Ibrahim Mohamed Chokai vs Atta Village Council and Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA LAND CASE NO. 39 OF 2022 IBRAHIM MOHAMED CHOKAI....................................... PLAINTIFF VERSUS 1. ATTA VILLAGE COUNCIL 2. THE ATTORNEY G ENERAL 3. HAMIS SALUMU KUFYUKA 4. SAIDI SALUMU MALEDA 5. HASSAN FENTU 6. ATHUMANI WAZIRI @ MUNDIJOKWIYA 7. MURSAL KHATIBU 8. SAFARII AKW ESO DEFENDANTS 9. ABDILLAH MSAFIRI MATANGA. 10. HAMIS GANGA 11JUMA AKUNAI 12. RASHID NCHIRA 13. HAMIS HIITI 14. ABDALLAH NGOZI 15.IDD MOHAMED - 1 16.YAHAYA ISSA ISAKA 17.IYULU MASHA 18.IDRISSA SALIM SENDEU 19 .LUMI GILO 20 .MURO MURO MASAI 21 .HAMiDU SALUM RULING Date of the last Order: 30/5/2024 Date of the Ruling: 12/6/2024 KHALFAN, J. This is a ruling on preliminary objections raised by the 1st and 2nd defendants to the effect that: 1. The suit is incompetent for non-joinder of the District Executive Director. 2. The suit is incompetent for non-description of the suit property The above preliminary objections were disposed of by way of written submissions. Mr. Noah Utamwa learned advocate appeared for the plaintiff while Omary Ally Ngatanda, learned state attorney, appeared for the 1st and 2nd defendants. 2 In his submission in respect of the first preliminary objection, the learned state attorney argued that, the suit is bad in law for not joining The District Executive Director (hereinafter referred to as the DED) as a necessary party contrary to section 26 (3) of the Local Government (District Authorities) Act [CAP. 287 R.E 2002], (hereinafter referred to as the Act) as amended by the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020. He argued that the section 26(3) of the Act stipulates that: "Notwithstanding sub section (2), The District Executive Director shall have the right to be joined as a party in any suit or matter instituted by or against the Village Council, and for that purpose the village Council shall have a duty to notify the District Executive Director of any impending suit or intention to institute a suit or matter against the Village Council." He submitted that the section implies that joining the DED as a necessary party to a suit against a village council is mandatory because the provision has been enacted in mandatory terms due to the use of the word shall; which as per section 53 (2) of the Interpretation of Laws Act [CAP.l R.E. 2019] means that it is imperative. 3 The learned state attorney argued that since in the instant suit, the DED has not been joined as a necessary party, the suit is rendered incompetent. In reply to the first preliminary objection, Mr. Utamwa argued that section 26 (3) of the Act, imposes a duty to the 1st defendant to notify the DED regarding this suit and it is the DED's preference to use the said provision to apply before this court to be joined as a party. He argued that, the wording of the said provision does not suggest that failure to join the DED is fatal. To buttress his argument, Mr. Utamwa referred to the case of Zakayo Mepukori Ole Leida vs. Lopolun Village Council and 14 Others, Land Case No. 4 Of 2021, TZHC, at Arusha (Unreported) and Rael Joseph (As Administrator of The Estate of The Late Joseph Thomas) and 26 others vs. Emboreet Village Council and 2 Others, Misc. Land Application No. 76 Of 2021, TZHC, at Arusha (Unreported). On further submission, while Mr. Utamwa readily admitted to the argument where the word "shall" be used, it imposes a mandatory requirement, he argued that, for the purpose of section 26 (3) of the Act, the word shall, imposes a mandatory right of the DED to be joined in a suit 4 involving a village council and not a mandatory duty of the plaintiff to join the DED in the same suit. He submitted that, Order I Rule 9 of the Civil Procedure Code [CAP. 33 R.E 2019], (hereinafter referred to as the CPC) provides that, a suit shall not be defeated by reason of misjoinder or non-joinder of a party. This is because the court may order a party to be joined at any stage of the proceedings, either with or without the application of either party. He therefore urged the court to overrule the first preliminary objection. Having considered the rival arguments of the parties in respect of the first preliminary objection, section 26 (3) of the Act, makes it mandatory for the DED to be joined as a necessary party where the village council has been sued. The issue is who has the duty to join the DED as the necessary party. Rightly as argued by Mr. Utamwa in view of the authorities he has referred to, in terms of section 26 (3) of the Act, it is the first defendant herein with the duty to inform the DED and the latter may choose to apply to be joined as a party. Hence, the plaintiff cannot be blamed for non­ joinder of the DED since that is the duty of the first defendant. 