Judgment Eustach Sahiro

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA LAND APPEAL NO.66 OF 2023 (Arising from application No 3 of 2019 before the District Land and Housing Tribunal for Chato at Chato dated 6th June, 2023) EUSTACH SAHIRO……………………………….…………………….…….. APPELLANT

VERSUS AKILIMALI DAUD…………………..…………………………...……..1st RESPONDENT MARTINE NGEREJA……………..…………………………….……....2nd RESPONDENT MODESTUS LOGESHENI……………………………………….…..…3rd RESPONDENT MAPAMBANO JERUMANI………………………………………...…..4th RESPONDENT ZUHURA BRAITON…………………………….………………….……5th RESPONDENT

JUDGMENT 24th July & 12th August 2024 ITEMBA, J. Before the District Land and Housing Tribunal for Chato (the tribunal) in Application No. 3 of 2019, the appellant sued the respondents for recovery of land and a house located at Nyakanazi in Biharamulo District within Geita Region. The appellant and the 5th respondent were married. They later divorced before Lusahunga Primary Court at Biharamulo and among others, the court ordered a division of matrimonial properties. It was alleged that, the suit properties were among matrimonial properties and the 5th respondent, unlawfully sold the matrimonial house to the 1st respondent and a farm to the 2nd, 3rd and 4th respondents. The tribunal heard the dispute in the absence of the 2nd 3rd and 5th respondent and in its judgement, the trial 1 tribunal found that the 1st respondent is a mere lessee of the house in dispute and not the owner. It further declared the 4th respondent herein to be the lawful owner of the 4 acres’ land because he (4th respondent) proved that he bought it from one Pendo Jonas. The appellant was aggrieved by the decision of the trial tribunal. He filed this appeal which is based on seven grounds as follows: i. The trial tribunal erred in law and fact for reserving the judgement for more that than five months and it erred to have allowed the 4th respondent to file Written Statement of Defence after one year

irrespective of the fact that the same tribunal had already struck out the previous filed Written Statement of Defence which was filed out of time; ii. The trial tribunal erred in law and fact by failure to consider that the contract tendered by DW2 was not witnessed by the Village council and had no stamp duty; iii. The trial tribunal erred in law and fact by considering exhibits tendered by the 1st and 4th respondent as well as DW2 which were not attached to their Written Statement of Defence and had no stamp duty; iv. The trial tribunal erred in law and fact for failure to evaluate the exhibits tendered by the appellant; v. The trial tribunal erred in law and fact to decide in favor of the 4th respondent who failed to call PENDO JONAS being material witness; 2 vi. The trial tribunal erred in law and fact by failure to consider that the officer who witnessed the contract of DW2 was a material witness; and vii. The proceedings of the trial tribunal are tainted with irregularities. The appeal was heard by way of written submissions. The 2nd 3rd and 5th respondent neither filed their submissions nor entered appearance irrespective of substituted service at Mwananchi Newspaper dated 25/5/2024. Therefore, the appeal proceeded ex parte against them. Mr. Kulwa Benjamin learned advocate who was engaged for drafting the submissions for the appellant whereas the 1st and 4th respondents

were represented by Mr. Manase King learned advocate. In the course of composing this judgment, upon a keen perusal to the records, I had noticed an aspect which drove both court’s courtesy and caution. As the principle of abundans cautela non nocet entails that there is no harm done by great caution. I did ask myself on the competency of this appeal because it appears, when the appellant filed his application for the very first time at the District Land and Housing Tribunal, he vaguely described the suit property as ‘Nyakanazi in Biharamulo District’. Thus, the exercise of composing the judgment had to be paused and both parties were afforded an opportunity to address the court on the competency of the 3 application in terms of Regulation 3(2) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2002 G.N 174/2003, herein the Regulations. Again, they both chose to proceed by writing. The applicant insisted that the Trial Tribunal was competent because there was no objection raised and it is a legal principle that, if the respondents did not object on the boundaries of the plot in dispute that means the plot in dispute is known by both parties. He stressed that, if there is a dispute in boundaries, the important move is for the Tribunal to visit the loqus in quo instead of creating injustice based on technicalities. In this argument, he cited the

