CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KOROSSO, J.A, KAIRO, J.A. And KHAMIS. J.A/t CIVIL APPEAL NO. 416 OF 2021 OLORUBARE NGINYU.................................. ................................ APPELLANT VERSUS KILEMPU KINOKA LAIZER.................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Arusha) (Masara, J.) dated 7th day of May, 2021 in Land Case No. 10 of 2019 JUDGMENT OF THE COURT 2nd & 18th July, 2024 KHAMIS, J.A.: Kilempu Kinoka Laizer, the respondent herein, sued Olorubare Nginyu, the appellant, in the High Court, Arusha for declaration that, he is the lawful owner of the suit land measuring 1000 acres located at Soita Hamlet, Naberera Village, Simanjiro District, Manyara Region (the suit land), an order for payment of TZS. 520,000,000.00 as special damages for trespass and general damages to the tune of TZS 220,000,000.00 per year from the date of judgment to the date of vacant possession. Upon trial, the High Court declared the respondent as the lawful owner of the suit land, and the appellant was declared a trespasser and ordered to vacate immediately. The appellant was also ordered to pay the sum of TZS 70,000,000.00 and TZS. 50,000,000.00 in the accounts of special and general damages respectively. Aggrieved by the whole judgment and decree of the High Court, the appellant instituted this appeal vide a memorandum of appeal based on five grounds, namely: one, the trial court erred in law and fact in admitting and relying on exhibit P3 (the sale agreement) in declaring the respondent a lawful owner; two, that the trial court erred in relying on exhibit PI (Minutes of the Village Council) and exhibit P3 (the sale agreement) in declaring the appellant a trespasser; three, the trial court erred in admitting and relying on exhibit P2 (the valuation report) in awarding special damages amounting to TZS. 70,000,000.00; four, that the trial court erred in relying on the testimony of PW4 to award TZS. 50,000,000.00 general damages; and; five, the trial Judge failed to properly consider and evaluate the appellant's evidence hence reached at an erroneous decision in favour of the respondent. According to the pleadings, the respondent's case was that, he owned the disputed land since September, 2012 after his purchase from one Mohamed J. Aziz for TZS. 30,000,000.00. The latter was allocated 2 that land by the Naberera Village Council in 2005 and remained in continuous occupation thereof up to 2012 when it was sold to the respondent. Between 2007 and 2011, the respondent had leased 200 acres of that land from Mohamed Aziz used for his agricultural activities. It was alleged that, in January, 2017 when the respondent was in remand custody for an unknown offence, the appellant trespassed onto his land and built a stockade. On 5th March, 2017 the appellant's herd of cattle destroyed crops planted by the respondent, particularly, the beans and special grass reserved for feeding the cattle. The appellant then assumed full occupation of the area and established residence, among others. It was further alleged that, the respondent's destroyed grass and beans were each valued at TZS. 70,000,000.00. In addition, the respondent suffered continuous financial loss from the paralysed agricultural activities. The respondent's claim was denied by the appellant vide his amended written statement of defence filed on 10th June, 2020. He disputed to have trespassed onto the land in dispute and or destroying crops therein. He contended that, the respondent had no cause of action 3 against him for he resides and works for gain in Landanai village and not Naberera village where the land in dispute is located. The appellant relied on the letter by the Regional Commissioner for Manyara dated 16th March, 2020 bearing reference no. FA.33/347/0 l'F'/6 which declared the allocation of land to Mohamed J. Aziz and his subsequent sale to the respondent as illegal. The appellant further contended that, following instructions of the Regional Commissioner for Manyara and the Landanai village authorities, the respondent had vacated from the land in dispute. He moved the court to dismiss the suit with costs. In the reply to the written statement of defence, the respondent strongly challenged the letter by the Regional Commissioner Manyara on the ground that, he had no powers to adjudicate upon disputes which are pending in courts of law. He contended that, the dispute solely involved the parties herein and not the Landanai Village Council as suggested by the Regional Commissioner. The respondent rejected claims that he vacated from the land in dispute as per the Regional Commissioner's instructions and subjected the appellant to the strictest proof thereof. He insisted that, he was in occupation of the land but his children and employees were threatened with eviction and forced to remove the tractors and some cattle during his hospitalisation. The respondent paraded five witnesses and tendered three exhibits whereas four witnesses were