African Animals (T) Limited vs Prisca Kimeme & Others (Civil Appeal No. 177 of 2022) [2025] TZCA 830 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KOROSSO, 3.A., MAKUNGU. 3.A.. And RUMANYIKA J.A.^ CIVIL APPEAL NO. 177 OF 2022 AFRICAN ANIMALS (T) LIMITED .............................................. APPELLANT VERSUS PRISCA KIMEME ................................................................... 1ST RESPONDENT DOROTH KIMEME..................................................................2 nd RESPONDENT GERALDINE KIMEM E............................................................ 3 rd RESPONDENT ROBINSON KIMEME..............................................................4™ RESPONDENT VERONICA KIM EM E...............................................................5 th RESPONDENT G. J. MAMBOLEO....................................................................6 th RESPONDENT MATILDA KIM EM E.................................................................7 th RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Mqonya J.) Dated the 19th day of March, 2021 in Civil Case No. 96 of 2013 RULING OF THE COURT 21st July & 7th August, 2025 KOROSSO. JA.: In this appeal, the center of contention is a farmland in Kisarawe with Title No. 47374 with L.O. No. 28222, L.O No. 159818, Farm No. 1326 located at Pugu Kajiungeni Area, Kisarawe District, Survey number 28222 covering 11.78 hectares. At the trial, paragraphs 3 and 4 of the amended plaint revealed that the appellant, African Animals (T) Limited (then, i

plaintiff) claims against the respondent were for an order for permanent injunction restraining them, their agents or any person deriving interest from them from interfering with peaceful occupation and use of all the parcel of land comprising 11.78 hectares and registered under Certificate of Title No. 47374 Farm No. 1326 located at Pugu Kajiungeni area within Ilala Municipality (suit land) which was for the purpose of agriculture, pastoral and commercial purposes. The appellant further claimed to be the registered owner of the suit land previously registered with Certificate of Title as of 22/6/1995 having purchased it from Gulam Abdulrasul Chakaar. The appellant's other claims included for declaratory orders to be pronounced as the rightful owner of the suit land and for the respondents to be declared trespassers and be ordered to vacate the suit land. The respondents resisted the claims by way of a joint written statement of defence averring that they had acquired the suit land through inheritance from their late father, one Patrick Tubuke Kimeme. They asserted that Patrick Tubuke Kimeme owned two thirds of 106 acres together with the late Nassoro Mohamed, who owned one third of it under Certificate of Title No. 15076, which was issued in 1957. 2

The appellant produced 10 witnesses to testify to prove his claims; David Zhorzholadze (PW1), Jumanne Samson Mwampashe (PW2), Akram Aziz Abudlrasul (PW3), Athumani Saidi Kitembo @Ndekela (PW4), Aloyce Benedict (PW5), Frank Charles (PW6), Laiton Dickson (PW7), Evans Peter Massawe (PW8), Verdiana Samwel Mushi EMA (PW9) and Salum Hyram Barabara (PW10). On the respondents' side, 3 witnesses testified; Prisca Patrick Kimeme (DW1), Waziri Masour Mganga (DW2) and Gregory John Mamboleo (DW3). Having heard witnesses from both sides, the trial court found that there was a need to have witnesses from the officer of the Commissioner for Lands and the Director of Mapping and Survey to assist it the determination of issues in contention, it proceeded to call two witnesses; Cornel Yuvent Ndimila (CW1), a Principal Survey Technician from the Directorate of Survey and Mapping, Ministry of Lands and Alex Kachoka (CW2), a Land Surveyor, Ministry of Lands. The trial court invited the two witnesses from the Ministry of Lands to testify to clarify on boundaries of the suit land for the parties and the validity of the Title Deeds held by the parties for the suit land. Having heard the evidence before it from the contending parties, the judgment of the trial court was in the respondents favour, convinced that the appellant failed to prove a better title to the suit land on the 3

