scanned LAND CASE NO 24914 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND CASE NO. 24914 OF 2024 ABUBAKAR ALLY MEMBI.............................................. PLAINTIFF

VERSUS NAFISA MUFADAL HAJEE......................................1st DEFENDANT ESMA SHARIF KIMJI.......................................... 2nd DEFENDANT ZAINAB ISMAIL.................................................. 3rd DEFENDANT SUBASH MEHTA.................................................. 4th DEFENDANT

RULING Date of Last Order: 12.11.2024 Date of Ruling: 28.11.2024 T.N. MWENEGOHA, J The Ruling is in respect of two preliminary objections raised by the 1st defendant against the determination of the suit. Initially, the Counsel for 1st defendant raised three objections, but during hearing, she abandoned the 3rd objection and remained with the first two as follows; - 1. That, the plaint is time barred, raised as 1st and 2nd defendants.

2. That, the plaint does not disclose when the cause of action arose, as raised by the first to third defendants. The objections were heard through written submissions. Advocate Happy Mkude appeared for the 1st and 2nd defendants, Advocate Mpaya Kamara represented the 3rd defendant, while the plaintiff was represented by Advocate Julius Kalolo Bundala. In this Ruling, I will start with the 2nd i objection raised, that the plaint doe not disclose when the cause of action arose. I do this because, that is the foundation of knowing whether the case has been filed within time, for the purpose of answering the 1st objection. In their submissions which were filed separately in this Court, the counsels for the 1st and 2nd defendants, Happy Mkude as well as Mr. Kamara for the 3rd defendant, insisted that, in the present case, the plaintiff has not in any way shown when exactly the cause of action against the defendants arose. That, stating when the cause of action arose, enables the Court to be availed with all relevant particulars for purposes of determination of jurisdiction in that the matter before it, if it is well within its proper time limitation. Therefore, the suit is incompetent and the same should be struck out as stated in Mariam Samburo (Legal Personal Representative of the late Ramadhan Abasi versus Masoud Mohamed Masoud) & 3 Others, Land Case No. 36 of 2008, High Court

of Tanzania Land Division, at Dar Es Salaam (Unreported). In reply, Mr. Bundala maintained on the 2nd objection that, the same is devoid of merits. He insisted that if we go through the Plaint and its annexures, particularly annexure AAM1- which is a Certificate of Title, issued to the plaintiff on 1/8/2024, after purchasing the suit land, it shows clearly that is when the cause of action arose. That, it is the date when the plaintiff became the owner and aware of the trespass, as stated in Registered Trustees of Baraza Kuu la Waislam Tanzania (BAKWATA) versus Bodi ya Wadhamini Jumuiya ya Waislam Kumwelelo & Another, Civil Appeal No.629 of 2022, Court of Appeal of Tanzania, at Kigoma (unreported). 2 In determining this objection, I agree with what the counsels for the defendants submitted that, the plaint has not disclosed when exactly the cause of action arose. The plaintiff's counsel has insisted that, we should go through annexure AAM1 to see when the cause of action arose. This argument in my opinion is unfounded. Annexure AAM1 is a Certificate of Title, issued by the Registrar of Title, showing that the plaintiff is the owner of the land described there-in. After all, Order VII rule 1(e) of the Civil Procedure Code, Cap 33 R.E 2019, speaks for itself. It is the plaint that should have facts showing the cause of action and when it arose and not its annexures as argued by

the plaintiff's Counsel. It reads as follow;- "The plaint shall contain the following particulars: (e) the facts constituting the cause of action and when it arose" In that regard, the proper Decision to make by this Court is to allow the second objection as raised by the 1st to 3rd defendants and declare the whole suit to be incompetent, see Mariam Samburo (Legal Personal Representative of the late Ramadhan Abasi versus Masoud Mohamed Masoud) & 3 Others, (supra). Therefore, the 2nd objection is sustained. With these findings, will not discuss the 1st objection, as the objection determined has finalized the matter. In the event, the suit is struck out with costs. Ordered accordingly.