IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA
fCORAM: MKUYE. J.A.. MGEYEKWA. 3,A. And NGWEMBE. 3.A.1

CIVIL APPEAL NO. 291 OF 2021

ANATOLIA J. MGENI APPELLANT

VERSUS
NJOCOBA I st RESPONDENT
BRUNO SANGA .. 2nd RESPONDENT

DAMSON SANGA 3rd RESPONDENT

ISAYA MYAMBA . 4th RESPONDENT

(Appeal from Judgment and Decree of the High Court of Tanzania,

at Irjnga

(Shangali, J.)

dated the 30th day of October, 2018

in
Land Caise No. 04 of 2015

JUDGMENT OF THE COURT

6th & 15th December, 2023

MKUYE, 3.A.:

In this appeal the appellant Anatolia 3. Mgeni is appealing against the

judgement and decree of the High Court of Tanzania (Iringa Registry) dated

30/10/2018 in Land Case No. Q4 of 2015,

According to the record of appeal, the appellant, who was a business

woman engaged in timber business, in 2011 approached NJOCOBA (the 1st

respondent), a money lending institution, with a request for a loan to the

tune of TZS 17,000,000.00. The respondent^ being trustful of her bonafide

customer, approved her requested loan for which she offered her residential

house built on Piot No. "K" (suit property) located at Makambako Urban area

as security. Among others, the terms and conditions for the loan was that it

would fetch interest amounting to twenty two percent repayable within a

period of twelve months and the appellant would remit a monthly instalment

of TZS 1,728,333.00. However, it would appear that the appellant defaulted

in repaying the loan as scheduled having only serviced two instalments to

the tune of TZS 500,000.00 each attributing such failure to the loss of her

timber consignment through a fire accident engulfed in Malawi.

According to the appellant, in 2014 she fell sick and was admitted at

St. Consolata Ikonda Hospital for a period of six months whereby upon her

discharge she returned to her home village for care leaving behind her

mortgaged house to a caretaker.

Upon her return, and to her astonishment, she found that the house

was occupied by the so-cailed Bruno Sanga (2nd respondent) who claimed

that the same had been sold to him by Samson Sanga and Isaya Myamba

(the 3rd and 4th respondents).

In her efforts to recover her house, the appellant instituted Civil

proceedings in the High Court against the four respondents namely,

NJOCOBA, Bruno Sanga, Samson Sanga and Isaya Myamba (the 1st, 2nd, 3rd

and 4th respondents herein) seeking a declaration that the sale of the suit
property was unlawful and illegal and for the eviction order against the 2nd

respondent. The appellant further sought for payment of general and

specific damages to the tune of TZS 20,000,000.00 and TZS

120,021,500.00, respectively.

The trial court having heard all parties, observed that the appellant

had failed to prove that the sale of the suit property was flawed. It also

observed that the 3rd and 4th respondents were not involved in its sale.

Hence, the suit was dismissed.

Aggrieved with the High Court decision, the appellant has now

appealed to this Court fronting three grounds of appeal which for reason to

be apparent shortly, we do not intend to reproduce them.

Nevertheless, ahead of the hearing of the appeal, the 1st respondent

lodged a notice of preliminary objection on point of law to the effect that

the appeal is incompetent and incurably defective for failure to comply with

the mandatory provision of Rules 84 (1) of the Tanzania Court of Appeal

Rules, 2009 (the Rules) in that the notice of appeal was not served on the

respondent.

When the appeal was called on for hearing, Mr. Moses Ambindwile,

learned advocate appeared representing the appellant; whereas the 1st

respondent had the services of Messrs. Hangi Matekeleza Chang'a, learned

Principal State Attorney, Ansila George Makyao, learned Senior State

Attorney, Ayoub Gervas Sanga and Ibrahim Ramadhani, both learned State

Attorneys; and the 3rd respondent appeared in person without any

representation. The 2nd respondent was reported dead and since no legal

representative had shown up to join in the case for more than 12 months,

we, in terms of Rule 105 (2) of the Rules, opted to proceed in his absence;

and in relation to the 4th respondent who was absent although the notice of

hearing showed that he was duly served, we proceeded in his absence in

terms of Rule 112 (2) of the Rules.

