IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

( CORAM: SEHEL J.A., MAIGE, 3.A. And ISMAIL J.A.^

CIVIL APPEAL NO. 381 OF 2020

GAPCO TANZANIA LIMITED ......................................................... APPELLANT

ATTORNEY GENERAL....................................................... INTERESTED PARTY
VERSUS
RAMZAN D. W AU I COMPANY LTD .............................................RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzania
at Mbeya)

(Karua, J.)

dated 22nd day of May, 2015

in

Land Case No. 1 of 2010

RULING OF THE COURT

9rd & 15th July 2024

MAIGE, J.A.:

The dispute at hand relates to a landed property on Plot No. IB and

IC within Tukuyu Township in Mbeya Region with the building thereon

and underground tanks of petroleum storage, herein after referred to as

"the suit property". By a lease agreement executed in 2010, the Rungwe

District Council (the Council) leased the suit property to the appellant for

a period of 60 months from July, 2009. In the pleadings, the appellant

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alleged that, sometime in 2004, she entered into a license agreement

with the respondent under which the latter would, in terms and conditions

therein stated, operate and use the service station and station equipment

for petroleum products related business. On 19th October 2009, it was

further alleged, the appellant terminated the license agreement with the

respondent and entered into a license agreement with a new dealer. As a

result of the respondent's disruptive actions, the new dealer was unable

to operate the business. Therefore, the appellant commenced a suit at

the trial court claiming for two substantive reliefs. One, declaration that

the license agreement between her and the respondent was legally

terminated; and Two, perpetual injunction to restrain the respondent

from interfering with the business of the new licensee at the suit property.

In her written statement of defence, the respondent disputed the

relevancy of the lease agreement between the appellant and the landlord

and contended that; she had been in continuous occupation of the suit

property for over 23 years. On top of that, she raised a counterclaim

seeking for, among others, an order for repossession of the licensed

premises.

In his considered judgment, the trial judge found the appellant's

claim without merit and the respondent's counterclaim with merit.

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Henceforth, he dismissed the appeal and awarded the claims in the

counter claim. In relation to the claim for repossession of the licensed

premises, the trial judge stated:

"Having made the illegally term inated license

agreem ent legally valid, the defendant is pu t back
to the retail station, holding the same position
earlier held, that is the license o f the p la in tiff in
the petroleum product trade. To put it into a
strong legal flavor, the p la in tiff is ordered to hand
over the retail station and the entire building to
the defendant im m ediately."

Aggrieved, the appellant instituted the current appeal faulting the

correctness and validity of the said judgment in a number of grounds. For

the purpose of this ruling, however, it may not be necessary to mention

them.

Worth of a mention is the fact that, subsequent to the institution of

the appeal, the Attorney General procured leave of the Court, vide Civil

Application No. 719/06 of 2022, to be joined into the appeal as an

interested party in terms of section 17(1) and (2) of the Office of Attorney

General (Discharge of Duties) Act, 2019 (the OAGA). Upon being joined,

the interested party informally applied, which was granted, for leave to

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file points for consideration. In the ruling granting the respective leave,

the Court stated:

7/7 view o f that position ; we direct the interested

party to present points o f interest which, when
a r g u e a w iii enable the Court to determine
whether the judgm ent and the orders o f the High
Court in relation to the interests in the disputed
prem ises can be assailed."

Pursuant to the direction, as aforestated, the interested party filed

her points for determination containing three complaints. However, during

hearing, the first complaint was abandoned and the following two points

for determination remained. One, the trial court erred in law and facts in

ordering the appellant to hand over the retail station and the entire

building to the defendant immediately, and, any dealer found to be

occupying the suit premises to be ejected. Two, the trial court erred in

law and facts in adjudicating on the matter in the absence of Rungwe

District Council who was a necessary party.

At the hearing, Mr. Libent Rwazo, learned advocate appeared for

the appellant while Mr. Ndanu Emmanuel, also learned advocate,

appeared for the respondent. The interested party enjoyed the services
of a team of three learned State Attorneys, namely; Ms. Jacqueline

Kinyasi, Mr. Joseph Tibaijuka and Ms. Edina Mwamlima.

Before we could proceed, we asked the counsel as which between

the points for determination by the interested party and the points in the

memorandum of appeal should start first; they all agreed that, we should

start with the points for determination. We shared the same view with

them.

In her oral arguments, Ms. Kinyasi fully adopted the written

submissions in support of the points for determination with some

clarifications and prayed that the judgment of the trial court be set aside

and the proceedings thereof quashed. Likewise, Mr. Ndanu adopted the

written submissions in opposition to the points for determination and

urged us to dismiss the same with costs. On his part, Mr. Rwazo fully

supported the points for determination.

The counsel, it would appear, had a common understanding on

when does a person become a necessary party in civil litigation. They all

agreed that a necessary party is the one in whose absence an effective

decree cannot be made. That position was stated in the case of

Abdulatif Mohamed Hamis v. Mehboob Yusuf Othman & Another

(Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018; TANZLII)

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relied upon by the interested party, wherein the Court explained who is a

necessary party in the following words:

" ..a necessary party is one whose presence is

indispensable to the constitution o f the su it and in
whose absence no effective decree or order can
be passed. Thus, the determination as to who is a
necessary party to a su it would vary from a case
to case depending upon the facts and
circum stances o f each particular. Among the
relevant factors for such determination include the
particulars o f the non-joined party, the nature o f
the re lie f claim ed as well as whether or not\ in the
absence o f the party, an executable decree m ay
be passed."

