Kessy Mkaramba and 6 Others vs Hassan Mkamila and 31 Others (Civil Appeal No. 471 of 2021) [2024] TZCA 1101 (14 November 2024)

AT PAR ES SALAAM fCORAM: NDIKA. J.A.. 6ALEBA. J.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 471 OF 2021 KESSY MKAMBARA ............................... . ................................. 1 st APPELLANT RASHID MATELEKA ............................................ .....................2 nd APPELLANT SELEMANI KATAMBALA .................................. . ...................... 3 rd APPELLANT SALEHE KATAMBALA .............................. . ...............................4™ APPELLANT MOHAMED MHOLELE . ....................................... . .....................5™ APPELLANT NASSORO MAUMBA................................................................ 6™ APPELLANT NUNGAMO HASSANI................................ . .................. . ......... 7™ APPELLANT VERSUS HASSAN MKAMILA.................................................... . ......... 1 st RESPONDENT TASIANA KITEA ..................................................................... 2 nd RESPONDENT HALIMA HASSAN...... . ......................... . ................. . .............. 3 rd RESPONDENT YUSUFU NYOKA.....................................................................4 th RESPONDENT MOHAMED SALUM MKENANGE ............................................. 5™ RESPONDENT SALUM MOHAMED MWEGIO @ MANGORO ......................... 6 th RESPONDENT RAMADHANI MTENDA ...................... . ...................................7™ RESPONDENT HASHIM NGOTWIKE ...................... . ...................................... 8™ RESPONDENT STANSLAUS MASIOY .................................. . ...................................................... . 9™ RESPOND GODRID LUVUMBI . ......................................................... 10™ RESPONDENT MRS MICHAEL MWAKIMATA...............................................11™ RESPONDENT MALIKI MUSA LIGEMA........................................................ 12™ RESPONDENT RAMADHANI MUSA MAHUI.............................. . ............... 13™ RESPONDENT HAMISI MUSA LIGEMA ....................................................... 14™ RESPONDENT SAIDI HAMISI MCHANJO.................................................... 15™ RESPONDENT MWAMVITA ALLY MKAMI LA... ............................................ 16™ RESPONDENT RAMADHANI MANDUTE .............. . ...................................... 17™ RESPONDENT SOFIA NGEJA............................... . ............. . .................... 18™ RESPONDENT ABDALLAH NASSORO MPANGA...........................................19™ RESPONDENT

KASSIM MOHAMED MONALICHE ....................... .............. 20™ RESPONDENT ISSA MKAMILA................ . ............................................. . 21 st RESPONDENT MUSSA HASSAN LIJEMA ................................................ 22 nd RESPONDENT ABDALLAH MANGAME .................................................... 23 rd RESPONDENT SALUM MKUYA . ....................................... . .......................... 24™ RESPONDENT RUKIA MKUYA................................... . .................................25™ RESPONDENT RASHIDI MKAMI L A .......................................................................................... . .. 26™ RESPOND SAID GEBU ................. . .............................. . ............. . ........ 27™ RESPONDENT YASIN MWEGIO .............................................................. 28™ RESPONDENT RASHIDI KIBUKI ........... . ............ . ........ . ............................ 29™ RESPONDENT ROGERS T E M U ............ . ........... . ..........................................30™ RESPONDENT KIDOGOBASI VILLAGE COUNCIL ...... . ....... . ................ . 31 st RESPONDENT KILOSA DISTRICT COUNCIL..............................................32 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Mlacha, JQ dated the 31st day of August, 2021 in Land Case No. 24 of 2017 JUDGMENT OF THE COURT 28th October & 14th November, 2024 ISMAIL. 3.A.: The 1st to 30th respondents in this appeal are residents of Kidogobasi Village, that falls within Kilosa District Council, in Kilosa, Morogoro Region, who allege to be the owners of parcels of land the aggregate size of which is about 80 acres. In 2017, they instituted a suit in the High Court of Tanzania at Dar es Salaam, seeking several reliefs that arose as a result

