MORAVIAN CHURCH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO. 40 OF 2023 (Arising from the Decision of the District Land and Housing Tribunal for Tabora in Land Application No. 65 of2022) THE REGISTERED TRUSTEES OF MORAVIAN CHURCH WESTERN TANZANIA ...................... ............... ......... ............. ................................ APPELLANT VERSUS MSANZYA MATE MONGO (As Administrator of the Estate of the Late Mate Mongo) ........................... ................................. ........... ............... RESPONDENT JUDGMENT Date of Last Order: 10/07/2024 Date ofJudgment: 30/07/2024 KADILU, J. The appellant having been dissatisfied with the decision of the District Land and Housing Tribunal for Tabora in Land Application No. 65 of 2022, preferred an appeal to this court armed with the following grounds: 1. That, the trial tribunal erred in law and fact by considering the respondent as the administrator of the estate of the late Mate Mongo the lawful owner of the disputed land while documents for letters of administration were ne ver tendered in court as exhibit. •2. That, the learned Chairman grossly erred in law and fact when he failed to scrutinize the cogent evidence as it was adduced by the appellant and hence relied upon flimsy evidence as it was adduced by the respondent. 3. The trial tribunal erred in law and fact by failing to conclude that the value of the suit property was not well established by the respondent. 4. That, the trial DLHT Chairman erred in law and fact for his failure to consider the standard of proof required in civil matters for every essential fact in issue. i While perusing the case file, I noted that the suit land was not described properly in the trial tribunal. Therefore, the court invited the parties to address this point before moving on to the grounds of appeal. The appellant was represented by Ms. Christina Mwiyanja, Advocate whereas the respondent appeared in person as he had no legal representation. Submitting on the raised point, Ms. Christina stated that it is true the land in dispute was not described in terms of its size, boundaries, and physical features surrounding it. She expounded that in the application before the DLHT, the respondent only indicated that he inherited the disputed land from his deceased father who cleared the virgin land. In paragraph 4 of the application, the respondent showed that the estimated value of the disputed land was TZS. 3,000,000/= without describing its size. In testimony, he told the tribunal that the disputed land was 30 acres but he sold 10 acres to one Kisandu for TZS. 15,000,000/=. On cross-examination, the respondent stated that on the disputed land there was a house which was destroyed by the appellant. On page 19 of the typed proceedings of the tribunal, PW2 testified that he witnessed a sale agreement in which the respondent sold 15 acres out of the disputed land. However, when cross-examined about the size of the land in dispute, PW2 replied that he did not know. On the other hand, DW1 told the trial tribunal that he was involved in purchasing the disputed land for the appellant. He testified that they purchased 12 acres from Juma Abdallah and 09 acres from Ramadhani Mkinki making a total of 21 acres. He refuted the allegation that there was a house built on the land in dispute. He added that their 21 acres are hot in 2 dispute but it only borders the respondent's land. In this circumstance, this court finds that the DLHT heard and determined the land case without a clear description of the disputed property. The learned Advocate was of the view that this violates Order VII, Rule 3 of the Civil Procedure Code. She opined that the anomaly rendered the proceedings of the tribunal a nullity for having proceeded over a property that was not properly described. She urged this court to nullify the proceedings of the tribunal and order a retrial. On his part, the respondent submitted that the appellant destroyed the buildings and trees on the disputed land all having the value of TZS. 3,000,000/= but this does not mean that the disputed land was valued TZS. 3,000,000/=. He elaborated that the land in dispute was not surveyed so, he just estimated its size to be 30 acres. He implored the court to resolve the issue because not being a lawyer, he knows nothing about the law. I wish to state at the outset that in resolving land disputes, the importance of making detailed descriptions of the land in dispute cannot be overstated. Order VII, Rule 3 of the CPC, [Cap. 33 R.E. 2022] is clear that where the subject matter of the suit is immovable property, the plaint should contain a description of the property sufficient to identify’ it -and; in case such property can be identified by a title number, the plaint must specify such title number. In Daniel Dagala Kariuda (as an administrator of the estate of the /ate Mbaio Lusha Mbu/ida) v. Masaka Ibeho & 4 Others, Land Appeal No. 26 of 2015, this court held that the requirement to describe the suit property is not a cosmetic one. Among other purposes, the description is meant to allow the court to pass final and definite orders. 3 In the case of Abutwalib A. Shoko v. John Long & Albin Tarimo, Land Case No. 20 of 2017, the court held that: "... unless the plaintiffindicates the description ofthe property claimed by him either by means ofboundaries or by means of title number under the Land Registration Act, it would be difficult for the court to find whether the plaintiff has title to the property claimed and whether any encroachment or dispossession has been made by the defendant. Thus, the party must give a description sufficient to identify the property in dispute so that if a decree is passed about it, it shall not be unworkable...." It is undisputed that the instant appeal involves immovable property which is unsurveyed hence, it cannot be described by Plot or Title numbers. Thus, it could be said to be sufficiently described if all information necessary to locate it was provided. This could be done by, for example, stating in the application its precise geographical location, size, boundaries, neighbours, and any other permanent features necessary to locate it. That has not been done in the present case. As already shown, the respondent's application before the DLHT neither disclosed the size of the suit property nor its boundaries. The law is settled that parties are bound by their pleadings and that evidence produced by any of the parties that do not support the pleaded facts or are at variance with the pleaded facts must be ignored. For this reason, the evidence concerning the description of the suit land which varies with the facts pleaded in the application had no legal value. Generally, in the instant matter, it is unknown if the land in dispute is 30 bare acres, 20 acres, 21 acres, 15 acres, or 30 acres with trees and buildings on it. 4 Since the suit land was variably described, I have no option than to nullify the proceedings of the trial tribunal in Land Application No. 65 of 2022, quash the judgment, and set aside its resultant orders. I remit the case file to the District Land and Housing Tribunal for Tabora for an expeditious retrial before a different Chairperson. Given that the point was raised by the court suo mote, each party shall bear its own costs. It is so ordered. JUDGE 30/07/2024 The judgment delivered in chamber on the 30th Day of July, 2024 in the presence of Mr. Msanzya Mate Mongo, the respondent. KADILU, MJ. JUDGE 30/07/2024 5