ATHANAS CELESTINE KAIJI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA LAND CASE NO. 3637 OF 2024 ATHANAS CELESTINE KADI alias known as KADI CELESTINE ATHANAS................................................. PLAINTIFF

VERSUS TEMBO NICKEL CORPORATION LIMITED............................. 1st DEFENDANT TRACE ASSOCIATES LIMITED............................................... 2nd DEFENDANT

RULING 20th and 29th January, 2025 BANZI, J.: The ruling at hand emanates from a point of law raised by Court suo motto on whether this suit for compensation was filed within time that is, one year after the cause of action arose. Briefly, according to the plaint with its annexures, the 1st defendant is the company incorporated in Tanzania anticipating to open a large-scale nickel mining at Bugarama ward within Ngara District in Kagera Region. In the process of establishing its activities, it necessitated to acquire land from indigenous within which the mining will take place by compensating them on their land and other properties that would be affected by the project. The plaintiff was among the persons whose land was affected by the project. In Page 1 of 10 2022, the valuation process began and after the initial valuation that was conducted on 17th August, 2022, it was proposed that, the plaintiff was entitled to be compensated TZS 554,725,557.00. However, before payment was made, the 1st defendant decided to verify the actual properties eligible to be evaluated in order to get the accurate amount to be compensated to the plaintiff. After verification that was conducted on 3rd December, 2022, the amount to be compensated was reduced to TZS 16,309,261.00. The plaintiff was discontented with the verification and on 22nd February, 2024, through the legal services of Mr. Heri

Louis Kayinga, learned advocate, he opened this case claiming for compensation amounting to TZS 570,135,657.00. Conversely, the defendants via legal representation of Mr. William Mang'ena, learned advocate disputed the claims contending that, after intensive review, it was noted that, some of tally cards including the plaintiff's had deficiencies as a result, further site verification was required. The amicably settlement through mediation process proved futile, hence, the hearing of the case commenced. Nevertheless, after closure of the plaintiff's case and in the course of perusing the pleadings and testimony of the plaintiff (PW1) who was the sole witness, I noted that, as this suit is based on claim for compensation, I probed the learned counsel for both parties to address the Court on whether the suit was filed within time. Page 2 of 10 Hearing of the legal point was agreed to be conducted by way of written submissions. Submitting on behalf of the defendants, Mr. Mang'ena argued that, the suit for claim of compensation was supposed to be instituted within one year. However, this suit was opened beyond one year period as required by the law. He further contended that, the valuation process started on 10th August, 2022 and was completed on 17th August, 2022. Nevertheless, the 1st defendant decided to conduct a second valuation which was completed on 3rd December, 2022 and

after that valuation, it was when the parties came into variance on the actual amount to be compensated. According to him, 3rd December, 2022 is the actual date that the cause of action arose. In that regard, the plaintiff ought to have filed the suit immediately after 3rd December, 2022 when the second valuation was completed. Failure to file the suit within twelve months, this suit is time barred and pursuant to section 3(1) of the Law of Limitation Act [Cap.89 R.E. 2019] ("the LLA"), deserves to be dismissed. To support his submission, he cited the case of Ali Shabani & Others vs Tanzania National Roads Agency (tanroads) & Another (Civil Appeal No. 261 of 2020) [2021] TZCA 243 (10 June 2021). Page 3 of 10 In the alternative, relying on the case of Fatuma Machinga Ngoma vs CRDB PLC & Alliance Academy Limited (Land Case No. 8538 of 2024) [2024] TZHCLandD 805 (28 June 2024), he urged this Court to strike out this suit because the plaint contravened Order VII Rule 1(e) of the Civil Procedure Code [Cap.33 R.E. 2019] for failure to disclose when the cause of action arose. In reply, Mr. Kayinga contended that, it is evident from the record that the plaintiff is the rightful owner of the suit land which he has owned for more than twelve years. According to him, considering that the plaintiff has been owning that land for more than twelve months, under Item 22 of Part I of the

Schedule to the LLA, the limitation period is twelve years, hence, relying on the case of Tanzania Road Agency & Another vs Jonas Kinyagula (Civil Appeal No. 471 of 2020) [2021] TZCA 310 (16 July 2021), the claim was filed within prescribed period. In his view, the holding in the case of Ali Shabani & Others vs Tanzania National Roads Agency (tanroads) & Another {supra) is distinguishable. Submitting on when the cause of action arose, Mr. Kayinga claimed that, the cause of action arose on 15th November, 2023 when the 1st defendant responded to the complaint letter by the plaintiff concerning unfair Page 4 of 10 valuation process. Besides, it was on that date when the plaintiff was formally notified about unilaterally nullification of the previous issued Tally Cards. In that regard, as the plaintiff instituted this suit on 22nd February, 2024, it is within a year after the cause of action arose. In addition, it was his contention that, the issue about the plaintiff's failure to plead when the cause of action arose was raised by the defendants in the absence of leave of the Court. In rejoinder, Mr. Mang'ena contended that, the counsel for the plaintiff raised the issue of ownership of land while there is no prayer for recovery or declaration of ownership of land, rather, the instant suit is for compensation. According to him, the cause of action arose between 25th November,

