RAZAK RULING FINAL BRU

IN THE HIGH COURT OF TANZANIA (SUB - REGISTRY OF GEITA) AT GEITA LAND CASE NO. 11856 OF 2024 RAZAKI OMARI…………………………………….….…….1st PLAINTIFF FIKIRI B. MAGADULA ………………………………...….2nd PLAINTIFF ARISTACUS MATHIAS KARUMUNA………….….………3rd PLAINTIFF ATHUMANI MAZEMULE………………………….………..4th PLAINTIFF ANTHONY GAMBA ………………………………….………5th PLAINTIFF FREDRICK RAPHAEL MKOPI …………………....………6th PLAINTIFF TAWA CHARLES …………………….………....….………..7th PLAINTIFF MASHAKA KITENDE …………………………….………....8th PLAINTIFF NYAMIZI MWALULI SHAGA…………….………………..9th PLAINTIFF PILI SAREHE ……………………………………..….…….10th PLAINTIFF MARCO KATUNDA…………………………….…..……….11th PLAINTIFF CRISPINE BENNY KAGOMA …………………...……….12th PLAINTIFF ROSE JACKSON MASUNGA (Administratrix of the estates of the late Obadia Madini Mulokozi) …..………………13th PLAINTIFF VERSUS BUSERESERE VILLAGE COUNCIL………………………1ST DEFENDANT DEUS MSIBA………………………..………………………2ND DEFENDANT MASUMBUKO ELIAS…………………………..………….3RD DEFENDANT DAUD RUSETURA………………………………………….4TH DEFENDANT PAULO ODEMBA …………………………………..………5TH DEFENDANT CHATO DISTRICT COUNCIL………………………...….6TH DEFENDANT THE ATTORNEY GENERAL…………………….……..….7TH DEFENDANT RULING 1 Date of last Order: 14/08/2024 Date of Ruling: 10/09/2024 K. D. MHINA, J. This is the ruling regarding the preliminary objections raised by the 1st, 6th, and 7th defendants on the one hand and the 2nd, 3rd, 4th, and 5th defendants on the other hand, “attacking” the plaint filed by the plaintiffs. Therefore, before going to the merits and demerits of the preliminary objections raised, briefly, I will analyse the purpose of raising the preliminary objection in the suit. In Shahida Abdul Hassanali Kassam vs. Mahedi Mohamed Gulamali Kanji, Civil Application No. 42 of 1999 (unreported), the Court of Appeal elaborated on the purpose of preliminary objection. It stated that: "...the whole purpose of a preliminary objection is to make the court consider the first stage much earlier before going into the merits of an application...so in a preliminary objection, a party tells the court the existing circumstances do not give you jurisdiction. It cannot be gained said that the issue of jurisdiction has always to be determined first". 2 Further, in Bank of Tanzania Ltd vs. Devram P. Valambhia, Civil Application No. 15 of 2002 (unreported), the Court of Appeal reiterated its earlier position when it held that - "The aim of a preliminary objection is to save the time of the court and of the parties by not going into the merits of an application because there is a point of law that will dispose of the matter summarily." In raising the preliminary objection, a party raising it must raise a pure question of law as per Mukisa Biscuits Manufacturing vs. West End Distributors Ltd (1969) EACA 696, where it was held that; “The preliminary objection must raise a pure point of law.” ….A preliminary objection is in the nature of what used to be a demurrer It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. From above, two issues are essential: one, a point of law is argued on the assumption that all the facts pleaded by the other side are correct, 3 and two, no ascertainment of facts is allowed and or it cannot be raised if court discretion is permitted. However, in raising the preliminary objection(s), the Court of Appeal has cautioned against the improper raising of the preliminary objection. In Karata Ernest and others vs. The Attorney General, Civil Revision No 10 of 2010 (Tanzlii), the Court of Appeal held that; “The improper raising points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse issues.” Therefore, I cited the above authorities because this ruling deals with two sets of preliminary objections raised by the defendants. Briefly, in the instant suit, the plaintiffs sued the defendants for the recovery of land, which they claimed to have been forcefully snatched from them, together with their properties, which the defendants destroyed at the time of demolition of their structures in the plots. The plaintiffs claimed they purchased their lands from the 1st defendant in 1995. 