CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB- REGISTRY AT ARUSHA CIVIL CASE NO. 44 OF 2023 CHRISTOPHER PELLO KIVUYO PLAINTIFF VERSUS TANZANIA ELECTRICITY 1st DEFENDANT SUPPLY COMPANY ATTORNEY GENERAL 2nd DEFENDANT RULING 25/06/2024& 23/08/2024 BADE, J. Plaintiff instituted this civil case against Defendants, claiming that sometimes in April 2021 the 1st Defendant through a project styled as "Mradi wa Njia ya Kusafirisha Umeme wa Msongo wa Kilovoti 400 kutoka Singida hadi Namanga" entered into his land and started demarcating the land readying it for the ongoing project without compensating him or making any lawful arrangement with him. The Plaintiff thus prayed for this Court to make orders that; Page 1 of 9 i. The Plaintiff is declared as the lawful occupier of the suit land. ii. The act of the 1st Defendant to pass the project into the Plaintiff’s land is unlawful hl That the 1st Defendant should stop the illegal act of trespassing into the Plaintiff’s land and vacate from the suit premises forthwith iv. The Defendant pays general damages to be assessed by this court. However, before this suit could be heard, the Defendants raised a point of preliminary objection in their Written Statement of Defence, to wit; this suit is time-barred. The parties were ordered to dispose of the point of preliminary objection by way of written submissions. The Plaintiff fended for himself and appeared in person, while the Defendants were represented by Mr. Hans Mmbando, State Attorney. Arguing on the preliminary objection, Mr. Mmbando submitted that, the Plaintiff's cause of action as stated in paragraphs 7 and 8 of the amended Plaint is compensation based on the assertion that he is the lawful owner of the piece of land located at Likamba Village where the 1st Defendant has operated a project by the name of "Mradi wa Njia ya Page 2 of 9 Kusafirisha Umeme wa Msongo wa Kilovoti 400 kutoka Singida hadi Namanga". It is Mr. Mmbando's submission that under item 1 of part 1 of the first schedule of the Law of Limitation Act, Cap 89 R.E 2019 (the "LLA") the time limit on compensation claims is prescribed. Expounding, he offered that the evaluation of the project on the suit land was done in 2015 followed by the land inspection and verification of affected owners of all the land on Likamba Village in February 2018 whereas payments of compensation were made in November 2018. Moreover and in further submission, he explains that the Plaintiff was aware of his cause of action since November 2018, but had his first letter claiming compensation communicated to the 1st Defendant on 30/05/2021. The current suit was filed in October 2023, making the time from the payments of compensation to the first claim letter three years, while the time from payments of compensation to the date of filing this suit is five years. The counsel further argues that when an action is time barred a party seeking to initiate the suit must first apply for an extension of time before filing his suit and that a person who seeks justice in court must file his suit within the prescribed time lest he will be faced with a plea of limitation of time. To support his position, he cited the case of Dr. Ally /\ae6 3of9 Shabhay vs Tanga Bohora JAMAAT [1997] TLR 308, and Loswaki Village Council and Another vs Shibeh Abebe [2000] TLR No. 214. Mr. Mmbando added that after the prescribed period had lapsed the door of justice was closed and no plea of poverty, distress, ignorance or mistake could be of any avail, reckoning that the general good of the community requires that even hard cash should not be allowed to disturb the law. To buttress his position, he cited the case of Tanzania National Road Agency and Another vs Jonas Kinyagula, Civil Appeal No. 471 of 2020. His further contention is that the question of limitation of time is a fundamental issue involving the court's jurisdiction, going to the very root of how the court dealt with civil claims. Furthermore, he argues that time limitation has an impact on the jurisdiction of the court to entertain the claim. In his view, this court lacks jurisdiction to hear and determine this matter for being time-barred. To support his argument, he cited the case of NBC Limited and Another vs Bruno Vitus Swalo, Civil Appeal No. 331 of 2019, insisting that the legal consequence for the Plaint to be filed out of time is dismissal. He cited section 3 (1) of the LLA to substantiate his argument. Page 4 of 9 Opposing the point of the preliminary objection raised by the Defendants, the Plaintiff submitted that, the legal position on preliminary objection provides that the determination of a point of law in issue must not depend on the discretion of the court. To support his argument, he cited the case of Mukisa Biscuits Co. Ltd vs West End Distributors Limited (1969) E.A 696. The Plaintiff argues that the Defendant's counsel has misconceived the meaning of preliminary objection as what has been stated in paragraphs 7 and 8 of the Plaint should not