land case 323 of 2023 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 323 OF 2023 SAID HEMED MBONDE....................................................... PLANTIFF

VERSUS LUZANDO VILLAGE COUNCIL........................................................1stDEFENDA AISHA MUSA MKIMA................................................................... 2ndDEFENDAN HALIMA HAMADI CHANDE........................................................... 3rdDEFENDA ATTORNEY GENERAL.................................................................... 4thDEFENDA

RULING Date of last Order: 18/06/2024 Date of Ruling: 21/06/2024 S. D. MWAIPOPO, J This is a ruling in respect of the issue raised by the court suo motu on 6th of June 2024, when the matter was set for the final Pre Trial Conference and parties where to address court on the issues to be framed for Trial. When the learned counsel for the Plaintiff was called upon to address the court, he framed the first issue as follows; "Whether the Plaintiff is the lawful owner of the suit property." I found the issue to be too general for lack of description of the property as required by the law. Upon my careful perusal of the Plaint and the 1 prayers contained herein, I could not find the said descriptions. I therefore suspended the final PTC session and ordered parties to come and address the court on the issue of lack of description of the suit property as required by the law. Hence, the matter was adjourned till 10th of June 2024. At the commencement of the session, all parties were represented. The Plaintiff was represented by learned Advocate Masuna Gabriel Kunju, the 1st and 4th Defendants were represented by Jesca Shengena, learned State Attorney and the 2nd and 3rd Defendants were represented by learned advocate Khalifa Msumi. On addressing the issue raised the court Mr. Masuna for the Plaintiff kicked the ball rolling. He contended that, the Plaint clearly describes the

suit property under para 5 and 6 when read together, especially paragraph 6 which has attached the annexure which is a contract for selling the property in dispute (shamba). The annex shows the boundaries of the Shamba, and the size. He contended that annexures are part of the pleadings as stated in commercial case no. 146/2021 between Jangid Global FZC Vs. Jangid Plaza and therefore the Plaint when read together with annextures is proper. If the court will find the Plaint does not show descriptions, he then prayed that it orders addition of particulars as it may just be deemed fit subject to costs. Submitting in rebuttal or against the submissions of the learned counsel for the Plaintiff, Ms. Shengena, learned State Attorney, stated that the matter deals with unsurveyed land. In looking at whether the land has been described properly, Order VII Rule 3 of the CPC has to be resorted to for 2 guidance. The said order stated clearly that; in suits involving immovable property, the Plaintiff is supposed to describe the property properly and sufficiently in the Plaint to be registered in court. Therefore, the Plaintiff ought to have complied with the order. With regard to the cited paragraph 5 and 6 of the Plaint, she contended that the Plaintiff has not complied with the criteria stated in the Civil Procedure Code to enable the court to issue an executable decision. She cited the

case of Laurent Mbula vs. Kinondoni Municipality and AG Land Case no. 111/2022 High Court Tanzania DSM page 7 to support her position, in compliance with Order VII Rule 3 of the CPC and the case of Athumani Magogo Vs. Gabius Edgar Magenga page 5 she argued that in the instant matter the suit is not sufficiently described to enable the court to issue an executable decision. She argued that Plaint ought to have described the suit land properly under paragraph 5 of the Plaint. The suit property ought to have been described instead of adding up an attachment of contract of sale before describing the said land under para 5 of the Plaint. Therefore she concluded that, the Plaint that was filed in court did not comply with Order VII Rule 3, therefore it should be struck out with cots. The learned counsel for the 2nd and 3rd Defendants, concurred with the submissions of the Plaintiff on the basis that Para 5 and 6 of the Plaint show the descriptions of the suit property when read together with the attachment. 3 In rejoinder, the learned counsel for the Plaintiff reiterated his submissions in chief. He contended that, the annexure contained in the Plaint is part of the Plaint and that the description has been stated in the annexture by showing to size of the land and boundaries bordering the property and features surrounding the disputed area. He contended that looking at the paragraph

it is shown that the description of the property is unsurveyed land. He argued that, the plaint has complied with the provisions of Order VII Rule 3 of the CPC, as stated above. He distinguished the cases cited by the Defendants for being persuasive and urged the court to be guided by the cases cited by the Plaintiff. Finally, he prayed for the court not to strike out the Application with costs in the event it finds that; there are no descriptions of the property rather the court should order for more particulars to be added based on order 6 Rule 5. He prayed that the court should not order costs. Since the issue has been raised by the court suo moto. Having heard the rival submissions of the parties, the broad question to be addressed by the court is whether the Plaint before the court has provided sufficient description of the suit property as required under Order VII Rule 3 of the Civil Procedure Code. In dealing with this issue, I have first decided to reproduce the provisions of the said Orderwhich read as follows; "Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it 4 and in case of registered land, such property can be identified by a title number under the Land Registration Act, the Plaintiff shall specify such title number." The question to be addressed is whether the Plaint has

