elizabeth thomasi olutu v milton lusajo lazaro 2023 tzhclandd 16652 30 june 2023

.V IN THE high COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 326 QF 2022 ELIZABETH THOMAS OLOTU ................... PLAINTIFF VERSUS MILTON LUSAJO LAZARO DEFENDANT Date offast Order: 31/05/2023 Date ofRuling: 30/06/2023 ^ RULINiG I. ARUFANI,J. This ruling is for the points of preliminary objections raised in this matter by the defendant that: - - (a) The suit which is in respect ofiand is time barred by virtue ofiimitation. (b) The subject matter ofthe suit, which is a joint venture, is a contract as such the suit is time barred by virtue of iimitation. While the plaintiff is represented in the matter by Advocate Juvenalis Ngowi from Dentons EALC East Africa Law Chambers and Advocate Mpaya Kamara from Kamara & Associates, Advocates, the defendant is represented in the matter by Advocate John B. Tendwa from J. B. Advocates and Advocate Bernard Ngatunga, from GMK Attorneys. By consent of the counsel for the parties the foregoing points of preliminary objections were argued by way of written submission. 1- The counsel for the defendant (Hon. J. B. Tendwa) stated In his submission In relation to the first point of preliminary objection that, the suit before the court as stated at paragraph 3 of the plaint Is in respect of land. He argued That, according to the provisions of the Law of Limitation Act, Cap 89, R.E 2019 (hereinafter referred as the LLA), the limitation of time for a suit for recovery of land is required to be Instituted In court not later than 12 years from the time when the dispute arose. He stated the plaintiff's claims against the defendant as averred at paragraph 3 of the plaint Includes a declaratory order that, the land situated at Plot No. 121 MsasanI Area In Dar es Salaam Region (hereinafter referred as the suit property) is jointly owned by the defendant and the plaintiff. He stated further that, as averred at paragraph 5 of the plaint, the plaintiff and the defendant executed a joint venture agreement (henceforth the agreement) on 3''' August, 2002. He submitted the plaintiff is relying on the stated agreement to argue the plaintiff's cause of action arose on the date of execution of the agreement which is S"' August, 2002. He stated that, from when the agreement was executed on 3"* August, 2002 to 14"^ December, 2022 when the instant suit was filed in the court it is beyond the limitation of time set by law which is 12 years as it was filed after the elapse of 20 years. He Cited in his submission section 9(3)of the LLA which provides for vyhen accrue of a right of action in cases of person interested in iand arises. He submitted that, as the date of assurance of the joint venture took.effect on the date of its execution, the plaintiff has contravened section 3 (1) of the LLA which states every proceeding instituted in court after the period of limitation prescribed in the schedule to the mentioned law shall be dismissed. He submitted that, section 3(1) of the LLA read together with item 22 at its column 2 of the schedule to the LLA shows the limitation of time to file a suit in court to recover land is twelve years. He supported his submission with the case of Asha Ramadhani Hassan & Another V. Selemani Athiimani Swai & Two Others, Land Case No. 72 of 2019 HC Land Div. at DSM (unreported) where the court dismissed the suit for contravening the provisions of item 22 of the first schedule to the LLA read together with section 3 (1) of the LLA. He implored the court to dismiss the suit for contravening the above cited provisions of the-law. He argued in relation to the second point of preliminary objection that, the subject matter in the suit which is a joint venture agreement,'s a contract. He submitted that> as-the plaintiff is relying on the stated agreement to prove her case in. respect of recovery of the suit property, then the suit is barred by limitation of time for matters relating to contract. He stated, paragraph 11 of the plaint and annexure ET 02 which is joint venture agreement shows it was executed on 3-'' August, 2002. He stated further that, paragraph 5 of the plaint states the plaintiff entered into the agreement under which they jointly agreed to purchase the suit- property. He submitted that, as the joint venture agreement js a contract, the suit filed in the court Oh 14"^ December, 2022 contravened section 3(1) and item 7 of part 1 of the schedule to the LLA which stipulates that, suit founded on contract not otherwise specifically provided for shall be instituted-in court within six years. He cited in his submission the definition of the term "Joint Venture" and the term "contract" as. stated in the Black's Law Dictionary, 11'^ Edition and stated that, the agreement entered by the plaintiff and the defendant has the hallmark of a contract which brings in application of the Law of Contract Act, Cap'345 R.E 2019. ■ He argued that, as the joint venture agreement forms the gist of the cause of action between the plaintiff and the defendant, the present suit ought to be filed in the court within six years as stipulated under section 3(1) and item 7 of the first part of the schedule to the LLA. He submitted that, as the suit was instituted ih the court on 14"^ December, 2022 while the agreement was executed on .3"^ August, 2002 then the suit is time barred and ought to be dismissed with costs. 