4 After being served with the plaint, despite filling their respective written statements of defence, the defendants raised preliminary objections. The 1st, 6th, and 7th defendants raised the following grounds; i. The Suit is incompetent and bad in law for contravening the provisions of Order VII Rule 6 of the Civil Procedure Code [CAP 33 R.E.2019]. ii. The Suit is incompetent and bad in law for contravening the provisions of Order VII Rule 3 of the Civil Procedure Code [CAP 33 R.E. 2019]. iii. This suit is premature for failure to issue 90 days' notice contrary to section 6 (2) of the Government Proceedings Act R.E 2019 as amended by Written laws (Miscellaneous Amendment) Act No. 1 of 2020. On their side, the 2nd, 3rd, 4th, and 5th defendants canvassed only one ground of preliminary objection, that; i. The Suit is incompetent and bad in law for contravening the provisions of Order VII Rule 1 (i) and 3 of the Civil Procedure Code [CAP 33 R.E. 2019]. 5 The preliminary objections were argued by way of oral submissions; the plaintiffs were represented by Mr. Pauline Michael, Learned Advocate. On the other hand, the 1st, 6th, and 7th defendants were Mr. Allen Mbuya and Abel Manguya, Learned State Attorneys, whilst the 2nd, 3rd,4th, and 5th defendants by Mr. Laurent Bugoti, Learned Advocate. At the hearing, the State Attorneys abandoned the 1st limb of objection and argued the 2nd and 3rd limbs of objection. In supporting the 2nd limb of the objection, Mr. Manguya submitted that Order VII Rule 3 of the Civil Procedure Code requires the plaint to disclose the description of the property in dispute. He argued that, in this suit, the plaint does not disclose the subject matter of the suit and, therefore, contravened Order VII Rule 3 of the CPC. He explained that the plaint vaguely mentioned the property, as indicated from paragraph 6 to paragraph 16, in the sense that it is difficult to understand the land in the disputed land. The disputed land is unsurveyed; therefore, the boundaries should be clear, and the neighbours to the land should be known. 6 To expound further, Mr. Manguya submitted that Order VII Rule 3 of the CPC is couched in mandatory terms, and its purpose is to assist the court in identifying the land in dispute so that an executable decree can be issued. Therefore, the failure of the plaintiffs to describe the suit land contravened the law, thus, the suit shall be struck out. To substantiate his submission, he cited Fereji Said Fereji vs. Juma Jaluma General Supplies Ltd and Another, Land Case No 86 of 2020 (Tanzlii) and Mwanzani Ramadhani Duma vs. Peter Kiula and Others, Land Case No 321 of 2022 (Tanzlii) at page 5. For the 3rd limb of the objection, Mr. Mbuya submitted that Section 6(2) of the Government Proceedings Act stipulates the procedure to sue the Government, which requires a 90-day notice service to the government ministry, department, or other government office and a copy to the attorney and solicitor. He further argued that paragraph 14 of the plaint indicated an annexure MLA3. That annexure was collectively 90-day notice with reference No. A/0013/PML/YSM/2021 dated 28 March 2021. 7 Furthermore, paragraph 16 of the plaint indicated an annexure MLA4, a copy of the Ruling in Land Case No. 12 of 2022 of the High Court Mwanza. In that decision, which was struck out, the same notices attached to this case as MLA3 were attached. The reason for the struck out was that the plaintiff did not serve the 90-day notice to the 1st and 6th defendants. Therefore, it was proper for the plaintiffs to issue fresh notices and affect the service to the 1st,6th, and 7th defendants without leaving behind the solicitor general's office. He also stated that annexure MLA3 was never served to the 1st and 6th defendants concerning this suit. Only the 7th defendant was served with MLA3. On his side, Mr. Bugoti argued that the law under Order VII Rule 1 (i) of the CPC requires the plaint to contain a statement regarding the value of the subject. He stated the purpose is based on two issues: one, to identify the jurisdiction of the court and two, to calculate the court fee. Mr. Bugoti explained that in this suit, the value of the subject matter was never disclosed in the plaint. 8 To cement his argument, he cited Adinan Mohamed Almas and others vs. Mwajabu Abdallah Jongoa, Land Case No 23 of 2022 (Tanzlii) at page 6, and stated that this court defined the word value as required under O. VII Rule 1 (i) of the CPC. Further, in the cited case of Fereji (Supra) on page 4, this Court held that it is mandatory to disclose the value of the subject matter. He further argued that the reliefs in the plaint was compensation of TZS. 100,000,000/= for each plaintiff for their business stalls and be declared as land owners in disputes. But those prayers cannot be taken as the value of the subject matter. Regarding Order VII Rule 3 of the CPC, he submitted that the purpose of describing the land is to establish territorial jurisdiction and for the