DANNY PAUL KYAUKA VS NATIONAL HOUSING CORPORATION AND ANOTHER

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND CASE NO. 13504 OF 2024 DANNY PAUL KYAUKA ……………………….…………..... PLAINTIFF VERSUS NATIONAL HOUSING CORPORATTION .............. 1ST DEFENDANT THE ATTORNY GENERAL …………………….…...… 2ND DEFENDANT RULING 24/10/2024 & 25/11/2024 SIMFUKWE, J. In this ruling the court has been called upon to determine the following preliminary objections raised by the 1st and 2nd defendants: 1. That, the suit is time barred for all intents and purposes. 2. That, this honourable court has no jurisdiction to entertain this suit in terms of the Acquisition of Buildings Act, No. 13 of 1971 and Land Registration Act, Cap 334. 1 The facts of the case briefly, as per the pleadings, are that the plaintiff herein instituted a case against the defendants, claiming that the defendants forcefully and unlawfully evicted him from his land situated at Market Street, which he had occupied since 1984 without interference. Thus, he was claiming, inter alia, an order of the court directing the defendants to pay him TZS 100,000,000 as compensation for his belongings that were unlawfully confiscated by the defendants; payment of TZS 450,000,000 as the value of the suit premises and general damages at the tune of TZS 200,000,000/=. The preliminary objections were ordered to be argued by way of written submissions. The plaintiff was represented by Ms. Lilian Mushemba, learned counsel, while the defendants were represented by Ms. Glorian Issangya, learned Senior State Attorney. In support of the second ground of objection, which concerns jurisdiction, Ms. Glorian began by explaining the legal position regarding jurisdiction. She argued that jurisdiction is a statutory creation. Having established the legal position, Ms. Glorian submitted that the contention concerns ownership of Plot Nos. 17 and 18, Block K, Market Street, within Moshi Municipality, registered under Certificate of Title No. 056046/105. The 2 properties were among those acquired by the President of the United Republic of Tanzania on 30th April 1971 under the Acquisition of Buildings Act No. 13 of 1971. That, ownership was vested to the Registrar of Buildings pursuant to the Government Notice published in the Government Gazette Vol. LII No. 19 of 30th April 1971. Ms. Glorian submitted further that the court lacks jurisdiction to entertain this suit because it concerns the acquisition of property. She pointed out that, under section 10(3) of the Acquisition of Buildings Act (supra), disputes were required to be referred to or appealed before the Appeal Tribunal, whose decision is final and conclusive as per section 10(4) of the said Act. She argued that, in this regard, the court has no jurisdiction to determine the matter. Ms. Glorian continued to submit that the Acquisition of Buildings Act (supra) was repealed following the enactment of the National Housing Act of 1990, Cap 481. Subsequently, the interests, title, and claims to the suit property, including other buildings acquired by the Government of Tanzania, were transferred to and vested to the 1st defendant on 29th June 1993. Whereby the Registrar of Titles rectified the registry in the previous title and inserted the name of National Housing Corporation. 3 The learned State Attorney stated that since the matter arises from grievances against the decision of the Registrar of Titles, the jurisdiction of the court is limited to what is provided under section 102 of the Land Registration Act. She argued that filing a fresh land case constitutes an abuse of the court's jurisdiction and is contrary to the interests of justice. To substantiate her argument, she cited the case of Adnan Kitwana Kondo and 2 Others vs. National Housing Corporation, Land Case No. 267 of 2014 (HC). She argued that, under section 102(1)(a) of the Land Registration Act (supra), any person aggrieved by the decision of the Registrar has the remedy of appealing to the High Court within three months from the date of the decision. However, the appellant must issue to the Registrar one-month notice of his intention to appeal. Ms. Glorian cited the case of Sospeter Kahindi vs. Mbeshi Mashini, Civil Appeal No. 56 of 2017, and emphasized that the issue of jurisdiction should not be taken lightly. Another jurisdictional issue raised by Ms. Glorian concerned the locus standi of the plaintiff. She argued that the plaintiff alleged to be the son of Paul Kyauka, who died on 17th February 2002, yet he filed the case in his own capacity instead of an executor or administrator of his father’s estate, without any proof of appointment by a competent authority. She 4 supported her assertion with the case of Michael Gabriel Mihayo vs. National Housing Corporation and 2 Others, Misc. Land