4 He supported his submission with the case of Abdallah Anwardossa V. Road Force Limited & Another, Civil Appeal No. 30 of 2022 HC at DSM (unreported) where the court quashed the lower court decision after finding the suit had contravened item 7 of part I of the schedule to the LLA. He also referred the.court to the case of Kishori Kaiidas Pabari t/a High Land Hotors V. PIbozi District Councii, Civil Appeal No. 21 of 2019, HC at.Mbeya (unreported),where the Issue of limitation of time in reiation to contract was discussed at length and the court dismissed the suit which had contravened item 7 of Part I of the schedule to the LLA., He relied on the,above submission and authorities to irnplore the court to dismiss the-piaintiff's suit with costs. In reply the counsel for the plaintiff stated In their submission that, the points of pfeiiminary objections raised by; the defendant are misconceived and baseless. They stated in relation to the first point of prelirriinary objection that, the, counsei for , the defendant has not specificaliy show when the cause of action in the instant suit arose so as to do the computation of time to estabiish whether or not the matter is time barred. They stated that, whiie they dO; not dispute that the agreement was executed pn 3''''August, 2002 as pieaded in paragraph 5 and 11 of the plaint, but submitted the piaintiff's right of action did not arise on the date of executing the stated agreement. . . They cited in their submission section'5 of the LLA which states the right of action in respect of any proceedings shali accrue pn the date on which the cause of action arises. They-stated it shouid be noted that, the right of action does not necessariiy- accrue on the date on which the contract is signed. They stated there, are factors which must be fulfilied for the right of action to accrue. They argued that, submitting the cause of action in the present suit arose on the date of execution of the agreement suggests the breach of the agreement occurred on the date of signing of the agreement. ' - It was their submission that is a.matter of evidence which makes the preliminary objection to base ndt on pure point of'law. The counsel for the plaintiff submitted the cause of action arose on 1/^ January, 2016 as expressly pleaded in paragraph 29 of the plaint which states it is the date when the plaintiff became aware that the defendant had fraudulently transferred the suit property to himself in exclusion of the plaintiff. They stated that, there is no any other statement in the plaintiff's plaint showing when the cause of action accrued other than paragraph 29 of the plaint. They argued that, in case the defendant contends or suggests another date for the arose of cause of action other than the one pleaded in paragraph 29 of the plaint it will lead into rival factual position which will require proof and determination as to when the cause of action arose. They, stated that .will cause the'purported-dfajection. to' lack essential attributes of being preliminary objection stated in the case of Mukisa BisGuit Manufacturing Cbrhpahy Limited V. West End Distributors Limited [1969] EA 696,which states how and.under what circumstances a point of preliminary objection may be raised. ■ It was further argued by:the counsel.for. the plaintiff that, the facts of the present suit as stated at paragraphs 3, 5 and 29 of the plaint alleges the commission of fraud where by the plaintiff avers the defendant transferred ovifnership of the'suit property to himself through fraudulent means. He submitted that, section 26 (a),and (b) of the LLA'expressiy provides that, the right of action in a proceeding based oh fraud begin to run from when the plaintiff discovered the fraud or mistake. He stated the defendant never disciosed to the plaintiff th'at he had transferred the suit property to hirriself contrary to their agreement. They stated,the defendant continued to make the plaintiff is the co- owner pf the suit property and cohtinue.tp sign lease agreement in respect of the suit property untii when she discovered the stated fraudulent transfer. They referred the court to the case o'f.Msae Investment Co. Ltd V.Exim Bank Tanzania Ltd, Civil Case No. 191 of 2021, HCat DSM (unreported) where it Was stated cause of action in the cases-of fraud and mistake arose when ,the plaintiff discovers such fraud or mistake. They stated that, as the plaintiff has averred in paragraph 29 of the plaint that she discovered the fraud on 17® January, 2016 and the subject matter is a land dispute, then as provided under item 22 of Part I of the schedule to the LLA the suit w/hich was filed. In,the court op 14® December, 2022 is well within the period of limitation, •. ■ • They further submitted,that,; section ,9 (3) of the LLA cited by the counsel for the defendant as a provision of the law providing for limitation of time for a suit of,this nature is not applicable to this particular case. They stated in any event that does not change the position that the right to sue in case involving fraud starts to run from when the fraud is discovered. They submitted that,-section 3 (1) of the LLA is applicable only when a matter is filed in court, out of the lirhitation' period. They submitted further that, as the cause of action arose on l?'"? January, 2016 which is well within the period of twelve years the first iifnb of the preliminary objection should be dismissed. The counsel for the plaintiff argued in relation to the second limb of the preliminary objection that, the issue is what is the subject matter of the joint venture agreement entered by the. parties.