IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: MKUYE. J.A.. KOROSSO. J.A.. And KIHWELO. J.A.l

CIVIL APPEAL NO. 183 OF 2019

GODFREY NZOWA APPELLANT

VERSUS
SELEMANI KOVA .............. 1st RESPONDENT
TANZANIA BUILDING AGENCY 2nd RESPONDENT
(Appeal from the Judgment and Decree of the High Court of Tanzania
at Arusha)

(Massengi, J.)

Dated the 20th day of September, 2013

in
Land Case No. 12 of 2008

RULING OF THE COURT

21st September & 15th November, 2021

KOROSSO, 3.A.:

In the High Court of Tanzania at Arusha the appellant, Godfrey

Nzowa filed a suit against the 1st and 2nd respondents on claims related

to house No. 203, Sekei area, known as Plot No. 40, Block 3 Sekei

Arusha Municipality (suit premises). The appellant's claims were one, for

a declaratory order that the plaintiff/appellant is the legitimate owner

and rightful employee in the civil service entitled to purchase the suit

premises; two, a declaratory order that whatever sale agreement or

arrangement that the 1st defendant/respondent may or might have

executed purporting to acquire title over the suit premises are illegal and
void ab-initio; three, a certificate of occupancy (CT No. 30906) (Moshi

land Registry) issued to the 1st respondent in respect of the suit

premises be nullified; four, in the alternative to prayer (three) an order

be made and issued for rectification of the register of titles to substitute

the name of the appellant for that of the first respondent in certificate of

occupancy upon appellant paying consideration to the 2nd respondent for

the purchase of the suit premises; five, a further order by way of

permanent injunction to perpetually restrain the respondents, their

agents, servants and or assignees from interfering with the appellants

peaceful and continuous occupation of the suit house; and six, costs

and reliefs.

The 1st respondent through the written statement of defence

countered the claims with own claims stating: one, a judgment on the

counter claims for appellant to immediately vacate the suit premises;

two, a judgment against appellant to pay arrears of rent of US$200 per

month from 2002 until the appellant vacates the premises; three, an

order against the appellant to pay costs for restoration of the premises

in habitable condition at a sum of Tshs. 10,000,000/-; and four, costs

for the suit and any other reliefs.

Briefly, the background leading to the present appeal is as follows:

 In December, 2001 the appellant was transferred from Kigoma to

Arusha as the Regional Crimes Officer (RCO) and simultaneously, the 1st

respondent who was the RCO of Arusha at the time was transferred to

Kigoma Region. Noteworthy, is the fact that while stationed at Arusha

the 1st respondent resided at the suit premises. The appellant reported

in Arusha on 1/1/2002. The handover of the suit premises between the

appellant and the 1st respondent took place on 8/1/2002. While the

transfers of the appellant and 1st respondent were effected it was also

the time when the Government introduced a new policy to dispose of its

houses across the country. The condition precedent in the disposition of

the said houses from the government to civil servants was that civil

servants who were to benefit from the initiative had to be in occupation

of the premises they intended to purchase. In the process, the suit

premise was sold to the 1st respondent, and it is this sale that prompted

the suit subject to the current appeal.

After hearing the evidence from both parties, the trial judge held

in favour of the 1st respondent. Aggrieved, the appellant appealed to this

Court through the memorandum of appeal predicated on twelve grounds

of appeal which for reasons which shall soon become apparent will not

be reproduced.

3
 When the appeal was called for hearing, the appellant was

represented by Ms. Neema Mtayangilwa and Mr. Modest Akida, both

learned Advocates. On the part of the 1st respondent, he enjoyed the

services of Mr. Paschal Kamala, learned Advocate. The 2nd respondent

was represented by Ms. Irene Lasulie and Ms. Joyce Mtinyange both

Principal State Attorneys, together with Mr. Felix Chakila and Mr. Gallus

Lupogo, both learned State Attorneys.

At the commencement of hearing, Ms. Lasulie rose up, sought and

was granted leave to raise a point of law that she contended had come

to their attention while preparing for the appeal. She argued that the

instant appeal was incompetent since it arose from an incompetent suit

and null judgment. The learned Principal State Attorney contended

further that the 2nd respondent, an executive agency established under

the Executive Agency Act, Cap. 245 of 2002 (the Act) in terms of section

3(6)(b) of the said Act although a legal entity cannot be sued in the

absence of a contract between the parties in dispute.

