RUKULATWA 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.16248 OF 2024 (Originating from the Judgment and Decree of the District Land and Housing Tribunal for Temeke Land Application No.158 of 2018 delivered on 29th May 2023) RUKULATWA KIIGUTA.…..…………….………………….....APPELLANT VERSUS LAZARO METHUSELA MAGESE………………………1ST RESPONDENT MJIHADHARI BAKARI…………………………………2ND RESPONDENT SUBIRA ABDALLAH……………………………………..3RD RESPONDENT MOHAMED MPAMBA……………………………………4TH RESPONDENT JUDGMENT 16th & 31st January,2025 L.HEMED,J This Appeal is rooted from the decision of the District Land and Housing Tribunal for Temeke in Land Application No.158 of 2018, delivered on 29th May 2023. In that case the 1st Respondent, Lazaro Methusela Magese, 1 sued the Appellant herein, Rukulatwa Kiiguta, the 2nd, 3rd and 4th respondents, Mjihadhari Bakari, Subira Abdallah and Mohamed Mpamba, respectively, for trespass into the suit landed property measuring 15 acres, located at Buyuni, Chambewa, Pemba Mnazi, in Kigamboni Municipality. In the said case the 1st Respondent sought before the trial Tribunal to be declared the lawful owner of the disputed property. He was also praying for permanent injunction order to restrain the Appellant, the 2nd, 3rd and 4th respondents from interfering with his possession of the disputed land. Having heard the matter on merit, the trial tribunal ended up declaring the 1st Respondent owner of the disputed piece of land. Aggrieved, the Appellant preferred the instantaneous appeal on the following grounds: - “1. That the Honourable Trial Tribunal erred in law and in fact for basing its decision on Land Application No. 158 of 2018 which is different from Land Application No. 157 of 2018 that was filed before the Tribunal by the 1st Respondent and defended by the 2nd and 4th respondents. 2 2. That the Honourable Trial Tribunal erred in law and in fact for basing its decision on the original pleadings involving four (4) respondents before amendment instead of basing the decision on the amended pleadings involving three(3) respondents, thereby acting on non-existing pleadings. 3.That the Honourable Trial Tribunal erred in law and in fact by proceeding to determine the application against the appellant when knowing that the appellant was never served with either summons to appear or to file Written Statement of Defence and when the summons issued by the Tribunal to base substituted service contained false and misleading information by the court process server who initially lied to the Tribunal that the appellant was not available to be served and later that the appellant was caring a sick child far from his residence, while the truth is that the appellant has at all times been leaving outside Tanzania and could have never been caring a sick child in Tanzania when the summons were issued and served. 4.That the Honourable Trial Tribunal erred in law and in fact by proceeding to hear and determine the application against the appellant without affording him an opportunity and right to be heard, contrary to 3 the cardinal rule of natural justice, the ad alteram partem rule.” Hearing of the appeal was done by way of written submissions. The Appellant was represented by Dr. Abdon Rwegasira, learned advocate while the 1st Respondent enjoyed the legal service of Mr. Lutufyo Mvumbagu, learned counsel. The 2nd and 4th respondents who were represented by Mr.Menson Lesika, learned advocate could not file submissions as they appeared to be supporting the appeal. The 3rd Respondent could not appear or file submissions despite being served including by substituted means by publication in Mwananchi Newspaper of 17th August 2024. Having ready the rival submissions and in the course of perusing the records of the trial Tribunal, the pleadings in particular, I encountered with the AMENDED APPLICATION which was filed at the trial Tribunal on 16th June of 2021. According to the said Amended Application, the facts constituting the location and address of the suit landed property was stated to be at “BUYUNI, CHAMBEWA, PEMBA MNAZI in KIGAMBONI MUNICIPALITY, DAR ES SALAAM.” 4 I proceeded further to read the facts constituting the cause of action and found paragraph 7(i)&(ii) of the Amended Application to describe the property as follows: - “(i) That the Applicant is the lawful and beneficial owner of unsurveyed piece of land measuring 15 acres, located at Buyuni, Chambewa, Pemba Mnazi, in Kigamboni Municipality, purchased the same in the year 2008 from Mgeni Masudi Faki… (ii) That after purchasing, the Applicant enjoyed peaceful occupation of the disputed land for a short time as in the year 2010, the 1st Respondent sold part of the disputed land measuring five (5) acres to the 2nd Respondent. Later on in the year 2018, the 1st Respondent again sold another part of the disputed land measuring nine (9) acres to the 3rd Respondent.” [Emphasis added] 5 Having read the above paragraph, I failed to know the exactly location of the suit landed property at Buyuni, Chambewa, Pemba Mnazi, in Kigamboni Municipality as the facts establishing the location of the suit land and those constituting the cause of action, could not describe the property sufficiently to identify it. When the matter was called for necessary orders on 16th January, 2025, I directed parties to address the court on whether the matter before the trial Tribunal was competent after having failed to provide the description sufficient to identify the suit landed property. Parties prayed to address the said point by way of written submissions. The court granted the prayer and ordered submissions to be filed by 24th