of what they alleged to be acts of trespass, forcible eviction from the suit land that they owned and occupied since 2004; and destruction of sugarcane that they grew on the land. The defendants in the suit were the current appellants and 31st and 32n d respondents all of whom denied any culpable involvement in the alleged wrongdoing. They denied, as well, to have ever allocated any piece of land to the respondents or to have ever issued orders for their eviction from the suit land. After a hearing which also involved adduction of affidavital evidence, the High Court found sense in the respondents' testimony and decided in their favour. While declaring the 1st to 30th respondents as lawful owners of the suit land, the court declared that the appellants were illegal occupiers who should vacate the suit land immediately. Additionally, the sum aggregating TZS. 90,000,000.00 was awarded as general damages, to be shared equally amongst the 1st to 30th respondents. The facts constituting the dispute that bred the instant appeal can be briefly stated to the effect that the 1st to 30th respondents, who are known to be residents of Kidogobasi Village were, at different times, allocated pieces of land on which they grew sugarcane. These pieces of land were allegedly allocated to the said respondents by the Village Council through various means but mostly through the bega kw a bega p ro g ram implemented way back in 1984. They continued to hold the said

land uninterrupted until around 2004 when an attempt was made to wrestle control of the said land. These attempts allegedly fell through, thanks to multiple court proceedings which culminated in the halting of the alleged attempt. The respondents further contended that successive losses suffered by the appellants, along with 31st and 32n d respondents, did not deter the determination to wrestle control of the land from the alleged owners as on 11th February, 2017, the appellants, with the aid of the 31st and 32n d respondents, allegedly invaded the said land, torched and uprooted the sugarcane grown thereon. It is alleged that, as prelude to the said invasion, the 31st and 32n d respondents convened a meeting of the village council at which it was declared that the disputed land was a village land and that the occupiers were illegal possessors who should give vacant possession to allow ownership of the land revert to the Village Council. This decision ignited an angry reaction that saw the 1st to 30th respondents institute a suit in the High Court. The allegation was that, subsequent to eviction of the respondents, the 31st and 32n d respondents illegally allocated the said land to the appellants. Several reliefs were sought, key among them being an order for vacant possession of the disputed land; and damages, both specific and general, for the loss, pain

and agony suffered as a result of the forcible eviction and destruction of their crops. Through their written statements of defence, the appellants and the 31st and 32nd respondents, the latter of whom featured as 2n d and 4th defendants, valiantly denied the contention of any wrongdoing. The 31st and 32n d respondents denied ever convening a meeting as alleged by the then plaintiffs, insisting that, at no point in time did the Village Council allocate the disputed land to the alleged owners. In the case of the appellants, the claims by the then plaintiffs were fervently slammed. While acknowledging that the said occupiers had farms allocated to them through bega kw a bega program , they averred that such farms were still in their control, but the farms were distinct from those that constituted the subject matter of the instant matter. They maintained that the land in dispute was a reserved communal land which was not eligible for allocation to any individual. At the trial hearing, four issues were drawn to guide the trial but as it shall be apparent in the course of this decision, need does not arise for reproduction of the said issues. As intimated earlier on, the plaintiff's case was mainly composed of affidavital evidence, sworn and affirmed by the plaintiffs, out of whom nine plaintiffs took the witness box and testified in support of their case. The testimony was, by and large, an amplification

of what they alleged in their statement of claim and it gave a detail of how they acquired their pieces of what constitutes the disputed land, development thereof and the manner in which such land was grabbed and the crops grown thereon were destroyed. They also gave a narration of the loss allegedly suffered as a result. The appellants maintained their position that they were not involved in any act of dispossession of the land, destruction of crops or at all. While acknowledging in unison that the plaintiffs were residents of Kidogobasi village and were allocated land, the land constituting the subject of litigation was a village land that had since been allocated to and used by investors. Their unvarying message was that none of the alleged claimants gave a description of the land they allegedly hold. At the conclusion of the trial proceedings, the trial Judge composed a decision in which he found that the respondents' claims were plausible. He went ahead and made a declaration that the alleged eviction and dispossession of the land by the appellants was devoid of any justification. He, in consequence, ordered that they should immediately vacate the disputed land and return it to the respondents. The learned trial Judge also ordered that each of the victims of the illegal eviction be paid general damages to the tune of TZS. 3,000,000.00. Costs were also awarded to the victors.

