THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA LAND CASE NO, 40 OF 2022 ALFRED SUKARI.. VERSUS JANE MWAMWINDI @ CLEOPHACE J MUHAVILE........0.+...157 DEFENDANT MASHANGO INVESTIMENT CO. LIMITED.. .2"° DEFENDANT NEEMA SACCOS LTI -3"° DEFENDANT BURTON TWISA.. .4™ DEFENDANT SELF MICROFINANCE LTD (Formally known as UTT MICROFINANCE LTD.... -5™ DEFENDANT ATTORNEY GENERAL. 6" DEFENDANT RULING Dated: 25" April & 24" May, 2023 KARAYEMAHA, J. This ruling is in respect of a preliminary points of Objection, raised by the 4" defendant, contending that the suit filed in this Court is incompetent and unmaintainable on the ground that: 1. The plaint does not disclose the cause of action contrary Order VI Rule t and Rule 11(a) of the Civil Procedure Code, [Cap.33 RE. 2019] 2. That the plaint is incurably defective for failure to Join the Registrar of Titles as a necessary party. 1|PageThese objections were raised by the said defendant simultaneous with his Written Statement of Defence (WSD). When the matter was called on for orders on 4!" April, 2023 the Court ordered that disposal of the preliminary objection (the Pos) be done by way of written submissions consistent with the schedule which was agreed upon by the parties, This schedule was unfailingly complied with. Kicking off the discussion, Mr. Hassan Gyunda who represents the 4" respondent arguing in respect of the 1* PO, made reference to Paragraph 10 of the plaint, and contended that all facts in the plaint do Not disclose the right the 4% respondent has infringed. Relying on the decisions in John Byombarilwa v, Agency Maritime International (TZ) Limited (1983) TLR 1 and Mashado Game Fishing Lodge Limited and others v. Board of Trustees of Tanzania National Parks (2002) TLR 319 and Order VII Rule 1 and Rule 11(a) of the Civil Procedure Code, [Cap.33 R.E. 2019] (hereinafter the CPC), Mr. Gyunda argued that for the plaintiff to have cause of action against the 4° defendant, the plaint must intimate the plaintiff's right which has been infringed and entitles him a claim for relief. Regressing to this case, Mr. Gyunda held the view that the plaintiff's rights were infringed by the 1%, 2|Page3” and 5% defendants because he (plaintiff) consented to mortgaging his landed Property (hereinafter the mortgaged property) to the 3% defendant to secure a loan, Later the certificate of title was given to the 5" defendant. It was his further Submission that the 4" defendant was simply a bona fide Purchaser who purchased the mortgaged Property by court's order in Public auction. According to him he cannot be held liable for any transaction whatsoever. Mr. Peter Kilanga, learned advocate for the plaintiff preambled his reply by arguing that the POs raised did not meet the standard of point of laws pronounced in the Mukisa Biscuit Manufacturing Company Ltd v. West End Distributers Ltd (1969) EA 696 at Page 701. He argued further that objections raised are Not backed up by any law but laments that no claim or right was violated by the 4 respondent and that the transaction between the 1% and 5'" respondents is hearsay. The learned counsel held the view that the all these need proof, Contrarywise, Mr, Kilanga submitted that Paragraph 8 of the plaint discloses the cause of action because in principle what the court should look at is the plaint and its annexure. He argued adding that the cause of action arose in Mbeya. 3|PageHaving Considered the arguments on the first limb of PO, I wish to state that it is trite law that the plaintif Must appear as a person ‘A person jig Said to have a Cause Of action against another where that Person has a Wight and the other person has ‘intringed or breached that right with the result that the PErSON With the right Suffers material loss or. ‘any other loss,” It appears to me that this holding is Consistent with Mullar’s Code of Civi] Procedure 3° Ed. cite by Mr. Gyunda which defines the cause of action to mean "Cause of action means every fact which if: Graversed it would be necessary for the Plaintiff to prove in order (0 support his (BM to the judgment of the court, It not tmited to the 4|Pageactual infringement of the right sued on but include every piece of evidence which is necessary to be proved to entitle the plaintiff to the decree. Everything which if not proved would give the defendant the right to an immediate Judgment must be part of the cause of action. It is in other words a bundle of essential facts which is necessary to prove before he can succeed in the suit.” Thus, as correctly argued by Mr. Gyunda, where the plaint and annexure, according to Mr. Kilanga’s submission, does not point out what the right the