Melchiad Peter Kimaro vs Riziki Samuel (as administratix of the estate of the late Mama Hattasi) and Others (Civil Revision No. 5 of 2017) [2018] TZCA 949 (10 July 2018)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MBAROUKV ).A., NDIKA, iA. And MWAMBEGELE, J.A.) CIVIL REVISION NO. 5 OF 2017 II ELCI-IIAD PE1ER KIlIARO ........................................................ APPLICANT VERSUS RIZIKI SAMUEL (As Administratrix of 1 the Estate of the late Mama Hattasi) ABDUSAMAD SHARIF ATTASY RESPONDENTS THE ASSISTANT REGISTRAR OF TITLES MOSHI (Application for revision from the decision of the High Court of Tanzania at Moshi) (Mwingwa, ).) dated the 29th day of August, 2015 in Land Case No. 19 of 2014 RULING OFTHE COURT 4th & 12 th July, 2018 NDIKA, J.A.: These are revision proceedings by the Court acting on its own motion under section 4 (3) of the AppeUate Jurisdiction Act, Cap. 141 RE 2002 on the basis of a complaint received from Melchiad Peter Kimaro. The complaint relates to the judgment and decree of the High Court of Tanzania at Moshi in Land Case No. 19 of 2014 dated 29th August, 2015. The parties to the aforesaid suit were Riziki Samuel, acting as the Administratrix of the estate of the late Mama Rukia Hattasi, sued 1

Abdusamad Sharif Attasy and the Assistant Registrar of Titles Moshi. For the sake of convenience in this matter, the complainant herein is referred to as the applicant while Riziki Samuel, Abdusamad Sharif Attasy and the Assistant Registrar of Titles Moshi are, respectively, referred to as the first, second and third respondents. We find it essential, at the outset, to go into the background of this matter. As already indicated, the first respondent herein sued the second and third respondents, jointly and severally, in Land Case No. 19 of 2014 before the High Court of Tanzania at Moshi. Her suit was for several reliefs including: first, a declaration that the second respondent/first defendant herein had acted fraudulently in obtaining a certificate of title in his own name over landed property described as Plot No. 108, Block 'A', Longuo B, Moshi which belonged to the estate of the late Mama Rukia Hattasi. Secondly, a declaration that all actions and transactions made between the second respondent/first defendant herein and any third parties based on the fraud are all nufl and void and of no legal effect and that the second respondent/ first defendant alone be held responsible for such transactions. Thirdly, the first respondent/plaintiff be given vacant possession of the suit property by the second respondent/first defendant or whoever was given possession of the suit property by the second 2

respondent/first defendant. It should be noted that the plaint avers in Paragraph 18 that the third respondent was impleaded as the second defendant in the suit as a necessary party without any allegation of wrongdoing being made against her. It is evident from the record at page 34 that on 2nd December, 2014 when the matter came up for necessary orders before the trial court, Ms. Patricia Eric, the learned counsel for the first respondent/plaintiff notified the court that the third respondent/first defendant herein had been personally served with summons to file appear and file defence and that the second respondent had been duly served by way of publicatiOn in the Mwananchi newspaper as it had been ordered by the court. The learned counsel notified the court further that her client had already served a notice on the applicant herein who was then believed to have illegally purchased the suit property from the second respondent/first defendant. The said notice, dated 11th November 2014, is part of the record. To facilitate easy reference, we reproduce the relevant and operative part of the notice thus: "Meichiad Peter Kimaro P0 Box 8695, MOSHI. 3

BY REGISTERED POST Dear Sir, RE: NOTICE OF SUIT ON C.T. NO. 32998, PLOT 108, AREA A, LONGUO B, MOSHI PLEASE TAKE NOTICE that Riziki Samwel (As Administrator (sic) of the Estate of Mama Rukia Attasy, Deceased) is suing Abdulsamad Shariff Attassy and the Assistant Registrar of Titles, Moshi for fraudulently obtaining the above mentioned title in the name of Abdulsamad Shariff Attassy Copies of the Plaint and Caveat are hereto attached for your information and necessary action. Yours faithfully. PATRICIA ERIC ADVOCATE" As it turned out none of the defendants appeared or filed their respective statements of defence. In view of that, the trial court ordered the first respondent/plaintiff to prove her claims ex parte. On the basis of the testimony of Ms. Elizabeth Bennett, one and only witness in the matter, supported by eight pieces of documentary evidence, that the court, on 29th August 2015, entered judgment for the first respondent/plaintiff and granted all the prayers sought. 4