Bemused by the decision, the appellants launched a scathing attack against the decision. The memorandum of appeal that founded the instant appeal contains nine grounds of appeal. Before the hearing got underway, the appellants' counsel informed the Court that they intended to introduce an additional ground of appeal which is, in our considered view, of decisive importance. The ground is to the effect that the trial court erred in law in not rejecting the plaint which did not give a description of the pieces of land in dispute. Again, given what we have just alluded to and as it shall be demonstrated in due course, we will not reproduce the substance of the grounds in the memorandum of appeal. Hearing of the appeal saw the appellants represented by Mr. Thomas Eustace Rwebangira, learned legal counsel, whereas Mr. Jackson Liwewa, learned advocate appeared for the 1st to 30th respondents. Ms. Magdalena Mwakabungu, learned senior State Attorney, assisted by Mr. Mkama Musalama, learned State Attorney, represented the 31st and 32n d respondents. Submitting on the supplementary ground of appeal, Mr. Rwebangira contended that the plaint that instituted the suit which bred the instant appeal did not give any specification or description of the land in dispute, including the number of acres that each claimant held. While maintaining that the settled position is that parties must be bound by their pleadings,

the learned counsel argued that the evidence adduced pointed generally to the 80-acre land without any particular disclosure of the locality in which it is situated. Mr. Rwebangira further contended that PW1 and PW2 admitted (pp. 242 & 243; p. 372; pp. 383 & 384; and pp. 389 & 390 of the record of appeal) that the land in question was a village land. He argued that exhibits D1 and D2 confirmed this fact. The learned counsel contended that the complication was heightened by the fact that the claimants failed to adduce evidence that the allocation of the land in dispute was done by the village council. Mr. Liwewa was not convinced that his counterpart's argument had any semblance of merit. He leapt to the defence of the plaint and contended that the same was descriptive enough to convey the intended complaint. The learned counsel argued that the description in the plaint was backed up by the testimony found at pages 287, 290, 293 and 296 of the record of appeal. Mr. Liwewa referred us to paragraph 66 of the record of appeal and submitted that the appellants did not dispute the location and description of the disputed land as laid down by the respondents. This was, in the learned counsel's contention, a concurrence with what the respondents testified on. He urged us to find the appellant's submission gibberish and reject it out of hand.

Ms. Mwakabungu's submission was in support of Mr. Rwebangira's contention. Regarding the ownership, her take was that, nowhere in the proceedings have the 1st to 30th respondents tendered any document that proves their ownership of the disputed land. While emphasizing the contention that the land in dispute was not described to ciearly distinguish it from what the appellants claim to be theirs, she implored us to follow the path we took in the case of Olorubare Nginyu v. Kilempu Kinoka Laizer, Civil Appeal No. 416 of 2021 [2024] TZCA 598, in which we underscored the significance of laying a description of the piece of land that a party stakes a claim on. She was of the contention that the shortfall that skipped the trial Judge's attention rendered the trial proceedings a nullity. She prayed that the appeal be allowed with costs. The counsel's contending submissions raise a singular question which is whether the plaint that instituted the suit laid down a description necessary for the identification of the disputed land. As stated earlier on, the respondents' claim for orders which were granted by the High Court was instituted through a plaint. As a matter of law and practice, the framing and filing of the plaint are a process which must precede the hearing of a matter. Worth noting is the fact that, the form and content of a statement of claim (the plaint) are matters of statutory prescription, meaning that, the architecture or framing of a

plaint must conform to what the Civil Procedure Code, Cap. 33 (the CPC), most particularly, Order VII rule 3, provides. In the instant appeal, the respondents commenced the proceedings through institution of a plaint which was signed by the parties and filed in the High Court on 27th April, 2017. Through this pleading, the allegation of dispossession, destruction and uprooting of crops allegedly planted on the farms, and the claim of compensation were leveled. To appreciate the import of rule 3, it behooves us to reproduce its substance, as hereunder: "3. Where the subject m atter o f the su it is im m ovable property, th e p la in t s h a ll co n ta in a d e scrip tio n o f th e p ro p e rty s u ffic ie n t to id e n tify it and \ in case such property can be identified by a titie num ber under the Land Registration Act, the p iain t sh aii specify such titie number." [Em phasis added] What we discern from the quoted excerpt is that, a plaint that founds a claim on an immovable property must be descriptive enough to sufficiently identify the property in dispute in a manner that will allay any possibility of mistaken identity. This would include a statement of the landmarks in the boundaries and neighbouring features, if any, or names of the holders of the pieces of land that surround the disputed land. In a

