CIVIL CASE MUHONI KITEGE

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA LAND CASE NO. 16 OF 2022 REFERENCE NO. 20220706000432747 MUHONI KITEGE............................................................................... PLAINTIFF VERSUS MACHOKE FRANCIS....................................................................................... 1stDEFENDANT ISAKA MNIKO................................................................................................ 2ndDEFENDANT SAMWEL WAGANA KUGWEMA................................................. 3rd DEFENDANT ALFRED NGOKO MNIKO.................................................................................4™DEFENDANT MEREMO MNIKO........................................................................................... 5thDEFENDANT MNIKO MNIKO............................................................................................... 6thDEFENDANT KENEDY FRANCIS.......................................................................................... 7thDEFENDANT JULIUS WANKANGA MATIKO........................................................................ 8thDEFENDANT RULING 24th & 27th June, 2024 M, L KOMBA, J.: Previously, 1st defendant herein successful sued the plaintiff over a piece of land (whose size and value were uncertain) via Land Case No. 3 of 2019 at Sirori Simba Ward Tribunal (the trial Tribunal). From record the matter was decided ex-parte. While plaintiff by then was busy in court corrido to set aside that order, 1st defendant too was busy in executing the decree of the Page 1 of 24 trial Ward Tribunal at the District Land and Housing Tribunal. There from, arises a series of applications and appeals including application No. 365 of 2020, Application No. 91 of 2021, Misc Land Application No. 1090 of 2021, Application No. 189 of 2022, Application No. 230 of 2022, Land Appeal No. 77 of 2022, Misc Land Application No. 32 of 2022, Misc Land Application No. 05 of 2023, Civil Revision No. 01 of 2023 and Misc. Civil Revision No. 03 of 2023. In Misc. Civil Revision No. 03 of 2023 this court (Mahimbali, J.) when asked for revision by the plaintiff herein, he ordered and directed the matter to start afresh before a competent court of jurisdiction as per current legal regime governing administration and adjudication of the land matters in Tanzania. Hon. Mahimbali, J. further proceeded to order all pending applications and cases before this court (by then was Misc Land Application No. 32 of 2022, Misc Land Application No. 5, Civil Revision No. 1 and Land Appeal No. 77) as well as other pending matters before the DLHT connected with the former award by Sirori Simba Ward Tribunal were affected by Revision Order and were marked redundant. The revision order did not end there, it set aside sale of land belonging to plaintiff herein in respect of all purported execution resulted from chaotic legal processes Page 2 of 24 and that, the purported buyer (s) were ordered to be refunded their purchase price. The 1st defendant benefited from the order in Land Case No. 3 of 2019 at Sirori Simba Ward Tribunal where he was declared lawful owner of the disputed land. In this case, the plaintiff above named is suing all defendants for trespassing into his land and claim to be declared a lawful oner of the disputed land and payment of specific and general damage. Before hearing of the suit, all defendants jointly filed WSD with Preliminary Objection (PO) on four points; and plaintiff too filed PO against the WSD. The first PO by defendants were; 1. That the plaint does not disclose any cause of action against each one of the defendants and the same contravene the rule ofpleading. 2. That, the matter is an abuse of court process and this court is functus officio basing on the decision of Mahimbaii, J. dated 20/02/2023in Misc. Civil Revision No. 03 of2023. 3. That die matter has been brought as an afterthought and it is a fishing expedition basing on window-shopping for remedies. 4. That die plaintiff has no locus standi to sue and the matter is res judicata. As previously narrated, plaintiff points of objection read as follows; Page 3 of 24 1. That the heading of the amended written statement of defence is incompetent before this honorable court, as it does not state who actually drew it, and or was it a joint written statement of defence by all defendants. 2. That the signatures purporting to be of the individual defendants are forged as from the previous court records I have the signature of 1st defendant Machoke Francis is forged, the court records available show a different signature with the one appearing on the amended written statement of defence. 3. That the signature of 2fd defendant Isaka Mniko is different with the one appearing on previous court records. 