The learned Principal State Attorney argued further that at the

time the suit was instituted, no contract existed between the 2nd

respondent and the appellant. She reasoned that as an executive

agency, the 2nd respondent was a mere implementor of the Government

policy pronounced on 1/5/2002 to sell its houses and not the owner of

the houses intended to be sold. She argued that the fact that the filed

suit by the appellant against the respondents challenged the said

Government policy further reinforced the contention that the 2nd

respondent was not the one who should have been sued, understanding

that an executive agency is not a policy maker. Ms. Lasulie further

argued that the instituted suit, Land Case No. 12 of 2003 between the

current parties is improper because apart from the 1st respondent other

necessary parties who should have been sued were the Permanent

Secretary, Ministry of Works, who stood in possession of the suit

premises and the Attorney General so as to comply with the Government

Proceedings Act, Cap 5 RE 2002, now 2019 (the GPA) where a ministry,

government department or institution is sued. She thus maintained that

the suit filed in the High Court suing the 2nd respondent was

incompetent.

With regard to the query on why the 1st and 2nd respondents

delayed to raise the issue upon becoming aware of the suit, the learned

Principal State Attorney contended that the record of appeal shows, the

2nd respondent had raised a preliminary objection related to

incompetency of the suit in the first written statement of defence filed

on 9/5/2008 (page 41 of the record of appeal) and the objection seems

not to have been addressed as the record is silent on what transpired

thereafter. Accordingly, the learned Principal State Attorney implored the

Court to invoke its revisional powers under section 4(2) of the Appellate

Jurisdiction Act, Cap 141 RE 2002, now 2019 (AJA) and strike out the

appeal.

In response, Ms. Mtayangilwa contended that having perused

through section 3(6)(b) of the Act and the Civil Procedure Code [Cap 33

RE 2002, now 2019] (CPC) in view of the point of law raised, the Court

should take into account the following matters when determining the

same, thus: one, that the objection addressed misjoinder and non­

joinder of parties are matters governed by Order 1 Rule 13 of the CPC

which requires that all such objections be presented at the earliest and if

this is not done as the case on hand, the objection shall be deemed to

have been waived and that this is what the Court should hold since it

was not raised when the pleadings were filed; second, that pursuant to

Order 1 Rule 9 of the CPC, a suit shall not be defeated merely by

misjoinder or non-joinder of parties in so far as the interest of the

parties are concerned, therefore the Court should subscribe to that

principle and also consider the fact that the case subject to the current

6
appeal involves parties more than the 2nd respondent. She argued that

the cited provision requires for the rights and interests of the parties to

be considered and that in case the 2nd respondent was not supposed to

be sued, then the suit cannot be defeated for that reason alone. The

learned counsel argued that if the 2nd respondent was not properly

joined in the suit, then justice demands that instead of striking out the

appeal, a retrial should be ordered so that necessary parties may be

joined in the suit and in the process avoid subjecting the appellant to

start afresh. She argued that in the instant appeal as can be discerned

from the record, many exhibits have been tendered and admitted

supporting the claims sought thus striking out or dismissing the appeal

without any direction on the suit will be leaving the matter in the air and

prejudice the rights of the appellant. She referred us to the case of

Japan International Cooperation Agency (JICA) vs Khaki

Complex Limited (2006) TLR 343, which addressed matters to

consider when determining whether to order a retrial where various

exhibits have been admitted.

On the part of the 1st respondent, Mr. Kamala concurred with the

submissions by the learned Principal State Attorney and argued that in

including the 2nd respondent as a party section 3(6)(b) of the Act was

7
not complied with and thus vitiating the whole process related to filing

the suit. The learned counsel contended that if the Court was to be

persuaded by the submissions of the appellant's counsel and proceed

without the necessary parties the exercise will be futile since there will

be no one to execute any decree in favor of the appellant. The nature

and subject matter of the suit being such as to require inclusion of the

Permanent Secretary Ministry of Works as a necessary party in the suit

since under section 3(6)(b) of the Act the 2nd respondent may only be

sued as regards existing contractual obligations which was not the case

with the appellant in the instant case. With respect to the way forward

and the prayer for retrial, Mr. Kamala argued that having regard to the

intricacies to pursue a suit against a government ministry or department

under the Government Proceedings Act, a retrial will not be the best way

forward. He asserted that the only available remedy was to either

withdraw the appeal and start afresh or for the Court to strike out the

same. He also resisted the submissions by the learned counsel for the

appellant about conditions or consequences where there is a misjoinder

or non-joinder of parties in a suit, he referred us and urged us to be

inspired by our decision in Stanslaus Kalokola vs Tanzania Building

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

what we set out as the way forward in such a situation.

