Juma B. Kadala v Laurent Mnkande 1983 Tlr 103 (Hc)

JUMA B. KADALA v LAURENT MNKANDE 1983 TLR 103 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

October 6, 1983

(PC) CIVIL APPEAL 6 OF 1982

Flynote

Civil Practice and Procedure - Parties to suit for recovery of land belonging to ujamaa village - Whether individual can sue - R. 15(1) Magistrates' Courts (Civil Procedure in Primary Courts) Rules G.N. 310 of 1964.

Civil Practice and Procedure - Parties to suits - Suit filed by wrong party - Effect of - Magistrates' Courts Act, Cap. 537 s.32(1).

Civil Practice and Procedure - Parties - Joinder of - Land sold - Whether the buyer should be joined as a necessary party defendant - Effect of non-joinder.

Civil Practice and procedure - Pleading -Time when cause of action arose - Whether necessary to plead.

-Headnote

The appellant brought an action against the respondent in Soni Primary Court to recover a "shamba". The respondent had been granted the land by an ujamaa village (of which the appellant was Chairman), and had subsequently sold it to a third party who was not made a party to the proceedings. The appellant lost both in the Primary Court and the District Court.

Held: 

(i) The suit was filed in the name of the wrong person, the proper claimant should have been the Ujamaa Village;

(ii) the error is merely technical and did not occasion any failure of justice and therefore it is curable under s.32(1) of the Magistrates' Courts Act 1963;

(iii) in a suit for the recovery of land sold to a third party, the buyer should be joined with the seller as a necessary party defendant; non-joinder will be fatal to the proceedings;

(iv) under r.15 (1) (d) of the Magistrates' Courts (Civil Procedure in Primary courts) Rules, the plaint or application must indicate the time when the facts on which the claim is based arose.

Case Information

Order accordingly.

W.R. Mramba for the respondent.

[zJDz]Judgment

Sisya, J. I must concede this matter has caused me tremendous anxiety. The appellant, Juma Kadala, brought an action against the respondent, Laurent Mnkande, in the Soni Primary Court of Lushoto District. The pleadings are far from being precise. The trial court, however, understood the law suit to be for the recovery of a "shamba". It is perhaps necessary to quote the facts on which the claim is based and I am doing so from the plaint as presented. They read:

Maelezo ya Madai - Nikiwa Mwenyekiti wa Kijiji cha Mbuzii, nakumbuka kunako miaka ya nyuma, mdaiwa alikaa Mbuzii akiwa ni Mwalimu, na kwamba kama kawaida akapewa nyumba ya kuishi na kisehemu cha kulima. Alikaa hapo na baadaye alipanda kahawa. Wakati alipohamishwa huku nyuma tukastuka kumuona Omari Kuziwa akijenga sehemu hiyo bila ya idhini ya kijiji na tulipouliza tukajibiwa na huyo Omari Kuziwa kwamba amenunua sehemu hiyo kwa Mwalimu Laurence ndipo tukaamua kuja kumshtaki.

It was the respondent who, ostensibly, was no longer in actual or physical occupation of the disputed piece of land at the time the plaint or application was presented who was sued. The person who was and, apparently, he still is in actual and/or physical occupation of the disputed piece of land, one Omari Kiziwa, was left out. He was not made a party to the proceeding.

Not only that, the date or time when the facts on which the claim was based was not mentioned at all. This is true of the plaint as presented as well as the evidence which the appellant adduced at the hearing of the suit in the Court of first instance. We are thus left in the dark as to when the cause of action arose.

And not only that, it is clear from the outset that it was an Ujamaa Village registered under the name of Mbuzii (or is it Mbuzili?) which was the actual plaintiff in the case. It seems even the trial Primary Court understood it as such because in the opening sentence of its judgment it had this to say and I quote:

Katika shauri hili mdaiwa Lawrence Mnkande amedaiwa shamba na Kijiji cha Mbuzili aliloliuza.

This Court was informed by the appellant, Juma Kadala, at the hearing of this appeal that the said Mbuzii village, of which he is currently chairman, is registered under the law, presumably, the Villages and Ujamaa Villages (Registration, Destination and Administration ) Act. No. 21 of 1975, and that its registration number 1140. Under the law Mbuzii village is, therefore, a legal person with power to sue and to be sued. All this notwithstanding the appellant brought the action (or was he permitted to do so?) in his own personal name.

