LECHI LEUDA AND 553 OTHERS Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA LAND CASE NO. 16752 OF 2024 LECHI LEUDA & 553 OTHERS……..……………..…….…….…………….PLAINTIFFS

VERSUS

MLAZO VILLAGE COUNCIL DISTRICT EXECUTIVE……………..………………….…….………….1ST DEFENDANT DIRECTOR OF CHAMWINO……………………………………...........2 ND DEFENDANT HONOURABLE ATTORNEY GENERAL ……………………….……….3 RD DEFENDANT

RULING Date Of Last Order: 12th September, 2024. Date Of Ruling: 01th November, 2024. E.E. KAKOLAKI, J. This ruling seeks to address the preliminary points of objection raised by the defendants herein against the plaintiffs’ plaint to the effect that: 1 1. The Plaint is incompetent and bad in law for contravening section 6(2) of the Government Proceeding Act, [Cap 5 R.E 2019] 2. The suit is incompetent and bad in law for contravening order VI Rule 14 and Rule 15 of the Civil Procedure Code, [Cap.33 R.E 2019] 3. The suit is incompetent and bad in law for contravening Order VII Rule 3 of the Civil Procedure Code [Cap.33 R.E 2019]. Briefly the plaintiffs herein who claim to be residents and owners under customary ownership of unspecified size of peace of land located within Mlazo village Ng’ambako ward within Chamwino District in Dodoma region are suing the defendants jointly and severally for trying to forcefully evict them from the suit land which is bordered by Kizigo river in the North, Ng’awa Hills in the south, Mtera dam/pond in the Eastern and Tundu river in the Western. They are thus inviting this court for the declarations that, the order for eviction or demolition of the premises issued by the defendants is unlawful and illegal, defendants are restrained from evicting them from the suit land, permanent restraint is issued to the defendants from further interfering with

the plaintiff’s land and any other relief this court deems fit to grant. 2 At the hearing both parties were represented by learned legal minds and were heard viva voce as the Plaintiffs hired the service of Mr. Emmanuel Changula learned advocate while the Defendants enjoying the services of Ms. Agnes Makubha, learned State Attorney. Addressing the Court in favour of the raised grounds of objection Ms. Makubha sought leave of the court to abandon the 1st ground of preliminary objection, the prayer which was cordially granted before she proceeded to argue the 2 nd and 3rd grounds of objection on merit. Submitting in support of the second Preliminary Objection Ms. Agness Makubha argued that, the suit is incompetent for contravening the provisions of order VI rules 14 and 15 of the Civil Procedure Code [Cap.33 R.E 2019] (the CPC). As to Order VI Rule 14 of the CPC she elucidated, the same mandatorily demand the plaint to be signed by plaintiff and his advocate or any authorized party but in this matter, it is only an advocate who signed the plaint, thus contravened the law the effect of which is to render plaint incompetent before the Court. She relied on the case of Leonard Tenganiza and 16 Others Vs. The Registered Trustee of the Society of Precious Blood (CPPS) and 5 Others, Land Case No. 7111 of 2024 3 (HC), where this Court upheld the objection on similar ground that the

plaint was not signed by the plaintiffs and struck out the suit. She went on arguing that under Rule 15 of Order VI of the CPC also the law requires the plaintiff to sign verification clause but to the contrary the plaint before the Court was verified by the advocate only instead of plaintiffs who have personal knowledge of the fact deposed therein. She thus invited the Court to find the omission is fatal and proceed to struck out the plaint. On the 3rd ground of preliminary point of objection Ms. Makubha informed the Court that, the suit is incompetent and bad in law for contravening order VII Rule3 of the CPC that sets a requirement of the description of the immovable property to be sufficiently given in the plaint so as to identify the suit property. In this matter she contended, the description of the suit land supplied by the plaintiffs herein in paragraph 5 of their Plaint is too general to sufficiently identify the exact parcel of land in dispute (suit property) to the Court and the opposite party. Referring the Court to the cases of Abdallah Ally Chabwela and 508 Others Vs. Burugu Mkoma and 7 Others, Land Case No. 26372 of 2023(HC) and Martin Fredrick vs. Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019(CAT) 4 where the Court found the description of the suit land was insufficient and proceeded to struck out the matters, the learned counsel implored

