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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA LAND CASE NO. 4463 OF 2024 SIJALI SIMON MWANGONELA (The Administrator of Estate of the Late Simon Mwangonela..……………………………….……………………………….1ST PLAINTIFF AMON MASIKA NTOLE (The Administrator of Estate of the Late Elizabeth M. MWANGONELA……………………..……………………………………….2ND PLAINTIFF

VERSUS LUCY MPILUKA…..….……..………………….………………………….1ST DEFENDANT TELEZIA JULIUS MAKOMBE……………………………………………2ND DEFENDANT ELIZABETH JULIUS MAKOMBE……………………………….……….3RD DEFENDANT MBEYA DISTRICT COUNCIL………………………………….………..4TH DEFENDANT THE COMMISSIONER FOR LANDS………………………...………….5TH DEFENDANT THE ATTORNEY GENERAL……………………………………….……..6TH DEFENDANT

RULING Date: 20 May 2024 & 12 July 2024 SINDA, J.: The plaintiffs herein brought their claim on land and trespass jointly and severally against the first, second and third defendants for unlawful entering into the late Simon Mwangonela and Elizabeth Mwangonela land. The fourth 1 defendant surveyed the land and the fifth defendant issued certificate of titles on Plot Numbers 457, 458, 459 and 460 with CT No. 18206 MBYLR, CT No. 18211 MBYLR, CT No 18209 MBYLR and CT No 18207 MBYLR all located at Songwe Urban Area within Mbeya District in Mbeya Region (the Disputed Properties). The plaintiffs prayed for Judgment and Decree against the defendants as follows; (i) A declaratory order that the disputed suit land belongs to the estate of his deceased uncle and aunt and it is under plaintiffs’ administration. (ii) A declaratory order that the 1st, 2nd and 3rd defendants be declared trespassers. (iii) An order that the acts (transactions) made by the 4th Defendant in favour of the 1st, 2nd and 3rd Defendants are illegal. (iv) The certificate of titles issued by the 5th Defendant in favour of the 1st, 2nd and 3rd defendants be declared ineffectual and be revoked. Further, new certificate of title be issued in favour of the 1st and 2nd Plaintiffs as administrators of the estate of the above named deceased. 2 (v) The eviction orders be made against the 1st, 2nd and 3rd defendants and any

other persons who found in the land in dispute. (vi) An order that the 1st defendant to pay the plaintiffs mesne profit for non-use of the land in dispute at the rate of TZS 5,000,000 per year from December 2013 when the 1st to 3rd denied the plaintiffs use of the said land until the date of the satisfaction of the judgment. (vii) Payment of interest in decretal sum at 12% per annum in (v) above from the date of filing of the suit to the date of judgment be paid by 1st to 3rd defendants. (viii) Payment of interest in decretal sum at 12% per annum in (v) above from the date of judgment to the date of full payment. (ix) Payment of general damages for pain, suffering, psychological torture and loss of amenities to be assessed by the Court. (x) Costs of the suit (xi) Any other relief(s) and orders that this Honourable Court may deem fit and just to grant. The defendants filed their Written Statements of Defence (the WSD) and disputed most of the contents in the plaint. The first, second and third 3 defendants also raised a preliminary objection (the P.O), with only one ground as follows: 1. That suit filed by the Plaintiff against the 1st, 2nd, and 3rd Defendants which is based on trespass to land in December, 2013 is hopelessly time barred for being filed in court in February, 2024 contrary to Part 1 Item 6 to the First Schedule to the Law of Limitation Act, Cap. 89 RE; 2019

herein referred to as (LLA). The hearing of the P.O was by way of written submissions. The plaintiffs were represented by Mr. Daniel Muya, learned counsel. The first, second and third defendants were represented by Mr. Simon Mwakolo, learned counsel. Mr. Mwakolo submitting in support of the P.O, argued that according to the plaint by the plaintiffs and their reliefs sought, the cause of action was on trespass to land which was made by the first, second and third defendants in December, 2013. He argued that this suit claiming for trespass was filed by the plaintiffs in February, 2024. Thus, makes it eleven (11) years since the cause of action arose. He added that the suit is founded on trespass which is a tort and is different from a claim of recovery of land. In support of his argument he 4 cited the case of Avit Thadeus Massawe versus Isidory Asenga, Civil Appeal No. 6 of 2017, CAT at Arusha as referred in the case of Siximund Luambano versus Vodacom Tanzania Limited and 2 Others, Misc. Land Case Appeal No. 02 of 2020. Mr. Mwakolo contended that the claim for trespass by the plaintiffs falls under Item 6, part 1 of the First Schedule to the Law of Limitation Act, Cap. 89, RE 2019 (the LLA) which provides that time to institute a suit founded on tort to be three (3) years from the date the cause of action arose. He added that the suit being instituted after eleven (11) years,