Application No. 4755 of 2024, at pages 9 to 10. She concluded the jurisdictional issue by stating that the case lacks legal stand and the same should be dismissed. On the objection that the matter is time-barred, Ms. Glorian explained that the claims in this suit cannot be separated from the decision of the Registrar of Titles to rectify the plaintiff’s registration of interest in the suit property following its acquisition. That, the same has been pleaded in paragraphs 4, 5, 6, 7, and 8 of the Written Statement of Defence. She argued that claims of interest in land matters are limited to twelve years from the date the cause of action arose or became known to the complainant. The learned State Attorney submitted that since more than twelve years have passed since the rectification, the plaintiff lacks a legal interest due to the limitation of the law. She prayed for the suit to be dismissed with costs. In reply, Ms. Lilian Mushemba, at the outset, notified the court that the objection regarding the issue of locus standi was never part of the notice 5 of preliminary objection raised on 15th of July 2024. She argued that raising such an issue amounted to ambushing the plaintiff and, therefore, pleaded with the court to disregard that part of the submission. She referred sections 66 and 94 of the Advocates Act, Cap 341 R.E 2019 and cited the cases of Rondel vs. Worsley (1966) 3 W.L.R 950 at 962–962 and Gianarelli vs. Wraith (1988) 165 C.L.R 543, 556– 557 to support her point that an advocate has a duty to the court as an officer of the court. She also referred the case of Uganda vs. Ex Parte Matovu [1966] EA 514 to the same effect. Without prejudice to the foregoing, Ms. Mushemba responded to the second ground of objection concerning lack of jurisdiction by asserting that such allegations cannot be determined at this stage without both parties being heard on merit. She argued that these issues involve facts requiring proof or verification. To support her contention, she cited the case of Jackline Hamson Ghikas vs. Mlattie Richie Assey, Civil Application No. 656/01 of 2021 (unreported), in which the Court of Appeal cited the case of Mukisa Biscuit Manufacturing Company Ltd vs. West End Distributors Ltd (1969) E.A 696. 6 It was argued further that there was a deviation from the principles governing preliminary objections, as the issue of whether the suit land was acquired by the President or not is not a pure point of law. She contended that this issue can only be resolved by presenting evidence during a full trial. To substantiate her submission, Ms Mushemba referred to the findings in Mukisa Biscuit’s case (supra) at pages 700 and 701, emphasizing that a preliminary objection cannot be raised if any fact has to be ascertained. Responding to the argument that the plaintiff has no locus standi, the learned counsel subscribed to the words of His Lordship Judge Samatta, J (as he then was), when he stated that: “Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with.” Ms Mushemba also cited the case of Registered Trustees of SOS Children Villages Tanzania vs. Igenge Charles and Others, Civil Application No. 426 of 2018, and the case of Lujuna Shubi Ballonzi 7 Senior vs. Registered Trustees of CCM [1996] TLR 203, which elaborated the principle of locus standi. Ms. Mushemba stated further that the plaintiff is the legal owner of the property, as it had already passed from his deceased father to him. Therefore, there was no need for letters of administration. That, the plaintiff shall demonstrate so in the course of hearing. She was of the opinion that denying the plaintiff the opportunity to pursue his claims based on unfounded allegations would amount to condemning him unheard, which will not serve the interests of justice. In her final remarks, Ms. Mushemba concluded that the raised objections are without merit and implored this court to entertain the suit on merit. I have carefully considered the rival submissions and the pleadings of the parties. The issue to be determined by this court is whether the raised preliminary objections have merit. As noted earlier, the learned State Attorney raised two primary objections. However, in her submission in chief, she introduced the issue of locus standi, which Ms. Mushemba argued that was not pleaded. I agree with Ms. Mushemba's submission that the issue of locus standi was not raised 8 by the learned State Attorney in her notice of preliminary objection. Instead, the State Attorney appears to have classified the issue as jurisdictional and argued it under the umbrella of the second ground of objection. While I acknowledge that locus standi is a jurisdictional issue, it does not fall within the ambit of the second ground of preliminary objection. The second objection, as raised by