2022 when the verification was done on the land registered as VAL/BGR/BGR/338L and on 3rd December, 2022 after the land registered as VAL/BGR/BGR/102L was re-valuated. Hence, the allegation that, the cause of action arose on 15th November, 2023 does not hold water because that letter was part of negotiations between the plaintiff and the 1st defendant after the 1st defendant had decided to review the valuation exercise and issued new tally cards. He added that, the negotiations between parties do not stop time limitation as stated in the case of Consolidated Holding Corporation vs Rajani Industries Limited & Another, Civil Appeal No. 2 of 2003 CAT Page 5 of 10 (unreported). He further contended that, the fact about the cause of action to arise on 15th November, 2023 was not pleaded in the plaint. Having considered the record and the submissions from learned counsel for both parties, the issue for determination is whether the suit was filed within the prescribed time. Pursuant to Item 1 of Part I of the Schedule to the LLA, the claim for compensation ought to be instituted within one year since the cause of action arose. This position was expounded in various cases including Ali Shabani & Others vs Tanzania National Roads Agency (tanroads) & Another (supra) and Tanzania Road Agency & Another vs Jonas Kinyagula (supra). In the latter case, the brief facts reveal that, in 2013,

the 1st appellant took the respondent's land measuring 4 acres and constructed permanent structures without compensating him. His complaints bore no fruits and in 2019, he filed a suit claiming for compensation of TZS 99,000,000.00 for acquisition of his land. The appellant raised a preliminary objection to the effect that, the claim was time barred. The High Court granted him that compensation. On appeal to the Court of Appeal it was stated that: Page 6 of 10 "The time limitation for claims over compensation as provided for under item 1 of part I to the Schedule to LLA is one year... Since the suit was lodged far beyond the prescribed time, it was time barred and hence, the trial High Court lacked jurisdiction to entertain it. Since the trial court entertained an incomplete suit, the whole proceedings and judgment thereof were a nullity." Now, the issue is whether the suit for compensation was filed within one year since the cause of action arose as required by law. Mr. Mang'ena contended that, the cause of action arose on 3rd December, 2022 after the first defendant had completed verification of properties to be compensated therefore, if the plaintiff was dissatisfied with the verification, he was required to file the suit within one year from 3rd December 2022. Hence, by filing this suit on 22nd February, 2024, he was out of the required time to file the suit for

compensation. On his side, Mr. Kayinga contended that, according to item 22 of Part I of the Schedule to the LLA, the limitation to file the suit is twelve years. Therefore, the suit was filed within the required period. However, in his further submission, he changed the goal posts and stated that, on 22nd February, 2023 the plaintiff wrote a letter (Exhibit P7) to the 1st defendant complaining about unfair valuation which was responded by the 1st defendant on 15th November, 2023 (Exhibit P6). Hence, according Page 7 of 10 to him, the cause of action arose on 15th November, 2023. That being the case, filing this suit on 22nd February, 2024 the plaintiff was within the prescribed time. Before delving into the gist of the matter, I find it necessary to make it clear that, the dispute before this court is about compensation and there is no any dispute between the parties on claim for ownership of land. It is not disputed that; the plaintiff's land is to be taken by the 1st defendant so as to open nickel mining but the plaintiff is complaining for unfair compensation for his properties. Therefore, this dispute has nothing to do with recovery of land which the time limitation is twelve years as suggested by Mr. Kayinga. It is clear from the record that, the initial valuation of the plaintiff's properties to be compensated was completed between 10th and 17th August, 2022.

Nevertheless, before payment was made, the 1st defendant decided to conduct intensive verification to satisfy herself on the valuation process conducted by the 2nd defendant. As a result, it was found that, the initial valuation was not correct, hence, decided to re-evaluate the plaintiff's properties basing on the second valuation and that is when the dispute between them erupted. In the letter of 22nd February, 2023, the plaintiff was Page 8 of 10 complaining for unfair valuation which indicates that, the plaintiff was aware about the dispute between them before the 1st defendant responded to his letter informing him that, verification was done according to law. That being the case, it is my considered view that, the contention by Mr. Kayinga that, the cause of action arose on 15th November, 2023 after the 1st defendant had responded to the letter written by the plaintiff complaining for unfair valuation, is unfounded. Therefore, it cannot be said that, the cause of action arose when the 1st defendant had responded to the plaintiff's letter on 15th November, 2023. Besides, as stated in the case of Consolidated Holding Corporation vs Rajani Industries Limited & Another {supra), the time taken in negotiation or administrative measures taken in a view of settling the dispute do not stop time limitation. In that regard, it is my finding that, after the 1st defendant had conducted

verification, that is when the cause of action arose. Therefore, from 3rd December, 2022 when the 1st defendant had posted the amount to be compensated to the plaintiff, that is when the cause of action arose. The plaintiff, if not satisfied, was required to file the suit within one year from 3rd December, 2022 when the cause of action arose. Considering that the suit was filed on 22nd February, 2024, which is one year and two months after the cause of action arose, it was definitely filed out of time. Page 9 of 10 That being said, since this suit was filed out of time, it is hereby dismissed pursuant to section 3(1) of the LLA. However, as the point was raised by Court suo motto, I make no order as to costs. It is accordingly ordered. I. K. BANZI

JUDGE 29/01/2025 Delivered this 29th day of January, 2025 via video link in the presence of Mr. Heri Louis Kayinga, learned counsel for the plaintiff, Mr. William Mang'ena, learned counsel for the defendants, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala. I. K. BANZI

JUDGE 29/01/2025 Page 10 of 10