LAND APEAL 14856 Kisanga

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.14856 OF 2024 (Arising from Land Application No.92 of 2013, of the District Land and Housing Tribunal for Kinondoni) THADEUS LAZARO KISANGA....................................... APPELLANT VERSUS RAMADHANI H. MPANDUKA............................. 1st RESPONDENT OMARY JAPHAR KAPITA.......................................................... 2ndRESPONDEN ISMAIL ALLY NGAVEBE.............................................................3rdRESPONDEN JOHN SAMADE...........................................................................4thRESPONDEN MOHAMED HAMADI.................................................................. 5thRESPONDEN HUSSEIN SALUM........................................................................ 6thRESPONDEN OMARY KANAZI......................................................................... 7thRESPONDEN SELEMAN MICHAEL................................................................... 8thRESPONDEN HAMAD MKANJE.........................................................................9thRESPONDEN RAMADHAN JAPHAR KAPITA.................................................. 10thRESPONDEN PROJECTUS ANDREA............................................................... 11™RESPONDEN RULING Date of Last Order:23.10.2024 Date of Judgment:30.10.2024 T.N. MWENEGOHA, J: The appellant herein is challenging the Judgment and Decree of the District Lands and Housing Tribunal for Bagamoyo at Bagamoyo dated 25th September, 2023 made in Land Application No. 214 of 2019. In his i Memorandum of Appeal, the Appellant advanced five grounds of Appeal tha:- 1. That the Honourable Chairperson erred in law and fact for entertaining a Land dispute that was time barred and the tribunal lacked jurisdiction to hear, and determine the land dispute between the Appellant and the Respondents 2. That the Honourable Chairperson erred in law and fact for erroneously arriving into the findings that the Appellant had no certificate of title to the Land in dispute while his evidence both testimonial and document were neither accorded with the requisite legal weight nor rightly interpreted and erroneously declaring the Respondents as the owners of the suit Land. 3. That the Honourable Chairperson erred in law and fact for erroneously arriving into the findings that the Appellant's Exhibit U2 (letter of offer) was obtained illegally while there was no evidence to contradict its validity and authenticity and erroneously ignored to accord weight to the Appellants evidence indicating that he had good title to the Land in dispute as opposed to the evidence of the respondents evidencing for the alleged claim of title to the Land in Dispute. 4. That Honourable Chairperson erred in law and fact for failing to properly apply the principal of the law enunciated in the case of the Registered Trustees of the Holly Spirit Sisters Tanzania Vs. January KaniiU Shayo and 136 others (CAT) and wrongly applied the principle enshrined under 2 section 110 of the Law of evidence Act, Cap; 6, R E, 2019 to the circumstances of the land Application No. 214/2019 and in line with the evidence of the Appellant and erroneously failed to interpret the Appellant's evidence alongside the contradictory evidence of the Respondents. 5. That the Honourable Chairperson erred in law and fact for failing to properly frame and adopt issues which would be fundamental in the disposal and determination of land Application No. 214/2019. When this Court was going through the records of the case from the District Land and Housing Tribunal for Bagamoyo, vide Land Application No. 214 of 2019, it came across an anomaly which attracted its attention. That, the subject matter of the suit was vaguely described at the Trial Tribunal. The parties were notified of the said issue and were ordered to address the Court on the same as it touches the competence of the Appeal at hand. However, the parties did not comply to the Order. Nevertheless, the Court was not hindered from adjudicating the matter. As pointed above, the description of the suit land as stated in the amended Application filed by applicants jointly, now respondents in the Appeal at hand, is wanting. Looking at paragraph 16(1) of the amended Application, filled at the Trial tribunal on 28/10/2021, it reads as follows; - " That the land in dispute early owned legally by the late Japhari Mbwana Kapita @ Japhari since 1987after he was given by the local government of Mapinga village, Kiharaka-Tungutungu at Bagamoyo in Coast region which it has 8 acred' 3 However, the applicants went on to state and show in the said amended Application that part of the said piece of land left by the late Japhari Mbwana Kapita, about 1.4 acres, was sold to the first applicant by the owner himself back in the year 2000 at a price of 378,000/= Tanzanian Shillings. This is as shown at paragraph 16(V) of the Application. This means that the land that was once measuring 8 acres, was reduced to 7.6 acres after the sale of 1.4 acres to the first applicant. Further at paragraph 16 (VI) of the amended Application, it was stated that, before the death of Mr. Mbwana Japhari in 2007, he distributed the remaining part of his land to the 2nd to the 11th applicants. Each of the said applicants received a specified piece of land, with a defined bounderies and sizes, ranging from 0.4 acres (given to the 11th applicant) to 1 acre, given to the 2nd, 6th, 9th and 10th applicants, while the remaining applicants save for the 1st applicant were given 0.5 acres each. That, all the applicants developed their pieces of land after acquiring the same. See paragraph 16 (V, VI, VIII and IX) of the Application. Therefore, with this information as contained in the amended Application, filed by the applicants at the Trial Tribunal on 01/09/2023, then at the time of filling the Land Application 214 of 2019, there was no land existing, measuring 8 acres. Rather, there were several pieces of lands, with different sizes and defined bounderies, owned separately by different individuals, I would say, perhaps the applicants as claimed in their amended Application. This being the case, describing the suit land to be the land containing 8 acres as it was before being acquired by the applicants is wrong, because that particular land as per the pleadings show, no longer exist. That is to 4 say, the description of the subject matter as done by the applicants in their amended Application, offended the law. It has been provided under Order VII Rule 3 of the Civil Procedure Code, cap 33 R.E 2019, 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 a title number under the Land Registration Act, the plaint shall specify such title number". See also, Daniel Dagala Kanuda versus Masaka Ibeho and Others, Land Appeal No. 26 of 2015, High Court of Tanzania at Tabora (unreported). Hence, entertaining a case under these circumstances is not possible and the Trial Tribunal was supposed to see this anomaly before proceeding with the case, let alone deciding in favour of the respondents. This now is a settled rule, that in land disputes, the applicant or plaintiff has to describe the subject matter of the case in a way that distinguishes it with other lands in the area for the purpose of proper identification of the same, see Twapasyaga Yotam Kasalwike versus Elisi Kasanga, Land Appeal No. 08 of 2022, High Court of Tanzania(unreported). Unfortunately, as in the case at hand, the subject matter described by the applicants no longer exist, then the said proceeded into hearing without a subject matter in dispute. For these reasons, I find what was done by the Trial Tribunal in respect of Land Application No.214 of 2019, was null and void as the subject matter was not described as required in law. 5 In the event and basing on the reasons and findings herein above, I use my powers given under section 43 of the Land Disputes Courts Act, Cap 216, R.E 2019 and proceed to revise and nullify the whole proceedings of the Trial Tribunal, vide Land Application No.214 of 2019, quash its Decision and aside its Orders. Parties are restored to their original position. No Order as costs. 6