appeal. In the light of the above, D r. Murungu's contention automatically lacks legs to stand on and is defeated by own cited cases as M r. Chuwa had contended. All that M r. Dennis Msafiri did like requesting for appeal documents and lodging the notice of appeal were done before the appeal was instituted in Court hence, he could not, in terms of the above rule, be taken to have been the appellant's advocate as rightly argued by M r. Chuwa. The two Rules would only apply in the event the appellant wanted to engage another advocate other than M r. Chuwa or opted to personally prosecute the appeal instead of being represented by M r. Chuwa as an advocate. There has also been a contention regarding when an appeal is instituted. It is notable that the provisions of Rule 90 (1) of the Rules makes it mandatory for the intending appellant to lodge a record of appeal as well as memorandum of appeal within sixty days of filing of the notice of appeal. The relevant part of the Rule provides: "90.(1) Subject to the provisions o f rule 128, an appeal shall he instituted by lodging in the appropriate registry, within sixty days o f the date when the notice o f appeal was lodged with- (a) A memorandum o f appeal in quintuplicate; 10

(b) The record o f appeal in quintupiicate; (c) Security for costs o f the appeai," In the light of the above, a notice of appeal is lodged first and an appeal follows after sixty days. A notice of appeal does not therefore institute an appeal. Dr. Murungi's contention therefore crumbles and we hold that all that Mr. Dennis Msafiri did, did not institute an appeal and the parties herein were yet to be parties to the appeal so as to be bound by the requirements of Rules 24 and 32(1) of the Rules. Another point to note is the objective intended to be saved by Rules 24 and 32 of the Rules. The notice of change of advocate is primarily intended to save the purpose of letting the Court know a party's address for service, that is, whom the service should be directed, whether to the party himself or to the advocate representing him after having parted ways with the former advocate. The notice of change of advocate is served on the Registrar of the Court and the presiding Judge only. Copies of the notice are served on the other party or advocate of the other party for the same purpose. It is true that Rules of the Court must be obeyed, a position we pronounced in Mondorosi Village Council and Two Others vs Tanzania Breweries Limited and Four Others (supra), but in this particular case, the omission

to lodge the notice of change of advocate is, in the circumstances, not prejudicial to the other party hence it not fatal to the extent of defeating one's right to have legal representation or defeating the appeal as Dr. Murungu appears to convince us to hold. The above said, we dismiss the point of objection raised by the respondent and we hereby proceed to consider the merit of the appeal. Although the appellant admitted signing the memorandum of understanding (the JVA) in paragraph 5 of his written statement of defence, the rest of the respondent's claims were stoutly disputed and invited the High Court to find the suit unmerited and dismiss it with costs. After hearing the parties and their respective witnesses, the trial court found for the respondent granting several reliefs that:

1. An order for specific performance requiring the defendant to perform the terms and conditions outlined in the joint venture agreement dated 1st Aprii 2020 between the plaintiff and defendant is hereby issued,

2. That, the plaintiff has the right to collect rental fees o f a room measuring twelve meters by nine meters on Plot No 20 Block 24 on Certificate o f Title No. 35964 Land Office No. 11855 in Kariakoo Dar es Salaam (plot) as per clause o f the joint venture lease agreement 12

3. That, the plaintiff is entitled to payment o f arrears o f rent to the tune o f Tanzania Shillings Seven Million o f the room measuring 12 X 9 meters which remains unpaid from the date o f existing lease agreement

4. That, the defendant should give vacant possession o f the room measuring 12 x 9 meters on the suit plot.

5. That, the defendant shall bear the costs o f this suit The decision by the learned Judge aggrieved the appellant and has challenged it by way of a memorandum of appeal comprising nine (9) grounds of complaint. However, at the hearing of the appeal, the parties burnt a lot of fuel arguing about the respondent's failure to implead Mosi in the suit who was party in the agreements which are core in the dispute between the parties. This is the gist of ground two (2) of appeal which is couched thus: "2, That, the suit before the High Court was futile for failure to impiead the necessary party namely Eunice Issack Siwa Mosi." Before the Court, Mr. Chuwa, learned counsel representing the appellant who was also present in court, took as a serious issue that looking at the role played by Mosi it could not be avoided to implead her as a party in the suit. 13