defendant has violated which entitles the plaintiff a claim for the relief, then the latter has no claim against the former, hence no cause of action, I turn now to the question whether the plaint in the present suit disclosed a cause of action against the 4" defendant. The case for the plaintiff is quite simply that the 4" defendant together with the 2m 30 and 5" defendants are interfering with his house located in Plot No. 860 Block Q Mwanjelwa area where the plaintiff is a lawful owner since 1990s after buying it. This is a complaint under paragraph 8 of the Plaint. All these happened after the 1% defendant had taken a loan from the 3" defendant and deposited the plaintiff's right of occupancy. Apparently, the right of occupancy was handed over to the 5" defendant who also loaned Tshs. 1,000,000/= to the 1* defendant and deposited 5|Pagethe home utensils by the 3" defendant. Later the 5 defendant secured the court's order to sell the mortgaged property to the 4" defendant. In 2015, the 2™ defendant auctioned the mortgaged property to the 4" defendant. T absolutely agree with Mr. Gyunda that that the 4°” defendant did not take part in the loans extended to the 1° defendant by the 3" and 5" defendants. But I would humbly opine that by alleging that the 4'" defendant together with the 2" 3 and 5" are interfering with enjoyment of his rights over the mortgaged property, it is necessary for him to prove in order to support his right to the judgment of the court. The 4" defendant totally disputed this fact and put the plaintiff to strict proof. This dispute is pronounced under Paragraph 5 of the WSD. In my considered view, and with respect to Mr. Gyunda, this is a real matter at controversy (/itis contestation). While concluding that the complaint in the first limb of PO is a Point of law as argued by Mr, Gyunda in the rejoinder contrary to Mr. Kilanga’s overview, I find and hold that the plaintiff has a cause of action against the 4" defendant. Therefore, the claim against him cannot be safely rejected under Order VII Rule 1 and Rule 11(a) of the CPC without leading to a failure in Proving and countering allegations 6|Pageunder paragraph 8 of the plaint and 5 of the WSD respectively. Therefore, the plaint discloses the cause of action against the 4" defendant who absolutely, as of natural right, will have to defend himself, and ultimately be affected by this court’s orders. First limb of objection overruled. This being so, I propose to deal with the second limb of objection. This is to the effect that the plaint is incurably defective for failure to join the Registrar of Titles as a necessary party. Mr. Gyunda argued that the mortgaged property being a registered one, and in order to be fittingly transferred, the office of the Registrar of Titles which effects the transfer, must be added to this suit as a necessary party. Mr. Gyunda’s submission is based on the fact that some reliefs even if granted cannot be executed. To bolster his position, he cited the cases of Juma B. Kadala v. Laurent Mkande [2983] TLR 101, CRDB Bank Public Company Limited v. UAP Insurance Company Limited, Civil Appeal No. 32 of 2020 (unreported) which cited the case of Farida Mbaraka & another v. Domina Kagaruki, Civil Appeal No, 136 of 2006 (unreported). Investing reliance in Order I rule 9 of the CPC and the case of Enoshi N. Lukuwi v. CRDB Bank PLC, Civil Appeal No. 126 of 2020 7|PageHC- DSM, Mr. Kilanga argued that no suit is defeated by reason of Misjoinder or non-joinder of Parties. He pressed that since the plaintiff has a right to choose who to sue, this court should not consider the omission fatal. He, however, urged this court to invoke the overriding objective provided under section 3A and 3B of the CPC and allow the Plaintiff to join the necessary party, the Registrar of Titles under Order 1 Rule 10 of the CPC than striking out the plaint, In his precedented rejoinder Mr. Gyunda first conceded to the guiding position of law that non-joinder of parties does not defeat the case. He, nevertheless, argued that joining of a Registrar of Titles is different from Joining any other person because the former requires a 90 days’ statutory notice before being sued in terms of section 6(2) of the Government Proceedings Act, [Cap. 5 RE. 2019] (hereinafter the Government Proceedings Act). Mr. Gyunda argued adding that the Registrar of Titles is to be impleaded in the pleadings after being served with a 90 days’ notice. He cited the decisions in Ngerengere Estate Company Limited v. Edna William Sitta, Civil Appeal No. 209 of 2016 (CAT-DSM) and Makoye Athumani Shiyunga and another v. Bertha Charles Magandula, Misc. Civil Cause