evod augusti mallya vs shedrac kalinga 20 others 2022 tzhclandd 12562 10 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 173 OF 2022 EVOD AUGUSTI MALLYA............................................................ PLAINTIFF

VERSUS SHEDRAC KALINGA............................................................ 1ST DEFENDANT JOHN RAULENCE NGOLO................................................... 2nd DEFENDANT FATUMA JUMA.................................................................... 3rd DEFENDANT SUNDAY JAISON................................................................. 4th DEFENDANT ASHIMU MUSHI...................................................................5th DEFENDANT JAFARY MOHAMED KITANGAMATA................................... 6th DEFENDANT JOHN BAKUNDU NGUNGA.................................................. 7th DEFENDANT BARAKA KWAY....................................................................8th DEFENDANT EMMILY MAYA..................................................................... 9th DEFENDANT ANDREW HASANI............................................................. 10th DEFENDANT MIRAJI ISSA..................................................................... 11th DEFENDANT HILDA KISAKA..................................................................12th DEFENDANT FABIOLA KISAKA.............................................................. 13™ DEFENDANT ATHUMAN SALEHE TUWANO........................................... 14™ DEFENDANT JUDITH MBEKENGE.......................................................... 15™ DEFENDANT RAJABU ATHUMANI................ 16™ DEFENDANT OBLEN ROBSON................................................................17™ DEFENDANT

VK I I 1 JOHN MWITA................................................................... 18th DEFENDANT OTHUMAN BANDA........................................................... 19th DEFENDANT JOSEPH LWIMBIZA......................................................... 20th DEFENDANT RASHID KALINGA........................................................... 21st DEFENDANT Date of last order: 17/10/2022 Date of ruling: 10/11/2022

RULING A. MSAFIRI, J. On 13th July 2022, the above named plaintiff filed in court the present suit against the defendants jointly and severally for assortment of reliefs against them, including a declaration that the latter are trespassers on the landed property known as Farm No. 3745, L.O No. 280873 which consists of 1.22 hectare located at Mbezi Maramba Mawili within Ubungo Municipality (hereinafter referred as the disputed premises). On lodging their joint written statement of defence, the defendants not only disputed the plaintiff's claims but also raised a counter claim as well as three preliminary objections to the effect that; a) That the suit is bad in law as it is time barred under the provisions of the Law of Limitation Act [CAP 89 RE2022(sic) 2 b) That the plaintiff has no cause of action against the defendants c) That the plaint is bad in law for it is prepared contrary to the provisions of Order VII of the Civil Procedure Code CAP33 R.E2022.(sic) This is a ruling on the above preliminary objections. Messrs Fred Sanga and Gabriel Masinga learned advocates represented the plaintiff and the defendants respectively. I ordered the preliminary objections to be disposed of by way of written submissions. Submitting on the 1st preliminary objection, Mr. Masinga submitted that the present matter is time barred because it is claimed by the plaintiff that the disputed premises

was allocated to the plaintiff on 12th January 2007 and since then he has done nothing on the disputed premises until 14th June 2022 when he filed the present suit to recover the same. According to Mr. Masinga, Part 1 Item 22 of the Schedule to the Law of Limitation Act [CAP 89 R.E 2019] (the LLA), time limit for recovering of land is twelve (12) years. Hence the present suit should be dismissed for being time barred. On further submission, Mr. Masinga was of the view 3 that under the doctrine of adverse possession the suit is time barred because the defendants have occupied the disputed premises for over 15 years. To fortify his stance the learned advocate for the defendants referred to me several decisions on adverse possession. On reply, Mr. Sanga contended that the 1st preliminary objection lacks merits because in order to determine whether the matter at hand is time barred it must be ascertained as to when the cause of action arose hence it must be established when the defendants started occupying the disputed premises which can only be resolved after determining ownership documents hence the same cannot be resolved by way of preliminary objection. As to contention that the defendants have occupied the disputed premises for over 15 years without interruption, Mr. Sanga faulted such argument contending that the plaintiff was aware of defendants' occupation of the disputed

premises in 2017 hence by filing the present suit in 2022, almost five years had lapsed. On the issue of adverse possession as claimed by Mr. Masinga, Mr. Sanga was of the view that proof of adverse possession does not apply^^ 4 automatically over the registered land and to rule out the issue of adverse possession cannot be determined through preliminary objection rather it needs proof of the elements of adverse possession. In their rejoinder, the defendants reiterated their main submissions and prayers. The central issue for determination on the 1st preliminary objection is whether the present suit is time barred as alleged by the defendants. Going by the plaint filed in the present suit, the plaintiff claims on paragraph 5 that he was allocated the disputed premises on 12th January 2007. It is also not in dispute that the present suit was lodged in court on 13th July 2022. The defendants' contention is that the present suit is time barred as counting from the date on which the plaintiff was allocated the suit premises to the date the present suit was lodged in court, 15 years had lapsed. I am much aware that as per Part 1 Item 22 to the Schedule of the LLA, suits for recovery of land must be instituted within 12 years. The question is when the period of 12 years starts to run. I am of the settled mind that the period starts to run from the date when the cause of

