LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 7947 OF 2024 (Originating from Application No. 26/2020, Temeke District Land and Housing Tribunal) SHAMSI SHOO......... ............... APPELLANT VERSUS ABRAHAM MALICK MBENA as a personal representative of the Late Malick Abdallah Mbena (Deceased).................. 1st RESPONDENT JUDGMENT 5th & 25th September 2024 L. HEMED, J. The suit piece of land subject of this matter is an unsurveyed parcel of land measuring 400 sqm located at Ponde street Tuangoma Temeke/Kigamboni. The Respondent herein, Ibrahim Malik Mbena in the capacity of legal representative of the late Malik Abdallah Mbena instituted a suit at the District Land and Housing Tribunal for Temeke against the Appellant herein Shamsi Shoo, alleging trespass into the suit land. The Respondent who claimed ownership of the said piece of i land averred that the Appellant had encroached into the suit land by cultivating thereon seasonal crops. Among the reliefs sought at the trial Tribunal were that the Respondent be declared owner of the suit landed property and the Appellant be found trespasser therein. The Appellant disputed the claims against him and stated to be the owner of the disputed property. At the end of hearing, the trial tribunal found in favour of the Respondent who was declared owner of the disputed piece of land. The Appellant was aggrieved by such decision hence the instant appeal on the following grounds: - ’7. That the leaned trial chairman misdirected himself in law and in fact by failure to evaluate property the evidence on the record. 2. That the trial chairman misdirected herself in law by trying the matter without having pecuniaryjurisdiction. 3. That the trial chairman misdirected herself in law by trying the matter involving boundaries without visiting locus in quo. 4. That the trial tribunal tried the matter while the same was Res judicata." 2 The matter was heard by way of written submissions. Parties complied with the scheduling order. The Appellant has been represented by Mr. Elnasi Kitua, learned advocate, while the Respondent has enjoyed the service of Mr. Francis Godfrey, learned advocate. On the ground of failure to evaluate properly evidence on record, the learned counsel for the Appellant asserted that, the trial chairperson failed to appreciate the established rules of evidence by creating double standard, shifting the burden of proof to the Appellant (the Respondent during trial). He also submitted that the Respondent herein failed to call material witness in the cause of dealing with the real controversy which was before the trial tribunal, the act which cannot left untouched in the course of this appeal. Reliance was put on the decision in Hemed Said v. Mohamed Mbilu [1984] TLR 113. On the shifting the burden of proof the leaned counsel was of the view that the tribunal demanded the Appellant to produce evidence as to how the father of the person who sold the plot of land in question acquired title of it. According to him, demanding the Appellant to supply such evidence on 3 how the father of the vendor obtained the land, was a demand of impossible. In reply thereto, the counsel for the Respondent contended that, it was the duty of the Appellant to prove his allegation on the existence of the case before the High Court. In his view, the Appellant failed to discharge such duty, while the herein Respondent managed to prove ownership of the suit landed property by sale Agreement dated 29th September,1961. He insisted that the trial chairperson, properly evaluated evidence which was presented before her. In order to determine the 1st ground of appeal, I have opted to do so by answering the questions whether evidence on record was properly evaluated by the trial chairperson and whether such evidence proved the Respondent's case. As aforesaid, the Respondent's claim before the trial tribunal was on ownership of the piece of land measuring 400M2 located at Toangoma, Temeke Kigamboni. The allegation of the Respondent herein (Applicant) was that the Appellant herein had trespassed into the said suit land. According to evidence on record, both parties adduced evidence on how they acquired the suit property. However, in the course of perusing the 4 pleadings which was lodged in the trial Tribunal, I found the Application which was filed by the Respondent herein describing the suit property as follows: - "3. Location and address of the suit premises Unsurveyed parcel of land measured 400 sqm at Ponde street Toangoma Temeke/Kigamboni." The requirement to describe the suit property is provided under Reg. 3(2) (b) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, GN. 174 of 2003, thus:- "An application to the Tribunal shall be made in the form prescribed in the second schedule to these Regulations and shall contain (b) the address of the suit premises or location of the Land involved in the dispute to which the application relates. "[Emphasis added] The extent of the description is provided under Order VII Rule 3 of the Civil Procedure Code [ Cap 33 R.E 2019] read together with section 5. 51 (2) of the Land Disputes Courts Act [Cap 216 R.E 2019]. Order VII Rule 3 of the CPC provides thus: - "Where the subject matter of the suit is immovabie 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 Regulation Act, the Plaint shall specify such title number. "[Emphasis added] Why is it necessary to provide description of the property sufficient to identify it? The answer to this question is straight forward that, the information that sufficiently describe the suit property afford the court with an opportunity to pass final and definite decree. In the absence of sufficient description of the property no court or Tribunal which would issue executable decree. The importance of providing a proper description of the suit landed property was emphatically stated in a persuasive case of India in Bandhu Das and Anr. Vs. Uttan Charan Pattanaik, AIR 2007 Ori 24, 2006 II OLR SO, thus: - 6 bare reading of the above provision makes it crystal clear 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 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. "[Emphasis added] From the above referred decision, it is necessary for the plaint or Application to indicate the location, title number for surveyed plots. Where the disputed piece of land is unsurveyed, such plaint/application should vividly show the size, boundaries, neighbours or any other form of description that would sufficiently identify and distinguish the suit piece of land from others. I have examined the application as it was filed before the trial tribunal and found that the suit piece of land is unsurveyed. The Application only provided the size of the said suit land but did not state the boundaries of it I or neighboring features that could easily distinguish it from other pieces of land at Ponde street, Toangoma - Temeke. In the circumstance where the property has not been described properly, even if the court/tribunal could find in favour of the Respondent herein as it did, then the decree can only be a white elephant. I am aware of the time-honoured principle of law that parties are bound by their own pleadings. That is, they are bound to prove only what is pleaded. This was stated in Barclays Bank (T) Ltd vs Jacob Muro, Civil Appeal No. 357 of 2019, that: - "We feel compelled, at this point, to restate the time honored principle oflaw that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support variance with the pleaded facts must be ignored."[Emphasis added] In the instant case, it is obvious that no evidence adduced by the parties that could prove the address and location of the suit property in the absence of facts in the pleadings pleaded to describe it. In my view, the Application before the trial Tribunal was incompetent in the first place. The matter could not be determined conclusively based on the pleadings 8 (Application) which was defective for having failed to describe the property in disputed. In the circumstance of this matter, whatever evidence adduced by the parties could not help the trial Tribunal decide the matter before it conclusively by making an executable decree. From the foregoing, I find the 1st ground of appeal to be enough to dispose of the appeal. In that regard, I cannot labor to determine the other grounds. In the upshot, I allow the appeal and proceed to make the following orders: - 1. Judgment, decree and proceedings of the trial tribunal in respect of Application No. 26 of 2020 are quashed; 2. Parties are at liberty to institute fresh proceedings before a competent court if they so wish; and 3. Each party to bear its own costs. It is so ordered. DATED at DAR ES SALAAM this 25th of September 2024.