court to issue an executable decree per the case of Fereji (Supra). He also stated that in the cited case, the court held that the description of the unsurveyed plot must mention neighbours, boundaries, and location to differentiate the land in dispute from other lands. On this, he cited the decision of the Court of Appeal in Olurubare Nginyu vs. Kilempu Kinoka Laizer, Civil Appeal No. 416 of 2021 9 (Tanzlii) at, page 20, where it was held that failure to describe the suit land is the failure to establish the course of action and proceedings become a nullity. He concluded by submitting that in both Order VII Rules 1 and 3 of the CPC, the word used is shall, and as per section 53 (2) of Cap 1, that means mandatory. In response, Mr. Michael started with the objection based on O.VII Rule 3 of the CPC and submitted that under paragraphs 11 and 12 of the plaint, it was revealed that the land in dispute was ruined, the buildings were demolished, and the road was constructed. Therefore, in such circumstances, it was impossible for each plaintiff to know the boundaries of the land, taking into account that the land was not surveyed. However, in Annexure MLA1, it was indicated that the stalls were located at Buselesele Market, though the neighbours were unknown. Commenting on the cited cases of Fereji Said Fereji, Mwanzani Ramadhai Duma and Olubare Nginyu (Supra), he argued that they were distinguishable because, in the cited cases, the land lands were not ruined. 10 Responding to an objection regarding the 90-day notice, he referred this court to paragraph 14 of the plaint and stated that it was clearly stated that the 1st, 6th and 7th defendants were served with the 90-day notice. He explained that per the attached annexures, the 90-day notice dated 28 March 2021 was addressed to Buselesele Village Council. A copy of that notice was served to the office of the Attorney General Chambers on 14 April 2021. Though this was received in the office of the Solicitor General, it was stamped by the office of the Attorney General stamp. It was after the Attorney General’s office officials directed him to do so. Other copies were sent to Chato District Council and Buselesele Village Council and received on 12 April 2021 and 30 March 2021, respectively. Therefore, he argued that the notices were served in accordance with section 6 (2) of the Government Proceedings Act. Regarding Land Case No. 12 of 2022, he submitted that it was struck out because they did not attach the notices; therefore, there was no need to serve the fresh notices. Responding to the objection by Mr. Bugoti on the non-disclosure of the value of the subject matter, he argued that the value was unknown 11 because the land in dispute had already been demolished. However, in the prayers, each plaintiff prayed to be paid an equivalent of TZS 100,000,000/= as an estimated value. He stated that Order VII Rule 1 (i) of the CPC does not state where the statement regarding the value of the subject matter should be placed. Thus, since a relief part is a part of the plaint, they complied with section 53 (2) of Cap 1 of Laws. In rejoinder, briefly, regarding O. VII Rule 3 of the CPC, Mr. Mbuya submitted that paragraphs 11 and 12 in the plaint mentioned by the counsel for the plaintiff do not disclose or give any identification of the location, size and neighbours to the suit land and boundaries. Further, the plaintiffs were supposed to know the size of their lands, neighbours, and boundaries. Regarding the 90-day notice, he argued that the issue of a notice received by the office of the Solicitor General to be stamped by the Attorney General's stamp because the counsel was directed to do so was a statement from the bar, and the court should ignore it. 12 On his side, Mr. Bugoti submitted that the relief part of the plaint has its own provision of law, which is Order 7 Rule of the CPC. That is a distinct requirement in the plaint, and it differs from what was raised as the objection based under Order VII Rule 1(i) of the same Act. He further explained that Order VII Rule 1 (i) clearly states that there must be a statement on the value of the subject matter and not a prayer. Therefore, relief does not amount to the statement of the value of the subject matter. Further, paragraph 2 in the prayer was about general damages and not the value of the subject matter. Having considered the pleadings and the written submissions made by the learned counsel for the parties, the issues raised by the parties are as follows: i. Whether or