mussa hamadi ndauka 3 others vs kinondoni municipal council another 2022 tzhclandd 12752 15 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 112 OF 2022 MUSSA AHAMADI NDAUKA 1®'PLAINTIFF 3UMA ALLY AHMADY 2"" PLAINTIFF RASHID OTHUMAN CHIUTILA S'" PLAINTIFF MOHAMED ABDRAHAM NDEMBO PLAINTIFF VERSUS KINONDONI MUNICIPAL COUNCIL 1^ DEFENDANT THE ATTORNEY GENERAL 2"" DEFENDANT RULING 08/09/2022 «15/12/2022 Masoud.3. There was a preliminary issue raised by the defendants against the instant suit brought by the plaintiffs in representative capacity on behaif of 106 others eise where aiso referred as 130 others. The preiiminary issue was to the effect that the suit was bad in iaw as the amended piaint contravened Order VII, rule 3 of the Civil Procedure Code, cap. 33 R.E 2019. The suit against which the issue was raised concerned a dispute over a suit land which the plaintiffs claimed that they are the lawful owners. The suit land was in the plaint described as an unsurvayed piece of land located at Mabwe Pande Ward, Kinondo Mji Mpya Street, within Kinondoni District with approximately measurement of 600 hectres. In respect of the said claim for ownership of the suit land, it was alleged that the plaintiffs are living in the suit land in which they grew up peacefully as residents. And further that they have as a result developed the area by erecting buildings such as residences. Such developments were preceded by clearing and cultivating the land pursuant to the directive of the then Dar es Salaam Regional Commissioner. It was also alleged that until 2018 when the first defendant trespassed into the suit land and demolished and destroyed the plaintiffs' residences and crops, the plaintiffs had been peacefully living and staying on the suit land. The plaintiffs had as a result been lodging complaints to various authorities including the Dar es Salaam Regional Commissioner. When hearing on the preliminary issue was conducted, the defendants through Ms Kause Kilonzo, learned State Attorney, assisted by Ms Leah Mnzava, learned State Attorney, contended that the gist of the preliminary issue is in the failure of the plaintiffs who are suing in the representative capacity on behalf of 106 others (or 130 others as else where so stated) to properly describe and sufficiently identify the suit land. It was emphasised that the only description in paragraph 5 of the plaint, was on the location and size without anything as to whether or not the same was jointly owned by the plaintiffs, or showing description of every parcel of land individually owned by each of the plaintiffs. As if the forgoing was not enough, it was contended that in so far as the suit land was unsurveyed, there was no unique description, like permanent feature or features mentioned identifying the suit land over other pieces of land on the area. The argument was reinforced by a further argument to the effect that there was complete failure of the description to mention and identify the boundaries of the suit land. The pitfalls, I was told, meant that the court cannot at the end of the day make an enforceable decree. Reliance was made on Daniel Dagala Kanunda vs Masika Ibehe and Others, Land Appeal No. 26 of 2015; and Fatuma Shabani Said Dololo and Another vs Abdallah Said Mgaze and Another, Land Case No. 238 of 2020 (unreported). I was thus urged to strike out the suit for failure to properly describe and sufficiently identify the suit land claimed to be owned by the plaintiffs and others, who were being represented by the plaintiffs. In reply, the plaintiffs advocated by Mr Wilson Mafie, learned counsel, had it in a nutshell that, the plaint was made in compliance with Order VI, rule 3 of the Civil Procedure Code, cap. 33 R.E 2019; the area within which the suit land is situated has cleariy been mentioned as Kinondo Mji Mpya street; the size of the suit land has also been stated as 600 Hectares; it is unsurveyed; the boundaries and permanent features are matters of evidence since the size and location have very well been stated; and that the cited cases are all distinguishable. In rejoinder,the court was told that although the submission in reply implies that the suit land consists of the whole of Kinondo Mji Mpya area, such claim is not apparent in the plaint and hence an afterthought. In addition, it was reiterated that boundaries of the land measuring 600 Ha were not stated; and that no case law was shown supporting the plaintiffs' standpoint. My starting point was Order VII, rule 3 of the Civil Procedure Code, cap. 33 R.E 2022 which reads thus: Where the subject matter of the suit is immovable property, the piaint shaii contain a description of the property sufficient to identify it and, in case such property can be identified by a tide number under the Land Registration Act, the piaintshaiispecify such tides number. I was dear that the provision mandatorily requires a plaint to describe a suit land in a manner that sufficiently identify it. The provision is clear that if the suit land is surveyed, it can be sufficiently identified by the relevant title number of the suit land. Case law has it that where the suit land is not surveyed, it can very well be described and sufficiently identified by permanent features, and boundaries. The only paragraph in the plaint in which the plaintiffs are suing the defendant on their own behalf and on behalf of the others, describes the suit land thus: They are the iawfuiowner ofaii that unsurveyed piece of iand iocated at Mabwe Pande ward, Kinondo Mji Mpya Street, within Kinondoni District with approximateiy measurement of600 hectares. Going by the description, if one were to use it as he is at Mabwe Pande, Kinondo Mji Mpya, within Kinondoni District, he could surely not tell where the suit land with approximately measurement of 600 hectares Is as there were neither permanent features described or mentioned, nor boundaries. In other words, one may inquire into boundaries that would identify such piece of land that approximately falls within the 600 hectares. As if such insufficient description is not enough, there was no indication whatsoever that the suit land was either jointly owned by the plaintiffs and the others or it comprises separate parcels of land separately owned by each of the plaintiffs and the others. If each of the plaintiffs and each of the others has his separate parcel of land, it was not clear as to boundaries and specific size of the separate parcels of land owned by each. The reverse of the latter is equally true. In Daniel dagala Kanuda's case, it was rightly stated that the purpose of authentic identification of land in dispute is nothing other than to afford the court room to make certain and executable decrees. With such description in the plaintiffs' plaint, I am fortified that this court can not make such a decree. In the light of the foregoing analysis and finding, I would inclined as I hereby do so, to agree with the counsel for the defendants that the suit is incompetent for failure to properly describe and sufficiently identify the suit land allegedly owned by the above plaintiffs on their own behalf and on behalf of others. In the upshot, the suit is Incompetent before the court. It is accordingly struck out with costs. It is so ordered. Dated and Delivered at Dar Es Salaam this 15^ day of December, 2022. t.1- \'r^' o B. S. Masoud ■4^ A f:. Judge 4 in. L-£3f ♦ sici^