Having triumphed before the High Court, the first respondent sought to take vacant possession of the suit property. It is common cause that at the time the applicant was in possession of the property, which he had let to a number of tenants as he claimed to be its owner having acquired title to it on a purchase from the second respondent. Acting on behalf of the first respondent, Maripelanto Auctioneers and Court Brokers of Moshi issued the applicant a notice dated 8th March 2017 to quit and yield up vacant possession of the suit property to her within thirty days. In response to the notice, the applicant lodged a written complaint in

• Kiswahili dated 3rd April 2017 to the Honourable the Chief Justice. His allegations were to the following effect: first, that he is the lawful owner of the suit property which he had bought from the second respondent on 23' December 2012 and that he had rented it out. Secondly, that he had recently learnt of the judgment and decree in Land Case No. 19 of 2014 that declared the first respondent lawful owner of the suit property and that the said declaration was adverse to his title to that property. Thirdly, that the aforesaid suit was heard and determined in his absence and without being notified of it. Fourthly, that the first respondent, while being aware of his interest in the suit property, proceeded improperly and surreptitiously with the suit without impleading him as an interested party 5

to the suit. Fifthly, that because he was not a party to the suit he could not appeal to challenge the aforesaid judgment and decree. Accordingly, the applicant sought the Chief Justice's intervention. Acting on these contentions, the Court opened these revision proceedings suo motu for the purpose of: first, examining out the legality of the assailed proceedings before the High Court. Secondly, finding out whether or not the applicant was condemned unheard. When the matter came up for hearing before us on 5th July 2018, Mr. Oscar Ngole, learned counsel, appeared for the applicant while Ms. Patricia Eric and Mr. Godwin Sandi, both learned counsel, respectively, represented the first and second respondents. The third respondent entered appearance through Mr. Juma Nyumba, Assistant Registrar of Titles. In his argument, Mr. Ngole assailed the proceedings before the High Court on two grounds: first, he contended that the suit was incompetent on account of being made against the third respondent, which is a Government Department, without compliance with the mandatory provisions of section 6 (2) and (3) of the Government Proceedings Act, Cap. 5 RE 2002. Elaborating, he argued that the third respondent could only be suit after a ninety-days' written notice of intention to sue had been

served on it and copied to the Attorney General as required by section 6 (2) of Cap. 5 (supra). Moreover, in terms of section (3) of that Act, the Attorney General ought to have been impleaded as a necessary party. Due to the non-compliance with the above provisions, he said, the suit was illegal and hence incompetent. On the second point, Mr. Ngole argued that the High Court wrongly and illegally determined the suit before it without giving the applicant the opportunity to be heard. Both the High Court and the first respondent, he said, were aware of the applicant's interest in the property, which he purchased from the second respondent before the suit was instituted. He illustrated this fact by referring to pages 34 and 35 of the record indicating that on 2nd December 2014 Ms. Eric, learned counsel for the first respondent/plaintiff, notified the High Court that Mr. Meichiad Peter Kimaro, the applicant herein, was believed to have purchased the suit prOperty and that he had been served with notice of the existence of the suit. Mr. Ngole argued stoutly that in view of the applicant's interest in the property, he ought to have been joined in the suit at that pre-trial stage. Counsel, then, hotly denied that the applicant was served by the first respondent the notice alluded to earlier. He resolutely insisted that the impugned proceedings before the High Court were conducted and 7

concluded without the knowledge of the applicant. This, he said, amounted to a grave violation of the applicant's right to be heard, which is constitutionally guaranteed under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. That constitutional provision states as follows: "(6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following princi/es, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be f entitled to a fafr hearing and to the right of appeal or other legal remedy against the dedsion of the court or of the other agency concerned;" [Emphasis added] Mr. Ngole bolstered his stance by citing the decision of the Court in Bank of Tanzania v. Said A. Marinda & 30 Others and the Attorney General, Civil Application No 74 of 1998 (unreported) In that case, the High Court had determined a matter before it without according a necessary and interested party (Bank of Tanzania) an opportunity of being heard as it was not a party to the matter. The learned counsel stressed that this Court held in that case that it was wrong that the High Court F;]

