mathias busanda huya administrator for the estate of the late manyirizu dende nyamlala vs marco malan do kapagala and 3 others 2023 tzhc 23603 24 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA LAND CASE NO. 10 OF 2022 MATHIAS BUSANDA HUYA (Administrator for the estate of the late Manyirizu Dende Nyamlala) •••••••••••••••• PLAINTIFF VERSUS 1. MARCO MALAN DO KAPAGALA} 2. MIHA YO LUMIlA ••••••••••••••••• DEFENDANTS 3. DEUS MATHIAS 4. MAYANGO NYANDA RULING 2Jd & 24h November, 2023. S.M. KULITA, l. On 2nd December, 2022 the plaintiff instituted this land case against the defendants claiming jointly and severally for trespass on the suit land of which he alleges to be his property. On that account, he prayed to be declared the lawful owner of the piece of land approximately sized 1200 acres which is located at I10gi village Bugalama Ward within Kahama District in Shinyanga Region. Hence, wanted this court order the defendants to pay him the specific damages that he claims as well as the general damages. 1 In the reply thereto, Counsel for the defendants raised two Preliminary Objections to the effect that; one, that the plaintiff's suit is res judicata/ two, that in his plaint the plaintiff failed to describe the suit land boundaries. On 18th September, 2023 the preliminary objections were scheduled for hearing through written submissions. Both parties complied with the scheduled orders. Mr. Frank Samwel, Advocate represented the Defendants whereas Mr. Edward Marando, Advocate represented the plaintiff. Due to the prevailing situations which will shortly be apparent, I hereby start to determine the second point of preliminary objection. On it, Mr. Frank Samwel stated that, the plaintiff failed to describe boundaries of the suit land in his plaint. Mr. Frank Samwel said that, this situation violates Order VII Rule 3 of the Civil Procedure Code [Cap 33 RE 2019]. With this defect, the Counsel opined that, this court lacks jurisdiction to entertain the matter. To bolster his assertion, he cited the case of Daniel Dagala Kanuda (administrator for the estate of the late Mbalu Kushaha Buluda) V. Masaka Ibeho and 4 Others, Land Appeal No. 26 of 2015. 2 In the reply submissions on that second ground of preliminary objection, Advocate for the plaintiff, Mr. Edward Marando, squarely conceded with the above said point of preliminary objection. On my side I concur with the submissions of Mr. Frank Samwel on the second ground of preliminary objection which have also been conceded by the Plaintiff's Counsel, Mr. Edward Marando, that, subject matter of the case being immovable property, its description must be as clear as not to cause uncertainty. I hereby reproduce Order VII, Rule 3 of the Civil Procedure Code for easy of reference; "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" As correctly submitted and conceded, paragraph 8 of the plaintiff's plaint does not sufficiently describe the suit land that the plaintiff claims against the Defendants herein. In it, the Plaintiff just describe that; "That, the late Manyirizu Dende Nyamlala owned a piece of land which is approximately 1200 acres which is located at Ilogi village/ Bugalama Ward within 3 Kahama District in Shinyanga Region. And that the late Manyirizu Dende Nyamlala owned the said piece of land and had unimpeded use of it. He owned the said land since 1991 under customary land tenure" I am firm that, the above quoted paragraph, does not state boundaries of the said 1200 acres of land that the plaintiff claims against the Defendants here in. In that situation, in case the plaintiff wins the case with the said existing defect, the 1200 acres of the suit land will not be certain, hence will possibly cause chaos in execution. On that account, I agree that, this second point of preliminary objection sustains. As far as this second point of objection sustains, it follows therefore that, the first point of preliminary objection which is about res judicata fails. It fails for the reason that, for the res judicata objection to sustain, among other things, there must be a proof that, the subject matter in the current suit, is the same to that mentioned/involved in the former suit. As the second point of objection in this case has proved that, the suit land is not sufficiently described, we cannot be sure that, the subject matter in this current suit is the same as to the one alleged to be claimed/involved in the former suit. On that account, I find it that, the first point of preliminary objection is unmeritorious. 4 All said and done, as the first point of preliminary objection sustains, the plaintiff's suit is hereby struck out. Plaintiff to bear the costs. JtL- S.M. KULITA JUDGE 24/11/2023 DATED at SHINYANGA this 24th day of November, 2023. S.M. KULITA JUDGE 24/11/2023 5