GELEWA ONESMO GELEWA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA LAND CASE REFFERENCE NO. 2024051000011115 GELEWA ONESMO GELEWA (Administrator for the estate of the late ONESMO GELEWA) ……………...……. PLAINTIFF VERSUS 1. TANZANIA RURAL AND URBAN ROADS AGENCY (TARURA) 2. ATTORNEY GENERAL …..…………….. DEFENDANTS RULING 9th & 9th July, 2024. S.M. KULITA, J. On 15th May, 2024 the Plaintiff herein instituted this land case against the Defendants claiming for a declaration that the 1st Defendant herein, TARURA, acquired his late father’s land which is under his administration, for the road construction purposes. The plaintiff also prays for a specific damages at the tune of Tsh. 204,950,000/= for compensation and loss of income for the development he had made on it, and the General Damages amounting Tsh. 120,000,000/=. 1 Today, 9th July, 2024, when the matter was for ascertaining whether the pleadings are complete, Advocate for the Plaintiff, Mr. Vianey Mbuya, raised a concern that the Defendants’ joint WSD (Written Statement of Defense) was filed out of time. The State Attorney, Ms. Caroline Lyimo disputed the allegation, stating that it was lodged within the prescribed time limit. However, upon cross-checking the system it has been observed that the said WSD was actually lodged out of time for two days. It was supposed to be lodged by 25th June, 2024 as the plaint was served to the Defendants Counsel, Office of the Solicitor General, on 4th June, 2024. The same was therefore struck out. It was thus expunged from the court’s record. However, upon going through the remaining pleading, that is, a Plaint, I noticed the existence of two issues of which I wanted the Plaintiff’s Counsel to address the court. Those issues were; first; type of the case that the plaintiff has lodged, whether it is civil or land, and, secondly, whether the Plaint specifies the demarcation descriptions for the suit land. The Advocate replied that everything was ok. He thus sought for the matter to proceed. In my perusal over the said plaint I can see some legal faults on it, particularly on the matters that I wanted the Plaintiff’s Counsel to address the court. My first comment lies on the type of a case that the plaintiff has 2 lodged, whether it is civil as read in the Plaint, or Land case as per the paragraphs’ contents in the plaint’s body. When you read the paragraphs’ contents in the plaint for this matter, you can find them solely based on land dispute. However, the said plaint has been headed and filed before this court as a Civil Case. Consequently, it was so registered by this court as a Civil Case, as presented by the Plaintiff, which was wrong. Even the reliefs sought which includes, a prayer that this court should declare the suit land a property of the Late Onesmo Gelewa under the administration of the Plaintiff, Gelewa Onesmo Gelewa. All these makes me to opine that the matter was supposed to be filed as a land case, not civil as it has been done. It might be a slip of pen by the Plaintiff’s Advocate when he was preparing the pleadings, which made him to head it as a Civil Case instead of the Land Case. As for the issue of descriptions of the suit land which is a mandatory requirement of the law in land cases as per Order VII, Rule 3 of the Civil Procedure Code [Cap 33 RE 2019]. As well, the counsel had nothing to more argue than saying that the descriptions are there at paragraph 5 of the plaint. Upon going through the said paragraph, I have seen it read as follows; 3 “That the piece of land in dispute and which is subject to the claims for the compensation is the property of the Late ONESMO GELEWA administered by the Plaintiff and it is located along Giriku Village, Bunhamala Ward, in the District of Bariadi and the Region of Simiyu.” The above quoted paragraph, does not state the specific location of the suit land that the plaintiff claims against the 1st Defendant herein. The fact that there is no Tittle/Registration Number mentioned for the said land, it means it is un-surveyed. In that situation, the Plaintiff had to state the boundaries and/or the peculiar marks sufficient to describe it. The descriptions are necessary, not only for enabling the court to have the exactly picture on the land it is dealing with, but also to avoid chaos of uncertainty on the suit property during the execution, in case the plaintiff emerges the winner. The said Order VII, Rule 3 of the Civil Procedure Code [Cap 33 RE 2022] provides; “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 4 property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number” [emphasis is mine]. That was also a position of this court in the case of Daniel Dagala Kanuda (administrator for the estate of the late Mbalu Kushaha Buluda) V. Masaka Ibeho and 4 Others, Land Appeal No. 26 of 2015, HC at Tabora, that, subject matter of the case being immovable property, its description must be as clear as not to cause uncertainty. It is thus a trite law that, in his plaint, the Plaintiff in the land dispute should give sufficient description of the suit land. The aim is to inform the court of the identity of the suit land as against all the other pieces of land surrounding it. In the said case of Daniel Dagala Kanuda (administrator of the estate of the late Mbalu Kashaha Bulada) (Supra) it was stated at page 4 -5 that; "The legal requirement for disclosure of the address or location was not cosmetic. It was intended for informing the Tribunal of sufficient description so as to specify the land in dispute for purposes of identifying it from other pieces of land around it. In case of a surveyed land, mentioning the 5 plot and block numbers or other specifications would thus suffice for the purpose. This is because such particulars are capable of identifying the suit land specifically so as to effectively distinguish it from any other land adjacent to it " In the case at hand, paragraph 5 in the plaintiff’s plaint which gives description of the suit land does not sufficiently describe it. It just gives a very short description as quoted herein above, that is name of the village in which the premise is located, instead of providing full descriptions of the neighboring structures and/or the other person’s properties/lands that are bordering the suit premise. On that account, the matter should not proceed until the aforesaid said legal defects are cured. In upshot, it is the finding of this court that the plaintiff’s plaint is defective, hence the suit is accordingly struck out. As the Defendants waived to file the WSD, I grant no order as to costs. 6 S.M. KULITA JUDGE 09/07/2024 7