civil decision 2025 02 14 21 43 34

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 000001202 OF 2024 FATUMA RAMADHANI BIGWANIJE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS REGISTERED TRUSTEES OF ROMAN CATHOLIC DIOCESE OF KIGOMA .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 05 & 14/02/2025 The plaintiffs’ joint claims against the defendants hinge on legal ownership of two plots of land at Gungu area and ward within Kigoma/Ujiji Municipality and the same are alleged in the plaintiffs’ pleadings to be unsurveyed. The 1st Defendant’s pleadings on record however reflect the suit plots have been surveyed and registered as one plot No. 17 Block at Nyakageni within Kigoma/Ujiji Municipality. The land dispute between the parties could be noticeably demonstrated in the reliefs the plaintiffs are up for grabbing. The reliefs could, notwithstanding, be conveniently listed as below: 1. That, this Honourable Court be pleased to declare the suit land as described in paragraph II above, as belonging to the plaintiffs and the 1st defendant’s acts thereon in collaboration with the 2nd and 3rd defendants be declared as acts of trespass and illegal. 2. That, in the alternative but without prejudice to the prayers above, the entire process of acquiring the suit land involving the 1st, 2nd and 3rd defendants without abiding to due legal processes, be declared void and nullity unless compensation in the tune of T.shs Thirty Million (30,000,000/=) for the 1st plaintiff, thirty five million (35,000,000/=) paid unto 2nd plaintiff, moreover the same be ordered to pay four million and six hundred thousand (4,600,000/=) for the destroyed foundation of the 2nd plaintiff. 3. That, the 1st, 2nd and 3rd defendants jointly be ordered to pay T.shs Ten million (10,000,000/=) for the plaintiffs or any other sum to be dully assessed by the honourable Court as general damages. 4. That, interest on the decreed sum at Court rate from the date of judgment to the date of full satisfaction. 5. That, costs of this suit and 6. Any other relief(s) the Court deems fit to grant. Page. 1 After having been served with the amended plaint, all defendants raised a preliminary objection which is two peaked in this way: 1. The verification clause in the relevant amended plaint is fatally defective for having been purportedly verified by one Majaliwa Ally Ndada who, though not being one of the plaintiffs, he verified the same as if the pleadings thereof had been verified by both plaintiffs. 2. The suit is legally vitiated since the plaintiffs impleaded the Assistant Commissioner for Lands to the suit rather than impleading the Commissioner for Lands therein. I ordered the preliminary objection be argued by way of written submissions. Mr. Method Kabuguzi, learned counsel drew and filed the written submission in support of the preliminary objection. On the mention date, Mr. George Kalenda, learned Senior State Attorney, informed this Court that they did not find the need to file submissions because they were satisfied that the submissions lodged by Mr. Kabuguzi save the day. Mr. Kabuguzi too told the Court that he did not see the necessity to file a rejoinder submission after the plaintiffs, through their Attorney, had filed a reply submission in opposition of the preliminary objection. On the first peak of the preliminary objection, Mr. Kabuguzi contended that the plaintiffs, apparently granted special powers of attorney to one Mr. Majaliwa Ally Ndada to pursue their claims on their behalf and it was Mr. Majaliwa Ally Ndada who verified the plaintiffs’ pleadings in their plaint and in the amended plaint on record. Mr. Kabuguzi explained that the plaintiffs’ joint amended plaint on record is defective for want of proper verification. He went on to say that while it is apparent that the names of the plaintiffs in this case are Fatuma Ramadhani Bigwanye and Shumbana Said Ismail (the administratrix of the estate of the late Juma Mussa Marijani), the pleadings in the amended plaint are verified as herein below quoted: “I, Majaliwa Ally Ndada, the plaintiffs do hereby verify that, all what is stated in paragraph 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 above is true to the best of our knowledge”. Mr. Kabuguzi remarked that considering how the pleadings in the plaintiffs’ joint amended plaint are verified as herein above quoted, much is left to be desired if Majaliwa Ally Ndada in his capacity as plaintiffs’ attorney could assume plaintiffs’ personal identities and sanctified verify the said pleading while purporting to be the plaintiffs. He further contended that much is left to be desired if Majaliwa Ally Ndada, in his capacity as plaintiffs’ attorney, properly verified the relevant pleadings while purporting to have his personal knowledge regarding all facts pertaining to paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the amended plaint without disclosing the source of such information as the law enjoins. Mr. Kabuguzi pointed out that the pleadings in the plaintiffs’ joint amended plaint on record are not properly verified and hence the suit be struck out with costs since in terms of Order VI Rule 15(1) and (2) of the Civil Procedure Code- Chapter 33 of the R.E., 2019 the pleadings must be verified by the Party or by one of the Page. 2 parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and the person verifying the pleadings should specify, by reference to the numbered paragraphs of the pleadings what he verifies of his own knowledge and what he verified upon information received and believed to be true. By conclusion, Mr. Kabuguzi recommended that in order for the impugned verification to be legally valid, the plaintiffs’ said attorney was compelled to have disclosed that he verified the relevant pleadings in his capacity