4. The signature purporting to be of 3fd defendant Samwei Wagana Kugwema, is forged as he is illiterate, he only thump prints the records served to him hence the signature purporting to be his is forgery, meaning that he did not prepare and or allow the amended written statement of defence to be made for him. 5. That the signature of 4* defendant Alfred Ngoko Mniko, (fh defendant Mniko Mniko, 7h defendant, Kenedy Francis and ffh defendant Julius Wankanga Matiko are forged signatures as defendant Kenedy Francis is at large and his whereabouts are not known. Page 4 of 24 6. That the hand writing shows the signatures were made by one person and one pen and one ink. "Copies of relevant court records being true signature and thump print of defendants append hereto marked annexures "A" collectively forming part of this reply" 7. That according to the scheduling order, the honorable court had ordered the amended written statement of defence be served plaintiff on 15/08/2023, and plaintiff make his reply and serve defendants on or before 30/08/2023, and the case be mentioned on 31/08/2023, for necessary orders, but on the contrary plaintiff was served the amended written statement of defence on 24/08/2023, contrary to section 60 (1) (d) of the interpretation of law act Cap IRE 2017. Under normal circumstance when objection raised by a party is supposed to be urged and not be countered by another PO. However, the are some exceptions to every general rule and the one at hand is exception whereby I have to entertain PO as raised by plaintiff in concerning defendants' WSD which has PO in it as this court (Land Division at Dar es salaam) once ruled in Abdul Rajabu Zahoro (Administrator of the Estate of the late Rajabu Zahoro) vs Kuringe Real Estate Company Limited and two Others, Land Case No. 193 of 2021. Page 5 of 24 During hearing Plaintiff's PO, the plaintiff stood solo without any representation whereas defendants were represented by Mr. Daudi Mahemba, an advocate. It was the argument of the plaintiff that heading of WSD is incompetent as it does not show who draw it. According to him the heading was supposed to be written by showing it was the joint WSD for 1st, 2nd up to last defendant. Failure of that he submitted that the WSD is not fit in this case. It was his further submission that WSD did not show who prepared it. Arguing for the second point of objection which was joined to point 2, 3, 4 and 5 that the signature of defendants in WSD was forged as they are different from signatures found in other documents including summons which was issued to them and previous cases. It was his position that WSD was not signed by defendants. Further to that plaintiff was of the submission that the 7th defendant has never appeared in court but he signed the WSD and he wonders where did they found the 7th defendant, in support of his point plaintiff referred me to Ahmed Freight Limited & Another vs Eco Bank Tanzania Ltd, Civil Appeal No 182 of 2020 at page 13 where the Court decided about signature that dispute of that nature may be proved by hand write expert and the opinion of the expert Page 6 of 24 has to be relied upon. From the cited case he argues this court to make comparison of signature. So far, the plaintiff claims that the signature in WSD was forged, he prays the same be dismissed and allow his case to proceed without defence because it is like there is no WSD and insisted forgery is a criminal offence. While abandon the last point, plaintiff submitted on the 6rh point that hand write in the signatures seems to be made by one person who sign on behalf of all defendants and he used one pen with blue ink. So far as it was the same pen then it was signed by one person. He prayed his PO to be found with merit and dismiss the WSD with costs. In response, Mr. Mahemba promised to be brief and he was really brief in his submission while registering his position that the PO has no merit and pray this court to overrule all points. It was his submission that the points as submitted by plaintiff about signature need proof and therefore it cannot be entertained at the preliminary stages and refers me to the principle in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A 696 where the East Africa court directed that PO has to be on point of law which does not need evidence and that the Page 7 of 24 position has been adopted in our legal system. He prayed the joined points of objection about signatures to be overruled. On the heading of WSD he was of the submission that there is different style of writing and their defence show clearly that it is the defence for all defendants as shown from the 1st paragraph. Mr. Mahemba went on clarifying that from the beginning the defence show was written by all defendants and that means the document is for all defendants even at the end of document defendants pray together and verification mention