OMARY MADENGE SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 12438 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Hala in Land Application No. 313/2018) OMARY ABDALLAH MADENGE............................. ,....... APPELLANT VERSUS MUSA MALIKI HOZA (Administrator of the estate of the late STAKIWI YUSUF RUBAWA............................. .......... RESPONDENT JUDGMENT 27th & 3dh September 2024 L, HEMED, J. "The Applicant claim against the Respondent is that the Respondent is TRESPASS (sic) into the Applicant's land, which is situated at Kivule Area, Hala, Dar es Salaam. The Applicant ciaim(sic) further that sometimes on 12th October 2015, he bought the said suit plot/property from one Mohamed B. Habibu in consideration of Tshs. 8,000,000/=and he erected a foundation brick wall of the house of which, sometimes in November 2016, the Respondent completely destroyed it, which has caused an irreparably loss and great damage to the Applicant" The above quotation is the cause of action as was couched in the Amended Application which the Appellant herein OMARY ABDALLAH i MADENGE used to initiate Application No.313 of 2018 at the District Land and Housing Tribunal for Hala. According to the pleadings filed at the trial Tribunal, the "Location and Address of the suit Premises/Land: SITUATED AT KIVULE AREA, ILALA, DAR ESSALAAM." The Respondent herein, MUSA MALIKI HOZA (Administrator of the Estate of the late SITAKIWI YLISUPH RUBAWA), was also the Respondent during the original trial who resisted all the claims. Having heard the matter on merit, the trial Chairman ended up dismissing the suit on the ground that the appellant's evidence adduced before him was false/cooked. The Appellant was aggrieved by such decision hence the instantaneous appeal on the following grounds:- '7. THA T, the trial Tribunal erred in law and fact by failing to properly evaluate the evidence of the trial Tribunal record, which proved that, the disputed land belongs to the Appellant. 2. THA T, the trial Tribunal erred in law and fact for declaring the Respondent as the lawful owner of the disputed land, the fact, which was not proved by him." Hearing of the Appeal was in writing. Mr. George Dogan Mwalali, learned advocate acted for the Appellant, while the Respondent was in person. The two grounds were argued together as they are related. The learned counsel for the Appellant asserted that evidence on record clearly show that the Appellant is the lawful owner of the disputed land after having purchased it from PW3, the Vendor and executed the sale agreement (exhibit Pl). He insisted that evidence adduced by all four (4) witnesses of the Appellant corroborated to support the Appellant's claims. He submitted further that, evidence adduced to support the Respondent's case was doubtful because DW2 had no power of attorney to dispose the suit landed property to the Respondent. It was argued further that the sale agreement tendered by the Respondent (exhibit D2) was questionable in its authenticity. He cited doubts raised by the wise assessors in their opinion. The learned counsel for the Appellant was of the opinion that, if the trial chairman would have assessed evidence on record, his conclusions would have been different. He referred the Court to the decision of the Court of Appeal of Tanzania in Registered Trustees of Joy in Harvest vs. Hamza Sungura, Civil Appeal No.149 of 2017. 3 In response thereto, the Respondent contended that the trial Tribunal discharged its duty in assessing evidence on record. In his opinion evidence adduced by the Appellant's witness was inconsistent. He cited the example of the testimony of PW3 that he was unable to establish how he acquired the land, which he sold to the Appellant. He glued his arguments by the decision of the Court of Appeal of Tanzania in Msafiri Hassan Masimba vs the Republic, Criminal Appeal No. 302 of 2015, that when there are inconsistences in evidence, the contradictions go to the root of the matter. He ended up praying for dismissal of the appeal. Having gone through the rival submissions, I took time to peruse the records of the trial Tribunal in order to find out if the trial chairman properly evaluated evidence on record. In so doing, I compared evidence adduced and what was pleaded by the parties in their pleadings to find out if they are concomitant. I did so based on the time-honoured principle of law that parties are bound by their own pleadings as stated by the court in numerous decisions including in Barclays Bank(T) Ltd vs. Jacob Muro, Civil Appeal No. 357 of 2019. 4 According to evidence on record all parties adduced evidence trying to convince the trial Tribunal to declare them owners of the land in dispute. In the light of the Application filed by the Appellant in the trial Tribunal, the suit land is "SITUA TED A T KIVULE AREA, ILALA, DAR ES SALAAM." This is how the suit land was described by the Appellant/Applicant in his pleadings before the trial Tribunal and the parties were to adduce evidence in respect of the said property as per the descriptions. The property in dispute has no sufficient description to show which part of Kivule area the same is located and the respective size of it. It is also not known what are the boundaries of the property or neighbouring features for one to locate it. The question is, whether in the circumstance of the matter at hand, where the property is not sufficiently described, evidence on record could prove the claims of ownership and trespass. Before delving further into the matter, I wish to state that I am aware that the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, GN. No.174 of 2003 are silent on the requirement to describe the suit property. However, section 51(2) of the 5 Land Disputes Courts Act, [Cap.216 R.E 2019], requires the District Land and Housing Tribunals to apply the Civil Procedure Code, where there is lacuna in the Regulations. Therefore, in the instant matter the provision of Order VII Rule 3 of the Civil Procedure Code, [Cap.216 R.E 2019] is applicable. It provides thus: "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.'' The essence of this provision helps the court in issuing executable orders/decrees. In Pius Kuenga Philip (suing as Attorney of Oddy Msimbe) vs Serikali ya Mtaa wa Makabe & 5 Others, Land Case No. 392 of 2015, my brother at the bench Hon. S.M. Kalunde, J insisted that sufficient description of the suit landed property affords the court with an opportunity to pass final and definite orders. I totally subscribe to his view and I wish to add that, in the absence of sufficient description of the property no court would issue an executable decree. It is also a fact that 6 where the suit property has not been sufficiently described, it is impossible to prove allegations of trespass on it. I have revisited evidence on record and found it not establishing the description of the suit landed property sufficient to identify it. Besides, even if there would have been evidence stating the size, boundaries or neighbourhood of the suit landed property, the same would not have been considered for being variance with the pleaded facts. This was insisted in Barclays Bank (T) Ltd vs. Jacob Muro (supra) that: - "... that any evidence produced by any of the parties which does not support the pleaded facts or is at the variance with the pleaded facts must be ignored." In light of the above holding of the Court of Appeal of Tanzania, the fact that the size, boundaries or neighbouring features that identify the suit landed property were not pleaded in Appellant/Applicant's pleadings, oral evidence to establish the size or boundaries of the property in dispute would be ignored. From evidence on record, I find that the matter was tried based on defective pleadings, the Application in particular which rendered the suit before the trial Tribunal incompetent. 7 In the final analysis, I find the 1st ground sufficing to dispose of the appeal. In the interests of justice, I do hereby allow the appeal and proceed to make the following orders:- 1. Proceedings, Judgment and decree of the trial tribunal are hereby quashed; 2. Parties are at liberty to institute fresh proceedings in a competent court; and 3. Each party to bear its own costs. Order accordingly.