- They argued paragraph 5 of the plaint states the agreement was for the joint purchase of the suit property. They further afgued that, paragraph 11 of the plaint states the agreement was to provide for contribution and extent of the parties right in the'suit property.'They submitted' itjs not possible to distinguish the agreement creating rights of ownership of land from the land. ' ' ;■ " y '■ ■ They stated that, from the pleaded facts the subject matter of the joint venture agreement is interest in land. They argued that, under that circumstances the matter beford the court is a land matter and the cause of action involves fraudulent transfer of the suit property to the, defendant- himself contrary to the joint venture agreement. They submitted the cause of action arose when the plaintiff became aware Of-the fraud and therefore the matter was filed in the court withih the time. They concluded their submission by,stating the preliminary objection raised by the counsel for the defendant has no merit and prayed the'court to dismiss the same with costs. . In their rejoinder the counsel for the defendant reiterated their submission in chief and stressed that, the cause of action arose on January, 2016 when the agreement was executed, They stated it was the duty of the plaintiff to make follow up of her right after signing the agreement. They argued that, as .the plaintiff's claim is basing on fraudulent transfer of the suit property to the name of the defendant, the plaintiff was required to join the original owner of the suit property who was Air Tanzania Corporation and the Registrar of Titles who transferred the suit land into the nanne of the defendant. ■ . ." . ; . \ As for the argument that the preirrninafy objection is not based on pure point of law, they stated, the issue of limitation .is a, matter of law. They submitted the case-of Mukisa . Biscuit i^anufacturmg..Co. Ltd (supra) is not.applicable in, the present case. They argued that/the defendant has averred in his written statement of defence that he is the sole owner of the land in disp.ute and there has never been a joint account by the plaintiff and the defendant. At the end they maintained their prayer that the plaintiff's suit be dismissed with costs. After painstakingly considered the rival submissions from the counsel for the parties in relation to" the points of prelirhifiary objection raised in the matter by the defendant the" court has found the issue for determination in.this matter is whether the points of preliminary objection raised by the defendant"deserve to be sustained. In determine the stated issue I will start with the first point of preliminary objection which states the suit which is in respect of land it is time', barred. Thereafter !will proceed with the second issue which states as the suit is'afising from joint venture agreement then it is arising from a contract which by virtue of the LLA is time barred.. 10 starting with the first point of preliminary objection , the court has found as-rightly argued, by the counsel for the.parties/paragraphs 3, 31 read together with the. relief clause founded on the plaint shows the plaintiff's'cause of action isfoased on land .as one of her claims of the plaintiff is to be declared is .a/rightful joint: and co-owner of the. suit property'with the defendant. That being, the. cause of-action for the plaintiff's claims, the court has found the jimitatidn of time for claim of that nature is governed by item 22 of-part I of the schedule to the LLA which requires claim of land to.be instituted inpourt within twelve years from when the cause of action arose. ' . ;' The stated position of the law has been observed by our courts jn various cases iDdudlng the case of Asha Ramadhani Hassan -& Another(supra) cited in the submission ofthe ppunsel forthe defendant. Another case where period. of limitation for Instituting in court a suit . .. •' ' ' ^\ relating to land was ■considered is Barella Karangjrangi y. Asteria Nyalwambwa, [2019] TLR 142 where the Coiirt of Appeal held inter alia that, iterri .22 of Part.I of the schedule to the LLA prescribes the twelve years limitation'period'within which to institute an action in court to claim back the land' The question to ask here is from-when the stated period of twelve years is required to start running. ■ The court has found the counsel for the defendant argues the 11 provision of the law providing for vyhen right of action in cases of person with interest in land arises is section 9(3) of the LLA.-After going through the stated, provision of the law the court has found as rightlY argued by the counsel for the plaintiff the stated provision of the law is not applicable in the present suit. The court has corne to the stated finding after seeing part of the stated provision of the law which would have been said is relevant to the plaintiff's suit is providing for limitation of tirhe for a person who has been assured, he is in possession of the land and there is no other person who has been in possession of the stated land by virtue of the assurance. It states the period of limitation of time is deemed to have accrued on the date when the assurance-took effect. The court has also come to foregoing finding after failing to see anyv\fhere in the plaint filed iri this court.by the plaintiff stated,the plaintiff has ever been assured the suit property is in her possession and it has not been in possession of any other person by virtue of assurance'or otherwise than the joint venture agreement, she