of being the plaintiffs’ attorney rather than purporting to verify the same as if he was the plaintiffs. The said attorney, pressed Mr. Kabuguzi, should have specified by referring to the numbered paragraphs in the amended plaint which facts were verified according to his personal knowledge and then disclose the facts which had been verified according to the information he had received from the plaintiffs and which he believed to be true. It was the reply of the plaintiffs, through their attorney by power of attorney, that the 1st defendant wants to delay the hearing of the case because the 1st defendant admits/acknowledges the power of attorney. He bemoans the wrong indicated name of Biwanye instead of Bigwanije. He stressed that as an attorney of the plaintiffs, it was not wrong for him to have verified the plaint on behalf of the plaintiffs. He says, the power of attorney grants him power to sign all documents of this case, thus, this Court is not impeded to do justice. He encouraged that the preliminary objection be dismissed. I have explored the vying opinions of the parties about the first peak of the preliminary objection. But for one to appreciate that verifications are not skin deep, one is unshackled to chew over what was said in the case of A. K. K. Nambiar v. Union of India, (1970) 35 CR. 121 where it was ruled that: “The importance of verification is to test the genuiness and authenticity of allegation and also to make the deponent responsible for allegations. In essence verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification clause, affidavits cannot be admitted as evidence.” Though stated while the Court of Appeal was dealing with an affidavit, still this Court can borrow leaf out of the decision in Anatol Peter Rwebangira v. The Principal Secretary, Ministry of Defence and National Service & Another, Civil Application No. 548/04 of 2018, CAT where it was observed that: “Where an averment is not based on personal knowledge, the source of information should be clearly disclosed.” A stance in the like terms was taken in Standard Chartered Bank & 3 Others v. VIP Engineering & Marketing Ltd & Others, Consolidated Civil Applications No. 76 & 90 of 2016 CAT (unreported) where it was stated that: “Furthermore, an affidavit must be verified by the deponent on what is true based on knowledge, belief or information whose source must be disclosed in the verification clause of the affidavit.” Page. 3 Indeed, while formerly a defective verification clause would make the affidavit incurably defective, currently, the position has changed. Mr. Kabuguzi, too did not insist that, seemingly aware of the stand point taken by the Court of Appeal in Jamal S. Mkumba & Another v. Attorney General, Civil Application No. 240/01 of 2019, CAT (unreported) where the preliminary objection on verification clause succeeded but the applicant was given 30 days to insert a proper verification clause, the Court of Appeal said that: “We are inclined to agree with the position taken in Sanyou’s case. Much as we appreciate the stance taken in Anatol Rwebangira’s case, but it is the cherished legal principle that every case is to be decided on its own merits; that is, having regard to all the circumstances of each particular case. See: Amos Kabota v. The Republic, Criminal Application No. 24/11 of 2017 (unreported). On account of the facts presented to us and for the interest of justice, we think this is one of those cases which demands for substantive justice in its determination. But further to that, we are satisfied that the respondent will not be prejudiced by an order of amendment of the affidavit so as to accord a chance to the applicant to insert a proper verification clause according to law and parties be heard on merit.” The verification clause in the plaint is clear defective as claimed by the counsel for the 1st defendant because the attorney verified the averment as if he were the plaintiffs while he was not. The power of attorney by its nature does not permit him to be the plaintiff as he did. Right now, it is discernible that I may permit the plaintiffs to amend the plaint to have a proper verification clause in order to hear the parties on merits. It should, however, be borne in mind that I have already permitted the plaintiffs to amend their plaint. Should I do it again for the sake of the overriding objective principle? The answer to that question, will be self-evident when I will be deciding the 2nd peak of the preliminary objection. Mr. Kabuguzi, on the 2nd peak of the preliminary objection, has sentiments that the plaintiffs’ suit is legally vitiated and hence the same be struck out for non-joinder of the Commissioner for Lands as a necessary party since the powers and authority for allocation of lands and granting rights of occupancy thereof on behalf of the President of the United Republic of Tanzania, in terms of sections 26, 27, 28 and 29 of the Land Act-Chapter 113 of the R.E. 2019, are conferred upon the Commissioner for Lands. It follows therefore that the Assistant Commissioner who was impleaded to the suit by the plaintiffs as per amended plaint on record has no locus standi in the matter, he emphasized. In fine, Mr. Kabuguzi, pressurized the Court that the preliminary objection be entirely sustained with costs. On their isle, the plaintiffs, through their attorney, lament that this peak of the preliminary objection has been re-brought, worse still, the Assistant Commissioner for Lands, here upcountry where there is no Commissioner for Lands and it is his assistants who are doing on behalf of the Commissioner for Lands. It is their stance that the objections do increase conflicts instead of ending the conflicts. It is impressed on me that I do substantive justice. I have looked up and down the antagonist