Abdalah Ally Chabwela 508 Others vs Burugu Mkoma 7 Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUMBAWANGA DISTRICT REGISTRY

AT SUMBAWANGA LAND CASE NO. 26372 OF 2023 ABDALAH ALLY CHABWELA & 508 OTHERS...... ............. ......... PLAINTIFFS

VERSUS BURUGU MKOMA................... iST DEFENDANT DILA MANAMBA ...................... 2nd DEFENDANT KANG'WIN A MATINDE............. .. 3rd DEFENDANT KULWA SOSELA ............ 4™ DEFENDANT LUHIGO NHENENGO .................... ......... 5th DEFENDANT MAKALANGA MANYOTA ....................... 6™ DEFENDANT MKOMA CHARLES ............ 7™ DEFENDANT MLEKWA MAKOLESI.... ............... 8th DEFENDANT

RULING MWENEMPAZI, J. The plaintiffs in this case have filed a suit against the defendants claiming for one acre each of land allocated to them by the Sitalike and Igogwe Village councils allocated to the villagers including the plaintiffs, which land is partly at Kashelami area and some plaintiffs bought the land from allocated individuals. It is in the plaint that the said allocation was communicated and or notified to the District Executive Director of Nsimbo District Council and also the Regional Administrative Secretary i for Katavi Region. The land in question is said to be in the boundaries as described in the 10th paragraph of the plaint, as follows: • On the Northern side there is Matandarani village. • On the Southern side there is Katavi National Park. • On the Eastern side there is residences of Sitalike and Igongwe villagers, also, • Southern side there is a Muungano Village from Ibindi Ward. The defendants are in opposition of the claims. In their defence and before mounting the same, through their advocate Mr. Baltazar Chambi, learned Advocate, they have raised preliminary objections and prayed that the suit be struck out with costs. The grounds of objection are as following: 1. That, the suit is not properly filed and presented to the Honorable Court for its contravention of the law pertaining the filing procedures of the same.

2. That, the suit is bad in law to be entertained and proceeded upon as the same is Res Judicata vide Civil Case No. 1 of 2020.

3. That, the plaint so presented is fatally and incurably defective for its being prepared and presented contrary to the requirement of the law. 2 4. That, the plaint thereby presented is fatally and incurably defective for being signed contrary to the law. At the hearing, the defendants were being represented by Mr. Baltazar Chambi, learned advocate and the plaintiffs were being represented by Ms. Sekela Amulike, learned Advocate. In his submission, Mr, Baltazar S. Chambi, learned Advocate submitted that the objection has been filed asking this court to strike out the suit with costs. He informed this court that he will submit on the points of objections at the trot as follows: On the first point of objection that the procedure of civil case as in Order VII Rule 3 of the Civil Procedure Code, [Cap. 33 R.E.2019] required the plaintiff in cases involving land to describe the suit land and for the land which has been surveyed to state the tittle number. What is required is specification of the property. In the present case, the plaint does not sufficiently describe the dispute land. He submitted that if you read paragraph 5 of the plaint, it is too general to be able to locate the land. It is not clear whether the plaintiffs invaded the whole land of Kashelani or part of that land. 3 The counsel submitted that the position was discussed in various decisions. In the case of Prof.

George Gregory Celestine Rwegeiiera Vs, Prof. Gadi Paul KUonzo and 3 Others, Land Case No. 226 of 2022, High Court of Tanzania at Oar es Salaam at page 6: "For clarity purpose as to the description of the property, the plaintiff ought to have gone further and be more specific in terms of road/street'. Consequently, this court in the referred case struck out the suit after sustaining the preliminary objection. The counsel prays that this court strike out the present case with costs. On the 2nd point of objection that the suit is bad in law to be entertained and proceeded upon as the same is Res Judicata, vide Civil Case, No. 1 of 2020 the counsel submitted that the same requires evidence and he prayed to drop it. On the 3rd point of objection that the plaint presented is fatally and incurably defective for its being prepared and presented contrary to the requirement of law he submitted that before a suit is filed in court it 4 must pass through reconciliation and reconciliation certificate be issued that settlement has failed. The counsel questioned as to why the case was not presented for mediation in the Ward Tribunal for land. The counsel submitted and argued that this court under the circumstances lacks jurisdiction. That is a legal requirement Act No. 5 of 2021; the Written Laws (Miscellaneous Amendment) Act No. 5 of 2021. The counsel prayed that this case be struck out. On