provided sufficient description of the property in dispute. I have revisited the Plaint and noted under para 5 of the same it reads as follows; The Plaintiff's claims against the 1st 2nd and 3rd defendants jointly and severally are as follows; a) For a declaratory order that the unsurveyed piece of land covering two (2) acres located at Luzando Village within Mkuranga District is lawfully owned by the Plaintiff, (hereinafter to be referred to as the suit property. b) For a declaratory order that the 1st Defendant is a trespasser to the suit property. I have also revisited the prayers contained in the Plaint and observed that they read as follows; Wherefore the Plaintiff prays for Judgement and Decree against the defendants jointly and severally as follows; a) For a declaratory order that unsurvey piece of land coloring two acres located at Luzando village within Mkuranga District is lawful owned by the plaintiff. b) For a declaratory order that the 1st defendant is a trespasser to the suit property. 5 c) For general damages at the assessment by the court. d) Costs of the suit. Looking at para 5 of the Plaint and the prayers, the description of the suit property given is that, it is unsurveyed piece of land covering two (2) acres located at Luzando Village within Mkuranga District. These descriptions, in my position are not sufficient to describe the suit property since they do

not indicate the size, boundaries and features surrounding it. The area of Luzando Village within Mkuranga District is huge indicate support doing it the area of Luzando Village within Mkuranga District is huge and there can be so many distinct pieces of land covering two acres apart from those of the plaintiff. As rightly argued by the learned Principal State Attorney, the Plaintiff ought to have described the suit land properly and sufficiently under paragraph 5. The argument by the learned counsel for the Plaintiff that the suit land has been described under paragraph 6 of the Plaint are lame since the said paragraph only states about the details of the purchase of the suit property from the second and third defendants at a consideration of TZS 20,000,000 which was paid upon signing the Sale Agreement, titled ''Mkataba wa kuuziana Shamba". The said paragraph has made a reference to the attached copy of the Agreement to that effect. Therefore, it is my settled position that the Plaint ought to have described the suit land, under paragraph 5 of the same since paragraph 6 only affirms the issue of the purchase of the ''Shamba". 6 Further, the argument that annexures are part of the Pleadings does not help anything, if the Plaint itself is silent on the descriptions. The Annextures only further proves and supplements what has been specifically stated in the Plaint. They are not

meant to be an alternative to the contents that are supposed to de described in the Plaint in accordance with the law. I agree with the learned counsel for the 1st and 4th Defendants that the Plaintiff was required to make sure that the Plaint contains all descriptions of the suit land. In my considered view the description is too vague as it does not specifically describe the disputed property to the required standards. Se the case of Laurent Mbwila (supra) cited by learned State Attorney. The purpose of the Order VII Rule 3 of the CPC Code Cap 33 RE 2019 is for the Plaintiff to indicate the description of the suit property claimed within the Plaint, the unsurveyed land ought to have been described therein sufficiently with its size, boundaries and features. Thus the case of Jangid Global (supra) is hereby distinguished in this regard. The Plaintiff is duty bound to give descriptions sufficient to identify the property in dispute so that if a decree is passed it can be smoothly executed. Moreover, the description could have assisted the court in formulating issues for trial. In the instant case, the court could not proceed with the exercise following a vague issue framed by the Plaintiff which prompted the court to order parties to address the court on it. Further, in the case of Laurent Mbwila(supra) my sister Mgeyekwa J as she then was 7 added that; prescription of the suit

property also assists in knowing whether the suit land has been a subject of previous litigation. For the reasons afore said, I find that the Plaintiff suit is improperly filed before this court for failure to exhaust the descriptions of the suit land. Therefore, there is no way this court can proceed to determine the case on merit. I cannot even proceed to order the Plaintiff to add more particulars either, as prayed for by the Plaintiff, since to do so, at this juncture, will not be in the interest of justice so to speak. This court cannot do homework for advocates who are required to prepare their pleadings in accordance with the requirements of the law. Therefore, the suit is incompetent before this court. I accordingly proceed to strike it out, as the issue was raised by the court, each party shall bear its own costs. D. MWAIPOPO

JUDGE 21/06/2024 8