LAND CASE NO 5304 OF 2024 SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 5304 OF 2024 NABEEL ABDULHAKIM FUAD................................................ 1ST PLAINTIFF NABEELAH FUAD...................................................................2nd PLAINTIFF VERSUS HONOURABLE MINISTER, MINISTRY OF LANDS, HOUSING AND HUMAN SETTLEMENT DEVELOPMENT......... 1st DEFENDANT COMMISSIONER FOR LANDS................................................................... 2ndDEFENDANT CHALINZE DISTRICT COUNCIL................................................................ 3rdDEFENDANT DIRECTOR OF MAPPING AND SURVEYS............................ 4th DEFENDANT HONOURABLE ATTORNEY GENERAL........................................................ 5thDEFENDANT TAUSI LUFUNGA NGOMA.......................................................................... 6thDEFENDANT LAND GENERAL PLANNING CO. LTD........................................................ 7thDEFENDANT MAULID SAID KAMENYA........................................................................... 8thDEFENDANT SALOME MWAKALINDILE......................................................................... 9thDEFENDANT JOSEPH CHARLES ZAMBO...................................................................... 10™DEFENDANT SAIDI MRISHO MSIGARA....................................................................... 11™DEFENDANT JUMA BAU................................................................................................. 12™DEFENDANT AMASHA BAU........................................................................................... 13™DEFENDANT ATHUMANI MUSSA.................................................................................. 14™DEFENDANT HAMISI MTINGE............................................................ 15™ DEFENDANT SELEMANI MUSSA................................................................................... 16™DEFENDANT RULING 07/10/2024 & 26/11/2024 GWAE, J 1 This ruling is in respect of the preliminary objections on points of law raised by the 6th, 7th, 8th, 9th, 12th, 13th, 15th and 16th defendants to the effect that:- l. That, the Plaint does not disclose when the cause of action arose contrary to the Provision of Order VII Rule 1 (e) of the Civil Procedure Code, Cap 33, Revised Edition, 2019 (herein the CPC) 2. The Plaintiff did not obtain leave of the Court to join Cause of Action as required by Order II Rule 4 of the CPC 3. That, the suit is time barred. 4. That, the Plaint offends Order VII Rule 3 of the CPC 5. That, the Plaintiffs have no locus. 6. That, the Plaint offends Mandatory Provisions of Qtrder VII Rule 1 of the Civil Procedure Code. 7. That, the Plaint offends Mandatory Provision of Order VII Rule 1 (i) of CPC 8. That the suit of the Plaintiffs is an abuse of the court process. Hearing of the points of preliminary objection herein proceeded orally. Mr. Daimu Alfani, learned advocate, represented the plaintiffs and Mr. Godwin Mussa Mwapongo, learned advocate, represented the 6th, 7th, 8th, 9th, 12th, 13th, 15th and 16‘ defendants. The 1st to 5th defendants did not contest the objection. 2 Before submitting on the points raised, Mr. Mwapongo opted to drop the 6th limb of the objection. For the reason that, will be advanced later, I will start with the seventh point of objection. In support of the 7th limb of objection, Mr. Mwapongo submitted that there is nowhere the value of the subject matter has been indicated, hence, violation of VII Rule 1 (i) of the CPC. However, he stated that, the provisions under Government Proceedings, Attorney General is sued only before the Court and that, the High Court has unlimited jurisdiction. Further to that, Mr. Mwapongo submitted that, indication of value is vital for the three reasons:- One, jurisdictional reasons. Two, certainty of the taxing master in assessing an appropriate bill of costs and three court fees. To support his argument, he cited the case of Doreen Alphonce Mchawa vs. Attorney General and 6 others, Land Case No. 136 of 2023 (unreported), where the suit was found to be incompetent for failure to indicate value of the subject matter. Mr. Daimu for the plaintiffs admitted that, there is the word "shall" in the statutory provision. According to him, in this provision of the law, the word shall is not mandatory but a directory since not always the word shall coaches to the mandatory requirement. He supported his 3 argument by citing the case of Mohamed Hamis @ Sakisi vs. Republic (2008) TLR 274. The plaintiff's counsel argued that, in this case, the jurisdiction of the Court is in existence since the Attorney General is joined. He was therefore of the view that, indication of value for the court fees is not restrictive in the suit at hand. He gave an example that, according to the Court Fees Rules, fees for declaratory is only Tshs. 500,000/=. He added that, the amount chargeable be less or otherwise is a matter of fact. Hence, he was of the view