In her submissions, Ms. Kinyasi combined the two grounds and

argued them under the proposition that; the trial court wrongly

determined the suit without joining the Council which was a necessary

party. She started her submission by drawing our attention to items 2 and

3 of the decree which ordered the appellant to hand over the service

station and the entire building to the respondent and for eviction of any

dealer found in occupation of the same. She submitted, on that basis

that, such order in effect granted the respondent, a mere licensee,

exclusive possessory right over the suit property while the appellant's right

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to license the service station to the respondent emanated from her lease

agreement with the Council. She submitted, therefore, that an order for

vacant possession against the appellant and whomsoever in possession

of the suit property would not be made without the Council as the owner

being heard.

She further submitted that, since it was express in the pleadings

that the suit property belonged to the Council; in view of the nature of

the reliefs prayed in items (i) and (ii) of the counterclaim, the joinder of

the Council was necessary because the reliefs sought were likely to affect

her permanent exclusive possessory right over the suit property as the

owner. She submitted, therefore that, the High Court was obliged, before

proceeding with the trial, to order for the joinder of the Council as a

necessary party. In her contention, the omission rendered the whole trial

a nullity, in as much as the Council was denied a right to be heard. She

thus urged us to nullify the judgment and proceedings of the trial court

and allow the points for determination with costs.

In rebuttal, Mr. Ndanu submitted that, the Council was not a

necessary party as the reliefs sought in the counterclaim could in no way

affect her ownership interest in the suit property. He assigned six reasons

to justify his contention. First, the decree for repossession was only

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limited to the respondent contractual right under the license agreement,

and that, it had nothing to do with the ownership of the suit property.

Second, the Council was not privy to the license agreement; Third, the

license agreement was executed in 2004, five years before the lease

agreement. Fourth, the respondent had been in possession of the suit

property since 1973, without any interruption from the Council. Fifth,

there is evidence on the record that, the Council was the customer of the

respondent; and Sixth, that in the Land Case No. 6 of 2013, the High

Court declared the lease agreement between the Council and the

appellant lawful.

In rejoinder, Ms. Kinyasi reiterated her submissions in chief and added

that the Council being a customer of the respondent is totally irrelevant

to the facts in issue.

We have keenly followed the counsel's debate on the issue and we

shall hereinafter separate the wheat from the chaff. It is common ground

that the suit property belongs to the Council and the appellant is a mere

tenant in it. The execution of the license agreement between the appellant

and the respondent (exhibit PI), and the fact that, it was repudiated by

the appellant for the alleged fundamental breach is equally not in dispute.

The dispute in the first place is on whether the appellant's right to create
the license in question emanates from the lease agreement. For the

respondent, it was submitted, in all forces that, as the lease agreement

was irrefutably entered into in 2009, the license agreement having been

executed in 2004; it cannot be said to have emanated from the lease

agreement. As that was not enough, it was submitted, making reference

to the evidence on the record that; the respondent had been in possession

of the suit property since 1973. It is not, however, clear from the said

submission as to where would the appellant, in the absence of a lease

agreement with the owner, derive the power to create the license in

question. With this factual allegation, it was not safe for the trial to

proceed without joining the owner while the pleaded lease agreement was

entered into subsequent to the license agreement. Presence of the owner,

in our view, was necessary to ascertain if the creation of the license

agreement emanated from any lawful lease agreement between the

appellant and the Council. This is because, the reliefs sought related to

possession of the suit property against the appellant and any other

persons in occupation of the same while in law the Council, as the owner,

enjoys, subject to any lease, exclusive possessory right over the same.

Another area of the contention is whether the license in question

covered the entire building as decreed by the trial court. Mr. Ndanu

submitted, basing on the evidence on the record, including the license

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agreement that, the building was part of the license. Much could have

perhaps been said had the Council been heard on the nature of the lease

agreement between her and the appellant. However, as we said, the

Council was not joined at all. Yet, the trial court pronounced a judgment

for recovery of possession by the respondent against the appellant and

the new dealer.

We agree with the learned State Attorney that, the approach taken

by the trial court was wrong because the Council though likely to be

directly affected by the reliefs sought, was not joined as a necessary party.

As the Council's ownership interest on the suit property was clearly

pleaded, the trial court would have not, as it did, issued a decree touching

possession of the suit property without the owner being joined as a party

in a situation where the relevancy of her lease agreement with the

appellant was in dispute. In the absence of the lease agreement between

the owner and the licensor, we wonder, how could the trial Judge

ascertain if the appellant had mandate to create a lease touching the

Council's property and whether the right created was within the purview

of the lease. In effect, therefore, the Council was denied a fundamental

right to be heard. That in law, was a fatal irregularity which affected the

substantial legality of the judgment and proceedings of the trial court.

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 On that account, we find the complaint by the interested party on

the point for determination valid. We accordingly, invoke our revisonal

powers under section 4(2) of the Appellate Jurisdiction Act and set aside

the judgment and decree of the trial court and nullify the proceedings

thereof. We further direct that the record be remitted to the trial court

for trial before another judge after the Rungwe District Council had been

joined as a party. Since this is a long time case, the same should be heard

expeditiously, in the circumstances, we do not give an order as to costs

in the circumstances.

DATED at MBEYA this 15th day of July, 2024.

B. M. A. SEHEL
JUSTICE OF APPEAL

I. J. MAIGE
JUSTICE OF APPEAL

M. K. ISMAIL
JUSTICE OF APPEAL
The Ruling delivered this 15th day of July, 2024 in the presence of
the Ms. Edna Mwamlima, learned State Attorney holding brief for Mr.
Libert Rwazo, learned counsel for the Appellant and also representing the
Interested Party and Ms. Beatrice Kessy holding brief for Mr. Emmanuel
Ndano, learned counsel for the Respondent is hereby certified as a true

J. E. FOVO
DEPUTY REGISTRAR
COURT OF APPEAL
ii