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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA LAND CASE NO 11474 OF 2024 JUMA MBWETE MWANDOJE……………………………………PLAINTIFF

VERSUS IKRAM FARM LTD….………..…………….………………….1ST DEFENDANT ADILI SHABANI MANUMBU @ MWILLY MALEGESI….2ND DEFENDANT MBEYA CITY COUNCIL……….………………..……………3RD DEFENDANT ATTORNEY GENERAL..……………………………………...4TH DEFENDANT

RULING Date: 24 September 2024 & 22 November 2024 SINDA, J.: The plaintiff claims jointly and severally against the first, the second and the third defendants for interfering and taking his land, located at Sae area nearby Uwata Primary School within Mbeya Region (the Disputed Property). 1 The brief facts of the case are that the plaintiff has allegedly been in occupation of the Disputed Property since the 1970’s where he acquired it under customary ownership. In 2022, the second defendant emerged and claimed the Disputed Property belonged to him. Apparently, the Disputed Property was surveyed by the third defendant and registered as Plot No. 717 Block Y Mwakibete Area. After survey, the Disputed Property was given to the first defendant who later sold it to the second defendant. That, all the transactions happened without the knowledge or consent of the plaintiff. In the Written Statement of Defense (the WSD), the defendants disputed most of the contents of the plaint. The second defendant also raised two preliminary objections (the P.O.), to wit: 1. The Plaint fail to identify the disputed property (fail to disclose boundaries of the property in dispute) 2. The plaintiff wrongly sued one MWILLY MALEGESI who is a diseased without following the law. It is thus upon this court to determine the P.O put forth, before deciding whether or not to continue with the main suit. 2 At the

hearing of the P.O, the plaintiff was represented by Mr. Alfredy Chapa and Mr. Peter Kiranga, both learned Counsels. The second defendant was represented by Mr. Steward Ngwale, learned counsel. Submitting on the first P.O, Mr. Ngwale referred to the sixth and fifteenth paragraphs of the plaint. That, the plaintiff identified the location of the Disputed Property but failed to describe the land including the boundaries. The counsel was of the view that the plaintiff should have been specific in his identification since there are a lot of plots near the said area. The counsel cited Order VII Rule 3 of the Civil Procedure Code, Cap. 33 R.E 2019 (the CPC). He continued that in the absence of sufficient description of the subject matter, it becomes uncertain whether the court has jurisdiction to entertain the case. Further that it might cause a problem during the execution stage. He referred to the case of Simon T. Mwanibanza vs. Amina Mwakalukwa & Others, Land Appeal No. 74 of 2021 to support his argument. In relation to the second P.O, the counsel argued that the plaintiff sued one Mwilly Malegesi who is a deceased without following the law. That, the 3 plaintiff sued Adili Shabani Manumbu @ Mwilly Malegesi as the second defendant. He added that Adili Shaban Manumbu is a male living person but Mwilly Malegesi is a deceased woman. That, the case was instituted when Mwilly Malegesi

was dead, and under our laws one cannot sue a dead person. Thus, the plaintiff should not have sued Adili Shabani Manumbu and Mwilly Malegesi as a single person. In support, he cited the case of Babhubhai Dhanji vs Zainab Mrekwe, 1964 EALR 1. In his reply submission, Mr. Chapa on the second preliminary objection cited the case of Gaspar Peter vs Mtwara Urban Water Supply Authority, Civil Appeal No. 35 of 2017 that cited the case Mukisa Biscuit Manufactures Ltd vs. West End Distributors Ltd [1969] E.A.

695. He added, in the plaint they sued the second defendant as Adili Shabani Manumbu @ Mwilly Malegesi. That, they sued Adili Shabani Manumbu and not Mwilly Malegesi. He added that Mr. Ngwale did not state when Mwilly Malegesi died and did not bring any evidence to that effect. Arguing the first P.O, Mr. Chapa submitted that a plaint must be read as a whole. He agrees with Mr. Ngwale concerning Order VII Rule 3 of the CPC on matters of identifying the Disputed Property. The counsel added that on paragraph 8 of the plaint, the second defendant informed the plaintiff that 4 the Disputed Property is surveyed and registered as Plot No. 717 Block Y Mwakibete. Therefore, the Disputed Property should be identified as such. He continued, that the second respondent on paragraph three of the WSD, stated that the Disputed Property is allocated to him and is surveyed. It was also stated that the first defendant transferred the Disputed Property to the second defendant. However, the counsel prayed for the court to invoke overriding objective as provided under Section 3 (A) of the CPC so as to amend paragraph 6 of the plaint. Mr. Kiranga in his short reply, submitted that the P.O. is baseless because the Disputed Property is surveyed as stated in the plaint. That, the second defendant is a living person and that is why he provided his reply to the plaint. In his rejoinder, Mr. Ngwale further