names of defendants. Elaborating further on who draw it he said the name of person draw is written down the document it was drawn by Advocate Daudi Mahemba. While distinguishing the case of Ahmed Freight Limited & Another vs Eco Bank Tanzania Ltd (supra) in which the Court was analysing tendered documents in the main suit, he prayed this court to overrule the PO raised by plaintiff with costs. During rejoinder, Plaintiff insisted that this court may make comparison of documents of defendants available in court, previously submitted and underline that the records are available in court that show signatures are different. -Page 8 of 24 My duty is to determine if plaintiff PO has merit. The combined PO was on proof of defendant's signature. As submitted by Mr. Mahemba the principle in Preliminary Objection was laid in the East African Case of Mukisa Biskuits (supra) which defines what is a preliminary objection and prescribes when it can be raised. It is noteworthy that, the preliminary objection cannot be raised if any fact has to be ascertained. The relevant extract reads: - preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise ofjudicial discretion Further in the case of Selcom Gaming Limited vs. Gaming Management (T) Limited & Gaming Board of Tanzania, Civil Application No. 175 of 2005, (unreported), the Court observed that: - "A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but on Page 9 of 24 stated legal, procedural or technical grounds. Any alleged Irregularity, defect or default must be apparent on die face of the application." From the above decided cases it is clear that PO has to be seen on face of record. The issue that signature of defendants does not resemble previous signature in other documents need time to cross check and verify. By cross checking documents this court will be analysing evidence and that will eradicate the meaning of PO. Who draw the WSD is another point to determine. I find the WSD was drawn by defendants advocate as it has his name and full address. He is the one who represented them in court. The question that whom are responsible parties in the WSD can be answered this way, the WSD referred defendants in plural, are defendants whom plaintiff was complaining of their signatures appended in it. It my position that WSD was prepared in plural and the names of defendants responsible for the said WSD appeared in the verification clause. Generally, I find the PO by plaintiff lacks merit and is hereby overruled with costs. Page 10 of 24 I now turn to the second Preliminary Objection which was raised by defendants in WSD as I maintained that WSD was properly filed. During hearing of PO as raised by defendants, the plaintiff stood solo without any representation whereas defendants had legal service of Mr. Daudi Mahemba, an advocate. On the first point counsel Mahemba submitted that there is nowhere the plaintiff explain actions of defendants which led to the loss as claimed by the plaintiff. Referring paragraph 20 of the plaint, he said plaintiff allege that on 7/10/2020 the defendants trespassed his land located at Sirori Simba village and remove the sisal boundary without mentioning action done by each defendant even the size of the fence was damaged or broken by in the said action. Further it was the submission by the counsel that plaintiff failed to provide description of the area invaded and its boundaries which is contrary to order VII rule 3 when read together with Order V rule 3. Counsel elaborated that Order VII rule 3 is to the effect that if the dispute is on land the size and location should be identified in isolation of other land. Mr. Mahemba went on submitting that at paragraph 22, 23, 24, 25, 26 27, 28, 29, 30, 31 and 32 of the plaints, the plaintiff explain hardship he Page 11 of 24 encountered following defendant action of trespassing to the disputed land and he is claiming Tsh 22,384,600,000/= without showing how each of the defendant contributed to that amount. Counsel reminded about jurisdiction which is the requirement of the law that each court has to satisfy itself if it is vested with jurisdiction to entertain the matter. The same is possible by reading plaint and it was his submission that paragraph 39 of the plaint has the content on jurisdiction but the paragraph does not comply with Order VII Rule 1 (f) (1) which need facts which show the jurisdiction and not referring to geographical jurisdiction. To cement his argument, counsel referred this court to Jamail Said & 3 Others vs Karmal Aziz Msuya, Land Case 42 of 2017 at page 12 and 15 where it was said there must be explanation to show jurisdiction of the court. Further he complained the plaint does not comply with in Section 37 of Land Disputes Act, Cap 216 all these requirements were not considered by the plaintiff. While noting there are many