Hassan Ally Warsama (as administrator of the estate of the late Ally Warsama) vs Haybe Ahmed Dudeh (as administrator of the estate of the late Ahmed Haji Mohamed) (Civil Appeal No. 518 of 2020) [2024] TZCA 1193 (26 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWARIJA, J.A, LEVIRA, 3.A. And MASOUD. J J U CIVIL APPEAL NO. 518 OF 2020 MR. HASSAN ALLY WARSAMA (As Administrator of the Estate of the late ALLY WARSAMA) ....... . .............. . ..... . ............ APPELLANT VERSUS MR. HAYBE AHMED DUDEH (As Administrator of the Estate of the late AHMED HAJI MOHAMED)............................RESPONDENT (Appeal from the decisions of the High Court of Tanzania at Arusha) (Gwae, dated the 19th day of May, 2020 in Land Case No. 11 of 2017 RULING OF THE COURT 26th November & 4th December, 2024 LEVIRA, J.A.: This ruling is in respect of a legal point on non-joinder of a party to the suit raised in terms of Rule 113 (1) of the Tanzania Court of Appeal Rules, 2009 by Mr. Elvaison E. Maro, learned advocate for the appellant at the hearing of the appeal. According to him, the dispute between the parties in the matter at hand is in respect of ownership of a Registered Land (Farm No. 4 Title No. 13556. L. O. No. 14176, Essimingor, Masai District, Arusha Region); as it can be observed in the plaint and counterclaim, at pages 7- i

10 and, 30 and 43 of the record of appeal, respectively. Nevertheless, he added, the Registrar of Titles and the Attorney General were not made parties to the suit and the proceedings of the High Court of Tanzania, at Arusha in Land Case No. 11 of 2017, subject of the present appeal. As a result, the said proceedings were irregular. He referred us to the above respective paragraphs of the plaint and counterclaim in order to substantiate his assertion. For clarity, we find it apposite to reproduce them hereunder, starting with paragraphs 3, 5, and 7 of the plaint where the respondent (Plaintiff) claimed as follows: "3. THAT, the plaintiffas the duly appointed administrator of the estate of the late Ahmed Haji Mohameo\ is inter alia claiming redress against the defendant by way of declaratory orders and general damages, following the defendant's illegal and unlawful acts of denying the plaintiff from receiving an equal share of the proceeds derived from Farm No. 4, Title No. 13556, L. O. No. 14176y Essimingor, Masai District, Arusha Region and the defendant's unfounded claim that the entire property registered as Farm No. 4 Title No. 13556\ L .0. No. 14176, Essimingor, Masai District, Arusha Region belongs to the estate of AH Warsama (deceased) only. 5. THAT, the parcel of land registered as Farm No. 4 Title 13556, LO. No. 14176, Essimingor, Masai District, Arusha Region has an estimate total value of about 2

Tanzania Shillings Two Hundred Million (200,000,000/=) and ownership of Fifty Percent (50%) of the legal interest in the same is registered in the name of the late Aii Warsama whilst the other Fifty Percent (50%) was acquired for consideration and is registered in the name of Ahmed Haji Mohamed (Deceased) on the 5th day of M a y 1993 at 8:00 AM and thus V 2 (50%) ownership interest of the said property forms part and parcel of the legal estate of the late Ahmed Haji Mohamed and the family members of the late Ahmed Haji Mohamed have been residing on the said farm alongside the family member of the late Aii Warsama ; copies of the search results and Certificates of Titie for Farm No. 4, Essimingor, Masai District ; Title No. 13556, L O. No. 14176, Monduli District, Arusha Region are collectively annexed hereto as EXHIBIT T2. 7. THA T, the defendant has demonstrated such acts as if V 2 share (50% ownership) of Farm No. 4, Title No. 13556, L. 0 .14176, Essimingor, Masai District, Arusha Region was not sold and transferred for consideration to Ahmed Haji Mohamed (Deceased) on the 5th day of May, 1993 since the defendant and the heir of late Aii Warsama have been deriving absolute gain from all the proceeds from the sale of gravel that has been extracted from the suit land with an estimated value Tanzania Shillings One Hundred Million (TZS 100,000,000/=) and such acts are occasioning a great loss and damage to the

legal estate of the late Ahmed Hajl Mohamed (Deceased) of which, the plaintiff has the duty to distribute to his heirs and beneficiaries. An act which I have been unable to perform due to the acts of the defendant herein." [Emphasis added]. Mr. Maro went on to submit that, among the reliefs sought in the plaint includes, a declaration that the heirs and beneficiaries of the late Ahmed Haji Mohamed have a 50% ownership interest in the suit land. In cementing his argument that the land in dispute is registered, he further made reference to page 30 of the record of appeal where the substance of the plaint was opposed by the appellant by a notice as to the legal ownership of Farm No. 4, Essimingor, Masai District of 10th February, 2017. On top of that, he said, in his Written Statement of Defence (WSD) found from page 37 through 44 of the record of appeal, the appellant raised a counterclaim seeking a declaration that, the purported transfer of half share in Farm No. 4 comprised in Certificate of Title No. 13556 is a nullity and the same be nullified; and, for an order deleting the memorial in the Land Register; to wit, file document number 6678 which had registered acquisition of the purported half share by the late Ahmed Haji Mohamed on the 5th day of May, 1993. The counter claimer stated in paragraph 16 of the WSD that, in the year 1993 the late Ahmed Haji Mohamed collusively, illegally and fraudulently purported to acquire half share in the suit land. 4