Dr. Murungu did not come out clearly to dispute that Mosi is pivotal on what transpired leading to the institution of the suit. But he firmly disagreed with Mr. Chuwa that she was a necessary party because the respondent had nothing to claim from her as she paid him TZS 100 Million hence no need to implead her. There was no issue touching on her and the decision did not give her any right or duty. He aiso argued that reliefs bind parties to the case. In supporting his assertion that the respondent had no any claim against Mosi, he relied on the case Simon Mugejwa and Another vs Ibrahim Magembe, Civil appeal No. 123 of 2020 (unreported) at pages 28 and 29. Having heard the rival arguments by the respective parties' learned counsel, we have passionately weighed their views and we propose to start our discussion on this complaint which we consider to be decisive of the appeal as raised by Mr. Chuwa by culling from the plaint about the part played by Mosi in the transactions which lead to the institution of the suit and subsequently the instant appeal. Paragraphs 3, 4 and 5 of the plaint explain the chronology of events, in sufficient details, which is actually the essence of the dispute in these words: 14

” 3. That the cause o f action arose on J d June 2021 when the plaintiff demand notice to the defendant was not answered after the lapse o f the days stated therein which required him to specifically perform his obligation under a joint venture agreement dated 1st April 2020 involving a landed property located at Plot 24 Block 20 on Certificate o f Title No. 35964 Land Office number 118355 in Kariakoo Dar es Salaam Region, ; hence a breach o f the joint venture agreement 4. That in 11th May 2006 the piainyiff entered into a joint venture agreement with one EUNICE ISAAC SIWA MOSI who was an administrator o f the estate o f ISAAC SIWA MOSI who was the owner o f Plot 24 on Certificate o f Title Number 35964 Land Office number 118355 in Kariakoo Dar es Salaam Region. In the said agreement the plaintiff was to construct business apartment on the said plot, collect rent thereof. On 31st December 2017 the plaintiff and one EUNICE ISAAC VEHAELI SIWA MOSI) an administrator o f the estate o f the late ISAAC VEHAEL SIWA MOSI) made an addendum to their initial contract dated 11th May 2006 and extended the tenure for rental collection for a period o f five years. A copy o f the construction agreement and addendum thereof are attached hereunder and is collectively marked as Annex AEL —1 15

leave o f the court is craved for it to form part o f this plaint. 5. That on 2020 EUNICE VEHAEL SIWA MOSI (LEGAL REPRESENTA TIVE OF THE ESTA TE OF ISAAC VEHAEL SIWA MOSI) together with all the legal heirs o f the estate o f the late ISAAC VAHAGI SIWA agreed to sale the said property. Konwing that they had entered into a contract with Rev. AMANI ELEIFATIO LYIMO who they hadjoint venture with and the tenure o f had not expired that they should enter into a memorandum with the prospective buyer to secure his interests on the remaining period o f thejoint venture agreement" These averments are explicably consistent with the contents of JVA, the MOU and Mosi's testimony in court. Even though the claims by the respondent were disputed by the appellant in paragraphs 4 and 5 of the written statement of defence (the WSD), yet existence of joint venture agreement (JVA) and the memorandum of understanding (MOU) was not disputed. The bottom line of the appellant's position is that he is seeking a declaration of title to the suit land, exclusive of any other person. He is accordingly unequivocally disputing the claim of any right or interest by the respondent in the suit property basing on the JVA and MOU of 1s t April, 2020. 16

A reading of the pleadings by the parties to which they are legally bound, and the said JVA and MOU makes it clear that had it not been for the existence of JVA and the addendum to their initial contract dated 11th May 2006 which extended the tenure for rental collection for a period of five years between Mosi and the respondent, the issue of the appellant being required to ensure the interests of the respondent are considered in the building to be built by the appellant, then prospective buyer, the dispute between the parties before the High Court, would not arise. The suit land vested on her in her capacity as administrator of the estate of the late Isaac Vehael Siwa Mosi and the respondent's interests sought to be saved/secured and maintained on the suit land by the appellant arose from her extension of rental collection period for the unexpired period or term as reflected in the MOU. Definitely, if such interests fail as against the appellant, the administrator of the estate (Mosi) would be responsible for the same. So, it is not right to say, as Dr. Murungu thought, the respondent had no claims against Mosi. Mosi, therefore, qualified, passed and met the two benchmarks for a particular party to be a necessary party, that is; first, there has to be a right of relief against such a party to the proceedings in respect of the matters involved in the suit and; second, the court must not be in a position to pass an effective decree in the absence of such a party, which tests were adopted from India 17

