victoria kokubana vs wilson gervas another 2019 tzhclandd 29 23 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 70 OF 2016 VICTORIA KOKUBANA as an attorney o f ANGELINA MIMBAZI BYARUGABA...... PLAINTIFF VERSUS WILSON GERVAS 1st DEFENDANT ANIROD OROMI 2nd DEFENDANT JUDGMENT. S.M. MAGHIMBI, J: The plaintiff, Victoria Kokubanza is suing as an attorney of Angelina Mibazi Byarubaga, her mother who is currently a resident of the United States of America the alleged owner of the suit premises. The plaintiff was also the guardian of the first defendant, Wilson Gervas. The plaintiff has sued the two defendants claiming against them jointly and severally for a declaration that the plaintiff is the lawful owner of an unregistered Plot located at Bunju "A" (the suit premises). The 1st defendant denied the allegation claiming the suitland to belong to me which he purchased in 1996 and in 2011 he sold a portion of it to the 2nd defendant. On completion of pleadings the following issued were framed for determination: i. Who is the rightful owner of the suit premises. ii. Whether the sale of the suit previous to the 2nd defendant by the 1st defendant was justifiable in law. iii. To what reliefs are the parties entitled to. While I was constructing the judgment to this case, going through the plaint, I realize a discrepancy in the plaint that forced me to question the propriety of the plaint because there is a non-description of the suit property contrary to Order VII Rule 3 of the Civil Procedure Code, Cap. 33 R.E 2002 (as amended). I find that the plaint is defective for non compliance of the Order VII Rule 3 of the CPC for reason that in her plaint on para 4 the plaintiff writes: "the plaintiffs claims on behalf o f the owner against the Defendants jointly and severally, for a declaration that the plaintiff is the lawful owner o f the plot located at Bunju "A" (not registered) in Dar es Salaam City (hereinafter to be referred to as " the suit plot" which the owner purchased in 1994; a declaration that the safe o f a part o f the suit plot to the 2nd Defendant by the 1st Defendant was totally illegal and void ab inito; an order for perpetually injection restraining the 1st and 2nd defendant and their agents or servants from interfering with the owner's rights over the suit plot in anyway; genera! damages as shall be assessed by the court; and costs incidental to this suit Furthermore, maybe the cure to the discrepancy could have been found in the plaintiffs evidence but when she was testifying as PW1, she told the court that her mother owned two plots at Bunju A, one of them is the disputed land and the other one is a bit ahead but she didn't know the exact place where it was. She also testified that she didn't know the neighbors to the disputed land hence could not describe it, it is just that her mother showed the piece of land to her but she is not acquainted to the area to have described it including describing the who the neighbors are. 2 Owing to the developed fact, I became hesitant to continue with writing a judgment or passing any order in regarding a Suitiand description of which is insufficient. For instance I have asked myself, should the matter be decided in favor of the plaintiff, what is it that she will execute against the defendant? How will the execution order ascertain to what extent are the defendants to be evicted. On the other hand, if the defendant is declared the lawful owner of the suit property, what is the size and description of that he is declared an owner of? What is the defendant use the decree as a blank cheque against people or pieces of land which were not part of the dispute herein? All these questions necessitated the legislature to enact the provisions of Order VII Rule 3 so as to circumscribe the court orders and execution thereof to only that which is described in the plaint and proved by the parties. In the absence of that, the court will not be able to proceed and determine ownership to that which is not properly describe enough to be identifiable. Consequently, the suit before me is hereby struck out until when the plaintiff is ready and certain to describe the suit property as per the provisions of Order VII Rule 1 of the CPC. I make no order as to costs. Dated at Dar es Salaam this 23rd day of September, 2019. JUDGE. 3