proceeded with the hearing of the case without affording the necessary and interested party an opportunity of being heard. The relevant part of the Court's holding is at page 8 of the typed ruling thus: "On the whole, therefore, upon consideration of the case, the circumstances of the case, we are in agreement with Dr. Tenga that the High Court proceeded with the hearing of the case without affording the appilcant, a necessary party, the opportunity of being heard. This, we are satisfied, constituted a serious breach of a fundamental principle of natural justice - audi alteram paTtern. It affected the very ràot of the pro ceedings/' The learned counsel viewed the facts in the above case as being strikingly analogous to the facts in the instant case. He thus urged us to take the same course and nullify the impugned proceedings and the decision thereon. On the adversary side, Ms. Eric argued that the impugned proceedings before the High Court were mainly against the second respondent, the cause of action as per Paragraphs 14 to 16 of the Plaint being an accusation that he had fraudulently procured the issue of

certificate of title in his name over the suit property to defeat the title to that property held by the estate of the deceased. The third respondent, she stated, was impleaded as defendant on account of being a necessary party without any allegation of wrongdoing on her part. In her view, the suit was, for all intents and purposes, not an action against the third respondent and that no reliefs were sought against her. On that basis, she concluded, the provisions of section 6 (2) and (3) of Cap. 5 (supra) were inapplicable. On the second point, Ms. Eric, began by admitting with commendable frankness that, indeed, the first respondent was well aware, at the time she instituted the impugned proceedings, that the applicant herein had allegedly bought the suit property from the second respondent who, at that point, claimed to be its true owner. She, the, argued that applicant could not claim that he was unaware of the existence of the impugned proceedings because he was duly served with a notice thereof. He had a choice to join the proceedings but he slept on his rights, she contended. She concluded that the impugned proceedings and the decision thereon were unassailable. 10

Replying on behalf of the second respondent, Mr. Sandi fully associated himself with the stance taken by Mr. Ngole. On the part of the third respondent, Mr. Nyumba had no submission to make but left the matter to the wisdom of the Court. In his very brief rejoinder, Mr. Ngole maintained that the applicant was not served by the first respondent with any notice on the existence of the impugned proceedings. The applicant, he insisted, was taken by surprise to learn of the impugned proceedings and judgment thereon upon receiving the quit notice from the broker. He thus concluded that the first respondent had the duty to join the applicant to the proceedings as no notice was served. We have carefully gone through the record and considered the arguments of the parties. We propose, at first, to deal with and determine the second complaint by the applicant that he was condemned unheard by the High Court. It is common cause that the impugned proceedings before the High Court were conducted without the involvement of the applicant herein as he was not a party to the suit. Parties are also concurrent that at the time the proceedings were instituted the first respondent/plaintiff was aware of 11

the transaction between the applicant and the second respondent, the former claiming to have bought the suit property from the latter. It is also undisputed that the High Court was became aware of the applicant's claim of title at the pre-trial stage. What was the subject of a hot contest before us pertains to the question whether the applicant was made aware of the proceedings through the notice claimed to have been served on him by the first respondent. We examined the record before us and noted that the said notice (page 59 of the record) is marked with the phrase "BY REGISTERED POST" suggesting that it was to be despatched by registered post. The notice is not attached with any proof that it was, indeed, dispatched to the applicant as might have been anticipated. We note further that the record is silent on whether Ms. Eric notified tendered to the High Court some form of proof of service when on 2nd December 2014 she notified the court that the applicant had been duly served with the notice (see page 34 and 35 of the record). In the absence of proof of service of the notice on the applicant, it is an inescapable conclusion that the applicant was not made aware of the existence of the impugned proceedings. Being oblivious of the impugned proceedings, the applicant cannot be blamed for sleeping on his rights; he could not apply to join the suit to present his case and defend his alleged interest in the suit property. 12

We thus conclude at this point that the High Court heard and determine the civil action involving the three respondents without the applicant being heard. Whether or not the applicant ought to have been heard in the suit before the High Court depends upon whether he was an interested party or necessary party. But, who is an interested party or necessary party? In Black's Law Dictionary, Eighth Edition, "interested party" is defined as: a party who has a recognizable stake (and therefore standing) in a matter." In the same dictionary, the term "necessary party" is stated to mean: a party who, being closely connected to a lawsuit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings." We think the holding of this Court in Tang Gas Distributors Limited v. Mohamed Salim Said and 2 Others, Civil App'ication for Revision No. 68 of 2011 (unreported) on the circumstances in which a necessary party ought to be added in a suit is pertinent to this matter. We extract in full the relevant passage thus: "... an intervener, otherwise commonly referred to as a NECESSARY PARTY, would be added in a 13