was filed beyond the time prescribed by law and the remedy is to dismiss the suit for being time barred as provided under section 3(1) of the LLA. In his reply submission, Mr. Muya argued that the cause of action is gathered from the totality of the plaint and not in a single paragraph. He added that the P.O suggests that the dispute between the plaintiffs and defendants is on tort of trespass while it is not. He further stated that the defendants assert ownership of the Disputed Properties in question which have been surveyed and issued with certificates of title. He added that the plaintiffs also claim ownership of the Disputed Properties. Mr. Muya further stated that as the certificates of title are granted to the first, second and third defendants by 5 the fourth and fifth defendants the matter becomes of land recovery and not tort. The counsel while emphasizing that the matter was on land recovery reproduced paragraphs (i), (iii) and (iv) of the reliefs sought by the plaintiffs and paragraphs eight (8), nine (9), ten (10) and fifteen (15) of the plaint. Mr. Muya added that the case of Sixmund Luambano versus Vodacom Tanzania Limited and 2 Others (Supra) is distinguishable to the case at hand since in the cited case the appellant prayed for compensatory orders while in the present case the plaintiffs claim ownership of the Disputed Properties. In support of his arguments he

cited the case of Amina Maulid Ambali & Others versus Ramadhani Juma (Civil Appeal 35 of 2019) [2020] TZCA 19 and the case of Elizabeth Sambulisingi Ngowo versus Arthur J. Mwanri (HC) at Moshi Land Appeal No. 38/2022. In rejoinder, Mr. Mwakolo submitted that the issue of ownership of the Disputed Properties can only be resolved after resolving the issue whether the first, second and third defendants are trespassers or not. The counsel proceeded to item (ii) of the reliefs sought, together with paragraph eight (8), ten (10) and eleven (11) of the plaint and insisted that the same is on 6 trespass and not otherwise. That, since the suit is based on trespass, it should have been filed three (3) years after the cause of action arose, that is in 2013. Moreover, Mr. Mwakolo submitted that the cases cited by the counsel for the plaintiffs Amina Maulid Ambali (Supra) and Elizabeth Sabulisingi Ngowo (Supra) are distinguishable to the present matter as the former was based on ownership and not trespass while the latter no P.O was raised on time limitation to file a suit founded on trespass. Having carefully gone through the submissions by both parties, statutes and case laws referred to, I will discuss the preliminary objection on a point of law put before me. To start with I would like to reproduce paragraph eight (8) of the plaint, to wit: “8. that, the Plaintiffs claim jointly and

severally for trespass against the 1st, 2nd, and 3rd Defendants for unlawfully entering to his deceased uncle’s and aunt’s land through a survey conducted by the 4th Defendant without Plaintiff’s knowledge. Subsequently, the 4th Defendant conducted survey on the land that is under the administration of the 1st and 2nd plaintiff. Following the survey conducted by the 4th defendant, the 5th defendant issued certificate of title on Plots Number 457, 458, 459 and 460 with CT No. 18206 MBYLR, CT No. 18211 MBYLR, CT No 18209 MBYLR and CT No 18207 MBYLR all located at Songwe Urban Area within Mbeya District in Mbeya Region in which the plaintiffs claim ownership, thus the Plaintiffs claim the 7 suit land is under their administration awaiting to be distributed to the legal heirs of the deceased who are under legal representation of the 1st and 2nd plaintiffs.” In that order, it is undisputed that the Disputed Properties was owned by the late Simon Mwangonela and Elizabeth Mwangonela. According to the plaintiffs, the first, second and third defendants unlawfully trespassed into the Disputed Properties without the plaintiffs’ knowledge, being administrators of the estate. Further, as per paragraph eight (8) produced above, the first, second and third defendants proceeded and obtained certificates of title on the Disputed Properties from the fourth and fifth defendants. Hence, the

plaintiffs claim the Disputed Properties is under their administration. In the case of Amina Maulid Ambali & Others versus Ramadhani Juma (Civil Appeal 35 of 2019) [TANZLII], the Court of Appeal of Tanzania had this to say, “……In our considered view, when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate of title was not lawfully obtained.” Following the above position, it’s rather obvious that the certificate of title issued by the fifth defendant to the first, second and third defenndants is 8 associated with ownership of the Disputed Properties. Now, in consideration that the certificates of title have been issued, the matter becomes on ownership and can no longer be termed as trespass. I agree with Mr. Muya, that to get a detailed gist concerning the cause of action, the plaint should be read as whole, not just partly. Besides, it is utterly difficult to prove trespass without first proving ownership. In conclusion, I find no merit on the Preliminary Objection raised. I therefore dismiss it to its entirety. There is no order as to costs. Dated in Mbeya this 11th day of July 2024. A. A. SINDA

JUDGE 9