averred to have entered with the defendant to possess the suit property jointly. To the contrary the court has found the appropriate provision-of the law which provides for when the cause of action of the claitTi pf the nature of the claims of the plairitiff accrued is section 5 of the LLA w/hich states as follows: - . "Subject to the provisions ofthis Act the right ofaction in respect • 12 ofany proceeding, shall accrue on the date on which the cause ofaction arises." That being the date on which the piaintiff's cause of action is required to be counted it has begun to run, the court has found the cruciai question to ask here is. when the plaintiff's cause of action in the' matter at hand arose. The court has found .while the counsel for the defendant submits the cause of action arose on 3'^" August; 2002 when the joint venture agreement was executed by'the parties,, the,counsel for the plaintiff-submits the cause of action arose,on 17'^'' January, 2016 when the plaintiff became, aware the defendant had fraudulently transferred ownership of the suit land to himself. The court has found that,,as the claim of the plaintiff as stated at paragraph 29 of the plaint is based on fraud the court is required to see when.the cause of action based on fraud is required to start running. The court has found as rightly argued by the counsel for the plaintiff section 26 (a) and (b) of the LLA states clear when the cause of action based'on fraud begins to run. The cited provision of the law statesas follows: - "Where in the case of any proceeding for which a period of limitation is prescribed- (a) the proceeding is based on the fraud of the party against whom the proceeding is prosecuted or ofhis agent, of ofany person through whom such party or agent claims; • , : (b) the right ofaction is concealed by the fraud ofany such person as aforesaid;gr ■ (c) the proceeding is for relief from the consequences of a mistake, , ^ the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, or cOuid, with reasonable diligence, have discovered."[Emphasis added] . From the wording of the foregoing quoted,provision of the law and specifically the bolded parts it is crystal clear that, when a proceeding is based on a fraud alleged to haye been committed-by the party against whom the proceeding is being prosecuted, the period of lirriitation begins to run from the date when the plaintiff discovers'the fraud. The stated view of this court is getting,support from the case of Idrisa Ramadhani Mbondera V. Allan Mbaruku & Another Civil Appeal No. 176 of 2020, .(unreported) where the Court of Appeal held inter alia that: - ". in any claim for recovery of land, the 12-year limitation. period prescribed under item 22 ofpartIofthe said Act, starts running against the claimant when,he gets knowledge of the , disposition ofthe ownership" The court has been of the view that, even if it will be accepted the period of limitation of time for the plaintiff.'s claim is governed by section 9 (3) of the LLA, then the'limitation of time for the plaintiff's cause of action for the claim of recovery of land is supposed to start counting from 17"^ January, 2016 when she became assured that the defendant had ■ . : . -14 ■ . " ' ■ 'i : registered the suit property Into, his ovyn naitie with exclusion of the plaintiff and not when the joint venture-agreement was signed. As the plaintiff has averred at paragraph 29,.ofthe plaint that it is on 17"'-January, 2016 when she' discovered 'or .became . assured the [ defendant had fraudulently, transferred the suit property to hirnself with exclusion of the plaintiff, the period of limitation for the plaintiff's,suit is supposed to start being counted frorh when she became a\ware or assured of the alleged fraudulent act of the defendant which is on 17'^ January, 2016. The court has considered the argument by the counsel for the defendant that the plaintiff's cause of action is supposed to be taken it accrued on 3''' August, 2002;when the parties executed the joint venture agreement but failed to see any merit in the stated argument. The court has come to the stated finding after seeing that, as rightly argued by the counsel for the plaintiff it will be ridiculous to say or think ,the plaintiff cause of action would have arisen on the date of execution of the joint venture agreement while there is nothing pleaded in the plaintiff's plaint showing the plaintiff would have discovered the defendant's fraudulent act in the joint venture agreement entered by them,. , [ The court has considered another argument by the cpuhsei for the defendant that the plaintiff had a duty to make follow up of her right from when she executed the.joint venture agreement to the end but find the , issue as to whether the plaintiff was.making follow up ofher.'right or not is an issue which cannot be determined without requiring evidence from the parties. If determination of.the stated issue requires evidence from < ■ - '' '' . the parties to determine the same It is obvious that, as held in the case of Mukisa Biscuit Manufacturing C. ttd (supra) it cannot be said the first point of prelirriinary objection satisfies the qualification of being raised and determined as a point of preliminary objection. Therefore, the court has come to the settled view that, the piaintiff's cause of action in the matter at hand arose on January, 2016-when she discovered the fraudulent act of the defendant of transferring ownership of the suit property to himself In exclusion of the plaintiff and not on 