in Abdullatif Mohamed Hamis vs Mehboob Yusuf Osman and Another, Civil Revision No. 6 of 2017 (unreported) in which, after an acknowledgment that in our CPC there is no definite test to be applied, the Court gave this guidance: 'We, in turn , fully adopt the two tests and thus, on a parity o f reasoning; a necessary party is one whose presence is indispensable to the constitution o f a suit and in whose absence no effective decree or order can be passed. Thus, the determination as to who is a necessary party to a suit would vary from a case to case depending upon the facts and circumstances o f each particular case. Among the relevant factors for such determination include the particulars o f the non joined party, the nature o f relief claimed as well as whether or not, in the absence o f the party, an executable decree may be passed." On the same breath, the alleged breach by the respondent (then plaintiff before the High Court) of the joint venture agreement (JVA) and the alleged interests by the respondent on the plot which is a subject of this appeal would better be explained by Mosi. Her name features prominently in both agreements (JVA and MOU) resulting in the dispute between the parties. 18

On those facts, much as we acknowledge that the right to choose who to sue lay with a party suing, as rightly argued by Mr. Chuwa, it is evident that the learned Judge, on the facts placed before him in the pleadings, ought to have realized that Eunice Isaac Vehaeli Siwa Mosi in her capacity as an administrator of the estate of the late Isaac Vehael Siwa Mosi, was and we hold too without any lurking inhibitions was and remains a necessary party in the suit in terms of Orderl Rulel0(2) of the CPC so as to avoid multiplicity of suits. Her presence was necessary for the effectual and conclusive determination of the suit. We hold because the circumstances herein fall squarely in the purview of Rule 10(2) of Order 1 of the CPC which provides: "(2) The court may at any stage o f the proceedings, either upon or without application o f either party, and on such terms as may appear to the court to be just, order that the name o f any party improperly joined, whether as plaintiff or defendant be struck out, and that the name o f any person who ought to have been joined, whether as plaintiff o f defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. "(Emphasis added) 19

Being called as a witness, as was done in this case, is not what is envisaged by the law. If true, liability of the appellant depended on the detailed explanation by Mosi of the nature of the agreements entered in relation to the condition of development on the disputed land by the appellant attached in the MOU. Otherwise, the performance of the terms and conditions of the JVA between her and the respondent would have a binding effect on her being a party to it. She being a merewitness, would not be bound by the court decision as settled law is that court orders and decisions bind only parties to the case only (see Jacqueline Jonathan Mkonyi and Another vs Gausal Properties Limited, Civil Appeal No. 311 of 2020) (unreported). What is the effect of misjoinder or non-joinder of Mosi, a necessary party in the instant matter, and the way forward are two immediate questions begging for answers. We are alive of the legal position as set forth under Rule 9 of Order 1 of the CPC that no suit shall be defeated by reason of misjoinder or non-joinder of parties in a suit. Thepractice is that, where the suit is at its preliminary stages, an order, either suo motu or upon the parties move, to amend the pleadings may be made by the trial court in terms of Rule 10(2) of Order 1 of the CPC. At the preliminary stage, as a

matter of reiteration, settled law is to the effect that once it is discovered that a necessary party has not been joined in the suit and neither party, was ready to apply to have him added as a party, the court has a separate and independent duty from the parties to have him added. Unfortunately, that opportunity has long gone. For the foregoing reason, we see no reason to delve into other grounds of appeal. We, at the end, allow the appeal. The procedural lapse being of a serious nature and which might have bred injustice, the only available option is to exercise our revisional mandate under section 4(2) of the Appellate Jurisdiction Act, Cap. 141 of our Revised Laws to nullify the proceedings from the stage immediately after the filing of the pleadings was completed and before framing the issues, the judgement and orders consequential thereof and we hereby direct the record be remitted to the High Court for it to either suo motu order or allow the respondent to move the court for an amendment of the plaint so as to suit the requirement of the law as stated above by impleading Eunice Isaac Vehaeli Siwa Mosi in her capacity as administrator of the estate of the late Isaac Vehael Siwa Mosi and then proceed to hear and determine the suit. 21

Given the circumstances of the case, we order each party to bears its own costs in both the point of preliminary objection and the appeal. DATED at DODOMA this 22n d day of August, 2025. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 27th day of August, 2025 in the presence of Mr. Edward Chuwa, learned counsel for the Appellant and Mr. Benard Massimba, learned counsel for the Respondent via virtual Court; is hereby certified as a true copy of the original. 22