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JOSEPH GIDION-Consequences of Failure to Join the Registrar of Land in Suits involving registred land-Joinder and non-joinder of of parties
JOSEPH GIDION-Consequences of Failure to Join the Registrar of Land in Suits involving registred land-Joinder and non-joinder of of parties
AT ARUSHA
VERSUS
(Opiyo, J.)
MAKUNGU. 3.A.:
Case No. 46 of 2014 claiming that the land property with Title No. 15936
FARM No. 1119 L.O No. 178460 situated at Olorein Village, Arumeru
District in Arusha Region, belongs to her. She implored the High Court to
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issue an eviction order against the appellants; permanent injuction, mesne
when she rented disputed houses as service tenants during the existence
of their service contracts. However, the project was crippled with financial
disputed houses on a credit basis. They further claimed that the purchase
price was directly deducted from their monthly salaries. This is where the
houses.
filed Land Case No. 8 of 2002 against the appellants. The High Court
struck out the plaint on technical grounds. Again, the respondent filed
Land Case No. 46 of 2014 where in the final analysis, the respondent
emerged a winner and was declared the lawful owner of the disputed
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houses. The appellants were ordered to give vacant possession of the
damages. That holding did not amuse the appellants, hence this appeal.
was, in terms of rule 113(1) of the Tanzania Court of Appeal Rules, 2009
Before us for hearing of the appeal, Mr. Innocent Mwanga and Mr.
appellants. On the other side, Ms. Neema Mtayangulwa and Ms. Rehema
and 106(8) of the Rules and lists of authorities to be relied upon during the
hearing of the appeal in terms of rule 34(1) of the Rules. However, given
the course we have taken in resolving the appeal which does not call for a
resort to them, we think that it will be unjust if we will not commend them
the record of appeal, the respondent claims exclusive ownership of the suit
land vide the Certificate of Title No. 15936 L.O 178460. However, this was
page 80 of the record of appeal challenged the validity of the grant of the
said Certificate of Title. Thus, since the dispute revolves over registered
land, we noted that the Registrar of Titles was not involved in the trial of
the case. This prompted us to raise suo motu a question to the learned
agreement that it was not proper not to join and hear the Registrar who is
responsible with task of land registration and as such, the trial was vitiated
and the respective impugned judgment of the High Court cannot stand.
Commenting on the way forward, they urged the Court to nullify the
trial proceedings, the resulting judgment and proceed to remit the matter
to the High Court for it to hear the same after the Registrar of Titles is
necessary party and the issue for our determination is the propriety of the
Titles. From what we have gathered from the respective pleadings and the
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memorandum of appeal before us, the conclusive and fair determination of
the dispute between the appellants and the respondent cannot be attained
as the suit was filed before the High Court, it was incumbent on that court to
was a necessary party in the context of Order 1 Rule 10 (2) of the Civil
Procedure Code [Cap. 33 R.E. 2019] (the CPC) which stipulates as hereunder:
Others, Civil Revision No. 6 of 2011 and Nuta Press Limited v. Mac
Holdings and Another, Civil Appeal No. 80 of 2016 and Farida Mbaraka
and Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of
2006 (all unreported). In the latter case, the Court emphasized as follows:
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"Under this rule, a person may be added as a party
to a suit (i) when he ought to have been joined as
plaintiff or defendant and is not joined so; or (ii)
when, without his presence, the questions in the suit
cannot be completely decided".
In the premises, in view of the state of the pleadings and the stated
position of the law, it was incumbent on the High Court to be keen enough
and require the parties to amend the pleadings and join the Registrar of Titles
under Certificate of Title. Since it is clear that the Registrar of Titles had a
role in the registration of the land in question, the non-joinder of her in the
suit before the High Court it means that the Registrar was not heard which
option but to annul the trial proceedings and the impugned judgment.
counsel of the parties and hereby invoke our power of revision bestowed
upon us under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 of the
Revised Edition 2019. We quash and set aside the entire proceedings and
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judgment of the trial court together with subsequent orders. We further direct
that Land Case No. 46 of 2014 be set down for trial after the Registrar of
Titles is joined as a party in terms of Order 1 Rule 10 (2) of the CPC. As this
matter was raised suo motu by the Court, we make no order as to costs.
S. E. A. MUGASHA
JUSTICE OF APPEAL
M. C. LEVIRA
JUSTICE OF APPEAL
0. 0. MAKUNGU
JUSTICE OF APPEAL
The Ruling delivered this 10th day of July, 2024 in the presence of
Mr. Peter Kuyoga Nyamwero, learned counsel for the Appellants and Ms.