Haruna Shamte vs Saleh Ally Salum & Another (Civil Appeal No. 274 of 2023) [2025] TZCA 834 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWARI3A. 3.A.. MLACHA. 3.A. AND ISMAIL. 3J U CIVIL APPEAL NO. 274 OF 2023 HARUNA SHAMTE (Administrator of the Estate of the late Mohamed Shamty)................................... . APPELLANT VERSUS SALEH ALLY SALUM ........................... .......................... 1 st RESPONDENT HADI3A MOHAMED .......................................... ............2 nd RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mwanza) (Kahyoza, 3) dated 28th day of November, 2022 in Land Case No. 11 of 2021 RULING OF THE COURT 4th & 7th August, 2025 ISMAIL, 3.A.: Haruna Shamte, the appellant herein, is an administrator of the estate of the late Mohamed Shamty who died intestate. Part of the estate he was appointed to administer is a house (suit property) standing on Plot No. 71 Block M, Rufiji Street in Mwanza City, which has been embroiled in a dispute that pitted the appellant against the respondents. i

The allegation levelled by the appellant is that, sale of the suit property to the 1s t respondent, allegedly done by the 2n d respondent and her other colleagues, was shrouded in fraud as the purported sellers did not have any colour of right to do so. The appellant alleged, to the trial court's concurrence, that, being part of the estate of the deceased, any alienation of the suit property would only be done by a personal legal representative of the deceased who, in this case, was none other than the appellant and not the 2n d respondent, whose appointment as an administratrix of the estate was obtained through lies and deceptions, hence its revocation by the High Court. While the trial court was convinced that the purported disposition was fraudulent and therefore illegal, it resisted the appellant's invitation to nullify it. The 1s t appellant was declared a bonafide purchaser for value. In the end, it dismissed the suit and validated the 1s t appellant's ownership and occupation of the suit property. The trial court's decision did not sit well with the appellant. He instituted the instant appeal, raising two grounds of appeal. In view of what will unfold in the course of this decision, we find no reason to reproduce the substance of the grounds of appeal. 2

When the matter came for hearing before us, Messrs. Innocent Michael and Deocles Rutahindurwa, learned advocates, represented the appellant and the respondents, respectively. After the counsel's expression of their readiness to proceed with the hearing, we invited them to address us on the competence of the appeal and the trial proceedings which did not implead some parties. Particular attention was drawn to the non-inclusion of other sellers who, alongside the 2n drespondent, disposed of the suit property to the 1s t respondent. We also implored them to address us on whether the omitted parties were necessary parties to the suit. Mr. Michael who addressed us first was initially of the contention that, need did not arise for having other sellers brought on board. He changed his stance after a brief dialogue with the Court. He conceded that, absence of the rest of the sellers had the impact of determining issues that are potentially adverse or impactful to them without affording them a hearing. He admitted, as well, that the omitted sellers were, as far as this matter is concerned, necessary parties whose participation in the suit was imperative. While admitting that, the proceedings which did not factor them in were flawed, he implored us to nullify the proceedings, 3

quash and set aside the trial court's decision and allow the appellant to rectify the anomaly. Mr. Rutahindurwa, for the respondents, was in support of the position taken by his counterpart on the flaw pointed out in the trial proceedings. He did not have any qualms about the prayer made by his colleague to get the proceedings and the impugned decision out of the way. We are called upon to determine if the trial proceedings suffer from non-joinder of parties and, if so, whether the trial proceedings are defective. While the parties who commence court proceedings enjoy the latitude of choosing whomsoever they wish to implead as a party in the proceedings, such freedom is not unguided. This means that, the question of who may be joined as a party to the suit is not a matter that is entirely left in the hands of the persons who institute the proceedings in court. It is a matter that is guided by law. Parties who institute suits in court are enjoined to ensure that they leave no stone unturned when it comes to the choice of those they implead as parties. The law that guides this aspect is Order 1 and Rule 10 (2) of the Civil Procedure Code (CPC). This 4

provision caters for matters relating to joinder of parties to a suit. For ease of reference, the said provision stipulates as hereunder: "The court may, at any stage o f the proceedings, either upon or without the application o f either party and on such terms as may appear to the court to be just, order that the name of 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 or 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." This statutory prescription was emphasized by the Court in Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Application No. 136 of 2006 (unreported) wherein we emphasized on the applicability of the cited provision and held as follows: "Under this rule, a person maybe addedas a party to a suit (i) when he ought to have beenpinedas plaintiff or defendant and is notjoined so; or (ii) when without his presence, the questions in the suit cannot be completely decided ." 5

