TARETA MASINA

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT - LAND DIVISION (MUSOMA SUB REGISTRY AT MUSOMA1 LAND CASE No. 17877 OF 2024 JOSEPH TARETA MASINA.........................................................PLAINTIFF Versus 1. MAHm MALIMALI 2. GUYEYA SHINGHARERA ............................................. DEFENDANTS 3. PAMBA GAMEJA J RULING 12.11.2024 & 12.12.2024 Mtulya, J.: On 24th July 2024, Mr. Joseph Tareta Masina (the plaintiff) had approached this court and lodged the present suit complaining that Mr. Mahiti Malimali, Mr. Guyeya Shingharera and Mr. Pamba Gameja (the defendants) have trespassed, planted beacons and remained in his land without any justifiable cause denying him lawful occupation and enjoyment of the land. In order to comply with Rule 3 Order VII of the Civil Procedure Code [Cap. 20 R.E. 2022] (the Civil Procedure Code), the plaintiff has described his land as: The plaintiff is a lawful owner of the land with 125 acres located at Mariwa Hamlet in Nyiberekera Village within Serengeti District in Mara Region in the United Republic of Tanzania of which the plaintiffgot it by clearing virgin 1 land in the year 1991 and has been using the same land for agriculture activities and residential purpose. However, the cited text drafted by the plaintiff was protested by Mr. Godfrey Marhobe Muroba, learned counsel for Mr. Pamba Gameja (the third defendant) for want of proper descriptions of the disputed land in terms of demarcations and boundaries. According to Mr. Muroba, the subject matter in the instant dispute is un-surveyed land without title deed hence it must be sufficiently described to be distinguished from other neighboring lands. In the opinion of Mr. Muroba, the plaintiff has cited the size of the disputed land as 125 acres located at Mariwa Hamlet, but has declined demarcations and boundaries, and that even if the plaintiff is pronounced a rightful owner of the land, execution of the decree will be in shambles. In support of the move, Mr. Muroba has cited the decisions of this court in Pius Kuenga v. Serikali ya Mtaa wa Makabe & Others, Land Case No. 392 of 2015 and Court of Appeal in Agatha Mshote v. Edson Emmanuel & Others, Civil Appeal No 121 of 2019. Finally, Mr. Muroba prayed this court to dismiss the suit outright with costs. Replying the protest registered by Mr. Muroba, the plaintiff submitted that the raised point of law is not pure point of law as it requires evidence, which shall be produced during hearing of the matter. In support of the position, the plaintiff cited the law in Rule 2 3 Order VII of the Civil Procedure Code and precedent in Mukisa Biscuits Manufacturing Company Limited v. West End Distributers Limited [1969] EA 696. I have scanned the provisions of Rule 3 Order VII of the Civil Procedure Code, decisions in Pius Kuenga v. Serikali ya Mtaa wa Makabe & Others (supra), Agatha Mshote v. Edson Emmanuel & Others (supra) and Mukisa Biscuits Manufacturing Company Limited v. West End Distributers Limited (supra). The Rule 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 supplied). In interpreting the Rule, this court in the decision of Pius Kuenga v. Serikali ya Mtaa wa Makabe & Others (supra) had observed that: the requirement to describe the suit property in the Civil Procedure Code is not a cosmetic one. The descriptions meant to afford the court to pass final and definite executable decree. The precedent in Agatha Mshote v. Edson Emmanuel & Others (supra) on the other hand had interpreted section 110 of the Evidence Act 3 [Cap. 6 R.E. 2022] on want of proof of cases in courts of law, whereas the case of Mukisa Biscuits Manufacturing Company Limited v. West End Distributers Limited (supra) had resolved that objections should be raised on pure point of law, and cannot be raised if any fact has to be ascertained. In brief, a point of law, if argued as a preliminary point, may dispose of the suit. In the instant case, the law in Rule 3 Order VII of the Civil Procedure Code was cited for want of demarcations and boundaries of the disputed land. I think, in my considered opinion, that is a pure point of law as it goes to the root of the matter and if decided may dispose of the matter summarily. It is from this fact that when a point of law is raised, it must be resolved first before moving into the merit of the matter (see: Thabit Ramadhan Maziku & Another v. Amina Khamis Tyela, Civil Appeal No. 98 of 2011). The purpose is to save time of the court and parties by not going into the merits of the contest (see: Bank of Tanzania Ltd V. Devran P. Valambhia, Civil Application No 15 of 2002). In the present case, a point of law was raised and as I indicated in this ruling that it is a pure point of law on want of certainty of the disputed land for easy execution of the decree. The want of certainty of lands in contest in terms of size, boundaries and neighbors surrounding disputed land has been the necessary 4 requirements in lodging land disputes since 1985 (see: National Agricultural and Food Corporation v. Mulbadaw Village Council & Others [1985] TLR 88). Failure to do so may lead to the struck out of the suit. There is a bunch of precedents on the subject (see: Romuald Andrea v. Mbeya City Council & 17 Others, Land Case No. 13 of 2019; Hassan Rashidi Kingazi & Another v. Seri kali ya Kijiji cha Viti, Land Case Appeal No. 12 of 2021; and Hashimu Mohamed Mnyalima v. Mohamedi Nzai & Four Other, Land Appeal No. 18 of 2020). I am aware the plaintiff submitted that the issue of demarcations and boundaries shall be resolved by evidence during hearing of the matter. However, the law regulating pleadings require parties to be bound by their pleadings (see: Madam Mary Silvanus Qorro v. Edith Donath Kweka & Another, Civil Appeal No. 102; Samwel Kimaro v. Hidaya Didas, Civil Appeal No. 271 of 2018; and Barclays Bank (T) Ltd v. Jacob Muro, Civil Appeal No. 357 of 2019). I am aware Mr. Muroba had introduced the issue of res judicata in the case. However, I was wondering how the issue could be resolved in a plaint with a bunch of uncertainty of the disputed land. The issue then cannot detain this court for obvious reason that it cannot be resolved in the circumstance of the present suit as 5 indicated in the raised point of law and its associated determination in the instant ruling. In conclusion, I struck out the plaint for want of certainty of the disputed land. I do so without costs as the plaintiff is a lay person without any legal representation contesting for his land right. This Ruling was delivered in Chambers under the Seal of this court in the presence of the plaintiff, Mr. Joseph Tareta Masina, and in the presence of the third defendant's learned counsel, Mr. Godfrey Marhobe Muroba through teleconference attached in this court. F.KMtui^J) Judge 12.12.2024 6