January 2025. However, by 25th January,2025 when I accessed the electronic file, I only found the submissions of the Appellant. The 1st Respondent opted not to file his submission as agreed and directed by the court. The failure to file submission in respect to the point that was raised by the court suo moto has the implication that the 1st Respondent has yielded to it. I have keenly read the available submission which was presented by the counsel for the Appellant and found it supporting the point. According to the Appellant’s learned counsel, the suit before the trial Tribunal was 6 incompetent as the suit landed property was not sufficiently described for identification of it. He cited Order VII Rule 3 of the Civil Procedure Code [Cap.33 R.E 2019] praying for the proceedings of the trial tribunal to be quashed. I am at one with the learned counsel for the Appellant that the requirement for the pleadings to provide description of the suit property sufficient to identify it is provided under Order VII Rule 3 of the Civil Procedure Code(supra)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 the title number under the Land Registration Act, the plaint shall specify such title number.” [Emphasis added] The above provision is couched in mandatory way through the use of the word “shall”, requiring pleading to contain a description of the property sufficient to identify the suit landed property. It is an elementary knowledge that failure to comply with mandatory provision renders the suit incompetent before the court/tribunal. 7 The question that arises is whether Order VII Rule 3 of the Code is applicable in suits filed in the District Land and Housing Tribunal. I am aware that the procedural law applicable in the District Land and Housing Tribunal is the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, GN.No.174 of 2003. However, section 51 of the Land Disputes Courts Act [Cap.216 R.E 2019] permits the application of the Civil Procedure Code when there is lacuna in the Regulations. I have gone through the Regulations, that is GN.174 of 2003 and could not find any provisions that provides on how the suit landed property should be described in the Application Form presented before the Tribunal. This implies the lacuna in the Regulations in regard to the description of the suit landed property. This being the case, Order VII Rule 3 of the Code becomes relevant and applicable in the District Land and Housing Tribunals. Additionally, there is a plethora of cases in which courts have insisted the importance and necessity of describing the suit landed property. One among many decisions is that of Marti Fredrick Rajab vs. Ilemela Municipal Council and Another, Civil Appeal No. 197/2019, where the Court of Appeal of Tanzania observed thus:- 8 “From what was pleaded by the appellant, it is glaring that the description of the property was not given because neither the size nor neighbouring owners of the pieces of land among others, were stated in the plaint. This was not proper…in terms of the dictates of order 7 rule 3 of the Civil Procedure Code…” In the above cited decision, the Court of Appeal of Tanzania insisted that where the dispute is on unsurveyed land, the description should include physical features found around it, the size, the boundaries’ marks, the neighbours and more others. The rationale for providing description of the suit landed property sufficient to describe it is to enable the court to pass a final, definite and executable decree/order. This point was also insisted in an Indian case of Badhu Das and Anr vs. Uttam Charam Pattanaik, AIR 2007 Ori 24, 2006 II OLR 80 that: - “…What exactly the land or the area over which the dispute exists is a question which goes into the root of the matter relating to substance of the case. In the absence of such description in the plaint or supply of the map by annexing the same to the plaint and the evidence to the above effect, no court would pass a decree, as such a decree would be in 9 executable or would be rendered otiose. Even if the court finds that the plaintiff had title and possession in respect of the suit land, in absence of proper description…the decree cannot be executed…” The suit landed property in the instant case is an unsurveyed land according to the pleadings, it is located at “BUYUNI, CHAMBEWA, PEMBA MNAZI in KIGAMBONI MUNICIPALITY, DAR ES SALAAM.” However, there is no further information in the pleadings describing the part of Buyuni, at which the suit landed property is situated. My firm view is that failure to provide information sufficient to identify the suit landed property makes the decision of the trial Tribunal a white elephant as the same cannot be executed. The fact that the point raised by the court suffice to dispose of the appeal, I find no any reason to determine the other grounds of appeal as were presented by the Appellant. I am holding so because the point of competence of the suit before the trial tribunal renders whatever done by the trial Tribunal in regard to the instant matter, including the proceedings a nullity. 10 In the end, I find the suit before the trial tribunal was incompetent it ought to have been struck out than being heard and determined on merit. I thus proceed to quash the proceedings, judgment and the decree. In case the dispute subsists, parties are at liberty to institute fresh suit before a competent court. Since the matter has been disposed of by the ground raised suo moto by the court, the Appellant is entitled to half of the costs incurred. Order accordingly. DATED at DAR ES SALAAM this 31st January,2025. L.HEMED JUDGE 11