fitting case, especially where the dispute is on a registered land, specification of the title number of the land in dispute is of invaluable importance. The need for having a descriptive statement of claim is imperative and it has been underscored many a time and across jurisdictions. In Laxman Singh v. Jagannath (2000) MPHT 484, the High Court in India gave a scope of applicability of Order 7 rule 3 of the Indian Code of Civil Procedure, 1908, which is in p a ri m ateria with Order VII rule 3 of the CPC, and held: "From the pleadings contained in the plaint, it is apparent that the su it property could not be identified. Specific description and boundaries o f the su it property are not given in the plaint.... The purpose o f Order 7 Rule 3 o f the Code is that unless the p la in tiff indicates the identity o f the property claim ed by him either by m eans o f boundaries or by means o f map as required by Order 7 Rule 3 o f the Code, it would be d ifficu lt for the Court to fin d whether the p la in tiff has title to the property claim ed and whether any encroachm ent or dispossession has been made by the defendant Thus, the duty o f the party is to give description sufficient to identify the property in dispute. I f such decree is passed, it sh all be

unworkable. The Court can only pass a decree which can be executed under Order 21 o f the Code" Notably, the decision in Laxman Singh (supra) was an emphasis to what the Indian Court had pronounced itself on prior thereto. In Ambanna v. Ghanteappa, AIR 1999 KANT 421 it was observed as follows: "It is seen that the p lain t or plaints are num bered w ithout the proper description o f the property by boundaries, num bers and records o f statem ent or certificate. W ith o u t th a t, it is n o t p o ssib le to id e n tify th e p ro p e rty . C o n seq u en tly, no e ffe c tiv e d e cree can b e p a sse d w hich can be fin a lly p u t in to e xe cu tio n fo r th e b e n e fit o f th e su cce e d in g p a rty ,,.." [Em phasis is added]. The position in the foregoing excerpts is of invaluable relevance to our case, and we wish to remark that, this is not the first time that compliance with the provisions of Order VII rule 3 of the CPC has come into the Court's focus. In Olorubare Nginyu (supra) cited by Ms. Mwakabungu, the Court quoted several of its earlier decisions and emphasized that, where an immovable property is the subject of a suit, the statement founding the claim must carry a description that identifies

the property. In laying emphasis, the Court produced an excerpt extracted from Lupembe Village Government Ikolo Ward Kyela District & Another v. Bethelehamu Mwandafwa & Others, Civil Appeal No. 377 of 2020 [2023] TZCA 17313, wherein it was held: "On the argum ent that the p lain t did not disclose the description o f the su it land ' we are aware o f the provisions o f Order VII rule 3 o f the CPC, the em phasis being where the involved subject m atter in a su it in im m ovable property, there m ust be such details o f the requisite property in the p la in t to sufficiently enable it to be identified." Crucially, the decision in the foregoing excerpt accentuated what we reasoned in our earlier decision in Martin Fredrick Rajab v. Ilemela Municipal Council & Synergy Tanzania Company Limited, Civil Appeal No. 197 of 2019 [2022] TZCA 434. In that case, the Court was confronted with a problem akin to what is at issue in the instant matter, as the land in question was unregistered. In the end, it was reasoned as follows: "From what was pleaded by the appellant■ , it is glaring that the d e scrip tio n o f th e s u it p ro p e rty w as n o t g iv e n b ecau se n e ith e r th e s iz e n o r th e n e ig h b o u rin g o w n e rs o f th e p ie c e s o f ia n d am ong oth ersf w ere s ta te d in

th e p la in t. T h is w as n o t p ro p e r a n d w e a g re e w ith th e le a rn e d tr ia l Ju d g e a n d M r. M rish a th a t, it w as in cu m b e n t on th e a p p e lla n t to s ta te in th e p la in t th e d e scrip tio n o f th e s u it p ro p e rty which is in term s o f the dictates o f Order VII rule 3 o f the C ivil Procedure Code, Cap 33 R .E 2019." [Em phasis is supplied] Glancing through the plaint, it is noted that the clause that describes the plaintiffs' cause of action and acts which constitutes the basis of the plaintiffs' complaint is paragraph 4, which states as follows: "That, the P lain tiffs'claim s against the defendants severally an djo in tly is forgiving vacantpossession over their farm s o f sugar cane in Kidogobasi Village Council\ m onetary com pensation to the tune o f Tsh. 250,000,000/= fo r the destruction o f sugar canes in the farm s situated in Kidogobasi Village in Kilosa D istrict; general damages to the tune o f Tsh . 100,000,000/=; m onetary com pensation fo r uprooted stem s o f sugar cane from the p la in tiffs' farm s to the tune o f Tsh. 250,000,000/= /' In our humble observation, the only description that the respondents gave with respect to the disputed property is that of the village in which the said property is allegedly located i.e. Kidogobasi village 14