registered authorities, counsel cited the Book by Morgans on Law of Pleadings at pg 271 where the author explains territorial subject matter and pecuniary jurisdiction that it is not mere accession but there must be explanation that the court has jurisdiction. Page 12 of 24 Further East Africa court in Assanad and Sons (Uganda ltd) vs East Africans Records Limited [1959] EA 360 insists presence of facts that show court has jurisdiction, the same position was in Evance Buhire and 4 other vs National Insurance Corporation, Land case No 327 of 2009 HC and Arusha Art Limited vs Alliance Insurance Corporation Ltd Commercial, Case No 12 of 2011. In the last case, Commercial Court analysed and defined order VII rule (1) (f) that value of the subject matter must be known among other issues so as to know if the court has jurisdiction. While insisting on the same point counsel referred the book of Hon. Chipeta in Civil Procedure in Tanzania, Student Manual, the author at Chapter 7 explained about content of jurisdiction clause that alleging jurisdiction is not enough rather a party has to state facts showing that court has jurisdiction and explain its importance. It was his submission that plaintiff fail to meet requirements of Order VII rule (1) (f) and that render the plaint to be defective as it is not the duty of this assist the plaintiff to ascertain that the court has jurisdiction as was the position of this court, Mtulya J, in John Nyaitara Stephen vs North Mara Gold Mine, Land Case No. 20 of 2022. Page 13 of 24 Arguing for the second point of objection counsel for defendants submitted that the suit is an abuse of the court process while referring the decision of Mahimbali J. in Civil Revision No. 3 of 2023 which was delivered on 20/2/2023. It was his assertion that the plaint is complained of action done in execution of the decision of DLHT in case No. 03 of 2019 where at paragraph 37 of the plaint, the plaintiff referred suits which were nullified in Revision No. 3 of 2023 and all which complained was the process of execution of the DLHT orders. In essence, he submitted that this case was filed before the Civil Revision No. 3 of 2023 was decided and actually it was his position that plaintiff was not supposed to file new case where the matter was finally decided and the 1st defendant occupied the disputed land during execution and the same land was affected by Revision No. 3 of 2023 which nullified execution. He complained the action of the plaintiff to file a new case over matter which was already determined. Basing on his submission in this point, Mr. Mahemba was of the position that circumstances of this case was res judicata against the 1st defendant before nullification in Revision No. 3 of 2023 as it was not possible for the 1st defendant to be sued over the same land which was declared lawful owner by the DLHT. While clarifying he submitted that by the time of filing Page 14 of 24 this suit the 1st defendant was declared owner and there was no higher court ordered to the contrary. He said the decisions which were ennextures in plaint were already nullified in Revision No. 3 of 2023. On the third point he submitted that the plaintiff was in window shopping of remedies and fishing exhibition as he was trying to gamble because the 1st defendant was declared lawful owner. By the time he filed this suit, counsel averred that plaintiff was already announced to be judgment debtor. On that account, he prayer this court to note that the suit has no merit and it has to be dismissed. Responding to points raised and argued, plaintiff who appeared in person, on the 1st issue about cause of action, he submitted that the suit is one to ail defendants as all invaded his land at the same time as even when he asked those trespassers they replied that the land is their property and all of them conduct their activities in the disputed land every day and therefore it was not possible to identify activity done by each of them as they do activities jointly. About jurisdiction of this court, he referred me to paragraph 38 of the plaint where he analysed how the amount of Tsh 22,384.600.000/= accrued. He said so far as he claims Tsh 22 billion this Page 15 of 24 court has jurisdiction that's why in plaint he shows that cause of action arose in Sirori Simba and this court has jurisdiction. He disputed the allegation on abuse of the court process which is the second point of objection and submitted that decision in Revision No. 3 of 2023 was correct and is in force as there is no appeal so far and was supported by Review No. 01 of 2023 of Musoma High Court. He further submitted that before the decision in Revision No. 3 of 2023 there was a decision of Ward Tribunal Sirori Simba on Application No. 91 of 2021 which nullified Case No. 3 of 2019 at Sirori Simba Ward Tribunal which was