SCANED15384 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 15384 OF 2024 JOCELYNE E. M KI LI MA................................................................. 1stPLAINTIFF MICHAEL MKILIMA........................................................................ 2ndPLAINTIFF SALOME EMMANUEL AIDAN MKILIMA....................................... 3rdPLAINTIFF OLIVIA EMMANUEL AIDAN MKILIMA..........................................4thPLAINTIFF

VERSUS JULIAN KADIRI.............................................................................. 1stDEFENDANT RUNTO COMPANY LIMITED........................................................... 2ndDEFENDANT FRANK LUHANGA....... ............................................. 3rd DEFENDANT AMARY KATISHI................... 4™ DEFENDANT ADILI AUCTION MART COMPANY LIMITED........ 5th DEFENDANT

RULING P” September, 2024 L, HEMED, J. On the 28th of June 2024, the plaintiffs herein filed the instant suit against the defendants herein claiming for the following orders:- "7, A declaration that the plaintiffs are entitled to an Exclusive and unimpeded right ofpossession and occupation of all that piece of land measuring 40 acres.

2. A declaration that the defendants whether by themselves or their servants or agents or otherwise howsoever are wrongfully in occupation of the suit i property and are accordingly, trespassers on the same.

3. A declaration that the defendants whether by themselves or their servants or agents or otherwise howsoever are not entitled to remain on the suit property.

4. Permanent injunction restraining the defendants whether by themselves or their servants or agents or otherwise howsoever from remaining on or continuing in occupation of the suit property.

5. Compensation for destroyed houses, cash and food crops, laying hens and cocks and animats to be assessed by the honourable court.

6. Demolition order of the structures erected by the defendants.

7. Vacant possession of the suit property.

8. General damages for trespass.

9. Costs of this suit together with interest thereon at such rate and for such period of time as this honourable court may deem fit to grant.

10. Any other relief as this honourable court may deem appropriate to grant." The matter was called on 12th August, 2024 for necessary orders. On the particular date, the court realized that the Plaint was in contravention of Order VII Rule 3 of the Civil Procedure Code [Cap 33 R.E 2022], for 2 failure to properly describe the suit landed property. Parties were directed to prepare themselves to address the court on 9th September, 2024. When the matter was called on 9th September, 2024, the 1st Plaintiff appeared in person. The 2nd, 3rd and 4th plaintiffs, opted to abscond without notice. Mr. Ferdinand Makore, learned advocate, appeared to represent the 1st Defendant and the 2nd Defendant enjoyed the service of Mr. Benedict Magoto learned Advocate. Having found that the 2nd, 3rd and 4th plaintiffs were aware of the matter, the court directed the point to be addressed in their absence. The learned counsel for the defendants when called to address the court the submitted to support the observation of the court that the plaint is incompetent for failure to describe the suit property. They prayed the same be struck out without costs. On her part, the 1st Plaintiff, conceded to the point stating to have discovered the anomalies in the Plaint. She prayed the court to make the necessary orders but she should not be condemned to pay costs. Order VII Rule 3 of the Civil Procedure Code,

[Cap.33 R.E 2019] provides thus:- " Where the subject matter of the suit is immovable property, the plaint shall contain 3 a description of the property sufficient to identify it and, in case such property can be identified by a tide number under the Land Registration Act, the plaint shall specify such title number. "[Emphasis added] I have gone through the Plaint which was presented for filing on 28th June 2024 to find out if the suit property has been properly described. In the course of perusing it, I found facts purporting to describe the suit property to have been stated under paragraph 10. It states thus:- '70. That the plaintiffs' claims against all defendants jointly and severally are for a declaration that the plaintiffs are the rightful owner of 40 acres of land located at Zeqereni area in Kibaha district and the act of the defendants invading the suit property be declared null and void ab initio and of general damages, interest and cost of this suit." [Emphasis added] The pertinent question is whether the above paragraph sufficiently describe the suit property. In the aforesaid paragraph, the plaintiffs have not said whether the suit piece of land is surveyed. Lack of such express information, we assume the same to fall in the category of unsurveyed 4 land for neither title nor plot and block numbers have been stated. Courts in plethora of decisions have emphatically

stated that where the dispute involves unsurveyed land, the description of the property must include the size, boundaries and neighbouring features surrounding the suit land. For instance, in Masti Fredrick Rajab vs. Ilemela Municipal Council and Another, Civil Appeal No. 197/2019, the Court of Appeal of Tanzania observed thus:- "From what was pleaded by the appellant, It is glaring that the description of the suit property was not given because neither the size nor neighbouring owners of pieces of land among others, were stated in the plaint. This was not proper.... in terms of the dictates of Order 7 rule 3 of the Civil Procedure Code [Cap 33 RE2019]. "[Emphasis added] In the instant matter, the Plaint provides information on the size only. The information that the suit property is located at Zegereni Area Kibaha district is wanting for having failed to state the boundaries or neighbouring features. It should be noted that, the importance of proper description of the suit property is to enable the court to pass a decree which is final and executable. 5 From the foregoing, the plaintiffs have failed to provide sufficient information that describe the property in dispute. Failure to properly describe the suit property renders the Plaint defective. Any suit initiated by a defective plaint becomes incompetent ab initio. In the upshot, I proceed to strike out the entire suit with no orders as to costs. It is so ordered. DATED at DAR ES SALAAM thkT9fh September 2024.

JUDGE 6