At the outset Mr. Sanga intimated to the Court that, the 1st respondent

is under liquidation by the Bank of Tanzania under section 58 (2) (f) of the

Banking and Financial Institutions Act, Cap 342 R.E. 2002. He contended

that under sections 36, 37 and 41 (1) (a) of the same Act it is required to

appoint the Depositors Insurance Board (DIB) to be a liquidator who will be

responsible even to appear in the case. On that basis, he prayed for leave

and leave was granted under Rule 111 of the Rules (Tanzania Court of

Appeal Rules, 2009) to amend the name of NJOCOBA to Depositors

Insurance Board.

Having done so, Mr. Ambindwile rose and readily conceded to the

preliminary objection, the notice of which was lodged by the 1st respondent

to the effect that the appeal was incompetent and incurably defective for
failure to comply with the mandatory provisions of Rule 84 (1) of the Rules,

in that the notice of appeal appearing at pages 127 and 128 of the record

of appeal was not served on the 1st respondent He contended that, although

both the notice of appeal and the letter requesting for copies of proceedings,

judgment and decree were sent to the 1st respondent, only the letter was

signed, but the notice of appeal was not signed. Nevertheless, he argued

that, although the remedy for such anomaly would have been to strike out

the appeal, he sought for the indulgence of the Court not to do so in the

interest of justice due to ailments including the variance in the name of the

2nd respondent in the proceedings and judgment of the High Court which

need to be sorted out or rectified.

Mr. Ambindwile, argued further that, even if the appeal is struck out

and the appellant required to restart a fresh by making an application for

extension of time, it would not serve the interest of justice. He, thus, while

relying on the case of Exim Bank (T) Limited v. National Furnishers

Limited, Civil Appeal No. 100 of 2020 (unreported), prayed to the Court not

to strike out the appeal but should consider to nullify the proceedings and

judgment of the High Court under section 4 (2) of the Appellate Jurisdiction

Act (the A3A). He, also, prayed to be spared from costs.

On his part, Mr. Sanga welcomed the concession made by Mr.

Ambindwile on the point of objection. However, he prayed to be awarded

costs since they had lodged the preliminary objection and prepared for

hearing. Apart from that, they had travelled from Dar es salaam, he

contended.

On the way forward, Mr. Sanga was also in agreement with Mr.

Ambindwile that despite the fact that the remedy would have been to strike

out the appeal, he invited the Court to be inspired with the principle stated

in the case of Exim Bank (T) Limited (supra) and go a step further due

to the irregularities marred in the matter at hand.

Elaborating on the said anomalies, Mr. Sanga submitted that, in the

plaint, one, Bruno Sanga was sued as a 2nd defendant (the 2nd respondent

herein). The written statement of defence for the 2nd defendant, was

pleaded by Bruno Sanga, However, during the trial, it unveiled that the

purchaser of the suit property as per the Sale Agreement (Exh. Dl) is

Clarence Bruno Sanga and the one who testified as DW1 is Clarence Bruno

Sanga, as opposed to Bruno Sanga who was sued as the 2nd defendant and

the purported purchaser of the suit property. In his view, these were two

different persons*

Mr. Sanga went on to submit that, according to the Sale Agreement

(Exh. Dl), the disputed property was mortaged to two different financial

institutions which are NJOCOBA and Makambako SACCOS whereby the

former was issued with a letter of offer of a certificate of title and the later
was given the certificate of title. It was argued that, in order to realize the

asset, the suit property was sold co-jointly by both NJOCOBA and

Makambako SACCOS but the latter was not joined in the suit as a necessary

party, when the suit was instituted. It was the learned State Attorney's

further argument that, in case the Court issues an order that affects the said

Makambako SACCOS, she would be condemned unheard or denied a right

to be heard under Article 13(6) (a) of the Constitution of the United Republic

of Tanzania, Cap 2 R.E. 2002. To fortify his argument, he referred us to the

case of M,B. Business Limited v. Arnos David Kasanda and 2 Others,

Civil Application No. 429/17 of 2019 (unreported) on the right to be heard.

