OMARY ALI MIRAJI EDITED 2222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MANYARA AT BABATI LAND CASE NO. 13210 OF 2024 SESILIA SAMSON PANGA (suing as Administrator of the estate of the late Seremoni Labarani Koros)...............................PLAINTIFF VERSUS OMARY ALI MIRAJI................................................................................1stDEFENDANT PHILEMONI LUKASI AKO...................................................................... 2ndDEFENDANT PHILOMENA SAID LUWAMBANO........................................................... 3rdDEFENDANT BARAKA MOHAMED HUSEINI................................................................. 4thDEFENDANT PAULO KANUNGA OLODO....................................................................... 5thDEFENDANT KIBUGA JACKSON JOHN......................................................................... 6thDEFENDANT RICHARD KUSUMBA SANING'0.............................................................. 7thDEFENDANT SUMLEKI OLOODO.................................................................................. 8thDEFENDANT TUBULE OLEMBALUKU KI LI KO................................................................ 9thDEFENDANT MEPUKORI OSINGOI............................................................................. 10thDEFENDANT AUGUSTINO CHRISTOPHER KIMWERI................................................. 11™DEFENDANT RAYMOND SHABAN............................................................................... 12™DEFENDANT HASANI SULEIMAN HUSENI.................................................................. 13™DEFENDANT RULING 19h August & 23d September, 2024 Kahyoza, J. Before hearing the suit on merit, the defendant raised a preliminary objection with two points of objection. At the time of hearing, they abandoned one point of preliminary objection and retained one that- i (1) The plaint is bad in law for violating Order VII rule 3 of the civil Procedure Code, [Cap. 33 R.E. 2019] (the CPC). Mr. Njau, the defendants' advocate submitted that the plaint was bad in law for want of proper description and sufficient identification of the property. He contended that Order VIII rule 3 of the 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 title number under the Land Registration Act, the plaint shall specify that title number. The defendants' advocate submitted that the plaintiff alleged under paragraph 5 of the plaint, that the defendants trespassed onto 2159.84 acres of land situated at Naberera village. He added the plaintiff alleged further that the defendants trespassed to 1158 acres of land. He contended that the plaintiff did not state the boundaries and it is obvious that Naberera village has a large land. He contended that it was not clear whether the plaintiff's claim under paragraph 6 was part of the land stated under paragraph 5 of the plaint. To buttress his contention, the defendants' advocate cited the cases of Julius Philipo Qamara v Neema Gwandaa Mao and 2 others, Land Case No. 6/2022 stated that- 2 " While confronted with the case where the boundaries where not stated uphold the preliminary objection at page 9 of the ruling". There is also another case of Fereji v Jaluma General Supplies and another Land Case No. 86/2020 stated that- "7776 court upheld the preliminary objection. The two cases are persuasive to this Court. We pray the preliminary objection to be upheld and the suit be struck out with costs". The plaintiff's advocate, Mr. Alfred opposed the preliminary objection. He submitted that the plaintiff did specify the title number of the customary right of occupancy No. 1 comprising the land measuring 2159.84 acres in Naberera village Simanjiro district. He contended that the plaintiff had failed to provide description of the property in dispute is misconceived. He contended that the land in dispute is identified by title which is customary right of occupancy. He contended that the essence of Order VII rule 3 of the CPC is to enable the court to determine the territorial jurisdiction of the court and to assist the court to issue executable orders. The plaintiff's advocate added that section 21(1) of the Village Land Act, [Cap. 114 R.E. 2019] states that there shall be a register of the village land which registers the number of the title deed and owner of the customary 3 right of occupancy. He contended that if a search is conducted, there is no doubt the owner will be found in the register. The plaintiff's advocate prayed the preliminary objection to be overruled with costs. In his brief rejoinder Mr. Njau reiterate his submission in chief and added that the plaintiff's advocate conceded to the preliminary objection in a sense that if one wants to identify the disputed and one has to go through the village register. For that reason, the plaint does not provide sufficient description to identify the property. He contended that this Court in cases of Julius Philipo Qamara v Neema Gwandaa Mao and 2 others, Land Case No. 6/2022 and Fereji v Jaluma General Supplies and another, Land Case No. 86/2020 held that, sufficient description must be given and that the annexture will have value when it is admitted in evidence. He prayed the objection to be sustained and the suit to be struck out with costs. Does the plaint provide sufficient description of the subject matter? It is beyond dispute that the subject matter of the suit is an immovable property. According to Order VII rule 3 of the CPC where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. The law provides further that, in case such 4 property can be identified by a title number under the Land Registration Act, the plaint shall specify the title. As submitted by the plaintiff's advocate the plaint specifies under paragraph 5 the title number of the customary right of occupancy. The customary right of occupancy provides among other things, the boundary of the land it refers and its size. Thus, once the subject matter is referred by specifying the title and number of the customary right of occupancy the land is property described. There would be no lands held under customary right of occupancy in a given village with similar title and number. I am of firm opinion that a title and number of the customary right of occupancy are a sufficient description to identify an immovable property. As shown above, Order VII rule 3 of the CPC requires the plaintiff to provide the description of the subject matter of the suit in the plaint. It is mandatory obligation, the plaintiff(s) has to comply with. The question is whether the plaint provides the description of the subject matter. There is no doubt that the plaint provides the description of the plaintiff's land by providing the title number of the customary right of occupancy. Another question is whether the plaintiff's land identified by the customary title of occupancy No. 1 is subject matter of this case?. I would quickly reply negatively that it is not. The plaint provides that the plaintiff owns the land 5 identified as customary title of occupancy No. 1 with an area of 2159.84 acres. The land which is subject of dispute is 1158 acres. Simply put the plaintiff's claim is for 1158 acres of land and not for the whole land specified under the customary title of occupancy No. 1. The Essential Law Dictionary, Sphinx Publishing defines the phrased "subject matter" to mean- ’14 matter or topic presented for consideration or debates; the right or property that is the foundation of a dispute or lawsuit" Black's Law Dictionary defines the phrase subject matter as- "The subject or matter presented for consideration; the thing in dispute; the right which one party claims as against the other, as the right to divorce; of ejectment; to recover money; to have foreclosure" It is clear from the above definition that the subject matter is the right which one party claims as against the other, which in the present case is 1159 acres of land. After I carefully went through the plaint I found out that the plaintiff did not provide the description of the subject matter. Paragraph 6 of the plaint states that the defendants jointly and severally trespassed into the disputed farm owned by the plaintiff's husband and occupied over 1159 acres. The plaintiff did not provide a description of the property sufficient to identify it. 6 I agree with the defendants' advocate that the plaintiff did not provide a description of the subject matter sufficient to identify it. Thus, should the plaintiff emerge successful, it would be hard to execute the order as no one would tell the boundaries of the land in dispute. In the end, I sustain the objection, by finding that the plaint does not provide a description of the subject matter sufficient to identify it. For that reason, the plaint is incompetent as it contravenes Order VII rule 3 of the CPC. I am of the firm view that the principle of overriding objection cannot rescue the sinking ship as Order VII rule 3 of the CPC is coached in the mandatory terms. Consequently, the remedy is to strike out the suit, as I hereby do, with costs. I order accordingly. Dated at Babati this 23rd day of September, 2024. /■) John R. Kanyoza Judge Court: Ruling delivered in the presence of Ms. Zalfina Abdallah advocate for Plaintiff and in the absence of the defendants. B/C. Ms. Fatina (RMA) present, r John R. Kahyoza Judge 20. 9. 2024 7