3''' August, 2002 when the joint venture'agreemeht was executed.. After been-satisfied the period of timitation.of time for instituting in court a claim for recovery of land is twelve years from when the cause of action arose, the court has found frorn when the^ plaintiff alleged to have discovered the defendant had fraudulently transferred the ownership of the suit property to himself to when the present suit was filed in the court It Is about six years and some months which had passed. . The stated finding moves.the court to come .to the-settled finding that, as rightly submitted by the counsel,for the plaintiff the first point of pfeliminary objection raised; by .the/defendant that the piaintiff's suit is 16 time barred is misconceived and baseless as the suit was filed in the court well within the period of twelve years prescribed by the law for the claim of recovery of land. , Coming,to the second point of preliminary objection the court has found it states that, as the subject matter in the present suit is based on a joint venture agreement then it is a contract which its period of limitation of time for being filed in Court as provided under item 7 of Part I of the schedule to the LLA is six years. The court has found it i,s true that the basis for the plaintiff's allegation that she-was in joint ownership of the suit property with the defendant is a joint venture agreement she averred she executed with the defendant. To the view of this court that is a contract which its period of limitation for being instituted in court is governed by the above stated provision of the law. That being the position of the matter the court has been of the view that, as it has already found the cause of action in the present suit accrued on 17"^ January, 2016 when the plaintiff stated to have become aware of the fraudulent act of the defendant, then it- would have' been said the plaintiff's suit basing on the allegation of breach of the stated joint venture agreement was supposed to be fifed in the court within six years from when the plaintiff became aware of the alleged breach of their,agreement. If-it will be counted from 17"^ January; 2016 to 14'^ Decernber, 2022 when 17 ' - the present suit was filed in the court it will be found the suit was filed in the court beyond six years as the suit ought to be filed in court not later than 16"'-January,-2022.- • ' ■ However,- the court , has found that, as "correctly argued by the counsel for the plaintiff the stated joint venture agreement was to provide for the joint purchase of the suit" property .by the plaintiff and the defendant and the extent of the contribution and rights of the parties in the suit premises. That being the position of the matter the court has found that, the subject rn.atter of the parties'agreement is interest on land which its period of limitation,for being filed in the court is twelve years. To the view of this court the stated agreement cannot be separated from the land matter averred in the plaint and say the suit is time barred. Even if it will be said the stated causes of action would have been separated but the court has'found it is averred at paragraph 29 and 30 of the plaint that, after the plaintiff became aware of the alleged fraud she filed in the court a suit which was registered as Land Case No. 62 of 2016 ■which was well within six years, for the suit relating to contract was supposed to.be filed in the court, The stated case was. withdravyn from the court .on 7*^^ November, 2022 with leave to refile-the sarrie within thirty days from 14''" November, 2022 and the present suit was filed in the court ■14''^ December,: 2022 which was well within the time given by the • .. 18 court. That being the position of the matter the court has failed to see how it can be said the present suit is time barred. The court has found the counsel for the defendant have-raised in their rejoinder the issue of non-joinder of the Air Tanzania Corporation who was.the vendor of the suit property to the parties in the matter and the Registrar of Titles who-is alleged has transferred the suit property to the defendant in the present rriatter. The court has found this is a new point which was neither raised in the noticeofpreliminary objection raised by the defendant nor argued,in his submission in chief. To the view of.this court raising of the stated new point of preliminary objection in the rejoinder submission is improper and the court cannot entertain and determine the same in this ruling because the plaintiff has not been accorded chance of responding to the same. •, / ■ Basing on the foregoing stated reasons the court, has found both points ofpreliminary objection raised in the present suit by-the defendant are misconceived and baseless as the plaintiff's suit has not violated any provision of the law of Limitation Act cited in the submission-of her counsel. Consequently, the preliminary objections are hereby overruled for being devoid of merit and thd costs to follow the event. The conduct of the matter to proceed'on merit. It is so ordered. ■ . • ; Dated at Dar es Salaam this 30 day of June 2023. 19 ■ V ' \3RT O 14. , I. Arufani JUDGE S ■ T,. 30/06/2023 V-' Court: ★ -V tl^D Di^ Ruling delivered today 30^*^ day of June, 2023 in the presence of Ms. Saudia Kabora, learned counsel for the plaintiff and in the presence of Mr. John B. Tendwa, learned advocate for the defendant. Right of appeal to the Court of Appeal is fully explained. Ot: c c> I. Arufani UJ JUDGE V" sr 30/06/2023 ★ 20