cases of Lupembe Village Government and another v Bethlehemu Mwandafwa and 5 others Civil Appeal no. 377 of 2020 CAT, Mbeya and Avit Thadeus Masawe v Isdory Assenga Civil Appeal no. 6 of 2017, CAT, Arusha respectively. He complained that the issue of boundaries was raised suo mottu without affording parties right to be heard. That, it is only issues of jurisdiction which can be raised at any time. That, this move is contravening of the Court’s decision in Charles Christopher Humphrey Kombe v Kinondoni Municipal Council, Civil Appeal no 19/2019 and some other cases. He then stated that, based on the decision of the trial tribunal it is as if there is no judgment at all because how 4 could the 2nd 3rd and 5th respondents win the case while in absentia? How could the decree be issued to the 4th respondent while it was ex parte? Finally, the applicant stated that, in the matrimonial proceedings no. 1/2012 before Lusahunga Primary Court which led to this land case, the trial magistrate visited the locus in quo which is a plot and a shamba. Therefore, according to him, the disputed plot is known and there will be no challenges in execution because it is the same primary court which will execute the orders. In rebuttal, the 1st and 4th respondent’s counsel was of the opinion that, paragraph 3 of the application states ‘Nyakanazi in Biharamulo’ and according to rule 3(2)(b) of the

Regulations and Order VII rule 3 of the CPC the disputed plot is supposed to be described in size, boarders and location and when the area is unsurveyed, it is important to mention the landmarks around the disputed plot. He expounded that rule 3(2)(b) of the Regulations is to be interpreted as it was intended in Order VII rule 3 of the CPC and that even in the High Court cases of Alkando Hamis Jafari v NMB bank and 2 others Land Appeal no. 68/2021 Mbeya and Daniel Ndagala Kanuda (Administrator of Estate of the late Mbalu Kushaha Mbaluda) v Masaka Meho and 5 4 others Land Appeal 26/2025 Tabora, that was the position. That, these rules enable the court to visit the disputed land, court’s orders to be clear and to enable execution. That, the words Nyakanazi Biharamulo is very general as if it is the whole Nyakanazi area which is in dispute. He finalised that, because this is a legal issue, it can be raised anytime in accordance with Ex Police no. E 5812 PC Renatus Itanisa v IGP and others CAT 147/2018 and that the appeal should be dismissed with costs. The crucial question is whether the application was competent before the DLHT. Order VII rule 3 of the CPC states that: 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. The similar provision is found under rule 3(2)(b) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations where the applicant is supposed to have the address of the suit premises or the location of the land. I agree with my brother Hon. Karayemaha, J in Alkando Hamis Jafari v NMB bank and 2 others (supra) that rule 3 (2)(b) of the regulations should be construed to the meaning of Order VII rule 3 CPC. 6 Therefore, it is important for the suit premises to be properly described in either the plaint or application as the case may be. I have considered the parties’ submissions. In respect of the issue raised by the court suo motto, the appellant has insisted that there is no harm in the absence of clarity of the location, size and boundaries of the disputed land so long as the respondents did not show that they were not sure of which exactly was the suit land. If the respondents weren’t sure they would have raised an objection earlier on. I have gone through the cited cases in support of this argument and I think they are distinguishable. I say so because in Lupembe Village Government the disputed plot was described as ‘unsurveyed land located at Mwingo area within Lupembe Village’ and the Court stated that inter alia that; ‘While the above description can be said not to provide too

many details on the suit land, it is, however, pertinent to ensure that each case is adjudged within its own circumstances. Meanwhile in the present case, the suit plot is described as ‘Nyakanazi in Biharamulo District.’ There are no more details provided. As it can be seen, there is a huge difference in these two descriptions. While the former has the name of the village and specific area or location the present is just referring to the whole District of Nyakanazi. 7 Secondly, I have gone through the evidence adduced by the appellant in support of the suit property and this is what he told the court: ‘Mwaka 1997 nilifika Nyakanazi kutafuta mashamba. Uongozi wa Kijiji cha Kasato walinigawia eneo chini ya mlima kwenye mto Mtundu. Uongozi wa Kijiji walinipimia hekari 10, pia kuna eneo la kichaka walinipa kuunganisha ekari 10 nilizopewa, majirani zangu walikuwa:- - Charles Kihumbi - Mama Rahel - Mzee Mchele. Uongozi wa Kijiji pia walinipimia hatua 25 x 30 za eneo la makazi ambacho kilikuwa karibu na barabara ya rami, majirani zangu walikuwa:- - James Zengo - Mzee Jerard - Komando Mwaka 1998 nilihamisha familia yangu tukawa tunaishi Nyakanazi. Mwaka 2011 ndoa yangu ilianza kuwa na mgogoro, mgogoro huo ulifikishwa Mahakama ya Mwanzo ya Lusanga mwaka 2012 Mahakama ilitoa hati ya Talaka.’ In brief, the appellant stated that in 1997 the village authority granted him a land, 10 acres,