upon this court to follow suit and find merit in the raised objections hence proceed to struck out the plaint. In response to the said raised grounds of objection Mr. Chengula prefaced his submission with the concession to the defendants’ prayer for dropping the 1st ground of objection while contesting their submissions on the merits of the two remaining grounds. As to the 2 nd grounds he submitted that, the same is devoid of merit as signing of plaint is a procedural matter which does not affect jurisdiction of the court. According to him, that position of the law was taken by this Court in the case of Transgen Trust vs. Tanzania Zoi City Corporation [1968] HCD 501 when addressing a similar issue to the one at hand. In his view the omission by the plaintiff to sign the plaint is curable by the court for ordering amendment of the plaint so that plaintiffs can sign it as it was the case in Medard Mukulasi Byakugila vs. The Attorney General and Another, Land case No. 13 of 2022(HC) where the plaint and WSD were not signed by the plaintiffs or defendant and the Court ordered for amendment of pleadings. He added that, in the case of Agathe 5 Mshote Vs. Edson Emmanuel and 10 others, Civil Appeal No. 121 of 2019(CAT) Tanzlii, the Court Appeal faced with similar scenario where the advocate had signed the written statement of defence on behalf of the respondents the Court found that

since the respondents’ counsel had signed the joint written statement of defence on account of being dully authorised by the respondents as verified in the same plaint, the law was not contravened at all. As regard to the assertion of contravention of Order VI rule 15 of the CPC he countered arguing that, the law is very clear and specific that even the authorised person can verify the plaint so long as he discloses the source of his knowledge to the deposed facts or the facts received from any other party. He finally urged the court to order for dismissal of this ground of objection. Countering the 3rd grounds of objection the learned counsel argued that, the Plaintiffs herein never contravened the provisions of Order VII Rule 3 of the CPC as the defendants in their submission admitted that paragraph 5 the plaint contained descriptions of the suit land in terms of demarcations, which in his view sufficiently identified the suit land as the law does not demand 6 for specification of its size. He referred the Court to the decision of the Court of Appeal in the case of Olorubabe Nginyu vs. Kilempu Kinoka Laizer, Civil Appeal No. 416 of 2021(CAT) Tanzlii where the Court observed that, omission to disclose boundaries and names of the owners of the adjacent parcel of land was a statutory requirement necessary to identify the suit land, thus the plaint could not have been said to

disclose cause of action. He finally urged the court to dismiss this ground and the other grounds of preliminary objections with costs. In her rejoinder submission Ms. Makubha had nothing material to add apart from reiterating her submission in chief and insisting that the cited cases by the defendants are not distinguishable from the facts of this case as stated by Mr. Chengula hence relevant. And further that, the plaintiffs indicated nowhere from the 1st paragraph to 25th paragraph of their plaint that, they authorised their advocate to sign and verify the plaint on their behalf. She thus pressed the court to find merit in the raised preliminary objection and proceed to struck it out the plaint. Having dispassionately considered the rivalry submission by the parties I wish to start with the 3rd ground of preliminary objection in which the contention by Ms. Makubha is that, the plaint contravenes the provisions of Order VII Rule 3 of the CPC, enjoining the plaintiff when framing the plaint 7 where the subject matter of the suit is immovable property to include description of the said property sufficient to identify it. It is so as the settled principle of law is that the plaint should neither be vague or vexatious. See the case of Olurubare Nginyu (supra). The said provision of the Order VII Rule 3 of the CPC reads and I quote: 3. 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. In giving interpretation of the requirements of the law in the above cited provision the Court of Appeal in the case of Lupembe Village Government Ikolo Ward Kyela District and Another Vs. Bethelehamu Mwandafwa and Others, Civil Appeal No. 377 of 2020[2023] TZCA 17313 (9 June 2023) at page 16 had the following to say: "On the argument that the plaint did not disclose the description of the suit land, we are aware of the provisions of Order VII rule 3 of the C PC the emphasis 8 being where the involved subject matter in a suit is immovable property, there must be such details of the requisite property in the plaint to sufficiently enable it to be identified." (Emphasis added). In compliance of the above provision of the law Mr. Chengula argued that, the plaintiffs whose land is unsurveyed gave description of the boundaries only as the size is not one of the requirements of the law while Ms. Makubha is of the contrary view in that, the said description as provided under paragraph 5 of the plaint is insufficient to enable the court identify the exact disputed land. It is true and I agree with Ms. Makubha that giving descriptions of the suit