delivered on 13/ 12/ 2021. So, he said there was no pending cases after the nullification of Case No. 3 of 2019 and Revision by the High Court. He further submitted that after nullification of the ward tribunal decision the defendants remained in the disputed land to the date of hearing of this case. It was his firm submission that filing of the current case was right path as on 4/6/2022 there was no pending case and attachment of Revision No. 3 of 2023 in the plaint was done to show that there were cases which were on progress but there was no appeal over Revision No. 3 of 2023. Page 16 of 24 On the third point he submitted that the case was not a window shopping as he was sure of what he is doing. He prayed this court to overrule the PO with costs. During rejoinder, Counsel Mahemba submitted that the plaintiff referred to case No 3 of 2019 at the Ward Tribunal while all were analysed on Land Revision No. 3 of 2023 that why he said it was not right for the plaintiff to file fresh suit before the decision on Revision No. 3 of 2023. Counsel urges me to read decision on Revision No. 3 of 2023 where I will find it was not proper for the plaintiff to file this land case before the said decision was pronounced. He prays the suit to be dismissed and reiterate his submission in chief. I am called upon to determine whether the PO as raised by defendants has merit to warrant it be sustained. Among the principle in handling Preliminary Objection is that it must raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. See Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A 696. That means points raised must be gathered from pleadings. Page 17 of 24 Among the points raise and explained by counsel for defendants is jurisdiction of this court to entertain the matter. It has been said jurisdiction is the bedrock of court in entertaining any matter before it. Similar position was accentuated in the famous case of Fanuel Mantiri Ng'unda vs Herman M. Ng'unda, Civil Appeal No. 8 of 1995 (unreported), in which the following guidance was laid out: "The jurisdiction of any court is basic, it goes to the very root of the authority of the Court to adjudicate upon cases of different nature... the question ofjurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. It is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case." [Emphasis supplied] Mr. Mahemba submitted that the plaintiff failed to disclose if this court has jurisdiction contrary to section 37 of Cap 216. For easy reference the section reads; 37.-(l) Subject to the provisions of this Act, the High Court shall have and exercise original - (a) in proceedings for the recovery of possession of immovable property in which the value of the property exceeds three hundred million shillings; Page 18 of 24 The above section is qualified by wording of Order VII rule 1(f) that there must be facts or statements showing that the court has jurisdiction as mere mentioning the land is located with Sirori Simba ward is not enough. See case Jamal Said and 3 Others vs Karmal Aziz Msuya, (supra) and Hertz International Ltd and another vs Leisure Tuors and Holidays Limited and 3 others, Commercial case No. 74 of 2008. For reasons to be adduced later, I shall not proceed to the remedy when the plaint did not contain facts relating to jurisdiction. The value of the land which is the base of this suit is important in determining jurisdiction as the above quote provision provide. The land must exceed three million for this court to have jurisdiction to entertain it. In responding the issue of jurisdiction, plaintiff referred me at paragraph 38.1 had time to read paragraph and find the plaintiff is praying for orders. However, at paragraph 8 he pleaded his land worth over one billion and five hundred million shillings (Tshs. 1,500,000,000/=). I have scanned the provision of Order VII Rule 1 (f) of the Code and decision in Assanand & Sons (Uganda) Limited vs East African Records Limited (supra) and found that the provision places upon a Page 19 of 24 plaintiff the obligation of pleading the facts showing that the court has jurisdiction. In that case, a mere assertion by the plaintiffs that the court has jurisdiction is not enough. The rule requires the facts showing that the court has jurisdiction to be stated in the jurisdictional clause. According to the precedent, that is a matter of great importance, for if the court does not have jurisdiction, any judgment which it gives is a nullity. Jurisdiction of any court must be stated in a clause within a plaint. See John Nyaitara Stephen vs Noth Mara Gold Mine (supra) and Bwire Nyamwero Bwire and Another vs National Microfinance Bank and 5 others, Land Case No. 21 of 2022 Further, as submitted Mr. Mahemba the plaintiff did not explain description nor boundaries of the area and size of the land invaded