LAND APPEAL NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000014190 OF 2024 NIKODEMU DAMIANI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS NYANTARE VILLAGE GOVERNMENT .............................. RESPONDENT / DEFENDANT JUDGMENT J. NKWABI, J, 19 & 19/11/2024 In Land Application No. 88 of 2015, the appellant lost the suit to the respondent and other persons. In that suit, the appellant had sought the reliefs thus: 1. Declaration that the suit plot is the property of the applicant. 2. Perpetual injunction to restrain the respondents from invading the suit plot. 3. Costs of the case and any other relief. The written statement of defence did not accompany any counter-claim as admitted by the learned State Attorney in reply submission, but the trial tribunal after hearing the parties on merits, gave a decree thus: “The applicant’s application is hereby rejected, hence dismissed with costs. The respondents are hereby declared to be the lawful owner of the suit land with exclusion from any other person including the applicant.” Be that as it may, the appellant was aggrieved with the execution order of the above-mentioned decree. He is appealing to this Court while having seven grounds. Since the learned State Attorney for the Respondent has conceded the appeal, I will only indicate the grounds of appeal which he conceded which dispose of the appeal. They are: 1. That the learned chairman of executing tribunal erred in law by ordering the appellant to vacate the suit land … without specifying the size of the said land and without considering the appellant had a large land near to Page. 1 the said suit land. 2. The learned chairman of executing tribunal erred in law in executing a defective decree which does not show the size and boundaries of land the respondent won. The appellant is praying for the below mentioned reliefs: 1. The appeal be allowed with costs. 2. The decision and proceedings of execution No. 21 of 2023 be quashed and set aside. 3. Any other or further reliefs that this Honourable Court may deem fit and just to grant to the appellant. When the appeal was called upon for hearing, the appellant appeared in person, unrepresented while the respondent was represented by Mr. Edwin Rwekaza, learned State Attorney. I am grateful for the submissions. In submission in chief, the appellant, on the 2nd ground of appeal, maintained that he complained against failure to indicate the size of the piece of land. He added that he has a large piece of land which he acquired by clearing. The respondent acquired his piece of land, the respondent wants to take his other pieces of land. He stressed that the respondent is unjustifiably taking his land without justification under the pretext of execution. The appellant also submitted on the 4th ground by mentioning it is that the decree is defective and it cannot be executed for failure to indicate the size of the piece of land and boundaries. He prayed the appeal be allowed with cost. Mr. Rwekaza, apart from adopting the reply to the memorandum of appeal as part of his submissions, in reply submissions, he conceded the appeal. He elaborated his reason for conceding the appeal is the decree granted them a relief which they did not claim for which is contrary to the law. Further the decree does not indicate the size and boundaries of the suit land. He prayed that the appeal be allowed without an order for cost. The Appellant accepted the concession of the appeal in rejoinder submission. I have considered the submissions of both parties. I have also examined the record. I agree that the appeal is merited because, the decree which was ordered to be executed in the impugned drawn order is defective for failure to indicate the size of the land in dispute and the boundaries. That offends the decision in the case of Martin Fredrick Rajabu v. Ilemela Municipal Council & Others, Civil Appeal No. 197 of 2018, CAT where it was Page. 2 held that: “the description of the property was not stated in the plaint and it violated the provision of Order VII Rule 3 of the CPC. The court went further stating that, the omission to give proper description of the suit land renders the plaint incompetent and ought to be struck out.” Further, the decree sought to be executed is defective by granting a relief to a party who was a defendant without a counterclaim. That offends the decision in Melchiades John Mwenda v. Gizelle Mbaga (administratrix of the estate of the estate of John Japhet Mbaga) & 2 Others, Civil Appeal No. 57 of 2018, CAT at page 24 and page 25 where it was stated that: “… the evidence did not prove so on a balance of probabilities and, secondly, the second respondent did not plead ownership by way of counterclaim. It is elementary law which is settled in our jurisprudence that the court will grant only a relief which has been prayed for – see James Funke Gwagilo versus Attorney General [2004] T.L.R. 161 and Hotel Travertine Limited & 2 Others v. Nationa Bank of Commerce Limited [2006] T.L.R 133. … If the second respondent thought he had any claims against the appellant, in terms of Order VIII of the Civil Procedure Code, Cap 33 of the Revised Edition, 2022, he should have raised a counter claim in which he would set out all the material facts on which he relied in support thereof with the same particulars as he would as a plaintiff in an independent suit – see Mulla: The Code of Civil Procedure. Clinging on the appellant’s prayers as he did instead of just stating in his defence that the appellant’s prayers be refused, was inappropriate and the trial court erred in granting such a relief.” Hinged from the above discussion, I nullify the execution proceedings of the trial tribunal in execution No. 21 of 2023. Further to that, I quash the ruling and set aside the drawn order of the trial tribunal in execution No. 21 of 2023 between the parties to this appeal. I make no order as to costs because it is the consensus of both parties. It is so ordered. Dated at KIGOMA ZONE this 19th of November 2024. J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 3