No. 01 of 2022 (HC- Mwanza) (both unreported) 8/PageOn the prayer to invoke the overriding objective Principle to make an order of joining the Registrar of titles, Mr, Gyunda declined to go along with Mr. Kilanga’s prayers. The learned Counsel held the view that the overriding objective cannot be used to outsmart mandatory Provisions of the law which are coached in mandatory terms. He sought aid in unreported case of Dilala Gibadulgalda v Dalandu Gibadulgalda and others, Land Appeal No. 4 of 2022 (HC-Manyara). Allin all, the learned counsel prayed the suit to be struck out with costs. I have anxiously considered parties contending arguments in relation to the pleadings. I first find it imperative to consider whether the Registrar of Titles was pleaded impliedly or expressly. This question can be best answered by carefully reading the plaint. In the process I have come face to face with Paragraph 15 which for ease of reference is quoted as hereunder: "IS. That the #” defendant while knowingly (sic) that the case was not determined and the primary court was ordered (Sic) the matter to be determined by the land Courts he made a false act and transfer (sic) the said property into his name.” Pondering on the above cited Paragraph, a common cause is that @ person who wishes that a certain Property should be registered in his 9|Pagename but is in another Person’s name applies to the Registrar of Titles for a transfer of the title into his name. Upon being satisfied, the Registrar of Titles effects the transfer. In any case, therefore, if there were dubious means in the transfer, the Registrar of Titles must be called to defend his side otherwise would be condemned unheard. This then brings in a notion that the Registrar of Title was impleaded and the court is tasked to give orders which he will be forced to execute. Considering the substance and 1* relief in the plaint, ultimately, this court may land by declaring the plaintiff the lawful owner of the suit Property or not. It appears that the Registrar of Title may be ordered, in the course, to cancel the Title or to maintain it depending on the evidence of the case. To reach to that stage, my humble opinion is that Registrar of Title must be joined in the case. I have considered Mr, Kilanga’s prayer of invoking the overriding objective because it serves a useful purpose of dealing with the case substantially without being tied up by technicalities, Mr, Kilanga’s plea opens my mind to understand that he has seen the importance of Joining the Registrar of Titles in this case. However, I have no doubt that the introduction of the overriding objectives was not to relax even the mandatory Procedural provisions in our legal system. In this, I am 10|Pageparticularly influenced by the decision in Dilala Gibadulgalda (supra) which quoted the famous case of Mondorosi Village and another v. Tanzania Breweries and another, Civil Appeal No. 66 of 2017 [2018] and held that the overriding objective should not be used as a shield to circumvent mandatory legal requirements. In this case, I respectfully agree with both counsel that to have the court's orders fully executed the Registrar of Titles must be joined as a necessary party to this suit. I further agree with Mr. Gyunda that the Registrar of Titles cannot be sued without being served with a 90 days’ notice in compliance with section 6(2) of the Government Proceedings Act. With this law in place, it is apparent that the procedure to join Registrar of Titles is somehow complicated and different from the procedure of joining any other person. While the Registrar of Titles is joined after serving a 90 days’ notice of intention to sue, such other person who is not a Government Institution can be sued without that notice. I observe that it is hard to part with Mr. Gyunda’s argument with regard to joining the Registrar of Titles and proceed with the hearing of this suit in the absence of a 90 days’ notice of intention to sue the Government as required by the law cited above. 11 |PageIn conclusion, steered by the holdings in Ngerengere Estate Company Limited (supra) and Makoye Athumani Shiyunga (supra) in which the common decision was that non joinder of the Registrar of Titles was a fatal omission which led to striking off the respective cases, T also have no option other than to strike out the instant suit with costs and direct that if the plaintiff still feels to pursue this matter against the defendants and Registrar of Titles, he may take necessary steps to implead the Registrar of Titles as one of the parties to this suit. It is so ordered. DATED at MBEYA this 24" day of May, 2023 J. M. KARAYEMAHA JUDGE 12|Page