IN THE COURT OF APPEAL OF TANZANIA

AT DAR ESSALAAM

(CORAM: BWANA, J.A., MJASIRI, J.A., And MUSSA, J.A.)

CIVIL APPLICATION NO. 112 OF 2013

Versus

TWIGA PAPERS PRODUCTS LIMITED .RESPONDENT

(Application for an Order to prevent and to stop the respondent fromevicting the applicant from suit premises pending hearing anddetermination of an application for Revision of the decision ofthe High Court of Tanzania, Land Division, at Dar es Salaam)

(Longway, J.)

Dated the 26th day of January, 2007in

Land Case No. 240 of 2004

RULING OF THE COURT

The applicant, Godfrey Enock Mkocha, has been residing in the suit

house for about 21 years, until when there was a move to evict him. He

then filed a case wherein he sought for judgment and decree against the

-respondent, inters/is, requesting the Court to declare him (Mr. Mkocha) a

lawful owner of the suit premises. That case was struck out for want of

jurisdiction.

Dissatisfied, the applicant filed another application for extension of

time to file a Revision to challenge the High Court's decision which had

declared the respondent a legal owner of the suit premises. He was not

successfuleither.

In the meantime the applicant invoked Rules 2 and 4 (2)(a) and (b)

of the Court of Appeal Rules, 2009 (the Rules) and filed a Notice of Motion

for an order to prevent the respondent from evicting him from the suit

premises pending hearing and determination of an application for Revision

of the High Court decision. In support of his Motion, it is the applicant's

averment that irreparable injury will result to him and his family if the order

sought to prevent the respondent from evicting him from the suit premises

is not issued as he has no other house to shelter himself and his family,

save for the disputed house.

The respondent, Twiga Paper Products Ltd, filed a Notice of

.Preliminary Objection containing four points but.we are of the considered

view that the said Notice may be determined by considering the first and

third points only.

The first point is couched thus:-

"The application is fatally defective for failure to

enjoin the defendants in land case No. 240\2004

whose judgment is sought to be revised in the

intended application for revision."

The third point of preliminary objection states:

" The alleged ServiceTenancy of the applicant has

not been annexed to the application."

The other two points of objection in our considered view and after ..

examining counsel's submissions, would require further evidential and

factual proof, thus defeating the whole purpose of a preliminary objection,

as settled case law provides.

In the instant application Mr. Beatus Malima, learned counsel,

represented the applicant while Mr. Dilip Kesaria, learned counsel,

represented the respondent.

Submitting for the respondent and in respect of the first point, Mr.

Kesariadrew our attention to the following facts. Land case No. 240 of

2004 was between Twiga Papers Products Ltd as plaintiff (now the

respondent) and Permanent Secretary Ministry of Works and The Attorney

General as first and second defendants respectively. The premises

involved are the subject matter of this application. How~ver, the applicant

herein was not a party to those proceedings. Therefore, according to Mr.

Kesaria, this application ought to have enjoined all the parties who were

directly relevant in Land case No. 240 of 2004. The Permanent Secretary

and the Attorney General should have been enjoined as necessary parties

and accorded an opportunity to be heard. Their omission is fatal because

being denied an opportunity to be heard is a fundamental breach of their

rights.

In so for as the third point is concerned, it was Mr. Kesaria's

submission that since the present applicant was not a party in Land Case

No. 240 of 2004 he ought to have annexed his tenancy agreement which

gave him a right over the said premises. Failure to annex the said

agreement leaves the application incomplete thus incompetent. As a

consequenceof that incompetency, the application should be struck out.

Mr. Malima differed with Mr. Kesaria. As regards the first point, it

was Mr. Malima's averment that a party's presence is necessary if it

enables the court to determine an issue. In the instant application the

order being sought is for restraint that is, the respondent should not evict

the applicant from the suit premises. The Permanent Secretary and the

Attorney General are not necessaryparties he avered.

In so far as the third point is concerned, it was Mr. Malima's

submission that non-inclusion of the service tenancy agreement is not a

pure' pointof law. It is a factual issue which may be determined in the

, course of hear~ngan application, not at a stage ofa preliminary objection.

. We examine both points together and we strongly differ with Mr.

..Malimci'. In the Notice of Motion before the Court, the applicant does admit

in no. 4 thus:

"4. The applicant was not a party to High

Court of Tanzania, Land Division in Land case

no. 240/2004, the judgment of which is intended

to be challenged by the Applicant in the Revisional

Proceedings in this Honourable Court on grounds of

illegality and or fraud" (Emphasisprovided).

In deed, the applicant was not a party to the said Land Case. The

parties thereto were, as stated earlier, TWiga Papers Products Ltd, as

plaintiff and the Permanent Secretary Ministry of Work and the Attorney

General as first and second defendants, respectively. The plaintiff was

praying for judgment and decree inter alia for:-

A Declaratory Order that the house on plot no. 1032/60 L.O.

No: 51464 Ocean RoadArea, Dar es Salaam (which is the suit

house in this application) belongs to the plaintiff.

A Permanent Injunction to restrain the 1st Defendant from

occupying the house.

A permanent Injunction to restrain the 1st Defendant, .., from

interfering with the peaceful enjoyment of the house by the

plaintiff.

Those prayers by the plaintiff were granted. They are the prayers that are

material to the Revisional Proceedingsthat the applicant herein intends to

lodge before the Court. Briefly stated, the trial court established that the

house belonged to the respondent herein and those two defendants were

restrained from occupying the said house.

The issue before us, again put briefly, is that the applicant is trying to

establish himself as one who has rights in the said house. Conversely, he

is attempting to make us believe that the Orders by the trial court could

not be executed because they were directed towards the wrong parties,

the defendants. He, being the occupant of the premises by virtue of being

a government servant, is one who will suffer.

From the above analysis, it is imperative that the applicant had the

obligation to establish before this Court two things namely,

That he had legal rights over the said premises. This could be in the

form of a title to the premises or a valid contract between him and

the present respondent (who was declared as the lawful owner of the

premises) or a service contract between him and the government

which passedover tenancy rights over to him. The applicant has not

established this position, by attaching a copy of the tenancy

agreement that he was a party to the proceedings in Land CaseNo.

240 of 2004. Mr. Malima and the record at large, show that the

applicant was not a party to those proceedings. Likewise, there is no

proof that he was a party to the tenancy agreement between the

respondent herein and the government. To make this application

valid therefore, the applicant should have been enjoined in the

proceedings before the High Court in Land case No. 240/204 as the

decision of that Court affects them and the same will be the position

in the intended RevisionalProceedings. This application which seeks

to restrain the Order to which he was not a party is bad in law, in the

absenceof the above.

The above considered, we are of the settled opinion that this

application is bad in law. The tenancy agreement which is the basis

of the' matter before the Court should have been annexed as to

establish his legal status. Failure to do so, makes him a stranger.

Further, the two defendants in Land Case No. 240 of 2004 were

necessary parties even to the present applications therefore, they

should have been enjoined. Failureto do so was a fatal omission.

Accordingly, the preliminary objection is sustained and the

application is struck out with costs.

DATED at DAR ES SALAAM this 1ih day of October, 2013.

S. J. BWANAJUSTICE OF APPEAL

S. MJASIRIJUSTICE OF APPEAL

K. M. MUSSAJUSTICE OF APPEAJ:

M.A.MEPUTY RECOURT OF