DANIEL DAMIANI NESTORY VS KAKONKO VILLAGE COUNCIL

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 35 OF 2023 DANIEL DAMIAN NESTORY .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KAKONKO VILLAGE COUNCIL .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 11 & 11/02/2025 The plaintiffs have brought this land suit because they are unhappy with the acts of the defendants. The reliefs that they are eager to obtain are thusly: 1. That, suit land situated at Kanyamfisi area in Kakonko village, ward and district approximately measuring 19 acres be declared as belonging to the respective plaintiffs in accordance with every plaintiff’s acreage stated in paragraph 6 above. 2. That, the defendants be declared as trespassers into the suit land and the purported acquisition of the suit land for public interests without due legal processes be declared illegal. 3. That, the defendants be permanently restrained from further interferences with the plaintiffs’ use and occupation of the suit land and further be ordered to pay unto the 1st plaintiff a total of T.shs 65,000,000/= for the land and crops already destroyed in accordance with paragraphs 12 and 14 above. 4. That, as an alternative prayer, since the other plaintiffs’ shamba except the 1st one, have not been seriously interfered with and destroyed, then that the defendants jointly be ordered to evaluate the shambas belonging to the 2nd up to the 7th plaintiffs as averred in paragraph 6 and 15 above and pay pair, prompt and adequate compensation for the lands and unexhausted improvements together with the 1st plaintiff’s claim of compensation referred in paragraph 12 above and 3rd prayer. 5. That, the defendants jointly be ordered to pay T.shs five million (5,000,000/=) to each and every plaintiff equal to T.shs 35,000,000/= or any other sum as may be dully assessed by the Honourable Court as general damages suffered by the plaintiffs. 6. That, on account of the defendants’ unlawfulness and arbitrariness in the impugned process of acquiring the suit land, the same be similarly punished with payment of T.shs ten million (10,000,000/=) as punitive Page. 1 damages. 7. Costs of this suit. 8. Any other reliefs deemed just and fit by the Court. In the course of the hearing of the plaintiffs’ case, Mr. Kalenda objected admission as exhibit of a letter issued to the 1st plaintiff by the 2nd defendant on the grounds that: 1. The document is not original, it contravenes section 66 of the Evidence Act. 2. It contravenes section 67 and 68 of the Evidence Act. 3. It was neither pleaded and appended on the plaint nor brought as additional document. See Yara Tanzania Ltd v. Ikuwo General Enterprises Ltd, Civil Appeal No. 309 of 2019, CAT at page 13. Paragraph 2. Mr. Kagashe, learned counsel for the plaintiffs opposed the objection. I adjourned the matter for composing a ruling. But on my critical examination of the plaint, I was of the considered opinion that the same is defective hence incompetent. I brought to the attention of the counsel of both parties the anomalies as below: The defects identified by the Court could be listed and clarified vide case laws. Firstly, Non-joinder of plaintiffs (husband of a wife who is suing claiming she owns the land with her husband. Masaka Mussa v. Rogers Andrew Lumenyela & 2 Others, Civil Appeal No. 497 of 2021, (Unreported) (CAT). “The worst thing from the failure by the High Court to determine the suit and decide it basing on what the parties had pleaded is the fact that the High Court ended up nullifying the purchase and transfer of title over Plot No. 437 from one Said Khamis to the appellant without having heard not only Said Khamis who was not a party to the suit but also the appellant who was not recalled to defend her title over her plot after the High Court had framed the three new issues questioning her title over the plot. Apart from this being a departure from the pleadings, it was in breach of the cardinal principles of natural justice and an abrogation of the constitutional guarantee of the right to be heard.” Claude Roman Shikonyi v. Estomy A. Baraka & 4 Others, Civil Revision No. 4 of 2012 CAT (unreported) to the effect that: “For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit, one of the two things has to be shown. Either he has to be shown that orders which the plaintiff seeks in the suit would legally affect the interest of that persons, and it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies (on application of the defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set up a defence he desires to set up unless that person is joined in it, or unless the order to be made to bind that person.” Failure to mention whether the gift was oral or written one (to do away with surprise) and who granted the gift; for one to have locus standi. Page. 2 Mogha’s Law of Pleadings in India with Precedents, 15th Edition where Mogha remarked at page 267: “Generally speaking, the plaintiff’s right or title which has been infringed must be stated first, and the fact of infringement. Thus, in a suit brought on a contract, the contract must first be alleged, and then its breach, and then damages.” Yara Tanzania Limited v. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019 where it was stated that: “Having held, as she did, that, the rule was offended, the trial Judge would not be entitled to go into the contents of exhibit P1 and hold that the claim was premature for want of exhaustion of the remedies thereunder. This is because, by holding that exhibit P1 was not pleaded and therefore irrelevant, the trial Judge was saying that the claim thereunder was not before her.” Locus Standi: S. P. Gupta v. Union of India AIR SC 149 Bhagwaji, J. held that: “The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury of violation on his legal right or legally protected interest by the impugned action of the state or public authority or another person or who is likely to suffer.” Lujuna Shubi Balonzi v. Registered Trustee of Chama Cha Mapinduzi [1996] T.L.R. 203 HC it was held; “Locus standi is governed by common Law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with.” Failure to describe the piece of land. Whether the whole of the piece of land on the certificate of title or part. Olorubare Nginyu v. Kilempu Kinoka Laizer, Civil Appeal No. 416 of 2021, CAT at page 20 where it was stated that: “We have considered the counsel rival submissions and were persuaded that, the amended plaint omitted to disclose boundaries and names of owners of the adjacent parcels of land, being particulars necessary to describe the suit property. Since disclosure of the particulars was a statutory requirement and necessary to identify the suit land, the missing information were an integral part of the plaint whose absence could not establish the cause of action.” Cause of action Stanbic Finance Tanzania Ltd v. Giuseppe Trupia & Chiara Malavasi [2002] T.L.R. 221 a cause of action was defined to mean: Page. 3 “Facts which gives a person a right to judicial redress, or reliefs against another as found on the plaint and its annexure.” … in determining if the plaint discloses a cause of action against the defendant, a plaint must be considered within its four corners including its annexures.” Auto Garage & Others v. Motokov [1971] EA 514 and the case of Juraji Shariff & Co. Fancy Store [1960] EA 374 that: “For the plaint must disclose a cause of action against defendants, short of that, defendants must be discharged.” A rule against (restrictive) amendment of pleadings during hearing George Shambwe v. The Attorney General [1996] T.L.R. 334 (CAT) where it was stated: “It will be sufficient for purposes of the present case, to say that amendments to pleadings before the hearing would be freely allowed if they can be made without injustice to the other side and there was no injustice if the other side could be compensated by costs.” Let it be forgotten, drafting a plaint in proper manner is the duty of the plaintiffs in accordance with the words of Sir. Jack I.H. Jacob in his Article entitled, “the Present Importance of Pleadings” first published in Current Legal Problems (1960) at page 174 where he wrote that: “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings ...” It should also be remembered that diligence is necessary as enunciated in diligently as stated in Loswaki Village Council & Another v. Shibesh Abebe [2000] T.L.R 204 (CAT) where it was stated that: “... those who seek the protection of the law in a Court of justice must demonstrate diligence.” In responding to the above explained oddities on the plaint, Mr. Kagashe informed this Court that he consulted advocate Vero, and they thought to amend the plaint, but there are also many issues raised by the Court, whereby amendment would amount to overhaul of the whole plaint. They intimated their view that withdrawing the plaint with leave to refile is convenient. He prayed to withdraw the suit with leave to refile. He further beseeched the Court that each party bears their costs as the anomalies have been raised by the Court. On the defence side, Mr. Kalenda did not have any objection. Now, all things considered, the prayer that the suit be withdrawn is granted. The suit is marked withdrawn with leave to refile, he prayer having not been resisted by Mr. Kalenda, learned senior State Attorney. Truly, the listed abnormalities that were raised by this Court are apparent on the plaint. I make no order as to costs as the oddities have been raised by the Court suo motu. It is so ordered. Page. 4 Dated at KIGOMA this 11th of February 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 5