final AISHA JUMA LEMA Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI LAND CASE NO. 18982 OF 2024 AISHA JUMA LEMA (suing as an administratrix of the Estate of the late Mwanaisha Selemani)……………………………….PLAINTIFF VERSUS LUCY EDWARD LEMA (as an administratrix of the Estate of the late Zubeda Selemani) ………………………………….1ST DEFENDANT LODRICK EMMANUEL URONI ………………..…………………...2ND DEFENDANT RULING 20th Nov. 2024 & 10th Feb. 2025. A.P. KILIMI, J.: This is a ruling in respect to a preliminary point of objection raised by the 1st defendant that, “this matter is incompetent before this court as it contravenes the provision of the Law of Limitation Act [Cap 89 R.E.2019] specifically on 1st schedule part I item 22, since the suit was instituted out of specified time of twelve (12) years thus it is time barred”. Through the service of Mr. Joseph Peter learned advocate for the 1st defendant, arguing in support of this objection submitted that based on the plaint filed in this court, paragraph 23 the plaintiff claimed to have first instituted a suit against the defendants in June 2011 vide Land Case No. 11 1 of 2011 which was struck out for want of pecuniary jurisdiction. He contended therefore that this is a proof that twelve (12) years have elapsed since institution of the suit to date. It was his further submission that this suit is definitely time bared as per the provision of the Law of Limitation Act specifically on the 1st schedule, part 1 item 22 for being instituted after expiry of 12 years. Submitting further Mr. Peter stated that based on what is stated in the plaint even the Court of Appeal via Civil Appeal No. 8 of 2021 ordered the appellant who is the plaintiff in this matter, if still interested to pursue the matter to do so in accordance to the requirement of the law which the learned counsel argued that it meant the Law of Limitation Act. To further substantiate his submission Mr. Peter invited this court to consider the case of Mukisa Biscuits Co. Ltd vs. West End Distributors Ltd (1969) EA. 696 which he said provides for the necessary conditions for raising preliminary objection. He then concluded that the preliminary objection raised is apparent on face of the pleadings hence he prayed for the suit to be dismissed with cost. 2 Responding to the above submission, the Plaintiff contended that it is undisputed fact that the cause of action arose at the first instance in 2008 when the 1st defendant sold and transferred the land in dispute to the 2nd defendant while according to her she had no right so to do. She stated further that if the time is calculated from 2008 to 2024 it will be 16 years which indeed proves laps of 12 years prescribed by the law as argued by the counsel for the 1st defendant. It was then her view that the issue to be discussed at this juncture is at what point should we start computing the 12 years. She further referred to Section 6(2) (c) of the Law of Limitation Act and argued that the present case resulted from the judgment and Decree of the Court of Appeal of Tanzania in Civil Appeal No. 8 of 2021 delivered on 13th December 2023 nullifying and quashing the Judgment and decree of the High Court in Land Case No. 17 of the 2015. It was her submission therefore that based on the cited provision above the computation of period in the present case started from 13th December 2023 and not 2008 which makes a total of 7 months and thus he argued, that the case is not time bared and that this court has jurisdiction to entertain it. 3 Strengthening her defence, the plaintiff referred the provision of section 7 of the Law of Limitation Act, where she argued that based on this provision the last wrong was committed in 2015 when the 2nd Defendant demolished the suit property. She argued that even if were to count from that point only nine (9) years would have passed hence the suit was still filed within time. She also invited this court to refer the provision of Section 21 of the Law of Limitation Act which excludes the time during which the Plaintiff had been prosecuting with due diligence another civil proceeding in this court and the court of appeal against the defendant. To substantiated her assertion cited the case of Geita Gold Mining Ltd vs. Anthony Karangwa (Civil Appeal No. 42 of 2020) [2023] TZCA 28 (TANZLII). The plaintiff further cemented that since 2011 she has been diligently prosecuting former cases and that she did so in good faith by following every order of the court accordingly. She concluded that the suit at hand is competent and legally commenced subject to the Law of Limitation Act, especially under section 6(2) (c), 7 and 21 (1) and (2). She then concluded that the preliminary point of objection raised by the 1st Defendant’s counsel be overruled with cost. 4 I have thoroughly considered the rival arguments by both parties. In my considered view, the main issue here is whether the suit is time bared. In determining this issue one of the important aspect to be considered is the point of measuring when the time accrue and if there is exclusion circumstance of time delayed. According to the provision of Section 5 of the Law of Limitation Act, the right of action in respect of any proceeding accrues on the date on which the cause of action arises. Based on the pleadings, specifically the plaint, the cause of action in this case arose in the year 2008 when the 1st Defendant transferred the suit property to his name and later transferred it by sale to the 2nd defendant. It is also in the pleadings that the plaintiff has since 2011 after discovering the alleged illegal acts of the 1st defendant over the suit property commenced legal actions by instituting a case against her which went up to the Court of Appeal of Tanzania. The Court of Appeal through its decision delivered on 13th December 2023, nullified the proceedings of the High Court and quashed its judgment while allowing the plaintiff if so wished to further pursue the matter to do so in accordance with the law and subject to the Law of Limitation Act. Hence the present suit resulted 5 from the judgment of the Court of Appeal of Tanzania delivered on 13th December 2023. Now the above being the position in the present matter, the position of the law in such circumstance is as provided under section 21(1) of the Law of Limitation Act, which provides for exclusion of the time which the plaintiff has been prosecuting another civil proceeding. The provision states; “In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded”. The above provision states with clarity that when computing the period of limitation, the time within which the plaintiff was diligently prosecuting another civil proceeding must be excluded. This being the settled law in the present matter when computing the period of limitation I will exclude all the time when the plaintiff was prosecuting other civil proceedings as stated in the pleadings. I am inspired by the wording of the 6 court when dealt with akin situation in Geita Gold Mining Ltd vs. Anthony Karangwa (supra) when observed at page 9 that; “The above-cited provision takes us back to section 21 (2) of the same Act which, as opposed to Mr. Gilla's argument, requires the court to automatically exclude the time spent by the applicant in prosecuting other proceedings against the same party for the same relief, other things being equal. It goes without saying therefore, that section 21 (2) of the LLA does not require a party who intends to rely on it, to move the court by way of application for extension of time before he can have the time spent in prosecuting another proceeding against the same party excluded when computing the period of limitation. That is the law which, though not fixed, is well settled. The above being the position of the law which we have no reason to disturb” In regard to the import of the above law, therefore it is my settled view, although the cause of action in this case arose in 2008 the pleadings entails that the plaintiff has instituted civil case in 2011 against the defendant in this court which proceeded up to the court of appeal and 7 finalized on 13/12/2023, therefore when this period is excluded it remains 3 years since the said case was filed, then after the said case was concluded until the filing of this matter on August 2024 it was almost 8 months, therefore cumulatively it is within the time limit of 12 years of filing this matter of case as prescribed by the law. From the above stated facts, I find the point of objection raised not justifiable and I proceed to dismiss it with no orders as to costs. It is so ordered DATED at MOSHI this day of 10th February, 2025. X JUDGE Signed by: A. P. KILIMI Court: - Ruling delivered this 10th day of February, 2025 in the presence of Plaintiff while the Defendant and her advocate absent. Sgd: A. P. KILIMI JUDGE 8 10/02/2025 Court: - Right of Appeal duly explained. Sgd: A. P. KILIMI JUDGE 10/02/2025 9