Delivered Jumanne Hassani Fundi Administrator of the Estate of the Late Mohamedi Hassani Kikunda v Sikonge District Council and Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND CASE NO. 10175 OF 2024 JUMANNE HASSANI FUNDI (Administrator of the Estate of the Late Mohamedi Hassani Kikunda) ………………………….…….. PLAINTIFF VERSUS 1. SIKONGE DISTRICT COUNCIL ………………………………. 1ST DEFENDANT 2. THE ATTORNEY GENERAL ………………………..………….. 2ND DEFENDANT RULING 18th and 27th March,2025 MIRINDO, J.: [1] Jumanne Hassani, the administrator of the estate of the late Mohamedi Hassani Kikunda is suing the Sikonge District Council and the Attorney General over the ownership of a piece of land situated at Isungulunde area in Sikonge Urban within Tabora Region. The two defendants, the Sikonge District Council and the Attorney General, are challenging the amended plaint on two points. In the first place, the defendants contend that the amended plaint lacks sufficient particulars of the plaintiff and of the value of the subject matter of the disputed land. At the hearing of this preliminary objection, the defendants’ counsel, Mr. Gureni Mapande, learned State Attorney, sought and obtained leave of the High Court to add a second point of objection. Mr. Mapande complained that although the plaintiff obtained leave of this Cout to amend the cause of action in the original plaint, the amended plaint contains amendments extending to reliefs sought. This 1 extension, Mr. Mapande observed, was contrary to the principle that amendments be confined to the scope of the court’s leave to amend. [2] At the adjourned hearing of the preliminary objection, Mr. Mapande argued that after obtaining leave to amend the cause of action, the plaintiff amended both the cause of action and reliefs sought. Mr. Mapande attacked the amendments effected on the reliefs sought. He questioned the legal basis for abandoning in the amended plaint certain reliefs sought in the original plaint. He attacked the plaintiff’s abandonment of the monetary relief 150,000,000/= Tzs as compensation and the order for compliance with the procedures for land acquisition including valuation and prompt and fair compensation. In view of these changes on the relief sought, the learned State Attorney drew the attention of this Court to the proposition that an amendment of a pleading should be consistent with the court’s order as was restated in Jovent Clavery Rushaka and Another v Bibiana Chacha (Civil Appeal 236 of 2020) [2021] TZCA 3527 and Tanzania Harbours Authority v Mohamed R. Mohamed [2002] TLR 76. Mr. Majura Magembe, the plaintiff’s counsel distinguished the case of Jovent Clavery in that it was the defendant’s defence, and not the plaint, that offended the amendment order granted to the plaintiff by the Court. On the contrary, Mr. Mapande noted that both precedents are indistinguishable from the facts of this case as they relate to pleadings like the plaint and written statements of defence. [3] The plaintiff’s counsel observed that the plaintiff’s intention to seek for the amendment of the cause of action was to abandon the compensation claim and retain the action for trespass to land. Mr. Magembe defended the abandonment of those reliefs 2 in the amended plaint arguing that after amending the cause of action, the claim for compensation was left out. And it was automatic that reliefs relating to compensation would naturally be left out. In defiance of judicial stand on the limited nature of leave to amend pleadings, Mr. Magembe asserted that Rule 17 of Order 7 (obviously Order 8 Rule 17) allows for amendment of pleadings at any time without imposing consequences for any amendment that goes beyond the court’s order. Mr. Gureni disagreed and stressed that the Plaintiff should have further applied for leave to amend the reliefs. [4] One of the guiding principles to the amendment of pleadings is that an amendment should not be a substitute for the cause of action and a departure from the original case. However, an amendment to the cause of action is permissible whenever it introduces a “different “ or an “additional approach” on the facts already on the record (Mulla DF, Mulla: Code of Civil Procedure, 18th edn (Prasao BM and Mohan B.M.), Vol 2, Haryana: Lexis Nexis, 2011, at 1764; Sarkar, SC and Sarkar, PC, Sarkar: Code of Civil Procedure , 11th edn (; Sudipto, S and Manohar, VR), at page 1067). [4] Both parties are agreed that the plaintiff was granted leave to amend his plaint because it did not clearly disclose a cause of action. Paragraph 3 of the original plaint clearly claimed for compensation of 150,000,000/= TZS. Paragraph fourteen alleged that the first defendant blocked “free entrance into the Plaintiff’s two residential houses.” Compensation to the tune of 150,000,000/=TZS was the second relief claimed in the original plaint. This relief was further implied in the claim for the fifth relief. The third and fourth reliefs related to the demolition order and permanent injunction prohibiting the defendants from trespassing into the disputed land. According to paragraph four of the 3 amended plaint, the cause of action is trespass and not compensation. The contents of paragraph fourteen have been retained with slight adjustments. The plea for compensatory reliefs is left out but there are pleas for the order of permanent injunction and demolition order as in the original plaint. In both the original and the amendment plaint, there is also the plea for the Plaintiff to be declared the lawful owner of the disputed land as well as costs and any other relief that this Court may deem fit to grant. [5] Under Order 7 Rule 11 of the Civil Procedure caters for plaint’s rejection for undisclosed cause of action or ordering its amendment so that it may disclose the cause of action. Notwithstanding the clumsy application for leave to amend the plaint to disclose a cause of action, there is nothing in the amendment order of this Court restricting the amendment to the same cause or causes of action. In the original plaint compensation featured more strongly than trespass. As both causes of action arose from the