balance of probabilities having relied on a Certificate of Title issued in 1998 and failed to show that there was revocation of the Certificate of Title claimed by the respondents to have been issued in 1957. The appellant was aggrieved and filed a memorandum of appeal premised on seven grounds, which paraphrased, essentially faults the trial court's decision based on the following five complaints: One, failure to properly analyze cogent evidence before it and provide reasons for rejecting or accepting any, and the fact that respondents did not provide any evidence that legally connected them to the suit land. Two, failure to give due consideration to the PW2's evidence, the land officer for Kisarawe particularly, on the implications of the operative Title Deed for the suit land. Three, not applying appropriate and applicable law to the facts of the case before it. Four, in holding that rights created under registered land can only be extinguished under the provisions of the Land Act, Cap 113 and ignoring what is provided in sections 15 and 16 of the Village Land Act, Cap 114. Five, not considering that the respondents admitted to having trespassed 11 acres of the suit land. On the day the appeal was called for hearing, Messrs. Heri Zuku and Raphael Lefi David, learned Advocates represented the appellant and respondents respectively.

Before the appeal hearing commenced in earnest, the parties were invited to address the Court on the following: One, whether the decree of the trial court can be executed in the absence of the Commissioner for Lands being one of the parties to the suit. Two, the import of the missing documents from the record of appeal, that included the record of the testimony of CW1 after the court visit to the locus in quo and the record of the proceedings of what transpired and three, whether the parties were in any way prejudiced by the infractions discerned. Mr. David submitted that taking into account of the wording of the impugned decree and the circumstances of the instant case, undoubtedly that decree cannot be executed. This is because it gives directions to the Commissioner for Lands who is not a party to the case subject to this appeal. In the circumstances, he urged us to find that the trial is vitiated. The learned counsel contended further that when the above anomaly is taken into account and the fact that part of the record of the evidence of CW1, which was relied upon by the trial court to reach its decision is missing in both the typed and original record, together with the proceedings of what transpired during the locus in quo visit, which was also considered in the impugned judgment, all vitiate the trial. He further stated that, being aware that the Court has in some cases expunged such 5

evidence, it will not be the best approach in the present case, since it was evidence which was relied by the trial court to arrive at the decision it made. Thus, expunging the same, will render the judgment erroneous. He thus prayed that we order a retrial since taking all the discerned irregularities in consideration, it will be what justice demands in the instant case. On the other part, Mr. David concurred with the learned counsel for the appellant that in the circumstances of the present appeal, non-joinder of the Commissioner for Lands and Registrar of Titles vitiates the trial since it will be impossible to execute the impugned decree. He however contended that ordering a retrial will not be the best way forward, urging the learned counsel for the appellant to withdraw the appeal and proceed to reorganize themselves and come back if they are so inclined to start the trial afresh. The learned counsel further informed the Court that he has noticed anomalies in the proceedings related to the testimonies of the court witnesses, including the fact that the evidence of CW1 seems not to have been finalized, as there is no record of there being any cross- examination and re-examination together with the missing record on the proceedings of what transpired when the trial visited the locus in quo. He thus urged us to nullify and quash the proceedings, set aside the 6

Judgment and orders of the trial court and then order for whoever is interested to refile claims. Having heard the counsel for the parties, we are constrained to restate the position of the law on non-joinder of parties. Order 1 rule 3 of the Civil Procedure Code, Cap 33 (the CPC) stipulates that where questions of fact or law may possibly arise in matters where reliefs are sought against defendants, all such defendants should be joined as parties. As such, Order 1 rule 10(2) of the CPC empowers a court to strike out any party improperly joined or to add a party whose presence is necessary for the effective adjudication of the suit. Suffice it to say, while aware that non-joinder or misjoinder of parties per Order, I rule 9 of the CPC does not in itself render the suit incompetent, we are similarly not oblivious that, for that to materialize the plaintiff must ensure his suit adheres to the forementioned CPC provisions to forestall any ineffectual decision or an array of suits that may be caused by a non-joinder or misjoinder of a necessary party. This position was emphasized by the Court in the case of Stanslaus Kalokola v. Tanzania Building Agency & Another, Civil Appeal No. 45 of 2018) [2019] TZCA 412 (6 November 2019) TANZLII, that: 7

