UDDU RULING

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 000001576 OF 2024 UDDU ALLY NOHOYE .............................. COMPLAINANT / APPELLANT / APPLICANT /

PLAINTIFF

VERSUS KASULU TOWN COUNCIL .............................. RESPONDENT / DEFENDANT

RULING NKWABI, J, 09 & 09/04/2025 The Plaintiff’s claim against defendants is for ownership of a piece of land measuring 1440 square meters with approximated value of Tshs.10,000,000/=(ten million only) forming part of 2½ (two and half) acres situated at Mkombozi street, Murusi Ward, within Kasulu Town Council, Kigoma region of which neighboring lands are as follows; on the East: MIKIADI IDDI, West: MARIAM NKOMANIJE BHILABHAYE, North: JONAS MATATA, South: GODINI KAMANA and HUSSEN MISIGARO (herein after to be referred to as “suit land”) which was trespassed by defendants by cutting off 312 (three hundred and twelve) trees the property of the plaintiff to pass the road therein. The plaintiff is seeking this Court to grant him the following reliefs: 1. This Honourable court be pleased to give a declaratory order that the suit land is the lawful property of the plaintiff.

2. This Honourable court be pleased to order defendants to pay to the plaintiff specific damages amounting Tshs. 31,200,000/= (Thirty-one million two hundred thousand only) for 312 trees destroyed by defendants the lawful property of the plaintiff.

3. This Honourable court be pleased to order the Defendants to give vacant possession of the suit land to the plaintiff.

4. This Honourable court be pleased to order a permanent injunction to the Defendants and /or the agents/representatives/from entering the suit land. Page. 1 5. The Defendants be ordered to pay the plaintiff to general damages basing on assessment of the court. vi. Costs of the suit be provided for by defendants.

6. Any other relief(s) this Honourable court may deem fit and just to grant. When the land case was called on for hearing, the plaintiff was represented by Ms. Mectilda Mpeta, learned counsel. The defendants were represented by Mr. Celestine Ngailo, Ms. Janeth Madulu and Mr. Fredrick Fungamtama, learned State Attorneys. I called upon the counsel for the parties to address me on an oddity in the following terms: “It appears that the suit is incompetent for not mentioning some of the defendants. The counsel for the parties have to address me.” Ms. Mpeta readily conceded that in the eCMS there are some of the defendants missing. She prayed to withdraw the suit with leave to refile. For the defendants, Mr. Ngailo had no any objection. He, however, pressed for costs to the defendants be ordered by this Court. Ms. Mpeta was unhappy with the prayer for costs. She explained that since the oddity was raised by the Court, this Court should order each party to bear their own costs. Truly, it is the requirement of the law that each party should appear in the pleadings, else the suit or application would be incompetent. The rule is geared to ensure that decrees and drawn orders issued by the courts of law or tribunals are executable. I place reliance on Juma Marumbo & 42 Others v. Regional Commissioner Dar-es-Salaam & 2 Others, Civil Application No. 242 of 2016 where it was emphasized

that: “There is no gain saying therefore that as the application stands, apart from Juma Marumbo, the other applicants have not been disclosed out of the 65 persons listed in the Annexture. It is therefore not certain who the other 42 applicants are. The effect of an omission to disclose all applicants in an application is to render it incompetent.” Nevertheless, I do not buy the prayer by the counsel for the plaintiff to withdraw the land case. This is because the land case is incompetent. As it is incompetent the correct remedy is to strike it out. In my approach, I am guided by Josephat Ntongwisangu & Another v. The Principal Secretary Ministry of Finance and Another, Civil Reference No. 10 of 2005, CAT, (unreported) where it was authoritatively ruled that: “However, it is significant to observe the stage of the proceedings in which the issue of incompetence is resolved. Where the issue is determined in a preliminary objection then the right course is to strike out the application. In a situation where the application proceeds to a hearing on merit and in such Page. 2 hearing the application is found to be not only incompetent but also lacking in merit, it must be dismissed. The rationale is simple. The effect of striking out an application leaves room for filing the application again even where it has no merit.” That being the position of the law, and the land case is incompetent by failure of the plaintiff to indicate the names of all the defendants, I strike out the land case from the Court’s register. As the inconformity was raised by the Court suo motu, each party shall bear their own costs. I thus, rule. Dated at KIGOMA this 9th of April 2025 . J. NKWABI

JUDGE OF THE HIGH COURT Page. 3