in Kilosa District. The scanty nature of the description raises a question as to whether such description was enough to sufficiently identify the property in dispute and distinguish it from the rest of the land located in the same village. While Mr. Rwebangira feels that the description was general and paltry on account of the fact that Kidogobasi village has no less than half a dozen hamlets, his counterpart, Mr. Liwewa, was of the contention that the disclosures in the plaint were enough to provide an identity, and that the appellants' written statement of defence did not dispute the location and description of the suit property. With respect, we are unable to go along with Mr. Liwewa's argument. We, instead, find plausibility in the contentions made by Mr. Rwebangira and Ms. Mwakabungu, and consider that what the plaintiffs did was to choose to be vague and too economical with facts that were relevant to their respective cases. As a result, the factual revelation made in paragraph 4, which we consider to be paltry, failed to meet the threshold of descriptions set out by the law. We are convinced that such failure was a recipe for confusion and the resultant effect was to flout the imperative requirement set out under Order VII rule 3 of the CPC, rendering the plaint deficient and unable to withstand the vagaries of criticism leveled by the appellants. This, therefore, renders the ground of appeal meritorious and we hold so.

The finding of merit in the supplementary ground breeds yet another question for our determination. What fate should such plaint suffer and what impact does it have on the proceedings that bred the instant appeal? It is common knowledge that, provision of sufficient facts and particulars in a suit is intended to enable the defendant and the court to ascertain if a cause of action against the defendant has been established. It follows, therefore, in our view, that absence of sufficiency in the facts pleaded in the plaint is essentially a failure by the plaintiff to disclose the cause of action on which his claims are premised. In such a case, the plaintiff may move the court to grant an order for amendment of the plaint to cure the ailment. This is the dictate of the law as provided by Order VII rule 11 of the CPC which postulates as follows: "11. The p la in t s h a ll b e re je c te d in th e fo llo w in g ca se s- (a ) w here it d oes n o t d isclo se a cau se o f a ctio n ; (b) where the re lie f claim ed [is] undervalued and the plaintiff, on being required by the court to correct the valuation within a tim e to be fixed by the court, fa ils to do so; (c) where the su it appears from the statem ent in the p la in t to be barred by any law:

Provided that, where a p lain t does not disclose a cause o f action or where the su it appears from the statem ent in p lain t to be barred by any law and th e c o u rt is s a tis fie d th a t i f th e p la in tiff is p e rm itte d to am end th e p la in t, th e p la in t w ill d isclo se a cau se o f a ctio n o r, a s th e case m ay be , the su it w ill cease to appear from the p la in t to be barred by any law, the court m ay allow the p la in tiff to am end the p la in t subject to such conditions as to costs or otherwise as the court m ay deem fit to im pose." [Emphasis supplied] Whilst this is the position of the law, we need to state that, where, as is the case in the instant matter, the plaintiffs (the 1st to 30th respondents) have spurned the chance to amend the plaint and the trial court discovers that the same is deficient, the option at its disposal is to have the plaint rejected and bring the plaintiff back to the drawing board. In the instant matter, however, both windows were missed as the matter surfaced at the appellate stage. In such a case, the available course of action is to vitiate the proceedings which were based on the discrepant plaint. Consequently, on the sole basis of what we have discussed and ultimately held with respect to the supplementary ground of appeal, we allow the appeal with costs. Accordingly, we nullify the trial proceedings,

quash the judgment and set aside the decree distilled from the quashed judgment. Disposal of this ground effectively settles the parties' contest in the appeal and we find no need to delve into the other grounds of appeal. DATED at DAR ES SALAAM this 14th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 14th day of November, 2024 in the presence of Mr. Thomas Eustace Rwebangira, learned counsel for the Appellants, Mr. Shabaan Nsato Marijani, learned counsel for the 1st - 30th Respondents and Mr. Mkama Musalama, learned State Attorney for the 31st - 32n d Respondents is hereby certified as a true copy of the original.