summoned and four exhibits produced in support of the appellant's case. At the trial, three issues were framed for determination thus: one, who is the rightful owner of the suit property; two, whether the defendant (appellant) trespassed into the plaintiff's (respondent's) land; and; three, to what reliefs are the parties entitled to. The trial court entered judgment for the respondent holding that, he is the lawful owner of the land; the appellant's continued presence thereon constitutes trespass; and that; the appellant was to compensate the respondent to the tune of TZS 70,000,000.00 being special damages and TZS 50,000,000.00 as general damages. At the hearing of the appeal, Messrs. Medium Boastice Mwale assisted by Moses Mahuna, learned advocates, appeared for the appellant. Messrs. John J. Lundu and Lengai Loita, both learned advocates, acted for the respondent. Addressing the Court, Mr. Mwale adopted the written submissions earlier on filed by the appellant and then highlighted on few issues. On the first ground of appeal, he contended that exhibit P3, the sale agreement, did not describe the land sold and as a result, the precise location of the land in dispute is unknown. He added that, the omission was repeated in the plaint which failed to describe boundaries of the land in dispute. The learned counsel asserted that, failure to demonstrate the true boundaries of the land was fatal and could not be supplemented by the oral accounts of the witnesses. He cited our decision in Martin Fredrick Rajab v. Ilemela Municipal Council & Synergy Tanzania Company Limited, Civil Appeal No. 197 of 2019 [2022] TZCA 434 (18 July 2022) which addressed the legal effects on failure to describe the suit property in the pleadings and submitted that, as a result, the respondent's ownership of the land was not proved. On the second ground of appeal, Mr. Mwale submitted that, the trial court misdirected itself in relying on exhibit PI (minutes of the village council) and exhibit P3 (the sale agreement) in declaring the appellant a trespasser to the land in dispute. He cited Bakari Mhando Swanga v. Mzee Mohamed Bakari Shelukindo & 3 Others, Civil Appeal No. 389 of 2019 [unreported]. 6 He contended that, minutes of the village council were incompatible with the sale agreement for failure to address similar details of the land, the village and name of the purchaser. He argued that, "Klempu Laizer" in the sale agreement is different from "Kilempu Kinoka Laizer" the respondent. He relied on Ally Ahmad Bauda v. Raza Hussein Ladha Dhamji & 2 Others, Civil Application No. 525/17 of 2016 [unreported]. He also faulted minutes of the village council for incompatibility to section 142 (1) of the Local Government (District Authorities) Act, Cap 287 R.E 2019 and the survey plan annexed to the sale agreement for lack of approval contrary to section 17 of the Land Survey Act, Cap 234 R.E 2019. On the third ground of appeal, the appellant's counsel faulted the trial court for relying on exhibit P2 (the valuation report) in awarding special damages because the report was prepared by the agricultural officer hence violated section 4 and 7 of the Valuation and Valuers Report Act No. 7 of 2016. On the fourth ground of appeal, Mr. Mwale contended that, evidence of PW4 on the destruction by the appellant was not supported by any other piece of evidence. He submitted that, the alleged invasion of the farm and destruction of the crops by the appellant's cattle was not supported by the evidence and remained unsubstantiated. On the fifth ground of appeal, the lead counsel for the appellant submitted that, the trial court failed to evaluate the evidence on record and as a result, entered an erroneous judgment. He laid emphasis on exhibit D2, the letter by the Regional Commissioner for Manyara, and argued that, had the trial Judge paid attention to it, he would have found a need to join the village councils of the Landanai, Naberera and Longai Villages, as necessary parties. In further support of the appeal, Mr. Mahuna submitted that, oral accounts of the respondent's witnesses cannot supersede contents of exhibit P3 (the sale agreement) which omitted to describe the land in dispute. He relied on Martin Fredrick Rajab (supra). He contended that the minutes of the village council (exhibit PI) did not suggest that there was approval of the village assembly as per section 8 (5) of the Village Land Act. On non - joinder of the village councils, Mr. Mahuna invited us to find the proceedings and findings of the trial court were vitiated and thus order trial de novo. Messrs. John J. Lundu and Lengai Loita chose to address us on the case generally, without dividing their submissions on the specific titles of 8 the grounds of appeal. It was Mr. Loita who rose to adopt the written submissions earlier filed and went ahead to highlight some important areas of the appeal particularly, exhibits PI, P2 and P3 which were challenged by the appellant. He submitted that, throughout proceedings