At the hearing of the appeal it was argued by learned counsel for the respondent, Mr. Mramba, that this appeal should be dismissed because the original suit was filed in the wrong name, i.e. Juma Kadala.

The institution of proceedings in Primary Courts is governed by the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, 1964, GN 310 of 1964. Rule 15(1) lays down that a proceeding shall be instituted by an application specifying, inter alia, the name, occupation and place of residence or place of business of the claimant.

By reason of this as well as by reason of the fact that the claimant in the case is Mbuzii Ujamaa Village the suit ought to have been brought or filed in the name of the claimant, namely Mbuzii Ujamaa Village. The reasons behind this are not at all difficult to find. If need be and purely for purposes of demonstration, one of the most obvious ones is that although Juma Kadala is currently the village chairman (and we may all wish him to remain so for as long as he is alive) it is possible he may not be there or he may no longer be chairman tomorrow. By due process of the law, in case of death, only the administrator of Juma Kadala's estate or his advocate or his duly authorised agent will have locus standi in cases filed in his name such as the present one. And chances are that such a person is most unlikely to be his successor in office of village chairman as well. Another reasons is F that any order and/or decree issued in the case must necessarily be in the name of Juma Kadala. Likewise execution of the same will have to be done in the same name. The difficulty or confusion that may ultimately emerge if the name remains unchanged are too obvious to need a restatement. In the long run it may even be almost impossible to separate Kadala's personal property and that of the village. As a matter of fact an unscrupulous person can even easily fraudulently covert communal property to his own use thereby.

Admitted, as indeed it must be, that the suit should have been filed in the name of Mbuzii village the question that I have to consider now is, what effect does this error have to these proceedings? As I think I have sufficiently demonstrated the error here is merely technical and I am satisfied that the mere writing of the name Juma Kadala instead of Mbuzii Ujamaa Village did not occasion any failure  of justice. The error under query is thus curable under section 32(1) of the Magistrates' A Courts Act, Cap 537, and I so hold.

I now turn to the more difficult aspects of this appeal. First, the time factor in the case. I have, time and again, emphasized the importance of indicating in the plaint or application the time when the facts on which the claim is based arose. This requirement is provided for in Rule 15(1) of the Civil Procedure in primary court rules, GN 310 of 1964. The basis of this requirement is that it is from the time shown or given that the Court can determine whether or not the suit is time barred. It must be the aim of every Court of Law to ensure that there is an end to litigation. As aforesaid no time was shown or given in this case as to when the respondent allegedly abused the terms of his occupation of the piece of land in dispute. However, in view of what I propose to do in this instant matter I choose not to say anything more on this point.

I now turn to the point which has caused me a lot of difficulty in this matter. Without beating about the bush this is the appellant's choice to sue the respondent whom he and all the witnesses who gave evidence on his side knew to be no longer in occupation of the disputed piece of land and leave out one Omari Kiziwa whom the appellant and his witnesses also knew to be in actual occupation of the said piece of land after he had, ostensibly, bought it from the respondent. This present occupant of the disputed piece of land ought to have been sued jointly with the respondent for recovery of the piece of land in dispute. Failure to do so was fatal to the proceeding because on the facts of the case, most of which do not appear to be disputed, it is impossible to make any orders in this matter without affecting the rights of Omari Kuziwa who has not had any chance of being heard in this matter at all. Every person must be heard on matters that concern and/or affect his rights. This is a fundamental principle of justice in any democratic G country such as ours and the same must be guarded, particularly by courts of law worth the title, with utmost jealousy.

In the event I direct that this matter will now be remitted back to Soni Primary Court with directions that Omari Kuziwa be joined as a party to the case and the subsequent trial will proceed in the normal way and according to law.

For the avoidance of doubt it was intimated at the hearing of the appeal that the respondent has since died. It will thus have to be his appointed administrator who will be sued jointly with Omari Kuziwa. The plaint or application to be filed must show that I whoever will be the respondent's successor is being sued as the appointed administrator of the estate of Lawrence Mnkande, now deceased. The name of the plaintiff will be Mbuzii Ujamaa Village and the date when the cause of action arose must invariably be shown.

In the final result this appeal succeeds to the extent indicated. In all other respects it is dismissed. Each party will, however, bear his own costs.

Order accordingly.

1983 TLR p107

C