The other anomaly that was raised by Mr. Sanga is that, although the

3rd and 4th respondents were sued for having been involved in the auction,

PW2, the ten-cell leader, Clearance Bruno Sanga (DW1), DW3 and DW4

testified that the said sale or auction was conducted by Comrade Auction

Mart. He argued, this was seen by the High Court and discharged the 3rd

and 4th respondents since the sale was done by the said Comrade Auction

Mart. He was of the view that, the High Court ought to have joined her

under Order I rule 10 (2) of the Civil Procedure Code [Cap 33 R.E. 2019]

(the CPC). It was contended further that failure to join the said auctioneer

was tantamount to denying her right to be heard.

 In this regard, he implored to the Court that the proceedings be

nullified and the appellant be directed as to the way forward.

On his part, Damson Sanga (3rd respondent) insisted that he was not

involved in selling the property. In any case, he left the matter in the hands

of the Court to determine.

Mr. Ambindwile rejoined on the issue of costs insisting that it be

waived arguing that the matter had been adjourned on several occasions in

order to ascertain the issue of Bruno Sanga and not that they contributed to

the adjournments.

Having summarized the arguments from either side, we wish to begin

with the preliminary objection that was raised to the effect that the appeal

is time barred for failure to serve the copy of notice of appeal to the 1st

respondent.

According to Rule 84 (1) of the Rules, the appellant is required within

14 days after the notice of appeal has been lodged, to serve the copies

thereof on all persons who seem to him to be directly affected by the appeal,

unless the Court directs upon ex-parte application that a service need not

be effected on any person who took no part in the proceedings. This means

that the appellant was obliged to serve a copy of the notice of appeal on the
respondent within 14 days after lodging it in Court. Luckily enough, the

counsel for the appellant has readily conceded to the anomaly.

In this matter, it is clear from pages 127 and 128 of the record that

the appellant lodged her notice of appeal on 29/11/2018 intending to appeal

against the decision in Land Case No. 04 of 2015 that was handed down on

30/10/2018. However, the said notice was not served on the 1st respondent.

This contravened the provisions of Rule 84 (1) of the Rules which, as alluded

earlier on, requires the same to be served on the respondent and all

interested parties within fourteen days of the notice of appeal being lodged.

It is, therefore, crystal clear that the notice of appeal herein is invalid and

of no effect. In effect this renders the appeal to be incompetent and

incurably defective and therefore liable to be struck out. - See: Williamson

Diamonds Limited V, Salvatory Syridion and Another, Civil Application

No. 15 of 2015 (unreported).

Ordinarily, the remedy for an appeal which is preceded by a defective

notice of appeal would have been to strike out of appeal as was correctly

submitted by both learned counsel. However, in the interest of justice we

find that, it might not be the right option to take. Luckily enough, this is not

the first time for this Court to take that route. The Court, in the case of Exim

Bank Tanzania Limited (supra), when faced with almost a similar

situation stated that:

 "Ordinarily,having ruied out that the appeal is
incompetent, it would automatically follow that the
appeal before us is to be struck out However, we
feel constrained not to strike out this appeal for the
reasons to be assigned shortly. We have done so in
order to remain seized with the High Court record
and so be able to intervene and remedy the
situation. The path we have opted to sail is not novel
as we have exercised these powers in the past in a
number o f occasions. See for instance the case of
Chama Cha Walimu Tanzania v. The Attorney
General, CivilApplication No. 151 o f2008; Mathias
Eusebi Soka v. The Registered Trustees of
Mama Clementina Foundation and 2 Others,
Civil Appeal No. 40 o f2001; and Tryphone Elias @
Ryphone Elias v. Majaiiwa Daudi Mayaya, Civil
Appeal No. 186 o f 2017 (all unreported)"

Basically, in all above cited eases, despite the fact that the Court found

them to be incompetent, they were not struck out Instead the Court

exercised its revisional jurisdiction to rectify the anomalies which were

encountered in the incompetent proceedings and decisions of the High

Court. We subscribe to that position of the law and, therefore, we proceed

with examining the raised anomalies.