maintained that if the plaintiff did not sue Mwilly Malegesi then why is the name present on the plaint. On the first preliminary objection, the counsel prayed to focus on the plaint. Emphasizing that paragraph six and fifteen of the plaint do not describe the Disputed Property. That the principle of overriding objectives will not apply because the plaintiff stated his land is not surveyed. 5 I have gone through the arguments, laws and case laws put forth by parties to the case. I will now discuss the P.Os placed before me. On the first P.O, regarding matters of identification of the Disputed Property. The plaintiff claimed he obtained the Disputed Property under customary ownership. This implies that at the time of occupation and to date he has never surveyed the Disputed Property. He went on to describe the Disputed Property to be located at Sae Area nearby Uwata Primary School. This is evident under paragraph six and fifteen of the plaint. The information that the Disputed Property has been surveyed was averred to the plaintiff by the second defendant. That after the survey, the Disputed Property is now registered as Plot No. 717 Block Y Mwakibete Area. Mr. Chapa was of the view that due to this fact the Disputed Property should be known to be surveyed. As a reminder, the main significance of a plaint is not only to institute a case. But also to provide an idea to the

opposite party and court on the nature of the claims. The information on the Disputed Property being surveyed as asserted by the defendant, is subject to evidence and cannot change what is claimed by the plaintiff. Thus, in my opinion for the 6 purpose of this application and based on what is claimed by the plaintiff, the Disputed Property should be considered as un-surveyed until proved otherwise. That aside, it is provided under Order VII Rule 3 of the CPC, 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.” In light to the provision above, I agree that the Disputed Property was not well described. The plaintiff only mentioned the location of the land in question to be in Sae area nearby Uwata Primary School. It goes without saying that there are many plots of land in that particular area. Without proper identification it would be hard to determine which land is in dispute. Especially in this case where the plaintiff claims the Disputed Property is not surveyed. It was therefore expected of the plaintiff, to provide a detailed description of the Disputed Property including the size of the land, boundaries and neighbours or any permanent

features to the land (if any). This was also discussed in the case of Martin Fredrick Rajab vs Ilemela Municipal Council and Another, Civil Appeal No. 197 of 2019. That stated: 7 “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 7 rule 3 of the Civil Procedure Code [CAP 33 R.E 2019].” I am aware that in some circumstances, certain irregularities could be solved through the principle of overriding objectives as proposed by Mr. Chapa. That the court may allow for amendments to be made in respective documents and proceed to hear the matter on merit. Nonetheless, I fear if the principle is applied so carelessly, in circumstances where counsels or parties to a case should have taken due care, it would create a leeway for many defects of this nature. The Court of Appeal in the case of Mayira B. Mayira and 4 Others vs. Kapunga Rice Project, Civil Appeal No. 359 of 2019, provided that: “Before we conclude, we find it pertinent to address the prayer by the appellants that the Court should be guided by the

overriding objective principle in determining the preliminary objection raised. Our response to that prayer can be found from our decisions in Mondorosi Village Council and 2 Others vs. Tanzania Breweries Limited and 4 Others (supra) and Njake Enterprises Limited vs Blue Rock Limited and Another, Civil Appeal No. 69 of 2017 (unreported). In which we emphasized the fact that the overriding objective principle cannot be 8 applied blindly and that the principle is not designed to disregard the rules of procedure couched in mandatory terms, especially those going to the foundation of the case.” All said and done, I find merit in the first preliminary objection. I therefore do not see the need to discuss the second one. Consequently, the case is hereby struck out without costs. If the plaintiff so wishes, he could amend the plaint in accordance to the law and re-institute the case. It is so ordered. DATED at MBEYA on this 22 day of November 2024. A. A. SINDA

JUDGE 9