by defendants. The plaintiff was silent about this matter. From the plaint, plaintiff explain he owns 9 acres from his parents (at paragraph 12) and he was allocated by village land allocating committee a piece of land measures 180 by 80 paces (at paragraph 16). In both paragraphs and even subsequent paragraphs plaintiff did not state the boundaries or neighbors to the said pieces of land neither explain which among the two plots were trespassed by who among the defendants. This is dangerous as it will be difficult to execute decree in Page 20 of 24 case the plaintiff succeed. Which part of the Sirori Simba center have the 13 acres which plaintiff claim to belong to him and which part of the land vacant possession will be ordered. Failure to provide description of the land is failure to abide with the law as provided under Order VII rule 3 which states; "Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number. See also Ester Machumu vs Hamis Nyamsenda and Another (Land Appeal 109 of 2022) [2023] TZHC 17206 (5 May 2023). The second point of objection is about abuse of the court process that by the time plaintiff institute the current suit, Revision No. 3 of 2023 was pending to this court, ruling was not delivered and plaintiff at paragraph 37 was referring to suits which were nullified by Revision No 3 of 2023. Counsel Mahemba argues that plaintiff was not supposed to file fresh suit as the matter was finally determined by the tribunal. On his part, plaintiff explained that there was in existence the decision in Application No. 91 of Page 21 of 24 2021 (December 2021) which nullified the proceedings and orders issued in Case No. 03 of 2019. That means, basing on decision delivered in December 2021 the plaintiff had justification for filing the current suit as he adduces in submission in chief that even after the decision which was issued in December 2021, defendants remained in the disputed land. I have read plaint and found the complaint by plaintiff against defendants started in 07/10/2020 as featured in paragraph 21 of the plaint. Studying the case chronologically, the Sirori Simba Ward Tribunal issue ex-parte judgment in Case No. 03 of 2019 and declared the 1st defendant lawful owner then execution took place. Later on, in the year 2021, December, the decision in Case No. 03 of 2019 was nullified by Application No. 91 of 2021 as submitted by the plaintiff. So far as the current suit was filed in the year 2022, Plaintiff was right that he filed this suit before Revision Order No. 03 of 2023 was issued. However, by the year 2020 which plaintiff complain the action of trespass by defendants, the first defendant was decree holder over the disputed land. Just as submitted by Mr. Mahemba, the action by the plaintiff to file a suit complaining of action by defendant done in the year 2020 when the cause of action arose is abuse Page 22 of 24 of the court as by then the 1st defendant was the owner of the land in issue. If there was disobedience of court order of whatsoever nature, the plaintiff was supposed to file execution proceedings instead of fresh suit. I find the plaintiff has no cause of action against defendants in this suit and what was done by plaintiff was just as forum shopping which is discouraged in our legal system. See Blueline Enterprises Limited vs East African Development Bank (Civil Application 21 of 2012) [2013] TZCA 171 (16 May 2013) I now revert to the issue of cause of action and jurisdiction of this court, the remedy for the two is struck out which I declined to order, this is so because under the second point it has been rule that this case is abuse of court system as from the decision in Case No. 03 of 2019 the 1st defendant was a decree holder and therefore the plaint disclose no acceptable cause of action against the 1st defendant, so far as the trespass was in 2020, plaintiff has no cause of action against all defendants. In the case of Shahida Abdul Hassanali Kasam vs Mahed Mohamed Gulamali Kanji, Civil Application. No. 42 of 1999 (unreported) the Court held as herein quoted: - Page 23 of 24 "The aim of a preliminary objection is to save time of the court and of the parties by not going into the merit of an application because there is a point of law that will dispose of the matter summarily." All being said and done, the Preliminary Objection raised by the defendants is hereby sustained as the suit disclose no cause of action against defendants as by the year 2020 the disputed land was legally owned by different person. The suit is hereby dismissed with costs. DATED at M this 27th day of June, 2024. 3 M. L. KOMBA Judge Ruling delivered in chamber in the presence of the plaintiff who was connected via teleconference from Mwanza and in the presence of 1st defendant who appeared in person. M. L. KOMBA Judge 27th June, 2024 Page 24 of 24