suit under this rule [Order I, rule 10 (2) of the Civil Procedure Code, Cap. 33 RE 20021 even though there is no distinct cause of action against him, where: - in a representative suit, he wants to challenge the asserted authority of a plaintiff to represent him; or his proprietary rights are dfrectly affected by the proceedings and to avoid a multiplicity of suits, his joinder is necessary so as to have him bound by the decision of the court in the suit; or in actions for specific performance of contracts, third parties have an interest in the question of the manner in which the contracts should be performed; and/or on the application of the defendant, it is shown that the defendant cannot effectually set up a defence he desires to set up unless that person is called as a co-defendant. "[Emphasis added] In the instant case, it is undisputed that the first respondent was aware at the time she instituted the impugned proceedings of the applicant's rival title to the suit property following his alleged purchase of the property from the second respondent. We are settled in our minds that 14

the outcome of that suit was to affect the proprietary rights of the applicant over the property because his title to the property, which was derived from the second respondent, depended on whether the latter had title to pass to him. That being so, the applicant was, beyond doubt, a necessary party and so, he ought to have impleaded in the plaint as a defendant. Besides, since the High Court was notified at the pre-trial stage of the applicant's interest in the property, it ought to have invoked the provisions of Order I, ru'e 10 (2) of the Civil Procedure Code, Cap. 33 RE 2002 (CPC) to order that the applicant be joined as a defendant. For easy reference, we reproduce the said provisions as follows: 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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." [Emphasis added] 15

Had the applicant been impleaded as a defendant at the outset or added as a defendant in consonance with Order I. rule 10 (2) of the CPC, he would have been accorded an opportunity of being heard to determine the whole question of ownership of the suit property. Now that was not done and also he could not seek to join the impugned proceedings because he was unaware of them, the outcome of the suit has clearly affected him. He has no right to challenge, by way of appeal, the judgment and decree entered in the first respondent's favour as he was not a party to that suit. What then is the effect on the proceedings and judgment of the High Court of the violation of the applicant's right to be heard? In Said A. Marinda (supra), cited to us by Mr. Ngole, the Court found the failure to give an interested and necessary party the opportunity to be heard vitiates the proceedings and the decision thereon. We find it apt to reproduce the relevant holding as hereunder: 'We are in agreement with Dr. Tenga's submiss/on that that failure to afford an opportunity to the applicant to be heard as a necessary party to the proceedings, seriously affected the proceedings. This is so, because, it violates the basic fundamental principle of natural justice - Audi alteram patem. That is, before a decision affecting 16

an in di v/dual is made such an in di v/dual shall be afforded an opportunity of being heard. The rationale behind this principle is not far too seek, that is, after hearing both the parties involved, then on balance, upon consideration of both sides, a fair decision is made either way." In the above case, the Court recalled holding in its earlier decision in National Housing Corporation v. Tanzania Shoe Company and Others [1995] TLR 251 where the Attorney General had not summoned to the hearing before the High Court. It reads as follows: '5ince the trial commenced and continued in the - absence of a necessary party the court proceeded without authority and that constituted a major defect which went to the root of the trial thus rendering the proceedings null and void." More recently, the Court, in Abbas Sherally & Another v. Abdul S.H.M. Fazalboy, Civil Application No. 33 of 2002 (unreported), restated and re-emphasised the above principle thus: "The right to be heard before adverse action or decision is taken against such a party has been states and emphasised by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, 17

even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice." We would only add that in Tanzania, a violation of the right to be heard is' not only a breach of natural justice but also an abrogation of the constitutional guarantee of the right to be heard enshrined in Article 13 (6) (a) of the Constitution within the broad principle of equality before the law

• see Mbeya-Rukwa Auto Parts & Transport Limited v. )estina George Mwakyoma, Civil Appeal No. 45 of 2000 (unreported). AU considered, it is our firm finding that the High Court proceeded with the hearing of the suit by the first respondent against the second and third respondents without affording the applicant, an interested and necessary party, the opportunity of being heard so as to enable the court effectually and completely to adjudicate upon and settle all the questions on the ownership of the suit property. This error vitiated the entire proceedings and the decision thereon. We thus sustain the second ground of complaint as it is meritorious. Since the foregoing outcome is sufficient to dispose of this matter, we find no need beyond academic pretentiousness to delve into the applicant's first ground of grievance. 18

Accordingly, invoking our revisional jurisdiction, we nullify the entire proceedings as well as the judgment thereon and the cbftésonding decree. As a result, we remit the record to the High Court of Tanzania at Moshi for the suit to start afresh according to the dictates of the law. Each party to bear its own costs. DATED at AR(JSHA this 101h day of July, 2018. M. S. MBAROUK JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the Original. ON 19 LIII IIIIIII I