that, not every suit whose value is not indicated, leads to an order of the court striking out of the case. He invited the Court to refer to the case of Kaggwa vs. Vithalds and sons Limited (1965) EA 169. In his brief rejoinder, Mr. Mwapongo reiterated his submission in chief and stated that, Rule 4 of the GN 247 of 2018, imposes courts' fees, requires declaration of value of the subject matter. He added that, the plaintiffs must have complied with the requirement of indication of the value of the land in dispute as the said GN supplements provision of Order VII Rule 1 (i) of the CPC. 4 Having carefully gone through the plaint and the submissions by the counsel for the parties, I find the issue for determination is whether failure to indicate the value of the subject matter of the suit renders the suit incompetent. In his submission, the counsel for the plaintiff did not dispute the fact that, the value of the subject matter of the suit is not indicated in the plaint, rather he stated that, since the Attorney general is joined in this matter, this Court has jurisdiction even in the circumstances the value of the subject matter is not indicated. He added that, not every suit whose value is not indicated in the plaint, leads to striking out of the same. I am mindful of the section 6 (4) of the Government Proceedings Act, (Cap 5, Revised Edition, 2019), which requires all suits against the Government to be instituted in the High Court. As the plaint reveals that, the first, second, third fourth and fifth defendants are Government agents, it follows the Government and its institutions sue or be sued in the High Court in terms of section 6 (4) of the Government Proceedings Act (supra), 5 However, the 6th, 7th, 8th, 9th, 12th, 13th, 15th, and 16th defendants' point of objection is to the effect that, the plaint offends Order VII Rule 1 (f) of the Civil Procedure Code, which provides that:- ’7, The plaint shall contain the following particulars (!) A statement of the value of the subject matter of the suit for the purposes ofjurisdiction and of court fees, so far as the case admits." As clearly, designated by the provision of the law, the purpose of the statement of value of the subject matter of the suit in the plaint is for jurisdiction and court fees in the admission of the cases. In the case of Adinani Mohamed Almasi & 162 Others vs Mwajabu Abdallah Jongoa & 4 Others, Land Case No. 23 of 2022, [2021] TZHCLandD 6910 (29 October 2021) it was stated that;- "The statement of the value of the subject of the suit in the plaint relates to both'jurisdiction"and "court fees". The statement clearly serves a dual purpose. First, it relates to the pecuniary jurisdiction of the court and secondly it assists in the assessment of court fees". As it is necessary for the plaintiffs to pay the court fees in all matters of civil nature save labour disputes irrespective of the fact that, the Government is a party, the statement of the value of the subject matter in the plaint is of utmost importance, which cannot be 6 disregarded by our courts. In Doreen Alphonce Mchawa vs. the Attorney General & 6 Others, Land Case No. 136 of 2023 this Court held that:- "However, for purposes of the assessment of the court fees, I find there was such requirement, which was vitally important for the plaintiff to include the statement of the subject matter in the plaint. The court cannot charge the plaintiff the appropriate fee if the value of the subject matter involved in a suit is not indicated. I have thus to strongly restate that failure to indicate the statement of the value of the subject matter in a plaint renders the suit incompetent. I am of that view simply because, generally court fees are assessed based on how valuable the disputed land is. Henceforth, there must be basis of which court fees are derived from otherwise there would be no uniformity in the payment of court fees and invitation of undesirable behaviours." Therefore, from the above standpoint, the argument by the counsel for the plaintiff that, not every suit whose value is not indicated leads to an order striking out of the same, does not stand at this juncture. However, I would like to briefly hold the view that, the issue whether this suit is time barred or not, requires ascertainment of certain 7 facts. Similarly, it is worth noting that, joinder of causes of action is subject to the leave of the Court in terms of Order II Rule 4 of the CPC. Moreover, it is my view that, a limitation of time on a trespass on land is not six years but 12 years. Having determined the 7th point of objection as herein, I find no relevance to labour with the remaining points of objection since determining them will only be an academic exercise. In the upshot, I find the 7th point of objection has merit and it is hereby sustained. I thus proceed to strike out the plaintiffs' suit with costs. It is so ordered. dated and delivered at dar es salaam this 26th November 2024 JUDGE 8