not there was a contravention of Order VII Rule 3 of the CPC for a failure to describe the disputed land. ii. Whether or not there was a contravention of section 6(2) of the Government Proceedings Act for a failure to serve a 90 days’ notice 13 iii. Whether or not there was a contravention of Order VII Rule 1 (i) of the CPC for failing to disclose the value of the subject matter of the disputed property. Upon determination, I will start with the first issue, and on this, the entry point is Order VII Rule 3 of the CPC, which reads; “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”. [Emphasis provided] According to the cited provision of law, it is mandatory for the plaintiff in the plaint to describe the subject matter. If the property can be identified by a title number, it can be identified by a Land Registration Act, and the plaint shall specify the title number. In the cited decision of this Court in Fereji Said Fereji (Supra), the rationale of describing the immovable property in the plaint is to distinguish it from other properties. It was held that; 14 “Such description may include the location, title number for surveyed plots, neighbours or boundaries for unsurveyed plots, or any form of description that would sufficiently identify and distinguish the suit property from other properties”. Therefore, from the provision law and case laws, the issue of description is fundamental in filing cases as per Order VII Rule 3 of the CPC; without a proper description, the Court may end up issuing an unexecutable decree. This is a position also of this Court in Joel Kondela Maduhu vs. Siya Ndeja, Land Appeal No. 3 of 2021 (Tanzlii) at page 8, which held that; “It is a settled principle of the law that any claim of land should comprise a proper description of the suit land for definite and complete execution order''. It should be noted that apart from the plaint itself, documents supporting it may also be proper documents to describe the land in dispute. However, the document (s) must sufficiently describe the property. This is the position given by the Court of Appeal in Martin Fredrick Rajab vs. Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019 CAT (Tanzlii) at page 13, which held that; 15 “From what was pleaded by the appellant, it is glaring that the description of the suit property was not given because neither the size nor neighbouring owners of pieces of land, among others, were stated in the plaint. …… Apart from what is amiss in the pleadings, at the trial, none of the witnesses on the appellant’s side managed to give any description of the suit property. This is evident in the sale agreements on pages 121 to 123 of the record of appeal, which, besides showing the names of the sellers, buyer, the respective prices and those who witnessed the sale, including PW4, nothing is stated on the location, size and neighbours to the said suit land.” What can be gleaned from the provision of law and the above-cited cases is for the land to be properly described, the following must contain the plaint or the documents attached to the plaint; i. title number if the land is registered. ii. location iii. size and iv. neighbours or boundaries. 16 Flowing from above, in the instant suit, having gone through the plaint containing seventeen (17) paragraphs, nothing was pleaded as the description of the suit properties. There is no single paragraph or line describing the suit properties. Further, upon perusing the collective annexures MLA 1, the sale agreements, and the purchasing receipt of the disputed land, nothing was revealed in the description of the disputed land. Neither neighbours, boundaries, size or title number (if registered) were stated. In his submission, Mr. Michael stated that the plaintiff failed to describe the land in dispute because the land was ruined and the buildings were demolished. In my view, that is not an exception to the mandatory provision given under Order VII Rule 3 of the CPC. That provision of law mandatorily requires the property to be sufficiently described in the plaint. In the upshot and conclusion, I sustain this limb of the preliminary objection that the plaint does not describe the suit land for the reasons I elaborated above. And since this alone disposes of the suit, I don’t see the 17 relevance of determining the remaining limbs of preliminary objections as they will not change the outcome of the suit. Consequently, I struck out the suit with costs awarded to the defendants. I order accordingly. K. D. MHINA JUDGE 10/09/2024 18