the fourth point of objection that the plaint is fatally and incurably defective for being signed contrary to the law he submitted that every plaint has to be signed by plaintiffs and the advocate representing them. The plaint in this case has not been signed by plaintiffs and only the advocate has signed. It has to be done in connective form. The counsel invited this court to refer to Order VI Rule 14 of Civil Procedure Code [Cap. 33 R.E.2022] for any other person to sign there must be a reason of absence. All plaintiffs in this case are absent. There are no reasons for all of them not signing. Since the plaintiffs have not signed and reasons have not been adduced, then the plaint is invalid it has to be struck out with costs. The counsel referred to the case of Edgepoint Co. Ltd i/s. Julius Peter Nkonya, 5 Land Case No. 135 of 2020, High Court of Tanzania- Land Division at Dar es at page 4. It is position of the court that any defect in the verification makes the pleadings not viable. The law requires the verifier to be authorized (order VI Rule 15 of Civil Procedure Code). The verification in this plaint is not valid and the pleading itself is not signed according to Order VI Rule 14. The law requires the plaintiff and the advocate. It should be taken into required that the plaintiffs are many they could not all of them be absent. The pleading is therefore not valid. In the

case of Avecenna International Academy Us. African Foundation for Education and development (AFEDEV) Tanzania, Civil Case No. 61 of 2021, High Court of Tanzania at Dar es Salaam at page 4: "Where a plaint is improperly signed and does not disclose a cause of action cannot be allowed to Unger in court of law". The counsel submitted that under the circumstances he is praying that the whole case be struck out with costs. 6 The plaintiffs are being represented by Ms. Sekela Amulike - learned Advocate. She submitted that they are opposing all the preliminary points of law and prayed that they be dismissed with costs. Submitting on the 1st point of objection, the counsel stated that they admit to the position that in cases involving the landed property description of the property is important. The counsel referred to the case of Ally Shaban and Others Vs. TANROAD and Another, Civil Appeal No. 261 of2020, Court of Appeal of Tanzania at Tanga at page 8: "In reply to the preliminary objection you must refer to the plaint/pleadings". She submitted referring to the plaint, paragraph 9-10; the land is 508 acres and paragraph 10 shows the borders. She stated that the counsel for the defendants did not have time to go through the whole plaint. That is different from the position in the case of Prof. George Gregory Celestine Rwegellera Vs. Prof. Gadi Paul KHonzo and 3 Others. The land was

properly described. She submitted praying that the point of objection be dismissed with costs. 7 On the 3rd point of preliminary objection the counsel submitted that the counsel for the defendants has misdirected himself that to file a suit there must be a certificate of mediation. In the law, a certificate will be issued to the cases intended to be filed in District Land and Housing Tribunal. Section 45 of Act No. 5 of 2021 amended section 13 of the Land Disputes Courts' Act. There was no law requiring the plaintiff to go the ward tribunal. However, although the plaintiffs are not required to do so, the plaintiffs under paragraph 13, it is shown they went to the ward tribunal but settlement failed that is why they came to this court with the present suit. On the 4th point of preliminary objection, that the case/plaiht Was signed contrary to the law. The law governs signing court documents/pleadings, Order VI Rule 14 of Civil Procedure Code [Cap. 33 R.E.2019] gives permission a person to sign on behalf of another person. In the case of Agatha Mshote Vs. Edson Emmanuel and 10 Others, Civil Appeal No. 121 of 2019, Court of Appeal of Tanzania at Dar es salaam the plaintiff complained that counsel for defendants signed alone without there being signatures of the defendants. At page 16 - 17. 8 The plaint in this case was signed and verified and under the certificate the advocate

stated why he signed. As to the presence of plaintiffs or absent we will be going to the evidence. The counsel prayed that the preliminary objection be dismissed for lack of merit and the plaint before this court is proper in law. In totality the counsel for the plaintiffs prayed that the preliminary objection be dismissed with costs. In rejoinder, the counsel for the defendants, Mr. Baltazar S. Chambi - learned Advocate submitted that they are grateful the counsel has admitted that the law requires description of the land. The borders which have been shown are on village borders. The boundaries are general. This case involves only 8 persons. The question is to which area do they occupy. If it is be taken the way the description it is, it is difficult to point specific areas occupied by the individual defendant. The defendants are being sued severally and not as a community. The opposition does not suffice to clarify the point. On the issue of mediation, the law has not stated in which court the requirement should be applied. That was considered by the advocate at paragraph 12 of the plaint. The paragraph shows the verification clause is based on false facts. The counsel prayed that to be a confession of 9 the person who was not conversant with the facts and therefore there is not verification. On Rule 14 of Order VI of Civil Procedure Code that the law allows them to verify as

they did. First the verification has been done by the person not conversant with the facts. The law is obvious, the requirements are that pleadings be signed and reasons be adduced if not signed. What is important is that the counsel prepared pleadings in absence of the plaintiffs. The defect rendered the pleading to be invalid. As it goes to the root of the case. The counsel prayed that this case be struck out with costs. I have gone through the record, the plaint in particular, and also the submission made by the counsels for both parties. Hereunder, I will as well jot down my opinion of what the rival parties are contesting so as to put the dispute before into what I think is the proper perspective with reference to the law. The first point of objection has been centered on the failure to describe property the property in dispute. The counsel for the defence has submitted that referring to paragraph 5 of the plaint, the description of the dispute property is too general Such that it is difficult to locate the 10 property in question. He has referred the case of Prof. George Gregory Celestine Rwegellera Vs. Prof. Gadi Paul Kilonzo and 3 Others(supra) demanding that the description ought to have been more specific. He proposed that the suit be struck out for the failure to give a specific description. Ms. Sekela Amulike, learned advocate for the plaintiff, is opposing the