8
 In rejoinder, Ms. Lesuile reiterated her earlier submission on the

import of section 3(6)(b) of the Executive Agency Act arguing that

indeed in the absence of any contract between the appellant and the 2nd

respondent meant the appellant had no cause of action against the 2nd

respondent and thus the suit was incompetent. She contended further

that if the appellant wishes to proceed with the claims, she cannot

escape joining the necessary parties that is, the Permanent Secretary,

Ministry of Works and the Attorney General. Regarding the submissions

on the legal requirements and conditions set related to non-joinder and

misjoinder of parties under the CPC, she was in agreement with the

assertion by the learned counsel for the 1st respondent that the case of

Stanslaus Kalokola (supra) provides the way forward since the

circumstances therein have close similarity to those in the instant case.

She urged the Court to dismiss the appeal and nullify the decision of the

High Court.

Having heard and carefully considered the submissions before us

from counsel for all the parties about the preliminary concern raised by

the learned Principal State Attorney that related to the competency of

the appeal, on the basis of what was submitted by all the counsel for

the parties, there was no dispute that the objection was a point of law.
We have no qualms in agreeing with the undisputed stance being

satisfied that the objection raises a point of law based on ascertained

facts and not on evidence and if the objection was to be sustained it will

dispose of the matter and thus falls within the ambit of the factors to

consider in determination of a pure point of law outlined in Mukisa

Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd

[1969] E.A 696 and CPTTWU (T) OTTU Union & Another vs Hon.

Iddi Simba Minister of Industries and Trade and Others, Civil

Application No. 40 of 2000 (unreported).

Suffice to say, determination of the objection raised shall be

guided by the following: one, competency of the 2nd respondent as a

party to the suit filed in the High Court; Land Case No. 12 of 2008; two,

implications of non-joinder and misjoinder of parties; and three, the

consequences thereto.

We will start with issue number one on whether the 2nd

respondent was a competent party to be sued. A perusal of the record

reveals that the 2nd respondent, Tanzania Building Agency (TBA) was

established as an executive agency through the Tanzania Building

Agency (Establishment) Order, 2003 GN No. 24 published on 14/2/2003

that states:

10
 "Z The Tanzania Buildings Agency to be known
by the acronym TBA is hereby established as an
Executive Agency to take over the day-to-day
management o f Buildings as specified in the
Schedule to this Order that are currently under
the responsibility o f the Department o f Buildings
in the Ministry o f Works."

The above provision indicates that TBA was established under the

umbrella of the Department of Buildings in the Ministry of Works and

according to item 3.1 of the Schedule to the Order cited above, TBA is

semi-autonomous. Its import being that TBA, is a semi-autonomous

institution under the umbrella of the Ministry of Works and thus

undoubtedly, when suing TBA involvement of the Permanent Secretary,

Ministry of Works at the least is essential. Additionally, TBA as an

executive agency, under section 3 (6)(a) and (b) of the Act, is capable

of entering into contracts in its own name and can sue or be sued in its

own name only in contract. For ease of understanding we reproduce

section 3(6) of the Act that reads:

"S. 3(6)- Notwithstanding any other law, an

Executive Agency shail-
(a) be capable o f entering into contracts in

its own name;

ii
 (b) be capable o f suing and being
sued in its own name only in
contract; and in that respect all laws
appliable to legal proceeding other
than Government Proceedings Act,
1967, shall apply to legal proceedings
to which the Agency is a party;
(c) in all matters relating to contract, not
be competent to sue or be sued in its
own name; however, any legal
proceedings which but for this
paragraph, would have been instituted
by or against the Government in
accordance with the Government
Proceedings Act.
(d) N/A

(e) N/A" [Emphasis Added]

The import of the above provision as rightly argued by the learned

Principal State Attorney and supported by the counsel for the 1st

respondent, and in essence not objected to by the respondent's counsel

is that; first, as an executive agency, TBA can only sue or be sued

where there is a contract with the one sued or suing it; second, where

the suit is not based on contract and in any other matter, then the 2nd

respondent as an executive agency may sue or be sued in accordance

with the GPA as expounded in Section 3(6)(c) of the Act and the
12
respective Ministry or Department and Attorney General have to be

joined as parties to the suit.

In the suit subject to the current appeal, first, there is no dispute

that there was no contractual relationship between the appellant and

the 2nd respondent, this was readily conceded by the appellant's counsel.