"...there are non-joinders that may render a su it unm aintainable and those that do not affect the substance o f the matter, therefore inconsequential." Conversely, while aware that the term "necessary party" is not defined by section 3 of the CPC, Order I and Order II of the CPC expounds about the "parties to suit" and "framing of suit" respectively. Litigants are guided on factors to consider when deciding on who to sue in a dispute to pave way for its final determination and invariably to prevent further litigation on same concerns. On that account, undoubtedly, a party whose legal rights and interests are directly affected by the reliefs sought in a suit is a necessary party. Absence of a necessary party means that any orders the court may issue are at risk of being unenforceable and essentially ineffectual, since they will end up binding parties absent from presenting their cases themselves or clarifying the actions alleged to have occurred within the boundaries of their authority. It is trite law in light of the aforegoing, that the omission to join a necessary party in a suit is a fatal irregularity which renders the whole proceedings and the decision arising therefrom a nullity. See for instance, Abdulatif Mohamed Hamis v. Mahboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018; TANZLII) 8

and Gapco Tanzania Limited & Another v. Ramzan D. Walji Company Ltd (Civil Appeal No. 381 of 2020) [2024] TZCA 558 (15 July 2024; TANZLII). In the instant case, whether the Commissioner for Lands and the Registrar of Titles are necessary parties is a matter which the parties agree and even the trial court discussed this when determining the matter. The counsel for the parties contended that their absence as parties will primarily render difficult the execution of the impugned decree of the High Court. The trial court at page 529 of the record of appeal, while acknowledging that the Land Authorities were necessary parties to the suit, observed that since at the time she took over the trial, the appellant's last witness (PW10) was testifying which rendered it difficult to allow joinder of other necessary parties such as the Registrar of Titles and the Attorney General at that stage. We have also noted that the trial court, in its judgment, having found that the respondents were lawful owners of the suit land and declared the appellant a trespasser, in the third and fifth orders uncovered the importance of having joined the Land entities/authorities in the case. She stated: 9

"3. The Certificate o f Title issued to the P la in tiff in respect o f addition o f the su it land m easured a t 13,867square m eters equal to 3.2 acres was issued contrary to the law and hence requires rectification by the issuing authority: 5. Under the circum stances o f this case whereby both parties were allocated and registered land and finally issued Title Deeds by the Authorized Land entities, hence parties cannot be held responsible in fault and in the event where those authorities are not parties to the case each party to bear own costs." Clearly, as conceded by the counsel for the contending parties, the absence of the aforementioned necessary parties would render it difficult to execute the third order and further renders the trial vitiated since the trial ended with a lot of unanswered questions. The appellant failed to join those with the administrative and legal mandate to assert the rights of the contending parties as it relates to the suit land, and despite the trial Judge noting the anomaly, proceeding the matter to its conclusion with those anomalies, we find was respectfully erroneous under the circumstances and vitiated the trial. We find no urgent need to address the other concerns under the circumstances since this one is sufficient to dispose of the matter. 10

In view of the foregoing discussion, we agree with the counsel for the parties that under the circumstances, we invoke our revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap 141 and set aside the judgment of the trial court and quash the proceedings thereof. Subject to applicable laws, the appellant, if minded, is at liberty to institute a fresh suit joining the proper and necessary parties to afford a fair and effective determination of the case. We shall not, in the circumstances of this case, give any order as to costs. DATED at DAR ES SALAAM this 6th day of August, 2025. W. B. KOROSSO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Ruling delivered this 7th day of August, 2025 in the presence of Mr. Heri Zuku, learned counsel for the Appellant and Mr. Raphael Lefi David, learned counsel for the Respondent via Teleconferencing, is hereby certified W / 3.3. KAMALA yfePUTY REGISTRAR ' COURT OF APPEAL li