the learned State Attorney, was specifically confined to the court's lack of jurisdiction under the Acquisition of Buildings Act and the Land Registration Act (supra). The arguments, of the learned State Attorney, therefore, were narrowly limited to the jurisdictional aspects of those laws. Without prejudice to the above, since both parties had an opportunity to address the issue, I find it necessary to resolve it. This court takes a strong position that the claim that the plaintiff lacks locus standi because the suit property belonged to his late father is not supported by the pleadings. According to paragraph 5 of the Plaint, the plaintiff explicitly asserted that the suit property passed to him from his father. Consequently, the question of how the property passed from the plaintiff's father to the plaintiff is a matter requiring evidence. 9 It is a well-established principle of law that facts requiring further ascertainment cannot be determined at the preliminary stage. The manner in which the property passed from the plaintiff's father to the plaintiff requires evidence, hence, the averment that the plaintiff lacks locus standi is without merit. The next issue to be determined is in respect of the argument that the court lacks jurisdiction to entertain this suit under the Acquisition of Buildings Act (supra) and the Land Registration Act (supra). Ms. Glorian argued that since the issue pertains to ownership of the suit property, which was acquired by the President of the United Republic of Tanzania, the appropriate remedy would be to appeal to the Appeals Tribunal. She further contended that, following the enactment of the National Housing Act, the responsibilities of the Registrar of Buildings are now vested to the 1st defendant. The learned State Attorney elaborated that the Registrar of Titles rectified the registry by inserting the name of the 1st defendant. In that regard, Ms. Glorian submitted that the matter is from grievances related to the decision of the Registrar of Titles, for which the remedy is to appeal to the High Court within three months. 10 The arguments were disputed by Ms. Mushemba, who contended that the issue of whether the suit property was acquired by the President of the United Republic of Tanzania or not is not pure point of law. At the outset, I concur with Ms. Mushemba that the issue of whether the suit property was acquired by the President of the United Republic of Tanzania or not requires evidence. Such evidence cannot be considered at the stage of a preliminary objection. While I am aware of the legal position articulated by the learned State Attorney, I firmly maintain that this ground of objection is a mixture of law and fact. The Courts have consistently refrained from addressing preliminary objections which involve a mixture of law and facts. In the case of Ibrahim Abdallah (the Administrator of the Estate of the late Hamisi Mwalimu vs Selemani Hamisi (The Administrator of the Estate of the late Hamisi Abdallah), (Civil Appeal 314 of 2020) [2022] TZCA 43 Tanzlii at page 9 to 10, the Court emphasised that: “It is settled law that a pure point of law does not arise if there are contentions on facts yet to be ascertained by evidence… 11 …the emphasis is that a preliminary objection may only be raised on a pure question of law which can be discerned if the court is satisfied that the pleaded facts are not contentious or if any of the facts has to be ascertained in a proper trial.” Having established as such, it is the findings of this court that the second objection lacks merit. The last objection is the contention that the suit is time-barred due to lapse of more than twelve years from the impugned rectification. Upon careful examination of the pleadings, this Court is of the view that, according to paragraphs 5 and 6 of the Plaintiff's Plaint, the cause of action arose in 2023 when the Plaintiff alleged that the Defendants forcefully and unlawfully evicted them. With due respect to Ms. Glorian, the assertion that the disputed land was acquired by the President of the United Republic of Tanzania and subsequently rectified by the Registrar of Titles is a matter requiring evidential proof. As previously stated, any issue that requires the presentation of evidence for its determination does not meet the criteria 12 of a preliminary objection. Therefore, the first ground of the preliminary objection is likewise devoid of merit. Having considered the presented arguments, I am of the firm view that the grounds of the Preliminary Objections lack merit and are therefore overruled without costs. Consequently, the main suit shall proceed on its merit. It is so ordered. Dated and delivered at Moshi this 25th day of November 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 25/11/2024 13 14