We have gone through the pleadings before the Court and considered

the submissions before us and failed to find anything to indicate the

existence of any contractual relationship between the appellant and the

2nd respondent. From the record; firstly, there is no doubt that TBA

were responsible for supervision of government house construction,

distribution of houses to government employees, in effect it was the

government houses distributing authority, however the government

quarters were under the central government, Ministry of Works; and

secondly, it is clear, a fact also conceded by the counsel for the

appellant that there being no contract between the appellant and the 2nd

respondent, the procedure for suing an executive agency found in the

GPA was not followed.

With our finding above, there is no doubt that it was not proper to

sue the 2nd respondent in this case and that the one who should have

been sued is the Permanent Secretary, Ministry of Works. What is clear

IB
is that the Permanent Secretary, Ministry of Works was an essential

party to the suit, and it paves way for us to address the second issue on

joinder and non-joinder of parties.

The 1st and 2nd respondents' counsel argued that nonjoinder of

the Permanent Secretary, Ministry of Works, a necessary and essential

party as alluded to hereinabove and especially for execution of any

decree or order declared, render the instant appeal to be incompetent

for reason that it arises from an incompetent trial. The response from

the appellant's side was that non joinder of a party cannot vitiate the

proceedings and that since no such objection was fronted at the earliest

possible time at the start of trial, it meant that the respondents waived

the same. Additionally, the appellant counsel argued that by virtue of

Order 1 Rule 9 of the CPC, misjoinder or non-joinder of parties by itself

does not render a suit incompetent and especially since there were

other defendants and the rights and interests of all parties have to be

considered.

It is a common ground as submitted by counsel for both parties,

that misjoinder and non-joinder of parties to the suit is addressed under

Order 1 Rule 1 and 3 of the CPC that lays down the procedure to be

followed in cases where there is non-joinder or misjoinder of parties.

14
Under those provisions where a suit is instituted by or against certain

identifiable parties, all members of such a group must be impleaded

whether in personal or in representative capacity, although it is not all

the time that not all parties are necessary for the suit to be adjudicated

upon. The question of joinder of parties may arise with respect to

plaintiffs or the defendants. Joinder of plaintiffs is regulated by Order 1

Rule 1of the CPC. In the case of defendants, as held by this Court in

the caseof Abdulatif Mohamed Hamis vs Mehboob Yusuf Osman

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

".... on the other hand, under Rule 3 of-Order 1,

all persons may be joined as a defendant against
whom any right to relief which is alleged to exist
against them arises out o f the same act o f
transaction; and the case is o f such a character
that; if separate suits were brought against such
a person, any common question o f law or fact
would arise."
The Court proceeded further and discussed what a misjoinder or non­

joinder of parties in the suit is and stated:

" The CPC does not specifically define what

constitutes a "misjoinder" or a "non -joinder but,
we should suppose, if two or more persons are
joined as plaintiffs or defendants in one suit in
contravention o f Order 1, -Rules 1 and. 3,
 respectively, and they are neither necessary nor
proper parties, it is a case o f misjoinder o f
parties. 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 f non­
joinder. Speaking o f a necessary party, a non­
joinder may involve omissions to join some
person or party to a suit, whether as plaintiff or
defendant, who, as a matter o f necessity ought
to have been joined”

Suffice to say, while considering the arguments by the counsel for

the appellant, the provision of Order 1 Rule 1 of the CPC that all parties

who are necessary must be joined to the suit, cannot be ignored. On the

other hand, we agree that it is also true that under Order 1 Rule 9 of the

CPC, no suit shall be defeated only for reason of non-joinder. In the

present case, it is pertinent to consider that non-joinder of parties has

been raised at the appellate stage because it was not considered at the

trial court. At this stage the Court cannot interfere and order for the

name of any party to be joined where it finds to be just and necessary in

order to enable the court effectually and completely adjudicate upon and

settle all the questions involved in the suit in terms of Order 1 Rule

10(2) of CPC.

16
 While alive to the provision of Order 1 Rule 9 of the CPC, it is

important to also take into account the fact each case has to be

determined in accordance with its peculiar circumstances. We align to

i

the observation of this Court in the case of Stanslaus Kalokola (supra)

that:

"...there are non-joinders that may render a suit

unmaintainabie and those that do not affect the
substance of the matter, therefore
inconsequentiai."
The Court thereafter quoted a commentary from Muila Code o f Civii

Procedure, 13th Edition Voiume Ipg. 620 stating thus:

"As regards non-joinder o f parties, a distinction

has been drawn between nonjoinder o f a person
who ought to have been joined as a party and
the non-joinder o f a person whose joinder is oniy
a matter o f convenience or expediency. This is
because O. 1 r.9 is a ruie o f procedure which
does not affect the substantive iaw. I f the decree
cannot be effective without the absent parties,
the suit is iiabie to be dismissed”

This Court had also another opportunity to deliberate on a similar

situation on the effect of not joining a necessary party to a case. In the

case of Tang Gas Distributors Limited vs Mohamed Salim Said

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

17
(unreported), the Court highlighted situations where a necessary party

ought to be added in a suit at page 9 of the judgment, that is, where:

"(b) his proprietary rights are directiy affected by

the proceedings and to avoid a muitipiicity o f
suits, his joinder is necessary so as to have him
bound by the decision o f the court in the su it.."

