CIVIL CASE 3689 OF 2024 FITINA HASSAN VS KASULU DISTRICT COUNCIL AND ANOTHER

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CIVIL CASE NO. 000003689 OF 2024 FITINA HASAN .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KASULU DISTRICT COUNCIL .............................. RESPONDENT / DEFENDANT RULING J. NKWABI, J, 24/10 & 20/11/2024 The defendants are confronting the plaintiff’s suit in which she is anxious to get the following reliefs: 1. That, the 1st defendant be ordered to build two houses of plaintiff which were demolished at Songambele village and be ordered to provide applicant family food for six months, beds and mattress, blanket and home utensils for survival of the applicant’s family as per the direction declaration that the said suit land is lawfully owned by the applicant. 2. The 1st defendant be ordered to pay the applicant Tanzanian shillings T.shs 10,000,000/= as general compensation. 3. That the cost of this suit. 4. Any other order and relief as the honourable Court may deem fit to grant. The defendants lodged a joint written statement of defence which denied the substantive demands listed by the plaintiff. The joint written statement of the defendants is accompanied with a notice of preliminary objection in the fashion as hereunder: That, this suit is unmaintainable in law for being hopelessly time barred contrary to section 3(1) read together with Item 24 of the schedule to the Law of Limitation Act, Cap. 89 R.E. 2019. The preliminary objection hearing was carried out by way of written submissions. Mr. Celestine Ngailo, learned State Attorney, drew and filed both the submission in chief and rejoinder submission for the defendants. The plaintiff drew and filed the reply submission herself. Page. 1 Recounting the preliminary objection, in submission in chief, Mr. Ngailo stated that the plaintiff instituted the case on 23/02/2024 while the order she is relying on was issued on 11th March, 2015 by Celina O. Kombani, the then Minister for Local Government. He pointed out that the plaintiff’s case falls under Item 24 of the Schedule to the Law of Limitation Act which prescribes for time for institution of suits be within 6 years from the date when the cause of action accrued, but the suit was instituted after six years had lapsed. He stressed that time should be reckoned from 2010 as per annexure A, and that in 2012 there was a Land Application No. 22 of 2012 in the District Land and Housing Tribunal against the District Executive Director Kasulu. He ascribed to Alaf Ltd v. The Board of PSSF & Another, Civil Application No. 529/01/2023, CAT at page 5 where it was held that: “… it is settled that once the issue of limitation is established, it has the effect of causing the jurisdiction of the Court to cease.” Mr. Ngailo too pressed home that since the suit is time barred; it was incumbent on the plaintiff to incorporate in the plaint a separate paragraph indicating the grounds upon which an exemption from delay of instituting the suit within the time is relied upon. He cited Order VII, Rule 6 of the Civil Procedure Code, Cap. 33 R.E. 2019. He then praised the decision in Kigoma Ujiji Municipal Council v. Ulimwengu Rashid t/a Ujiji Mark Foundation, Civil Appeal No. 22 of 2022, CAT where it was ruled that: “However, unfortunate it may be for the plaintiff; the law of limitation is on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught in its web.” On the strength of the preliminary objection, Mr. Ngailo pleaded with me that the suit be dismissed with costs under section 3 (1) of the Law of Limitation Act, Cap. 98 R.E. 2019. It was the plaintiff’s counter submission that she filed the suit within time because she had instituted a case in 2012 in Kigoma Land and Housing Tribunal which ended in appeal, whose decision was delivered on 12th March 2020 in Land Appeal No. 15 of 2019. She explained that the current suit was instituted on 23rd February 2024 as reflected in paragraph 10 of the plaint. According to her, time limitation should be reckoned from 2020 which is four years because there were several trials (litigations) since 2012. She prayed the preliminary objection be overruled with costs. Mr. Ngailo had a replication submission in which he maintained that for the plaintiff to claim that time should be reckoned from 2020 is gross misconception because the cause of action did not accrue from that year but 2010. He said section 21(1) of the Law of Limitation Act cannot be applicable because there are no same defendants. He elaborated that in the former suit, the defendant was District Executive Director Kasulu while in this suit the defendants are Kasulu District Council and the Attorney General. It is added that there is no specific pleading Page. 2 exemption under paragraph 10 of the plaint but mere narration of series of events. Indeed, it is settled law that negotiations and follow-ups do not exclude computation of the limitation of action. That is the clear position of the law as per Consolidated Holding Corporation v. Rajani Industries & Another, Civil Appeal No. 2 of 2003 