KAAYENYE SAMSON VS

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA LAND CASE NO. 000000349 OF 2024 KAAYENYE SAMSON LAIZER................................. COMPLAINANT I APPELLANT I APPLICANT I PLAINTIFF VERSUS TINGIDE SHAMBURI LETUU................................. RESPONDENT I DEFENDANT JUDGMENT KIWONDE, J, The plaintiff, Kaayenye Samson Laizer, in the capacity as administrator of the estates of the late Christopher Samson Laizer, sued the defendants, for the ownership of the landed property. However, along with their written statement of defence, the 2nd, 3rd and 4th defendants raised a preliminary objection based on a single point of law that the suit is incompetent and bad in law for failure to describe the suit land contrary to O. VII. r. 3 of the Civil Procedure Code, Cap 33 (R. E 2019). These defendants moved this court to strike out the suit in its entirety with cost. The preliminary objection was, by leave of this court, argued by way of filing written submissions. In supporting the point of objection, the 2nd, 3rd and 4th defendants argued that the boundaries of the suit land are not described by the plaintiff contrary to O. VII. r. 3 of the Civil Procedure Code, Cap 33 (R. E 2019). in this provision of the law, it is a mandatory requirement that where the subject matter is immovable property, the plaint shall contain description of the same sufficient to identify it and in case there is a title number, it has to be specified. The defendants said this is a pure point of law. To buttress their arguments, they cited the case law, Rwanganilo Village Council and 25 others Versus Joseph Rwakashenyi, Land Case Appeal No.74 of 2019, High Court of Tanzania at Bukoba, in which it was stated that the plaint should not only indicate location but also the size of the land in dispute. Also, the defendants submitted that even if there is said to be a title of the suit property, but no boundaries are shown. They cited for reference the decision in Martin Fredrick Rajab Versus Ilemela Municipal Council and another, Civil Appeal No. 197 of 2019, Court of Appeal of Tanzania sitting at Mwanza. Page. 1 In reply, the counsel for the plaintiff conceded to the point of objection, however, he said under paragraph 12 of the plaint, it is pleaded that the land in disputed was registered by the defendants, thus, the court should not bless technicalities which delay justice, rather, invoke overriding objective principle and dismiss the objection. There were no rejoinder submissions. From the pleadings and written submissions, the main issue is whether the preliminary objection has been merited or not. In so far, the plaintiff has conceded to the point of objection that it is on the pure point of law and the boundaries of the suit property are not described, thus, it has merit. It is a matter of law that where the suit is about the landed or immovable property, then the plaint must give sufficient and adequate description of the property to let the defendants identify it as per 0. VII r.3 of the Civil Procedure Code, Cap 33 (R. E 2019). This position was cemented in the decision in the case of Olorubare Nginyu Versus Kilempu Kinoka Laizer, Civil Application No. 329 of 2021 [2022] TZCA753 (30th November 2022). The only parties differ as to the remedy available to the plaintiff. The counsel for the plaintiff invited this court to invoke the oxygen principle. In law, where the suit is found to be incompetent, the remedy is strike out the plaint. This is on reason that the matter has not been heard on merits and the plaintiff can file a proper fresh suit. The overriding objective does not apply in mandatory rules of procedure as it was stated inMondorosi Village Council and others Versus Tanzania Breweries Limited and others, Civil Appeal No. 66 of 2017 [2018] TZCA 303 (14th December 2018) TanzLii. Consequently, the plaint is hereby struck out for being incompetent. Each party to bear own cost given the circumstances of the case. Dated at ARUSHA this 4th of October 2024 . F. H KIWONDE JUDGE OF THE HIGH COURT Page. 2