GLORIA LEO JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA LAND APPEAL NO.79 OF 2023 (Arising from the District Land and Housing Tribunal for Mwanza in Land Application No. 15 of 2023) GLORIA M. LEO………………………………………………………………APPELLANT VERSUS FADHILI EMMANUEL……………………………………………………RESPONDENT JUDGMENT 18th & 22nd July, 2024 KAMANA, J. In this appeal, this Court is invited to determine whether it was correct for the District Land and Housing Tribunal for Mwanza (DLHT) to dismiss the application before it on the ground that the suit property was not described as per the requirements of Order VII Rule 3 of the Civil Procedure Code, Cap. 33 [RE. 2019]. The appeal was heard exparte against the defendant who did not enter appearance despite being served by way of publication. Briefly, the appellant filed Land Application No. 15 of 2023 before the DLHT. In the said Application, the appellant claimed, among others, 1 the relief that he be declared as a lawful owner of the disputed property located at Kishili ‘A’ Mwanza. When the matter was set for a hearing, the DLHT raised suo mottu the issue as to whether the disputed property had been described in compliance with Order VII Rule 3 of the Code. Mr. Masoud Mwanaupanga, learned Counsel for the applicant contended that the disputed area had not been surveyed. He added that there is no dispute that the disputed area is the one stated by the applicant in her application. He urged the DLHT to observe the provisions of Order VII Rule 3 of the Code. The respondent was not present before the DLHT. Following the submission by Mr, Mwanaupanga, the DLHT dismissed the suit without costs. Such a decision led to this appeal. Submitting in support of the appeal, Mr. Mwanaupanga contended that the DLHT erred in law to dismiss the Application when the same was not heard on merits. He asserted that the proper recourse for the DLHT was to strike out the Application since the same was not heard on merits. He strengthened his views by referring to the case of Khofu Mlelwa v. Commissioner General of TRA, Civil Appeal No. 229 of 2019-CAT (Unreported). 2 He added that the DLHT erred in dismissing the Application as the respondent did not dispute the description of the disputed property. In this regard, he found solace in the case of Lupembe Village Government Ikolo Ward Kyela District and Another v. Bethelehamu Mwandafwa and Others, Civil Appeal No. 377 of 2020-CAT (Unreported). Based on those arguments, Mr. Mwanaupanga prayed this Court to allow the appeal. Before examining the merits of this appeal, I feel it logical to reproduce the provisions of Order VII Rule 3 of the Code as follows: ‘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.’ It is crystal clear that in a suit where the subject matter is immovable property, the plaint must describe it with a view to enabling the same to be identified out of other properties. For property that is registered, the title number is sufficient to describe it. However, when the property is not a registered one, the particulars of the property in dispute should be described to the extent of differentiating it from other properties. In the case of Martin Fredrick Rajab v. Ilemela 3 Municipal Council & Synergy Tanzania Company Limited, Civil Appeal No. 197 of 2019-CAT (Unreported), the Court of Appeal stated how the unregistered land should be described. It stated: ‘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’ Gleaning from the Application, the same is silent as to the description of the suit property. It neither states the title number nor the particulars envisaged in the case of Martin Fredrick Rajab v. Ilemela Municipal Council & Synergy Tanzania Company Limited (Supra). Despite the anomaly, Mr. Mwanaupanga asked this Court to follow the path taken by the Court of Appeal in the case of Lupembe Village Government Ikolo Ward Kyela District and Another v. Bethelehamu Mwandafwa and Others (Supra). In the said case, the Court of Appeal despite noting that the disputed property was 4 insufficiently described as per Order VII Rule 3 did not fault the anomaly on the reason that the appellants did not dispute the description of the property in their written statement of defence. Further, the Court of Appeal observed that there was a meeting of minds between the appellants and respondents so far as the description of the suit property was concerned. However, that is not the case in this appeal. During the trial, the respondent did not enter appearance. Hence, it is not clear if he would agree with the description of the suit property. In such circumstances, the DLHT was right to raise the issue as non-description of the suit property may render its order ineffective or cause other litigations. Concerning whether the DLHT erred in dismissing the Application, I hasten to state that when the plaint fails to describe the suit property in view of Order VII Rule 3 of the Code, such suit is considered incompetent. Hence, in such circumstances, the recourse is to strike out the suit. Having taken that position, I invoke my revisionary powers by setting aside the order that dismissed the Application, and in its stead, the Application is struck out. The appellant is at liberty to file a proper suit if interested in pursuing her rights. No order as to costs. 5 Right To Appeal Explained. DATED at MWANZA this 22nd day of July, 2024. KS KAMANA JUDGE 6