BUDODI RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA LAND CASE NO. 202449 OF 2024 DOMINIC SIMON BUDODI (The Administrator of the Estate of the Late SIMON BUDODI CHATA)…………………PLAINTIFF VERSUS SENGEREMA DISTRICT COUNCIL…………………………………1ST DEFENDANT THE ATTORNEY GENERAL……………………………………….2ND RESPONDENT RULING 29th November, 2024 & 21st February, 2025 KAMANA, J. This is a ruling in respect of two preliminary objections raised by the defendants against the suit filed by the plaintiff. The first objection is that the suit is time-barred as per section 9(2) of the Law of Limitation Act, Cap. 89 [RE. 2019]. The second one is that the suit is incompetent for not describing the disputed property in terms of Order VII Rule 3 of the Civil Procedure Code, Cap. 89 [RE. 2022]. The preliminary objections were argued by way of written submissions. The defendants’ submissions were prepared by Messrs. Lameck Merumba and John Mwanga, both learned State Attorneys. The 1 plaintiff’s submission in reply was prepared by Mr. James Njelwa, learned Counsel. Submitting on the first PO, the learned State Attorneys contended that the period of limitation regarding the disputed property located at Sengerema started to run in 2003 when the said land was surveyed. Given that, the learned State Attorneys contended that the period of twelve years within which a person may file a suit to claim the right of ownership had already expired. They argued that according to section 9(2) of the Act, the right of action is deemed to have accrued on the date of dispossession or discontinuance of the disputed land. They amplified that the plaintiff’s father was aware of the 2003 survey which amounted to dispossession of the land in question but he did not take any action against the first defendant. In buttressing their position, the learned State Attorneys cited the case of Idrissa Ramadhani Mbondera (Administrator of the Estate of the Late Ramadhan Ally Mbondera) v. Allan Mbaruku and Another, Civil Appeal No. 176 of 2020-CAT (Unreported). In the cited case, the apex Court had the time to interpret section 9(2) of the Act and concluded that the period of twelve years starts to run against the claimant when he came to the knowledge about the dispossession of the ownership. 2 Concerning the second PO, the learned State Attorneys contended the suit is incompetent for not describing the land in question in terms of Order VII Rule 3 of the Code. They argued that according to Order VII Rule 3, the plaintiff’s plaint was mandatorily required to contain a description of the disputed land to make it identifiable. They strengthened their arguments by citing the cases of Athanas Celestine Kaiji v. The District Council of Sengerema and Others, Land Case No. 3853 of 2024. In summing up, they prayed for the dismissal of the suit with costs. Replying to the first PO, Mr. Njelwa prefaced by contending that a preliminary objection must be on a pure point of law that does not need evidence to prove. He fortified his position by citing the celebrated case of Mukisa Biscuit Manufacturing Company v. West End Distributors Ltd [1969] EA 696. Inspired by the cited case, the learned Counsel contended that there are two divergent positions as to when the cause of action arose in respect of the disputed property. Amplifying, he submitted that while the defendants held the view that the cause of action arose in 2003 when the land was surveyed, the plaintiff’s position is that the cause of action arose in 2021 when the Commissioner for Lands ordered the 3 conduct of the survey and allocation of the disputed land to the first defendant. Given the divergent positions, Mr. Njelwa held the view that the determination of when the right of action accrued needs evidence and hence the first PO is not a pure point of law. He distinguished the case of Idrissa Ramadhan Mbondera (Supra) as inapplicable in the circumstances of this case in which there is no clear evidence that the disputed land had been allocated to the first defendant as opposed to the cited case in which the land was allocated to the defendant. Concerning the second PO, Mr. Njelwa contended that paragraph 4 of the plaint describes the suit property. He amplified that in the said paragraph, the size of the disputed property and its boundaries have been well described. He strengthened his argument by citing the case of Juma Nasoro v. Kibaha Town Council and Another, Land Case No. 25979 of 2023-HC (Unreported). He prayed this court to dismiss the objections with costs. In their rejoinder, the learned State Attorneys maintained their positions. Having considered the rival arguments, cited law and authorities, the issue that invites my determination is whether the PO disposes of this matter or otherwise. In the course of the determination, I will not 4 reproduce the arguments advanced by the legal minds for both parties, unless it is necessary to do so. Starting with the first ground, I do agree with the learned State attorneys that the period within which a person may claim ownership of land is twelve years. This is per item 22 of the Schedule to the Act. I further agree with them that the right of action is deemed to have accrued on the date of dispossession or discontinuance of the disputed land as per section 9(2) of the Act. In principle, I subscribe to the position of the apex Court in Idrissa Ramadhan Mbondela (Supra) so far as the interpretation of section 9(2) of the Act is concerned. However, the circumstances of the said case are different from this one. This is because, with due respect to the learned State Attorneys, a survey of land does not amount to dispossession or discontinuance of the land. That is a mere procedure towards land formalization. In other words, the process of surveying land does not necessarily lead to dispossession. In the case of Ndasa Kasanda Nyanda (Administrator of the Estate of the Late Kasanda Nyanda Kulwa) v. Mwanza City Council and Others, Land Case No. 31 of 2022-HC (Unreported), this court stated: 5 ‘The survey in itself does not dispossess land or discontinue ownership of the land, even if the same came to the Plaintiff’s knowledge.’ Persuaded by that position, I agree with Mr. Njelwa, though for a different reason, that the first PO is devoid of merits. Coming to the second PO, I agree with the learned State Attorneys and the learned Counsel that according to Order VII Rule 3 of the Code, the plaint must disclose particulars of the land in question to enable its identification. Order VII Rule 3 reads: ‘3. Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number.’ In determining this PO, it is apposite to reproduce the contents of paragraph 4 of the plaint as follows: ‘4. That the plaintiff’s claims against the first defendant is for a declaration that he (as an administrator of the estate of his late father Simon Budodi Chata) is the owner of a piece of land measuring 81,854 square meters located on an area now known as Block “M” at Kilimani Bomani area within Sengerema Urban area, Sengerema District in Mwanza region, that belonged to his late father Simon Budodi Chata. The land boarders Kilabela Primary and 6 Secondary Schools in the west, the Sengerema District Council staff houses in the East, Kilangi, a garage belonging to Alex Nyakarungu and Sengerema District Council Offices in the North and one Kaswahili, Mwalimu Shalali, Makaji and Mwalimu Funga in the South. The plaintiff also claims for an order that the first defendant should allocate him the plots generated from the said area. Alternatively, in case the first defendant decides to acquire the land for its own use, then it should pay adequate compensation to the lawful heirs of the late Simon Budodi Chata, as required by the law.’ Needless to summarise the contents of paragraph 4 of the plaint as they speak for themselves. The same described the disputed land in terms of size, location and neighbours. This in my view is sufficient enough to make the land identifiable. The second PO crumbles. The preliminary objections are dismissed with costs. DATED at MWANZA this 21st February, 2025. KS KAMANA JUDGE 7