With regard to the issue of the name of the purported purchaser of

the suit property, Bruno Sanga, it is crystal clear that as was submitted by
both counsel that Bruno Sanga was sued as a 2nd defendant. In the title of

the suit, plaint and the written statement of defence filed by the 1st

respondent indicate the same arrangement. He also filed his written

statement of defence and signed It in that name as shown at pages 37 to

38 of the record of appeal. Yet, throughout the proceedings of the High

Court, the 2nd defendant was referred to as such.

However, we note that the 1st respondent annexed the Sale

Agreement of the suit property between NJOCOBA and Makambako SACCOS

Ltd as vendors and Clarence Bruno Sanga who signed it as a purchaser (see

pages 16 to 18 of the record of appeal). Yet, in his written statement of

defence, the purported purchaser, Bruno Sanga as shown at pages 37 to 38

pleaded in para 2 and 5 to have purchased the suit property being sold by

NJOCOBA and Makambako SACCOS as shown in the Sale Agreement

attached as DHI and the same was admitted and marked as Exh. Dl. It is

noteworthy that, although the 2ndrespondent, Bruno Sanga pleaded to have

bought the said disputed property, the Sale Agreement (Exh. Dl) shows the

purchaser to be Clarence Bruno Sanga and not Bruno Sanga.

Surprisingly, during trial, Simon Ndimbo (PW2) who was a ten-cell

leader testified that he witnessed the sale of the suit property in which Bruno

Sanga was the buyer. Sophia Shongela (PW3) also testified about the sale

of the suit property and that it was occupied by Bruno Sanga.

ii
 In defence, Clarence Bruno Sanga (DW1) testified as the 2nddefendant

although the name of the 2nd defendant in the plaint and his written

statement of defence was Bruno Sanga. It should be noted that for the first

time the name of Clarence Bruno Sanga surfaced when he testified in court

and then in the Sale Agreement that was tendered by DW1 and admitted as

Exh. D1 - (see page 87). The said Sale Agreement was between Njombe

Community Bank (NJOCOBA) and Makambako SACCOS Limited and Clarence

Bruno Sanga.

As hinted earlier on, in the title of the Judgment it refers Bruno Sanga

as the 2nd defendant and throughout the judgment it refers him as the 2nd

defendant. However, the 2nd defendant who allegedly purchased the suit

property was referred to as Clarence Bruno Sanga who as well testified as

Clarence Bruno Sanga in court although in the judgment, the 2nd respondent

continued to appear as Bruno Sanga. This anomaly led to the use of the

same reference which referred to the improper party in the succeeding

documents such as the decree which referred him as Bruno Sanga meaning

he is a decree holder being the purchaser of the suit property. The same

applies in the notice of appeal and the certificate of delay as shown at pages

127 and 131 of the record of appeal.

It would appear that things might have moved smoothly had the said

Bruno Sanga not passed away. This featured when the appeal was called on
12
for hearing before this Court on 24/9/2021, when it transpired that the said

Bruno Sanga had passed away which led to the adjournment of the hearing

to another session to enable the appointment of the legal representative of

the 2nd respondent for being joined in the appeal.

However, since then, it would appear that nothing happened because

when the matter was placed for hearing on 2/11/2022, certain Patrisia

Erasto Sanga who purportedly appeared as a legal representative of the 2nd

respondent presented the letters of administrator issued by the Primary

Court of Makambako appointing her as the administration of the estate of

the late Erasmo Timsi Sanga, who was a different person from Bruno Sanga

(the 2nd respondent).

Upon observing that the name of the deceased in the letters of

administration is not of the 2nd respondent herein but of Erasmo Timsi

Sanga, the matter was again adjourned in order for the legal representative

of the 2nd respondent to apply and be joined in place of the deceased which

did not materialize.

As it is, it transpired that the so-called 2nd respondent had been using

more than one name interchangeably.