In the circumstances, Mr. Maro firmly submitted that the registration of half share of the farm in dispute was the central issue. Therefore, the Registrar of Titles ought to have been made a party to the suit before the High Court. In support of his argument, he cited the following cases: Nestory Msoffe and 5 Others v. The Registered Trustees of Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019 [2024] TZCA 536 (10 July 2024, TANZLII); Ngerengere Estate Company Ltd v. Edna William Sitta, Civil Appeal No. 209 of 2016 [2019] TZCA 137 (8 April 2019, TANZLII) and Serengeti Breweries Ltd v. Bahati Balthazar Malisa, Civil Appeal No. 356 of 2022 [2023] TZCA 17967 (14 December 2023, TANZLII]. In addition, Mr. Maro brought to our attention that although the Registrar of Titles was not joined as a party to the suit, a witness from his office one Emmanuel Stephen Gwaltu (PW5) was called to testify as it can be seen at page 161 of the record of appeal. However, he said, this witness was called at the convenience of the defendant (the appellant herein) with a view of filling the evidential gap in the suit and that is why he did not give evidence regarding the title over the farm in dispute. Instead, he gave evidence regarding another title and his evidence did not mitigate the non joinder of the Registrar of Titles in the suit.

Finally, Mr. Maro urged us to find that the proceedings at the High Court were a nullity for non-joinder of the Registrar of Titles and nullify them. Having considered the circumstances of this matter, Mr. Maro opted not to pray for costs. In reply, Mr. Kimaro, learned advocate who appeared for the respondent conceded to the submission by the counsel for the appellant save for the cited cases. According to him, all the cases cited by Mr. Maro insisted on the fundamental right to be heard which is not the case in the present matter. He argued that PW5 who was from the office of the Registrar of Titles testified at the trial on behalf of the Registrar of Titles and in that way the right to be heard was observed. He went on to submit that, he is aware that in terms of Order I Rule 9 of the Civil Procedure Code, Cap 33 (the CPC) non joinder of a party does not defeat a suit. However, it was his contention that since PW5 did not state anything regarding the disputed farm, the prayer made by the counsel for the appellant was proper. He urged us to exercise our revisional powers to nullify the proceedings and quash the judgment of the High Court and order for a retrial. Mr. Maro had no rejoinder to make. We have carefully considered the submission by the counsel for the parties and the entire record of appeal. It is apparent from the record that the farm in dispute (Farm No. 4, Title No. 13556, L.O. 14176 Essimingor, 6

Masai District, Arusha Region) is a registered land. This fact was demonstrated in the above quoted paragraphs of the plaint, the WSD and the counterclaim. The record of appeal is also clear that, the dispute between the parties herein was on the ownership of the said farm. It is common knowledge that registration of land is normally done by the Registrar of Titles who is appointed in terms of section 4 of the Land Registration Act, Cap 334 (the LRA). In the matter at hand, there is no dispute between the parties regarding the registration of the farm in dispute. Nonetheless, while the respondent, at paragraph 3 of the plaint, claimed that the registered farm in dispute was not the sole property of late Ali Warsama (the deceased), the appellant sought a declaratory order that the transfer of the half share of the farm in dispute was a nullity because the same was jointly owned by the families of the lates Ali Warsama and Ahmed Haji Mohamed. Therefore, in the circumstances, the issue for our determination is whether failure to join the Registrar of Titles in the suit between the parties herein invalidated the proceedings of the High Court. The answer to the issue we have raised is not farfetched. Order 1 Rule 10 (2) of the CPC put an obligation upon the trial court to order a necessary party, who is not made a party to a suit, to be joined in the suit with a view of enabling it to effectively and completely adjudicate upon and settle all the questions involved in the suit. For ease of reference, the provision reads:

"10 (2) The court may, at any stage of the proceedings, either upon or without the application of 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 of 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 effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added." [Emphasis added] From the above provision, the question as to how the court should know whether a certain person is a necessary party, can easily be answered through the pleadings, like in the present case, or submissions by the parties to the court. As rightly submitted by Mr. Maro, the pleadings presented before the High Court were very clear that the land in dispute is a registered farm. In the circumstances, it is common ground that determination of any dispute regarding ownership of such land could not be complete without the presence of the Registrar of Titles who registered the same, as a party to the suit. In our considered view, failure to join the Registrar of Titles in the suit before the High Court rendered the proceedings a nullity and occasioned miscarriage of justice. We thus, agree with the counsel for the parties that the proper cause for us to take, as we accordingly do, is to nullify the 8

proceedings and quash the judgment of the High Court in Land Case No. 11 of 2017. We direct the case file to be placed before the High Court for a trial after joining the Registrar of Titles and the Attorney General as parties in compliance with Order 1, Rule 10 (2) of the CPC. Having considered the circumstances of this matter, we make no order as to costs. DATED at ARUSHA this 4th day of December, 2024. A. G. MWARIJA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Ruling delivered this 4th day of December, 2024 in the presence of Mr. Thomas Kessy, holding brief for Mr. Elvaison Maro, learned counsel for the Appellant and Ms. Anna Ngoty, holding brief for Mr. Ombeni Kimaro, learned counsel for the Respondent, is hereby certified as a true copy of the