close to Mtundu river. He was then allocated another land of a different size, 25*30, next to the tarmac road. He mentions different neighbours in both lands. That, in 2011 he moved with his family to 8 Nyakanzi. Now, according to the appellant, the suit premises contains a piece of land/shamba and a house. In his testimony, he stated that the house or residential areas is far from the shamba area. Indeed, it seems these two pieced of land are in different locations, due to having different sets of neighbours, although it is not clear whether they are adjacent to each other or in two separate locations. If that was not enough, none of the rest of the witnesses gave a description of the suit property which is compatible with the one in the application. Of more importance, looking at the decision issued by the District Land and Housing Tribunal, there is a 20 pages summary of the case. Then, at page 21 the chairman is stating as follows: ‘Katika maelezo yake mdai anadai shamba la ekari 10 lililopo Nyakanazi eneo la Makazi hatua 25 x 30 lililopo karibu na Barabara ya lami. Maelezo haya hayatoshi kufafanua eneo au maeneo ya mgogoro. Kwa mujibu wa hati ya madai na maelezo ya mdai nyumba na shamba mahali vilipo haviko bayana.’ (emphasis supplied). In few words, the Tribunal’ chair is stating that the appellant is claiming 10 acres of land and the residential areas which is 25/30, and

that, the disputed plot is insufficient based on both the description in the application 9 and appellant’s testimony. At this stage and by this observation, the Tribunal itself was not in position to determine the application because it was not made clear as to what exactly was the disputed plot. The application was incompetent. Nevertheless, surprisingly, the chair went on and determined the application. It is not unexpected that, in the decree thereof, the suit property was described as ‘shamba’ and it is only amounting to 4 acres. The 6 acres out of the claimed 10 acres and the residential land remain undetermined. It was held by Hon. Utamwa, J in Ramadhani Omari Umbwi and 58 others v Aneth Paulina Nkinda and another, H.C Land Case no 99 of 2013, DSM, that; ‘It is the law that court’s orders must be certain and executable. It follows thus 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’ As seen hereinabove, description of the suit property is an important aspect and the law, both in the CPC and the Regulations have coached the provision in mandatory form by using the word ‘shall’. In respect of the importance of describing the suit property, it was held in Martin Fredrick Rajab v Ilemela Municipal Council and another, Civil Appeal No. 197 of 2019 CAT, Mwanza that; 10 ‘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 neighboring 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 7 rule 3 of the Civil Procedure Code…’ (emphasis added.) Failure to properly describe the suit plot leads to challenges in understanding the nature of the dispute itself but also in issuing and executing court’s orders thereof. Under the circumstances the application was incompetent before the Trial Tribunal for it did not comply with the mandatory provisions of Regulation 3(2)(b) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations. It means all the proceedings thereof were a nullity. Regarding the point raised by the appellant on visiting the locus in quo, it is noted that the Tribunal did not visit the locus in quo but the magistrate who was sitting in matrimonial case which led to this land case. These are two different courts and two different suits. Also contrary to what is suggested by the appellant, ordering the Tribunal to visit the locus in quo at this stage will not be practical because the application which ought to

have led the Tribunal to the locus in quo is still vague on the location. 11 Based on these outcomes, I see no justification in deciding on the remaining grounds of appeal. Ultimately, I hereby quash all the proceedings of the trial tribunal and set aside the decision thereof as it emanate from a nullity. Since the appeal was not heard on merit, it is hereby struck out. Considering the fact that the appeal is disposed on a legal point raised suo motto by the court, I order no costs. It is so ordered. DATED at MWANZA this 12th day of August, 2024. L. K. J. ITEMBA

JUDGE Judgement delivered on 12th day of August, 2024 in presence of Ms. G. Mnjari, RMA and in the absence of all parties. L. K. J. ITEMBA

JUDGE 12