13
 Unfortunately, It appears that the variance in names in the suit and in

Exh. PI escaped unnoticed as, we think, this where the provisions of Order

I rule 10 (2) of the CPC would have come into play. The said provision states:

"The court may, at any stage o f 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 o f any party improperlyjoined, whether
as piaintiffor defendant, be struck out and 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
competently to adjudicate upon and settle all the
questions involved in the suit, be added. "[Emphasis
added]

It is important to emphasize that although the name of Bruno Sanga

seems to dominate in the proceedings, judgment, decree, notice of appeal,

and certificate of delay and even in the memorandum of appeal subject of

this appeal, the truth is that, the purchaser of the suit property as per Exh.

Dl is not the same person as the 2nd respondent herein. Apart from that,

the purported 2nd respondent who is reported to have passed away is not

the same person as the 2nd respondent herein which makes things to be

14
even more complicated as one cannot say with certainty as to who was the

purchaser of the suit property.

In the case of Inter-consult Limited v. Mrs Nora Kassanga and

Another, Civil Appeal No. 79 of 2015 (unreported), the Court Was

confronted with a scenario where the party's name was changed from

International Engineering Consultancy Services Ltd to Inter-consult Limited

without an order of the Court. In its deliberation, the Court found that such

change of the party's name without an order of the court was an irregularity

which was fatal. It stated that:

"Be it as it may, we agree with Mr. Vadasto that

substitution of the appellants name from
International Engineering Consultancy Services Ltd
to Inter Consult Ltd without any specific order of the
trial court was an irregularity which is fatal."

The Court went further to find out that it was an irregularity, which

cannot be cured by the provisions of section 96 of the CPC.

In the matter at hand, we think, the situation is even worse due to a

total confusion depicted as it is not certain as to who was the purchaser of

the suit property in the eyes of law. We are, therefore, settled in our mind

that this irregularity is fatal which is incurable.

In relation to failure to join Makambako SACCOS in the suit, it is

common ground that the suit property was disposed of co-jointly by

NJOCOBA (1st respondent) and Makambako SACCOS to recover the loaned

amounts as it was evident that the appellant had mortgaged her house to

two entities. What she did according to DW4, was to hand over the

certificate of title to Makambako SACCOS and a letter of offer of a certificate

of title to the 1st respondent. This is confirmed by the Sale Agreement (Exh.

Dl) which dearly bears out that it was between NJOCOBA and Makambako

SACCOS as vendors and Clarence Bruno Sanga as the purchaser. However,

as was correctly submitted by Mr. Sanga, Makambako SACCOS was not

impleaded in the suit which amounts to non-joinder of parties which, we

think, will be dealt with in due course.

With regard to the issue that the 3rd and 4th respondents were not

involved in selling the suit property, we note that it is true that the trial court

cleared them. The testimony from PW2, DW2, DW3 and DW4 was to the

effect that 3rd and 4th respondent were not involved. For instance, at page

122 of the record of appeal, the trial judge cleared them as hereunder:

"In my considered opinion the J dand 4h defendants

were wrongly sued by the plaintiff. There is no cause
of action against them. The auctioneers, Comrade
Auction Mart was not a party to this suit They are
correct, people to be challenged on the manner o f
sale. The plaintiff should have sued the Comrade
Auction Mart instead of the J d and 4h defendants
because both the plaintiff and PW2 denied knowing
16
 them as auctioneers. Indeed, they were not even
sued as registered auctioneers."

The trial judge was of the view that, Comrade Auction Mart was a

person who ought to have been sued instead of the 3rd and 4th defendants

who were wrongly sued. At this juncture, we now wish to canvass on the

issue of non-joinder of the parties.

According to the record of appeal, it is common ground that the suit

property was sold co-jointly by the 1st respondent and Makambako SACCOS

to the 2ndrespondent as per Exh. Dl for realization of their assets. However,

Makambako SACCOS was not sued.

Yet according to 1st and 3rd respondents, the auction for sale of the

suit property was conducted by Comrade Auction Mart and not by them. It

means that by suing the 3rd and 4th respondents while leaving the Comrade

Auction Mart there was a mis-joinder of parties. But again, failure to implead

Makambako SACCOS and Comrade Auction Mart amounted to non- joinder

of parties since they seem to have been proper or necessary parties in the

matter.