in the High Court there was no dispute between Landanai, Naberera and or Longai villages except the parties' own discourse. Upon highlighting the pleadings on record, he argued that, had that been the case, the agreed issues would have reflected so. On the first ground of appeal, Mr. Loita contended that the argument that exhibit P3 should have disclosed name of the village was far-fetched. He argued that the pleadings and the sale agreement had stated the location of the land in dispute in accordance with the law. He distinguished the case of Udhagweha Bayai & 16 Others v. Halmashauri ya Kijiji cha Vilima Vitatu & Another, Civil Appeal No. 77 of 2012 (unreported) which involved allocation of the village land without involving the village council and the village assembly and asserted that, in the present case, the respondent attached all relevant minutes of the respective village organs involved in the allocation of the suit land to Mohamed Aziz. 9 The learned counsel brushed off as inconsequential an allegation that 'Klempu Laizer' is different from 'Kilempu Kinoka Laizer' and submitted that, despite the spelling differences, minutes of the village council and the sale agreement referred to one and the same person. He faulted the respondent's counsel for failure to cross examine on the spelling differences which estopped him from querying or doubting such evidence. In winding up on that ground, the counsel submitted that, the respondent's pleadings were in order and revealed ownership in favour of the respondent. On the second ground of appeal, Mr. Loita briefly submitted that, in view of the contents of exhibit PI, P2, P3 and annexture N1 to the written statement of defence, the trial court correctly declared the appellant a trespasser. On the third ground of appeal, the counsel submitted that, exhibit P2 (the valuation report) was properly admitted and relied upon by the trial court as Peter Losioki (PW5), was a qualified professional to assess and value the destructed crops. 10 He referred to pages 157 and 158 of the record and faulted the appellant's counsel for failure to further cross examine PW5 who laid a strong foundation on his qualifications to assess the value of crops. On the fourth ground of appeal, the counsel for the respondent invited us to find no merits on the appellant's contentions and submitted that, the evidence of PW4 sufficiently proved the special damages suffered by the respondent following trespass by the appellant. He submitted that, in proving an allegation, what counts is not the number of witnesses but rather the strength of their evidence. On the fifth ground of appeal, Mr. Loita submitted that, the trial court properly considered and evaluated the whole evidence on record and reached at a correct and just decision in accordance with the law. Chipping in, Mr. Lundu faulted his rival counsel for failure to appreciate that pleadings included documents annexed to it and expounded that, the amended plaint was accompanied by a list of documents to be relied upon which formed part of the amended plaint. He explained that, among others, the list included the survey plan which sufficiently described the land in dispute. Further, the counsel added that, exhibit P3 (the sale agreement) was equally accompanied by the survey plan that sufficiently identified the land sold. 11 The learned counsel invited us to disregard the appellant's submissions on exhibit P2 which was admitted in evidence without objection. On the award of general damages, he asserted that, it was in the discretion of the trial court and should not be called to question. On the special damages, he urged us to consider section 143 of the Tanzania Evidence Act, Cap 6 R.E 2023. On rejoinder, Mr. Mwale contended that, the amended plaint was not accompanied with annextures and challenged the survey plan for lack of an official approval. Mr. Mahuna reiterated the appellant's earlier submissions and contended that, exhibit D2 (the letter by the Regional Commissioner), did not interfere with the proceedings in the High Court as it did not specifically refer to existence of that case. Finally, he moved us to allow the appeal with costs. Having considered the counsel rival arguments and upon examination of the record, the issues for determination are: whether the land in dispute was properly described in the pleadings; whether exhibit P3 (sale agreement) was wrongly relied on in declaring the respondent the lawful owner of the land in dispute and the appellant a trespasser thereof; whether the trial court wrongly relied on exhibit P2 (valuation report) in awarding special damages to the respondent; whether the trial court wrongly relied on the evidence of PW4 in awarding general 12 damages to the respondent; and; whether the trial court failed to properly consider and evaluate the appellant's evidence. As the first appellate Court, this Court as per rule 36 (1) (a) of the Rules, is charged with the duty of subjecting the whole evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that it did not have the advantage of seeing and hearing the witnesses first hand. Having said so, we shall now start with the first issue. In the impugned judgment, the trial Judge described the disputed land as a parcel of land measuring 1000 acres located at Longai/Soita area, Naberera village, Simanjiro District, Manyara Region. This description is highly challenged in this appeal. The learned counsel for the appellant contended that, the initiating amended plaint omitted to describe the property in dispute sufficient to identify it. On the other hand, Mr. Lundu argued that, the list of documents attached to the amended plaint sufficiently described the land and therefore, there was no further need to give particulars in the body of the amended plaint. Before we delve into the issue, we find it necessary to note that, Rule 3 of Order VII of the Civil Procedure Code, Cap 33, R.E 2023 (the 13 CPC) provides that, 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, such title number should be specified. Rule 14 (1) of Order VII of the CPC enjoins upon the plaintiff to produce a list of documents along with the plaint if he wants to rely on any documents. If he relies on any other document whether in his possession or power or not, as evidence in support of the claim, he shall enter such documents in a list to be added or annexed to the plaint as per rule 14 (2) of Order VII of the CPC. The purpose of these rules can be gleaned from the effects of non-production of the documents. Rule 18 (1) of Order VII of the CPC provides that, no documentary evidence in the possession or power of the plaintiff which should have been, but has not been produced in accordance with the requirements of rule 14 (1) and (2) of Order VII of the CPC shall be received in evidence without leave of the court. From perusal of the above provisions, it is clear that, it is incumbent on the plaintiff to file the documents in his possession or power in the form of a list at the time of filing the plaint. 14 In this case, the respondent filed a list of documents alongside the amended plaint which were subsequently admitted in evidence. The listed documents were in the nature of: minutes of the Naberera Village Council dated 10th March, 2005; a letter by the Naberera Village Council to whom it may concern dated 4th May, 2005 confirming allocation of 1000 acres to Mohamed Aziz; the sale agreement between Mohamed Aziz and the respondent; the survey plan for the land in dispute prepared in 2013; and; a letter from the Naberera Village Council to Prof. Ikamba R. Msanga confirming the respondent's ownership of the land in dispute dated 20th February, 2013. Whereas Messrs. Mwale and Mahuna argued that, the documents were not attached to the plaint, Mr. Lundu was of the view that, the documents enlisted were deemed to be and formed part of the plaint which sufficiently described the suit property. In the circumstances, we have to examine whether annexing a list of documents to the plaint make the listed documents a part of the plaint. From the wording of Rule 14 (1) and (2), Order VII of the CPC, the documents which are sued upon or the effect whereof is mentioned in the pleadings must be distinguished from other documents on which a party relies merely as evidence in support of his case, that is, documents filed in a list under the provisions of Rule 14 (2), Order VII of the CPC. 15 It must be noted that, some of the documents mentioned under that provision may not be in the possession or power of the party filing the plaint and the list is annexed to the plaint after the verification clause as per Rule 15, Order VI of the CPC and therefore, it is not intended to be part of the plaint. As a result, the documents included in the list are not part of the plaint. The sole purpose of asking the plaintiff to file all documents in his power and possession and to file a list of those documents which are not in his power and possession is to enable the defendant while filing written statement of defence, to suitably respond to those documents and file his own documents, if any, in order to defend the claim of the plaintiff. It cannot be over emphasised that documents are to be filed by the parties at the preliminary stage, at the time of exchanging pleadings to enable them admit or deny the claim and then issues are framed not only out of the pleadings but also from the documents relied upon by the parties. The sole purpose of this provision stands defeated if the documents are withheld by either party and are sought to be sneaked into at the time of trial. 