assertion made by Mr. Chambi. Iri her view, there is a sufficient description and he has urged this court to Visit paragraph 9-10 of the plaint. She has argued that the property was sufficiently and specifically described and prayed this court to dismiss the objection. Paragraph 9 and 10 of the plaints read as follows: "9. That, one acre of the said land is estimated to be valued at Tshs. 500,000/- hence 508 acres allocated to the plaintiffs has a total value of Tshs. 254,000,000/= [Two hundred and fifty-four million shillings] only.

10. That, the aforementioned land allocated to the Plaintiffs is located at kashelami area extending to both Igogwe and Stalike villages, Mpanda District Katavi Region, the land has the following boundaries: • On the Northern side there is Matandarani village. ii * On the Southern side there is Katavi National Park. • On the Eastern side there is residences of Sitalike and Igongwe villagers, also, • Southern side there is a Muungano Village from Ibindi Ward. With due respect to the submission by the learned counsel, I find the description wanting. There is a gray area as to be specific which area is in dispute. The important question is whether with the description above any person is capable of locating the dispute land which the plaintiffs allege that it belongs to them. As was observed in the case of Martin Fredrick Rajab vs. Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019, Court of Appeal of Tanzania at Mwanza(un reported) it is imperative that the plaintiffs ought to have shown size and specific boundaries or neighbouring owners of pieces of land. The intention is to enable locating the dispute land for purposes of identifying it from other land around it. Refer also the case of Daniel Mbagala Kanuda(As an administrator of the estate of the late Mbaiu Kushaha Baiuda) vs. Masaka Ibeho & 4 others, Land Appeal No. 26 of 2015, HCT-Tabaora. 12 The description

above is a blanket description which leaves the same to- be a vague which cannot enable a person to identify the same. For the reasons, I sustain the objection raised as meritorious. As to the point of objection, which has been raised in the 3rd point of objection, on the need to have a certificate of mediation from the Ward Tribunal, section 13(4) of the Land Disputes Courts Act, Cap. 216 R.E.2019 provides as follows: "Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the ma tter amicably: Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal, "(emphasis mine) With the quote above, it is clear, the condition for holding mediation first is restricted to the cases to be filed in the District Land and Housing 13 Tribunal. For cases in the High Court the provision cited by the learned counsel for the defendant does not apply. For that reason, I overrule the 3rd point of objection. The 4th point of objection, that the case/plaint was signed contrary to the law. The counsel for the defendant has submitted that there is defect in the

plaint. That it was signed by the advocate and no any of the plaintiffs signed. That is in contravention of Order VI Rule 14 of the Civil Procedure Code, Cap. 33 R.E.2019. The plaintiff's counsel has opposed the argument that the law allows one to sign on behalf of another. She has also cited the case of Agatha Mshote vs, Edson Emmanuel and 10 others. Civil Appeal No, 121 of 2019, Court of Appeal of Tanzania at Dar es salaam (tanzlii). She prayed the Objection to be dismissed with costs. Order VI Rule 14 of the Civil Procedure Code, [Cap. 33 R.E. 2019] provides as follows: "Every pleading shall be signed by the party and his advocate (if any); provided that, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any 14 person duly authorized by him to sign the same or to sue or defend on his behalf." In the cited case, signing of the document was an issue for determination following a complaint by appellant's counsel. The Court held that: "it is glaring at page 16 of the record that the respondent's counsel signed the joint written statement of defence on account of being dully authorized by the respondents as verified therein and as such, the law was not at all contravened." I have noted in this case although the advocate signed the plaint, but there is a certificate of agency where the counsel for

the plaintiffs has averred that she was permitted to sign in terms of Order VI Rule 14 of the Civil Procedure Code. Cap. 33 R.E.2019. This point is overruled. Under the circumstances the preliminary objection is partly sustained and partly overruled as explained herein above. However, basing on the sustaining the 1st point of objection, this suit is struck out for failure to describe the dispute property 15 specifically as to allow its identification and or locating the same. Cost to follow events. It is ordered accordingly. Dated and singed at Sumbawanga this 20th day of August, 2024. T. M. MWENEMPAZI

JUDGE Ruling delivered in court in the presence of the Mr. Laurence John, Advocate holding brief for Ms. Sekela Amulike - Advocate for the plaintiffs and in the absence of the defendants. 16