The architecture of the cited provision brings out a clear message that, while joinder of the parties is to be done by either of the parties to a suit, the trial court may also intervene and order a joinder even without an application from either of the parties - see: Tanga Distributors Ltd v. Mohamed Salim Said & 2 Others, Civil Revision No. 6 of 2011; NUTA Press Limited v. MAC Holdings & Another, Civil Appeal No. 80 of 2007 (both unreported); and Tanzania Commercial Bank PLC & Another v. Newton Pambeya Mwaupina Kyando, Civil Appeal No. 168 of 2022 [2025] TZCA 676. What we discern and have underscored in our numerous decisions is that all necessary parties to a suit must be given a chance to participate in the proceedings. On who is a necessary party, a litany of court decisions, local and foreign, have provided an invaluable guidance. See for instance - Amon v. Raphael Tuck & Sons [1956] 1 All E.R. 273; and Abdullatif Mohamed Hamis v. Mehboob Yusuf Osman & Another, Civil Revision No. 6 of 2017 [2018] TZCA 25. In the latter, the Court was inspired by the Supreme Court of India in the case of Baranes Bank Ltd v. Bhagwandas, A.I.R. (1947) All. 18, and held follows: "... a necessary party is one whose presence is indispensable to the constitution of 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 on the facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars of the non-joinder party, the nature or not, in the reliefclaimedas wellas whether or not, in the absence o f the party, an executable decree may be passed." We need to lay an emphasis that, the rationale behind this postulation is twofold. One, to enable courts to resolve matters placed before them in a manner that avoids any future litigation on the same issues. Two, to afford all parties, legally interested in a suit or whose rights are likely to be prejudiced by the outcome of the proceedings an opportunity to be heard and make their representations - see: The Attorney General & Another v. Dhirajilal Walji Ladwa & 4 Others, Civil Application No. 640/16 of 2023 [2023] TZCA 17828; and Kenyatta Drive Properties Limited & Another v. Yasmine Haji, Civil Appeal No. 441 of 2023 [2025] TZCA 705. This is what has become of the instant matter. Our review of the record of appeal reveals what both counsel have conceded to, in that, the persons who featured alongside the 2n d respondent as sellers were 7

necessary parties whose presence in the proceedings could not be dispensed with. Their conspicuous absence meant that the trial court could not fairly and conclusively determine the matter that was before it, or without violating their fundamental right to a fair hearing. This was a serious travesty, and we need not overstate that, the net effect of all this is to reduce the proceedings and the resultant decision to nothingness. Accentuating the consequence of the failure to join a necessary party, we held in Tanzania Commercial Bank PLC & Another(supra) as hereunder: "Thus, the omission on the joinder besides incapacitating the trial court to fairly and conclusively determine the suit to finality, it resulted into unheard condemnation which is in violation of the fundamental right to be heard which is embraced under article 13 (6) o f the Constitution of the United Republic of Tanzania." See also: National Housing Corporation v. Tanzania Shoe Company & Others [1995] T.L.R. 251. We, in the upshot, take the view that, the trial proceedings were roundly discrepant cannot be allowed to stand in the absence of the said necessary parties. As a way forward, we invoke revisional powers under 8

section 4 (2) of the Appellate Jurisdiction Act, Cap. 141, and quash and set aside the trial proceedings, ruling and drawn order of the trial court. We direct that, in case the appellant decides to commence fresh proceedings, then such proceedings should involve all persons who draw interest from the matter. We make no order as to costs. DATED at DODOMA this 7t hday of August, 2025. The Ruling delivered this 7t hday of August, 2025 in the presence of Mr. Innocent Michael, learned counsel for the Appellant and Mr. Paschal Joseph who took brief of Mr. Deocles Rutahindurwa, learned counsel for A. G. MWARDA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL the D y of the original.