CAT (unreported) when discussing the LLA it was underscored that: “It is apparent that under these provisions, the time taken in negotiating for settlement is not one of the categories of instances in which time is excluded in computing the period of limitation ...” It is equally settled law, and Mr. Ngailo does not dispute in his submissions but in fact supports it, that a promise made by the other party is binding and that other party will be estopped from denying it. That is the position in Trade Union Congress of Tanzania (TUCTA) v. Engineering Systems Consultants Ltd & 2 Others, Civil Appeal No. 51/2016, CAT at page 27, where it was stated that: “There is also evidence of PW1, which is uncontroverted, that OTTU initially negotiated a scheme of part payment and had started to make some payments to the respondent in fulfilment of TFTU’s contractual obligation. Can the appellant now be heard disowning the very debt that its predecessor had started paying? We think it cannot, because the common law rule of estoppel, will not sanction that. In an Article by Shreya Dave, titled; The Doctrine of Promissory Estoppel, the learned author writes the following: “The true principle of promissory estoppel is where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact acted upon by the other party the promise would be binding on the party making it and he would not be entitled to go back upon it.” To me that sounds that where there are negotiations, which end into serious agreements (especially written ones) like concessions and directives like what happened in this case, then the Court has to take the agreement into account into computing time limitation. That is unlike where there are negotiations which do not bear fruits (agreements). I think that decisions that are taken by government officials should be taken seriously, more so of a minister. My thinking and that of Mr. Ngailo is backed by what the Court of Appeal said about its pronouncement in CRDB Bank PLC v. Finn W. Petersen & 3 Others, Civil Application No. 367/17 of 2017 at page 11 that: “… Well, it was an orbiter dictum but being a pronouncement of the Court, the highest Court of the land, whoever read that decision would not take it lightly. Similarly, the applicant cannot be blamed for relying on such decision and hence not applying for stay of execution within time.” The pertinent question here is whether the averment in paragraph 10 of the plaint amount to exemption under the law. I find it apposite to quote paragraph 10 of the plaint which states that: 10. That, after the decision from the Tribunal the defendants to that matter appealed on the several grounds among of ground is the plaintiff sued the individual and not THE DISTRICT COUNCIL but also the plaintiff failed to Page. 3 provide 90 days statutory notice as results her application lacks limbs to stand as results, court to strokes out her application, A copy of said judgement Land Appeal No 15 of 2019 delivered on 12/03/2020 is attached as ANNEXURE B”. Leave of this court is sought for it to form part and parcel of this plaint. I have contemplated the contestant submissions and the pleadings of the parties in this suit. Admittedly, the plaintiff is pinning her hopes on the claim over the letter of the Minister which is dated 2010 which has reference number CHA/199/203/01, which is regrettably not attached to the plaint, but I will rely on the pleaded paragraph 7 of the plaint. So, truly the cause of action arose in the year 2010, the suit was filed in 2024 which is more than 13 years while the suit ought to be filed within 6 years, which is not disputed by the plaintiff. The allegations made in paragraph 10 do not amount alleging exemption, as the plaintiff would wish this Court to rule, as envisaged by Order VII Rule 6 of the Civil Procedure Act and as authoritatively stated in Ali Shabani & 48 Others v. Tanzania National Roads Agency & AG, Civil Appeal No. 262 of 2021, CAT (unreported) which has akin situation, it was stated that: “Having gone through paragraph 6 and 7 of the plaint and the relevant annexures we find nothing pleaded therein to find that the appellant did plead exemption from the limitation period. The context of the said grounds is to show what the appellants were doing from the time they were notified by the defendants of the planned reconstruction of the Tanga-Horohoro road and preparedness of the necessity to demolition houses and businesses, that is, from 2003. Due consideration has been given to the true import of Order VII Rule 6 of the CPC. We are satisfied that paragraphs 6 and 7 of the plaint did not plead facts sufficient to show exemption from limitation on which the trial court could have held otherwise.” Finally, it may be firmly concluded that the preliminary objection succeeds as it is sustained by this Court. The suit is dismissed with costs under Section 3 (1) of the Law of Limitation Act, Cap. 98 R.E. 2019 for being time barred. It is so ordered. Dated at KIGOMA ZONE this 20th of November 2024. Page. 4 J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 5