As to what entails mis-joinder and non-joinder of parties it is not

clearly stated in the CPC. However, this was lucidly articulated in the case

of Abdullatif Mohamed Hamis v. Mehboob Yusufu Osman and

Another, Civil Revision No. 6 of 2017 (unreported) that:

17
 "The CPC does not specifically define what
constitutes a ''mis-joinder" or "nonjoinder but, we
should suppose, if two or more persons are joined
as plaintiffs or defendants in one suit in
contravention of Order I rule 1 and 3, respectively,
and they are neither necessary nor proper parties, it
is a case o f misjoinder ofparties. Conversely, where
a person, who is necessary or proper party to a suit
has not been joined as a party to the suit, it is a case
o fnonjoinder. Speaking ofa necessaryparty, a non­
joinder may involve an omission to join some person
as a party to a suit, whether as plaintiff or as
defendant, who, as a matter o f necessity, ought to
have been joined

In this case, as alluded to earlier on, much as Makambako SACCOS

featured and was involved in the sale of the suit property to the 2nd

respondent, she was not joined as a necessary party in the suit. Neither was

Comrade Auction Mart, who was ruled out by the High Court to have been

involved in the sale of the suit property to the 2nd respondent was joined in

the suit as a necessary party.

Unfortunately, this issue was not raised and dealt with at the High

Court except for the issue that Comrade Auction Mart that was revealed in

evidence as the one who conducted the auction. As it was argued by the

learned State Attorney, had the High Court been keen during the trial it

18
could have ordered that Comrade Auction Mart be added as a necessary

party as per Order I rule 10 (2) of the CPC so as to enable the court to

effectually and completely adjudicate upon and settle all the questions

involved in the suit. That was not done.

While mindful of Order I rule 9 of the CPC that the suit shall not be

affected by reason of mis-joinder or non-joinder of parties, we are of the

view that, each case is to be determined in accordance with its prevailing

circumstances because there are non-joinders which can render a suit

unmaintainable and those which do not affect the substance of the matter

and are mere inconsequential. See: Stanslaus Kalokola v. Tanzania

Building Agency and Another, Civil Appeal No. 45 of 2018 (unreported).

Moreover, it is important to emphasize that there is a distinction between

non-joinder of a person who ought to have been joined as a party and the

non-joinder of a person whose joinder is only a matter of convenience or

expediency - See: a commentary from Mulia Code of Civil Procedure

13th Edition Volume 1 page 620.

Also, in the case of Tang Gas distributors Limited v. Mohamed

Salim Said and 2 Others, Civil Application for Revision No. 68 of 2011

(unreported), the Court discussed the situation in which a necessary party

could be added or joined such as where his proprietary rights are directly

affected by the proceeding, his joinder is necessary in order to bind him with
19
the decision of the court. Also, in the same case the Court observed that

deciding a case in the absence of necessary party in suit is a material

irregularity which is fatal.

In the matter at hand, in view of what we have discussed above, it is

without question that given the prevailing circumstances, Makambako

SACCOS and Comrade Auction Mart were necessary parties in the suit. This

is so because, even if the court decided the matter, the decree thereof may

not be effective in the absence of the said parties. On the other hand, it may

affect their rights. And, this brings us to the issue of right to be heard.

It was the learned State Attorney's argument that, since the decree

and decision that was handed down affects Makambako SACCOS and

Comrade Auction Mart, it was tantamount to condemning them unheard. He

pointed out that one of the complaints in the appeal before this Court is that

the sale of the suit property was not properly conducted as it did not comply

with the auction procedures and the appellant is praying that the sale be

declared null and void and ultimately be nullified.

It is a cardinal principle of justice for a court of law, before giving a

decision in any dispute, to accord the parties a right to be heard unless the

law provides otherwise. This is a right, which is enshrined in the Constitution

under Article 13 (6) (a) which provides that:

20
 To ensure equality before the law, the state
Authority shall make procedures which are
appropriate or which take into account the following
principles, namely:

(a) When the rights and duties of any person are

being determined by the Court or any other
agency that person shall be entitled to for
hearing and the right o f appeal or other legal
remedy against the decision of the Court or of the
other agency concerned... "
[Emphasis added].