16 It is settled principle of law that the plaint should neither be vague nor vexatious. The plaint as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and must prevent further litigation. Where the suit involves immovable property, the plaint should include description of the property sufficient to identify it. This statutory requirement was echoed by the Court in Lupembe Village Government Ikolo Ward Kyela District & Another v. Bethelehamu Mwandafwa & Others, Civil Appeal No. 377 of 2020 [2023] TZCA 17313 (9 June 2023), at page 16, thus: "On the argum ent that the p lain t did not disclose the description o f the su it land, we are aware o f the provisions o f Order VII rule 3 o f the C P C th e em phasis being where the involved subject m atter in a su it is im m ovable property, there m ust be such details o f the requisite property in the p la in t to sufficiently enable it to be id entified ." It is not disputed that, the parties' dispute involves an unregistered parcel of land whose manner of description was stated by this Court in Martin Fredrick Rajab (supra) at page 13, thus: "From what was pleaded by the appellant, it is glaring that the description o f the su it property 17 was not given because neither the size nor neighbouring owners o f pieces o f land among others, were stated in the plaint. This was not proper and we agree with the learned tria l Judge and Mr. M risha that, it was incum bent on the appellant to state in the p la in t the description o f the su it property which is in term s o f the dictates o f O rder VII rule 3 o f the C ivil Procedure Code, Cap 33 R .E 2019" In Halsbury's Laws of England, 4th Edition, Vol. 36, Paragraph 38, the importance of particulars was stated, thus: "The function o f particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and w ithout surprises, and incidentally to reduce costs. This function has been variously stated, nam ely either to lim it the generality o f the allegations in the pleadings or to define the issues which have to be tried and fo r which discovery is required." In Bullen, Leake and Jacob's "Precedents of Pleadings", 1975 Edition, Page 112, it is stated that: "The function o f particulars is to carry into operation the overriding principle that the 18 litigation between the parties, and particularly the trial\ should be conducted fairly, openly and w ithout surprises and incidentally to save costs. The object o f particulars is to open up the case o f the opposite party and to com pel him to reveal as much as possible what is going to be proved a t the trial, whereas, as Cotton, L.J has said, the old system o f pleading a t common law was to conceal as much as possible what was going to be proved a t the tria l." In this case, none of the documents relied upon by the respondent were mentioned in the body of the amended plaint and or attached to it. They were just mentioned and not attached to an undated and unsigned document titled "list o f docum ents to be relied upon" whose relevance was not readily established. Therefore, the suit land was insufficiently described in paragraph 3 of the amended plaint which reads: "3. That the p la in tiff is the legal owner o f a farm m easuring 1000 acres situated a t Naberera Village, Sim anjiro D istrict, Manyara Region by way o f purchase from the original owner one Mohamed J. A ziz since Septem ber, 2012. " 19 In paragraph 4 of the amended written statement of defence, the appellant responded to paragraph 3 of the amended plaint (as quoted herein above) and claimed that, the respondent had no cause of action against him on the basis of a confusion regarding identity of the disputed land. He maintained that, the land was in Landanai Village and not Naberera as claimed by the respondent. We noted that, the trial court did not address the issue in terms of Order VII, Rules 3 and 11 (a) of the CPC. We have considered the counsel rival submissions and were persuaded that, the amended plaint omitted to disclose boundaries and names of owners of the adjacent parcels of land, being particulars necessary to describe the suit property. Since disclosure of the particulars was a statutory requirement and necessary to identify the suit land, the missing information were an integral part of the plaint, whose absence could not establish the cause of action. Considering the issue cropped up in the pleadings, and in view of the provisions of Order VII, Rule 11 (a) of the CPC, it was incumbent upon the trial court to address it and if satisfied, reject the plaint. Since the plaint was not rejected and the court proceeded with trial on an incompetent plaint, the resultant proceedings were vitiated and thus a nullity. 20 This conclusion disposes of the entire appeal and therefore, determination of the remaining issues becomes superfluous. We therefore, nullify the entire proceedings, quash the judgment and set aside the resultant decree of the trial court dated 7th May, 2021 but issued on 2nd June, 2021. In the circumstances of this appeal, we make no order as to costs. DATED at ARUSHA this 18th day of July, 2024. W. B. KOROSSO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL delivered this 18th day of July, 2024 in the presence of Mr. Moses Mahuna, learned Counsel for the Appellant and Mr. Lengai Loita, learned Counsel for the Respondent is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 21