CHAMCHUZI VILLAGE RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA LAND CASE NO. 09 OF 2023 CHAMCHUZI VILLAGE COUNCIL………….....................1ST PLAINTIFF KARAGWE DISTRICT COUNCIL………………………..…2ND PLAINTIFF THE ATTORNEY GENERAL………………………………….3RD PLAINTIFF VERSUS JOHN LUKALA LUFUNDA (as administrator of the estate of the late Katurebe Rukala Lufunda)……………….…..............1ST DEFENDANT JOHN RUKALA …………………………………….……….2ND DEFENDANT BITRES RUKALA…………………………………….……..3RD DEFENDANT RULING 15/11/ 2024 E. L. Ngigwana,J. This is a ruling on an issue raised by the court suo motu. The suit was instituted by the plaintiffs against the defendants by way of plaint, alleging that the defendants have encroached into a piece of land whose size is estimated to be two (2) acres located at Chakasheke Island within Chamchuzi Village in Karagwe District. The parties went through unsuccessful mediation. When the matter was set for the final pre-trial 1 conference, one of the issues that were framed and agreed upon for determination reads; “who is the owner is the owner of the suit land between the 1st plaintiff and the defendants”. It follows therefore that, ultimately, the court must declare the lawful owner of the suit land. In the course of composing the judgment, I found the existence of a legal issue on the competence of this suit for want of sufficient descriptions of the suit land to enable the court to effectively determine the controversy between the parties by dealing with a specific piece of land. I was therefore prompted to re-open the proceedings and invite the parties to address me on the competency of this suit. Mr. Nestory Lutambi learned State Attorney for the plaintiffs briefly submitted that reading the plaint as a whole, it goes without saying that the same offended Order VII Rule 3 of the Civil Procedure Code, [Cap. 33 R.E 2019] and also the evidence adduced did not cure the anomaly and hence, the court cannot be in a position to determine ownership of insufficiently described land, and if it does, the decree will not be executable. He added that the remedy is to strike out the suit for being incompetent. 2 On his side, Mr. Bitakwate, learned counsel for the defendants conceded that the plaint offended Order VII Rule 3 of the Civil Procedure Code, [Cap. 33 R.E 2019]. However, he added that because both sides have adduced their evidence, the court should see that the plaintiffs have failed to prove their case. On whether the court can declare the lawful ownership of insufficiently described land, he urged the court not to issue a decree before warning itself on whether the same may be smoothly executed. Having heard submissions from both sides, my task is to determine the issue raised by the court suo motu. It is a law that court orders must be certain and executable. It follows that, where the description of the land in dispute is uncertain, it will not be possible for the court to make any definite order and execute it. See Ramadhan Omary Humbi and 58 others v. Aneth Paulina Nkinda and another, HC Land Case No. 99 of 2013(unreported). Order VII Rule 3 of the Civil Procedure Code, [Cap. 33 R.E 2019] provides that; “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” 3 The plaintiffs' plaint comprising 8 paragraphs has no sufficient descriptions of the suit land to enable the court to effectively determine the controversy between the parties by dealing with a specific piece of land. Unfortunately, the evidence adduced by the two sides also did not cure the defect, thus making it difficult for the court to determine ownership of an insufficiently described piece of land. In the upshot, I find that the Plaintiffs’ suit is improperly filed before this court for failure to exhaust the descriptions of the suit land to enable the court to effectively determine the controversy between the parties by dealing with a specific piece of land, and declare the lawful owner of the same. Therefore, there is no way this court can proceed to determine this case on merit. I accordingly proceed to strike it out. Because the issue was raised by the court, each party shall bear its costs. It is so ordered. E. L. NGIGWANA JUDGE 15/11/2024 4 Ruling delivered this 15th day of November 2024 in the presence of Mr. Nestory Lutambi (S/) for the plaintiffs, Defendants, advocate Mr. Joseph Bitakwate, Hon. A.A. Madulu -JLA, and Ms. Queen Koba. E. L. NGIGWANA JUDGE 15/11/2024 5