action 5 arose that is from the date on which the defendants took over the possession of the disputed premises (see Section 9 (2) of LLA). In the plaint filed in the present suit, the plaintiff claimed that he was aware of the trespass in 2017. So whether the defendants occupied the disputed premises for over 15 years as they allege and whether it is 2017 as alleged by the plaintiff it is a matter that needs to be resolved by the evidence. Rightly as submitted by Mr. Sanga, the same cannot be resolved through preliminary objection. Equally whether there is adverse possession by the defendants the same can be determined after production of evidence. It is for that reason I hold that the 1st preliminary objection fails the test laid down in the case of Mukisa Biscuits and it is accordingly overruled. On the second preliminary objection Mr. Masinga submitted that the plaint filed in the present suit does not disclose any cause of action against the defendants as the claims by the plaintiff are not supported by the facts. According to Mr. Masinga, Order VII Rule 1 (e) of the CPC requires the plaint to contain facts constituting the cause of action and when it arose. To fortify his stance Mr. Masinga referred to me the decision of Jem-, 6 International Co. Ltd and others v National Microfinance Bank and another Land Case No. 13 of 2019 in which the term cause of action

was defined. On reply to the second preliminary objection, Mr. Sanga contended that the plaint has disclosed sufficient cause of action as the claims arise from ownership of the suit premises and it is alleged that the plaintiff is the lawful owner of the same and defendants have occupied the said property and that is why the plaintiff is praying for declaration of exclusive right of possession of the disputed premises. The issue for my determination in respect of the second preliminary objection is whether the plaint filed in the present suit does not disclose a cause of action against the defendants. The term cause of action has not been defined under the CPC but case laws have defined the term. In the case of John M. Byombalirwa v Agency Maritime Internationale (Tanzania) Ltd [1983] TLR 1, cited by Mr. Masinga, the Court of Appeal defined the term cause of action to mean "... Essentially facts which it is necessary for the plaintiff to prove before he can succeed in the suit.lu i 7 7 In the above cited case the Court of Appeal held further that; "For purposes of deciding whether or not the plaint discloses a cause of action the plaint and not the reply to the written statement of defence should be looked at," Hence whether there is a cause of action against the defendants in the present suit I am called upon to look at the Plaint itself. Paragraph 3 of the same contains

reliefs against which the plaintiff is seeking against the defendants, including declaration that the latter are trespassers on the disputed premises. On paragraph 4 it is stated plainly that the defendants are trespassers on the said premises. The subsequent paragraphs accounted on how the plaintiff acquired the disputed premises and the time frame in which the actual trespass took place and steps taken by the plaintiff. Hence I am of the settled mind that plaint has disclosed sufficient cause of action against the defendants. Assuming I were to agree with the defendants that the Plaint filed in the present suit does not disclose a cause of action, the remedy is not to strike out the matter rather is to reject the same but the court may permit the plaintiff to amend the Plaint 8 so that it can disclose a cause of action as provided under proviso to Order VII Rule 11 (1) of the CPC. Consequently the 2nd preliminary objection lacks merits and it is overruled. On the 3rd preliminary objection, Mr. Masinga contended that the plaint has not been properly verified contrary to the mandatory requirements of Order VI Rule 15(1), (2) and (3) of the CPC. Much as I could understand Mr. Masinga's stance on the 3rd preliminary objection, it was not correct that the plaintiff has personal knowledge on averments on all paragraphs 1 -16 of the Plaint. It is claimed further that it is difficult

to ascertain whether the plaintiff is acquainted with all the facts of the case. On further submission Mr. Masinga contended that the Plaint has not been properly signed because it has been drawn and filed by an advocate but the said advocate has not signed the Plaint contrary to the requirement of Order VI Rule 14 of the CPC which require the Plaint be signed by the plaintiff and advocate if any. Hence Mr. Masinga implored on me to strike out the same. On reply Mr. Sanga contended that the verification clause of the Plaint was duly verified by plaintiff in respect of all allegations and facts contained 9 in the Plaint and the same has been signed by the advocate who drew the same. On further submission the defects alleged by the defendants regarding signature or verification clause do not render the pleadings void but the court can order amendment. To fortify his stance Mr. Sanga has referred the decision of this Court in Nyusta Peter Kabezi t/a Nyudiah Enterpries v Herodius Sulus M boro we and 3 others Civil Case No. 153 of 2019. Having gone through the parties' submissions in respect of the 3rd preliminary objection the same is twofold. First on verification clause and second on signing of the Plaint. I will start with the verification which Mr. Masinga was of the stance that it is defective. I have gone through the said verification in which the plaintiff verifies that all

what stated on paragraphs 1-16 is to the best of his knowledge. Much as I could understand Mr. Masinga's contention is that the plaintiff should have verified by reference to the numbered paragraphs of the pleadings on what information is based on his own knowledge, information he received and information he believed to be true. I think Mr. Masinga's contention is misconceived. The plaintiff has verified that all information on all paragraphs of the plaint are based on his io own knowledge that means there is no information received or believed to be true. Hence the contention that it is difficult to ascertain whether the plaintiff truly has personal knowledge on the information verified on the Plaint cannot be resolved through preliminary objection rather upon facts tested by cross examination. The next issue is on the signing of the Plaint. As correctly stated, pleadings are required to be signed by the party and advocate if any. In the present matter the Plaint has been signed by the plaintiff while the advocate who drew it namely Mr. Freddy Sailen Sanga signed it at the footing. I think by disclosing the name of the advocate who drew the Plaint with his signature inscribed on it is substantial compliance with the law even if appearing on the "drawn and filed" section. The practice is that the signature of the advocate if any appears besides the party's signature however there is no hard and fast rule on where exactly the signature of the advocate should appear. After all there is no way the defendants have been prejudiced by such verification as well as signing of the Plaint. 11 In upshot and for the foregoing all the preliminary objections raised by the defendants are without merits and are hereby overruled with costs. A. MSAFIRI,

JUDGE 10/11/2022 12