5 Equally, I agree with the argument by Mr. Utamwa that even if the duty to join the DED as a necessary party was the plaintiff's duty, still, that would not have rendered the suit incompetent as provided for under Order 1 rule 9 of the CPC. I therefore find the first preliminary objection lacking in merits and the same is overruled. In his submission in support of the second preliminary, the learned state attorney argued that the plaint had failed to clearly describe the property contrary to the provisions of Order VII Rule 3 of the CPC. He argued that there was no information as to the boundaries of the suit land in the northern, western, southern or eastern parts of the suit land. He submitted that the plaintiff had just alleged that he was a lawful owner of land comprising 1000 acres. He submitted that failure to describe the property in dispute renders the suit incompetent. To buttress his argument, the learned state attorney referred the case of Tulito and 13 Others vs. The Assistant Commissioner for Lands and Three Others, Land Case No. 1 of 2022 (Unreported) which cited the case of Fereji Said Fereji vs. Jaluma General Supplies Ltd and Another, Land Case No. 86 of 2020 (unreported), in the latter case it was held: "Such description may include the location, title number of surveyed plots, neighbours or boundaries for un­ surveyed plots, or any form of description that would sufficiently identify and distinguish the suit property from other properties" The learned state attorney argued that the said suit land was not clearly identified. Thus, it would be difficult for the same to be executed shall this court rule in favour of the plaintiff on what would be the demarcation of the suit land. Would it be the entire part of Atta Village, or the northern part? He added that based on TULITO's case, where at page 7, it was held that: "The essence of this provision needs not be over emphasized, this helps the court in establishing the territorial jurisdiction and most importantly, assists in issuing executable orders..." The learned state attorney urged the court to strike out the suit for failure to describe the suit land. In reply to the second objection, Mr. Utamwa argued that the plaintiff in this suit had properly described the suit land under paragraph 12 and 16 of the plaint. In paragraph 12, the plaintiff provided the size and location of the suit property. Furthermore, in paragraph 16 the plaintiff attached the decision in Application No. 37 of 2018 that was marked as annexure IMC 2 collectively, which specifically describes the boundaries of the suit land at the 2nd paragraph of page 3, reads as follows: "Mleta maombi alieleza eneo lake kuwa Hnapakana na Gingi- upande wa Magharibi, Kaskazini hapakuwa na mtu yeyote, Kusini ni barabara ya kutoka Mahongo kwenda Galapo, Mashariki ni kikundi cha uzaiishaji ma/i cha Bambale. " Referring to the case of Hamis Saturn Kizenga vs. Moses Malaki Sewando and 18 Others, Land Appeal No. 51 of 2019, TZHC at DSM (unreported) and Zakayo Mepukori Ole Leida (supra), the learned counsel argued that, in those decisions, annexures form part of the pleadings. He therefore, submitted that the second preliminary objection lacked merit because the boundaries of the suit property were described in the annexure called IMC 2 collectively as reproduced above. 8 Having considered the parties' arguments, the issue for my determination is whether the plaint has complied with the provision of Order VII Rule 3 of the CPC which provides that: 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. [Emphasis Added]. In the instant matter, I have gone through the plaint filed in the instant suit, the only paragraph which gives the description of the suit land is paragraph 12 of the plaint which mentions the size of the suit to be 1000 acres. I am of the settled view that describing its size in paragraph 12 alone, is not a sufficient description of the suit land envisaged under Order VII Rule 3 of the CPC since in the village, there are several pieces of land and not only the one at hand. Since it is an un-surveyed piece of land; at least, the plaint should have indicated the neighbour's or boundaries instead of giving a general description. The need to properly describe the 9 suit land is necessary since it assists in ascertaining jurisdiction of the court and also in the execution process. I have also considered the argument by Mr. Utamwa that paragraph 16 of the plaint contains annexure which gives description of the suit land. He cited several authorities that annexures form part and parcel of the plaint and can be relied upon. I am of the different view. The annexure to the plaint or written statement of defence are not evidence and cannot be relied upon unless and until are cleared for admission and in fact, admitted in court. This settled principle has been underscored in several decisions by the Court of Appeal in the case of Total Tanzania Ltd vs. Samwel Mgonja, Civil Appeal No. 70 Of 2018 Godbless Jonathan Lema vs. Mussa Hamisi Mkanga and 2 Others, Civil Appeal No. 47 of 2012 and Sabry Hafidhi Khaifan vs. Zanzibar Telecom Ltd (Zantel) Zanzibar, Civil Appeal No. 47 of 2009 (all unreported). Hence, looking at the plaint alone does not offer any detailed description of the suit land. Therefore, failure to describe the suit land makes the suit incompetent. io In the final analysis, I find the present suit incompetent and I proceed to strike it out. In the circumstance, I will not make an order as to costs. It is so ordered. Dated at Dodoma this 12th day of June, 2024. 11