same set of facts, I hold that the plaintiff was right in abandoning either of the cause of action. [6]. The tricky question for determination is how far should the plaintiff have gone in amending the plaint after abandoning one of the causes of action and retaining the other. As stated at paragraphs 2 and 3 of this Ruling, the defendant’s counsel thinks that nothing else could have been amended. The plaintiff’s counsel takes the view that leave to amend the cause of action implicitly entailed the amendment of reliefs sought. [7] What the Plaintiff did is the abandonment of the cause of action of compensation and its reliefs, on the one hand, and retaining with little modification the cause of action of trespass and its reliefs. In all fairness, there nothing in the amended plaint prejudicial 4 to the defendants by introducing a new cause of action or reliefs. The amended plaint is simply redrafted on the facts pleaded in the original plaint. [8] Looking at the context of the leave to amend granted by this Court and the plaintiff’s clumsy application for leave to amend, without lay down a general rule, the implication is that once the plaint was to be amended to disclose a cause of action, there was great likelihood that reliefs sought could as well change. Under these special circumstances, the amendment is consistent with the court’s order and, actually simplifies, rather than complicating, the plaintiff’s case. [9] In respect of insufficient particulars in the plaint, Mr. Mapande, highlighted that the plaint offends the provisions of Order 7 Rule 1 (b) and (i) of the Civil Procedure Code [Cap. 33 R.E. 2019]. He asserted that the valuation of the subject-matter in a civil action provides the criterion for the determination of the pecuniary jurisdiction and assessment of court fees. A plaint that does not state the valuation of the subject matter is bad in law and is liable to be struck out. The amended plaint in this case is one such plaint. He added that the amended plaint does not provide sufficient description of the plaintiff. He observed that sufficient description of the plaintiff is critical to the determination of a court’s local jurisdiction. In conclusion Mr. Mapande argued that the Rule 1 of Order 7 uses the word “shall” implying the omitted facts are mandatory and any omission constitutes an incurable legal error. Mr. Magembe replied that the defendants have not been prejudiced by these insufficient particulars given that this is a suit against the Government triable at the High Court regardless of the value of the subject-matter in 5 dispute. He added that if there were problems with the assessment of court fees, the case would not have been registered by this Court. [10] In conclusion, Mr. Magembe thought that this was a fit case for the application of the principle of overriding objective introduced by sections 3A and 3B of the Civil Procedure Code while Mr. Mapande disagreed with that view. [11] The general rule under Order 7 Rule (e) and (i) of the Civil Procedure Code is that every plaint should contain facts establishing court’s jurisdiction including its pecuniary jurisdiction. This general rule is of limited application in suits against Government. While this procedural rule should be complied in suits against Government, I find nothing seriously unprocedural where those facts have not been stated in a plaint. In this regard I go along with the dictum of this Court in Frank John Ngonyani T/A Frango Company v The City Council of Dodoma and Another (Civil Case No. 10 of 2023) [2024] TZHC 2050 in which Kakolaki J said: …the law under section 6 (4) of the... [Government Proceedings Act] is very categorical that, any suit against the Government shall be instituted in the High Court and the copy of plaint be served to the Solicitor General. The position in my understanding is so regardless of the value of the subject matter. In other word the High Court has jurisdiction to entertain any suit in which the Government is sued…. As the suit is instituted against the Government in which this Court is already seized with jurisdiction to entertain then, I do not see how plaintiff’s failure to state facts showing the jurisdiction of the Court could have rendered the suit incompetent. I would have rather directed the plaintiff to amend the plaint and include the facts 6 showing that this Court has jurisdiction to entertain the suit, had this Court not being seized with the jurisdiction under section 6(4) of the [Government Proceedings Act] which is not the case herein. It is from that stance I find…[counsel’s] argument that, the plaintiff ought to have stated facts showing court’s jurisdiction despite of existence of section 6(4) of the …[Government Proceedings Act] which according to him is restricted to the Court in which the suit against the Government should be instituted to, is losing weight as such omission does not render the suit incompetent before the Court which is already seized with the jurisdiction to try it. [12] Thus, the objection regarding non-compliance with the provisions of Order 7 Rule 1 (i) is without merit. Yet, I am satisfied that there is insufficient description of the plaintiff which insufficiency may have more consequences than simply affecting court’s local jurisdiction. I rule that this defect can be rectified through an amendment. [13] Accordingly, the Plaintiff is hereby ordered to further amend the Plaint to provide sufficient particulars. The amendment be effected within twelve days from the date of the delivery of this ruling. The Defendants may thereafter amend their written statement of defence within twelve days from the date of the receipt of the second amended plaint. [14] Each party to bear its own costs. DATED at TABORA this 27th day of March 2025 FRANK M. MIRINDO 7 JUDGE COURT: Ruling delivered in chambers this 27th day of March 2025 in the presence of Advocate Majura Magembe for the Plaintiff and Mr. Gureni Mapande, State Attorney for the Defendants. B/Clerk: Omari Mkongo present. FRANK M. MIRINDO JUDGE 27/3/2025 COURT: Right of appeal explained. FRANK M. MIRINDO JUDGE 27/3/2025 8