opinions of the parties on the 2nd peak of the preliminary objection. At this point in time, I am of the view that making a reference to case laws would be very useful in illustrating my stand view. In Ilela Village Council v. Ansaar Muslim Youth Centre, Civil Appeal No. 317 of 2019 CAT (unreported) where it was held that: Page. 4 “It follows then that, in law, Ansaar Muslim Youth Centre does not legally exist. As such, any order and/or decree issued in the name of Ansaar Muslim Youth Centre will not be executable because the properties of the Registered Trustees of Ansaar Muslim Youth Centre are not vested in the 1st respondent. Furthermore, the 1st respondent does not have powers to transact any business or invest or manage the properties of the Registered Trustees of Ansaar Muslim Youth Centre.” See also Registered Trustees of Chama Cha Mapinduzi v. Mohamed Ibrahim Versi and Sons & Another, Civil Appeal No. 16 of 2008, CAT, (unreported) where it was stated that: “Incorporation Act, renders it a body corporate by that name with the power to sue and be sued in that corporate name (see section 8(1) and (6). Therefore, in law, the Registered Trustees of C.C.M. is a separate person with its own legal identity distinct from Naibu Katibu Mkuu C.C.M.” It is that wise, as plain as a pikestaff, that the Assistant Commissioner for Lands cannot be sued in place of the Commissioner for Lands for any reason. So, here there is misjoinder of the Assistant Commissioner for Lands while at the same time there is non-joinder of the Commissioner for Lands. But the misjoinder is worse because the Assistant Commissioner for Land is not a legal person capable of suing or being sued. In law, Assistant Commissioner for Lands does not exist but is merely a job title. Currently, I have no any doubt, that most of the learned brothers and sisters have seen the decision in Nestory Msoffe & 5 Others v. The Registered Trustees of Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019, CAT, where it was authoritatively ruled that: “... it was incumbent on the High Court to be keen enough and require the parties to amend the pleadings and join the Registrar of titles who is alleged to have registered the respondent’s property in question held under Certificate of Title. Since it is clear that the Registrar of Titles had a role in the registration of the land in question, the non-joinder of her in the suit before the High Court means that the Registrar was not heard which occasioned a miscarriage of justice which cannot be condoned by the Court and determining the present appeal. In the result, we have no option but to annul the trial proceedings and the impugned judgment.” As clearly seen in the above decision, not only the Commissioner for Lands is the necessary party but also the Registrar of titles. But in this case, both are not joined, who ought to be joined. As emphasized by the Court of Appeal, a party may implore the Court to join them or they be joined. But where neither party is interested in doing so, the court should make an order to that effect. In the circumstances of this case, can I make such order? I think I should restrain myself from doing so because, the first preliminary objection (prior to the current preliminary objection) that was disposed of with an order for amendment of the plaint should have acted as a wake-up call for the plaintiffs to have their plaint drafted in accordance with the law. I am aware that for a party to amend their pleadings, one should confine within the parameters of the order for amendment of pleading given by the court as per Jovent Clavery Rushaka & Another v. Bibiana Chacha, Civil Appeal No. 236 of 2020, CAT where it was stated that: Page. 5 “we think it is clear that once pleadings have been filed, they can only be altered or amended with the leave of the Court. The Court will set the parameters within which the alteration or the amendments will be made, hence the manner and terms which ensure justice to the parties.” I am also equally alive of the words ofSir. 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 was incumbent upon the plaintiffs to closely watch their plaint, with the assistance of their lawyer be they paid or under legal aid, find oddities and ask the Court to allow them to amend it to remove the oddities. Failure to do so, to me, would, given the fact that the Court had earlier on permitted the plaintiffs to amend their plaint amount to allowing them to abuse of the Court process as stated in East African Development Bank v. Blueline Enterprises Limited, Civil Appeal No. 101 of 2009, CAT where it was observed that: “After the dismissal the appellant went back to the same court (Sheikh, J.) and filed an application for extension of time similar to the one which was earlier marked withdrawn! Surely, by the above sequence of events the appellant exhibited what we may safely term as “forum shopping.” This was no doubt, an abuse of court process.” But a party is required to prepare his pleadings and prosecute the case 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.” The plaintiff in this case, are not absolved from that duty or requirement. The mistake of the plaintiffs cannot be equated with a bonafine mistake because this is a second time they have made a mistake, so they cannot benefit from that rule enunciated in Bahati Mussa Hamisi Mtopa v. Salum Rashid, Civil Application No. 112/07 of 2018, CAT (unreported). If I strike out this suit, would remind the plaintiffs to be serious with framing their plaint in accordance with the law. That said and done, I sustain both peaks of the preliminary objection. Consequently, I strike out the land case with costs. It is so ordered. Dated at KIGOMA this 14th of February 2025 . Page. 6 J. NKWABI JUDGE OF THE HIGH COURT Page. 7