In the case of MB Business Limited (supra), when the Court was

confronted with a similar scenario it cited with approval the famous case of

Mbeya - Rukwa Autoparts and Transport Ltd v. Jestina George

Mwakyoma [2002] TLR 251 where it was stated:

"In this country, natural justice is not merely a

principle o f common law, it has become a
fundamental constitutional right. Article 13 (6) (a)
includes the right to be heard among the attributes
of equality before the law..."

See also: Independent Power Tanzania Limited v. Standard

Chartered Bank (Hong Kong) Limited, Civil Revision No. 1 of 2009

(unreported) in which the Court emphasized the importance of observing

the right to be heard before an adverse decision or order is made.

21
 As to the effect of the decision which is made without observing the

basic right to be heard is that, it would not be spared or left to stand even

if the same position in the decision would have been taken had the party

been heard - See: The Director of Public Prosecutions v. Sabini Inyasi

Tesha and Another [1993] TLR 237. Also, a similar position was taken in

the case of Abbas Sherally and Another v. Abdul Sultan Haji

Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported in which

the Court had this to say:

"The right o f a party to be heard before adverse

action or decision is taken against such a party has
been stated and emphasized by the courts in
numerous decisions. That right is so basic that a
decision which is arrived at in violation of it wiil be
nullified, even if the same decision would have been
reached had the party been heard, because the
violation is considered to be a breach o f natural
justice"

In this case, as was submitted by the learned State Attorney, one of

the complaints is that the sale of the suit property was marred with

irregularities, as it did not comply with the auction procedures and it is

prayed that the sale be declared null and void and, ultimately, be nullified.

On the other hand, according to the evidence available, Makambako

SACCOS and Comrade Auction Mart who participated in the contested sale

22
of the suit property were not parties to the decision subject to this appeal.

This means that, should the Court agree with the appellant, it would amount

to denying the right to be heard. Putting it the other way round, failure to

implead Makambako SACCOS and Comrade Auction Mart, may prejudice

their right on the disputed property. This would be against the dictate of

Article 13 (6) (a) of the Constitution - See also: Mbeya Rukwa Autoparts

and Transport Ltd (supra) and NUTA Press Limited v. Mac Holdings

and Another, Civil Appeal No. 80 of 2016 (unreported).

Ultimately, guided by the above authorities, we agree with the learned

State Attorney that indeed, this matter was marred with multiple

irregularities such as impleading the 2nd respondent as the purchaser of the

suit property while he was not; impleading the 3rd and 4th respondents as

the sellers of the suit property while they were not as per the evidence of

PW2, PW3 and DW4 and the finding of the High Court; failure to join

Makambako SACCOS and Comrade Auction Mart since the former sold the

suit property co-jointly with the 1st respondent and the latter conducted the

auction for sale of the said suit property. All these anomalies rendered the

proceedings and the judgment thereof a nullity which are liable to be

nullified.

As a way forward, we invoke our revisional powers under section 4 (2)

of the AJA and nullify the proceedings and judgment arising therefrom and

23
set aside the decree with an order that the then plaintiff may institute a

fresh suit should she wish to do so. Nevertheless, given the nature of this

matter, we make no order as to costs in respect of both the preliminary

objection and the appeal.

It is so ordered.

DATED at IRINGA this 15th day of December, 2023.

R. K. MKUYE
JUSTICE OF APPEAL

A. Z. MGEYEKWA
JUSTICE OF APPEAL

P. J. NGWEMBE
JUSTICE OF APPEAL

The Judgment delivered this 15th day of December, 2023 in the

presence of Ms. Neema Sarakikya, learned State Attorney for the 1st

Respondent also holding brief for Mr. Moses Ambindwile, learned counsel for

the Appellant, is hereby certified as a true copy of the original.

y -*u

R. W. CHAUNGU
DEPUTY REGISTRAR
COURT OF APPEAL