be construed to mean that the Plaintiff is claiming compensation. In his view, this is clear as no such relief has been prayed in the Plaint. His further argument is that reading the said paragraph on itself cannot mean that the Plaintiff is claiming compensation to invoke a time limitation plea as alleged by the Defendants. Moreover, he offered in argument that even if it could be taken that the Plaintiff communicated to the 1st Defendant on 30/05/2021 and the current suit was first filed on October 2023. It seems by the time the Plaintiff communicated with the 1st Defendant it might be taken as when the cause of action arose, and that could not make the suit become time-barred as three years has not yet lapsed. Further, he argues that Pa; 'of 9 the allegation that Plaintiff was aware of his cause of action since November 2018 is a fact needing proof, and that this being so, it disqualifies the said allegation to be a point of law that should be argued as a preliminary objection. Having closely considered the record of this file and the rival submissions by parties, the issue calling for determination here is whether this suit is in fact time-barred. It is on the record that, the suit was filed before this court on 25/10/2023. The cause of action and when it arose is stated under paragraph 7 of the Plaint. Reading paragraph 7 of the Plaint between the lines, it is clear that the cause of action accrued in April 2021 where the Plaintiff is faulting the action of the 1st Defendant to enter and take his land without compensating him for it. Counting from April 2021 when the cause of action arose to 25/10/2023 when this suit was instituted is two years and six months. According to Part 1 of Item 1 of the schedule to the Law of Limitation Act a suit of this nature is required to be instituted within one year. Consequently, having found that the cause of action arose in 2021, the suit instituted on 25/10/2023 definitely as argued by the counsel for the Defendants, becomes hopelessly time-barred. /\^/ / Page 6 of 9 Next, I shall consider whether the Plaintiff pleaded facts to exempt him from the prescriptions of limitation. In terms of Order VII Rule 6 of the Civil Procedure Code, a party who seeks to rely on an exemption from time limitation has an obligation to plead grounds for such exemption. Going through the amended Plaint I cannot see those grounds. Plaintiff under paragraphs 8 and 10 of the amended Plaint only stated how they tried to settle the matter with the 1st Defendant in vain. In the case of Consolidated Holding Corporation vs Rajani Industries Ltd and Another, Civil Appeal No. 2 of 2003, it was held that the time taken in negotiations does not fall under the specified grounds warranting exemption from limitation. To bring into play the exemption under Order VII Rule 6 of the Civil Procedure Code, the Plaintiff must state in the Plaint that his suit is time-barred, and state facts showing the grounds upon which he relies to exempt him from limitation. In the case of Alphons Mohamed Chilumba vs Dar es Salaam Small Industries Co-operative Society [1986] TLR 91 it held that: "Order 7 rule 6 of CPC provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. In other words, where but for some ground of exemption from the law of limitation, a suit would prima facie be barred by limitation, it is necessary for the plaintiff to show in his plaint such ground of exemption. If no such ground is shown in the plaint, it is liable to be rejected under rule 11 (c) of the same order". The argument by the Plaintiff that he is not claiming compensation is unfounded because going through the pleading and its annexures, especially paragraph 3 of the notice of intention to sue written by the Plaintiff to the 1st Defendant he was claiming compensation. The letter written by the 1st Defendant to the Plaintiff dated 10/06/2021 stated that they had received the letter from the Plaintiff regarding his complaint that he was not paid compensation. Correspondingly, reading the said annexures together with paragraph 7 of the Plaint it is clear that the basis of this suit is the alleged act of the 1st Defendant to enter the Plaintiff's land and conduct his project without compensating him. Otherwise, if the Plaintiff is alleging that he is not claiming compensation, the obvious thing he is claiming is his land being taken by the 1st Defendant, in that case, he was required to institute his claim in the Land Court and not in the normal Civil Court as he did. y Page 8 of 9 Having said so, this point of preliminary objection is hereby sustained. Further, it is ordered that the suit be dismissed with costs under section 3(1) of the Law of Limitation Act for being hopelessly time-barred. It is so ordered. DATED at ARUSHA this 23rd day of August 2024 A. Z. Bade Judge 23/08/2024 Ruling is delivered in the presence of the Appellant and the Respondent / their Representative in chambers on the 23rd day of August 2024. A. Z. BADE JUDGE 23/08/2024 Page 9 of 9