Additionally, the Court observed further in the case of Tang Gas

Distributors Limited (supra) that:

"... it is now an accepted principie o f iaw (see

Muiia Treatise (supra) at p. 810) that it is a
materiai irreguiarity for a court to decide a case
in the absence o f a necessary party. Faiiure to
join a necessary party therefore is fatai (MULLA
at p 1020)/'
(See also, Musa Chande Jape vs Moza Mohamed Salim, Civil

Appeal No. 141 of 2018 (unreported)).

Indeed, the fact that the Permanent Secretary Ministry of Works

was a necessary party has not been disputed by all the parties. In

Abdullatif Mohamed Hamis (supra), the Court was inspired by the

decision from India in the case of Benares Bank Ltd vs

Bhagwandas, A.I.R. (1947) All 18, in which the full bench of the High

Court of Allahabad provided two tests for determining whether a party is

necessary party to the proceedings which we readily adopted; one,

18
there has to be a right of relief against such a party in respect of the

matters involved in the suit and; second, the court must not be in a

position to pass an effective decree in the absence of such a party.

We adopt the above tests and apply the same to the instant

appeal, understanding that the Government through the Ministry of

Works being the owners of the suit premises, had the right of relief

against such a party as also conceded by the counsel for the appellant,

together with the fact that under the circumstances it will be impossible

to pass an effectual decree in the absence of Ministry of Works.

We are of the view that the current situation falls under the above

circumstances.

Taking into account the above and the fact that neither the

appellant nor the trial court found it important to join the Permanent

Secretary, Ministry of Works, a necessary party so as to effectually and

completely adjudicate and settle the controversy involving the sale of

suit premises, it cannot be argued that such non-joinder can be ignored

only for reason that no objection was raised at the earliest or that it is

not sufficient to render dismissal of the suit. To say the least the non­

joinder of the necessary party was as held in Abdullatif Mohamed

Ha mis (supra); "a serious procedural in-exactitude which may,

seemingly, breed injustice” For the foregoing, we find that under the

circumstances non-joinder of the Permanent Secretary, Ministry of

Works rendered the suit subject to the instant appeal unmaintainable

and any granted decree ineffective and thus fatal.

In consequence to the above finding, what remains for

determination is the way forward. Submitting in the alternative, the

counsel for the appellant urged us to order a retrial if we were to find

that non-joinder of the Permanent Secretary, Ministry of Works fatal.

She argued that we should take into account the volume of exhibits

tendered and admitted in evidence and it will be judicious taking into

consideration all the obtaining circumstances in the case and the fact

that there are other respondents to consider. On the part of the counsel

of the 1st and 2nd respondents implored us to strike out the appeal for

lack of competency since it arose from an incompetent suit.

At this stage, taking all the facts into consideration and there

being no option to amend the plaint, in the interest of justice, we set

aside the entire proceedings from the date of commencement of the trial

up to the date of judgment and the resultant judgment and decree of

the trial court in Land Case No 12 of 2008, High Court of Tanzania at

Arusha together with subsequent orders. .

20
 We have considered the peculiar circumstances pertaining to this

matter and thus in the interest of justice we order that the record be

remitted back to the High Court for retrial after the necessary parties

have been joined in the suit. Considering the circumstances of this case,

we make no order as to costs.

DATED at DAR ES SALAAM this 10th day of November, 2021.

R. K. MKUYE
JUSTICE OF APPEAL

W. B. KOROSSO
JUSTICE OF APPEAL

P. F. KIHWELO
JUSTICE OF APPEAL

The ruling delivered this 15th day of November, 2021 in the

presence of Mr. Sabas Shayo, holding brief for Ms. Neema Mtayangulwa,

learned counsel for the appellant and also holding brief for Mr. Paschal

Kamala, learned counsel for the 1st respondent and Mr. Felix Chakila,

learned State Attorney for the 2nd respondent is hereby certified as a