land by mere mentioning boundaries without specifying its size is insufficient description for the purposes of its identification more so when the disputed land is unsurveyed. In expressing the importance of provision of particulars describing the suit property the Court of Appeal in the case of Olurubare Nginyu (supra) where size and names of owners of the adjacent parcels of the unsurveyed land were not disclosed, the Court making reference to the case of Martin Fredrick 9 Rajabu Vs. Ilemela Municipality Council and Synergy Tanzania Company Limited, Civil Appeal No. 197 of 2019 [2022] TZCA 434 (18 July 2022) had the following observation to make: It is not disputed that, the parties' dispute involves an unregistered parcel of land whose manner of description was stated by this Court in Martin Fredrick Rajab (supra) at page 13, thus: "From what was pleaded by the appellant, it is glaring that the description of the suit property was not given because neither the size nor neighbouring owners of pieces of land among others, were stated in the plaint. This was not proper and we agree with the learned trial Judge and Mr. Mrisha that, it was incumbent on the appellant to state in the plaint the description of the suit property which is in terms of the dictates of Order VII rule 3 of the Civil Procedure Code, Cap 33 R.E 2019". (Emphasis supplied) 10 From the above authority there is

no dispute that even the size of the disputed land is mandatory in disclosure of the description of the disputed land sufficiently more so when the same is not survey. The rationale behind that requirement in my humble view is not far-fetched as the Court and the opposite party need to know the exact size of the disputed land since nondisclosure might lead into confusion hence failure of the opposite party to identify the exact disputed land and marshal his defence properly. It was held in the case of Martin Fredrick Rajabu (supra) that, omission by the plaintiff to disclose size and names of the owners of the adjacent parcel of land being necessary particulars to describe the suit property rendered the plaint incompetent for not establishing the cause of action. Similarly in the present matter like in the above cited case none disclosure of the size of the suit land by the plaintiffs which is a necessary description for its identity I hold amounted to absence of cause of action as there could not be dispute over land which its size is not known. I so hold as it would be also difficult for the court to decide whether the plaintiffs have been able to prove their claims leave alone none disclosure of cause action against the defendants. 11 This ground in my conviction disposes of the matter as the omission is fatal for rendering the plaint incompetent before the court. I thus see

no need to venture much more energy discussing the 2nd ground of objection. Having so said, the 3rd ground of objection is sustained, as the present plaint is rendered defective for non-disclosure of sufficient description of the suit land in terms of the provision of Order VII Rule 3 of the CPC. The cumulative effect therefore is to render the plaint before this Court incompetent hence struck out from the registry of this Court. Plaintiffs are at liberty to bring a fresh competent suit if they so wish. Given the nature of the dispute, I order each party to bear own costs. Order accordingly. Dated at Dodoma this 01st day of November, 2024. E. E. KAKOLAKI

JUGDE 12 01/11/2024. Court: The Ruling has been delivered at Dodoma today on 01 st day of November, 2024, in the presence of the Mr. Emmanuel Chengula, for the Plaintiffs, Ms. Agnes Makubha, State Attorney for the Defendants and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI

JUGDE 01/11/2024. 13