20171129 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) 1 AT DAR ES SALAAM LAND CASE NO. 63 OF 2012 1. GODFREY MWAKISYALA (as a Guardian .......... 1 st PLAINTIFF of Atupakisye Gofrey) 2. INGIAHEDI CHEDIEL MDUMA .......................... 2ND PLAINTIFF 3. STEVEN C. MDUMA .......................................... 3 rd PLAINTIFF VERSUS • MUNICIPAL DIRECTOR TEMEKE MUNICIPAL COUNCIL ................................. DEFENDANT JUDGMENT MURUKE, J. All the three plaintiffs alleges in the plaint, filed on 11 th May, 2012 that the defendant illegally acquired their land and unexhausted improvements, without carrying out any lawful and credible valuation over their properties. The non-valuation of the plaintiff's properties led to eventual underpayment of their compensation. The plaintiff claims for the amount they were denied are as follows; (a) Payment of total of Tshs 149,639,300/= to the 1st plaintiff comprised of Tshs. 99,639.300/= being the_ 1 amount of under-compensation and Tshs 50,000,000/ being the amount of damages and or interest on unpaid compensation, loss of commercial use of land and buildings. (b) Payment of total of Tshs 74,404,400/= to the 2nd plaintiff comprised of Tshs. 44,404,400/= being the amount of under-compensation and Tshs. 30,000,000/= being the amount of interest on unpaid compensation, loss of commercial use of land. (c) Payment of total of Tshs. 24,288,200/= to the 3rd Plaintiff comprised of Tshs. 12,144,100/= being the amount of under-compensation and Tshs 12,144,100/= being the amount of interest, loss of commercial use of uncompensated value of land and money. (d) Interest on (a), (b), and (c) above at the commercial rate of 30% per annum form the date of filling of the suit until the date of judgment. (e) Interest on decretal sum in (a), (b), (c) and (d) at the Court's rate of 12% per annum from the date of judgment until final payment 2 In the written statement of the defence defendant denied underpaying the defendant, tasking the plaintiff, to prove their allegations. Upon completion of pleadings, following issues were framed by the court after consultation of both plaintiff and defendant advocates. The issue that were framed are: 1. Whether the defendant was legally justified to acquire the disputed land of the plaintiffs in the manner it did. 2. Whether the defendant conducted a lawful valuation over the properties of the plaintiffs and paid the plaintiffs in accordance with the market value as of the time of acquisition. 3. Whether the plaintiffs suffered any loss as the result of land acquisition. 4. To what reliefs are the parties entitled. On the hearing date plaintiff being represented by Ezakiel, Bilabamu (advocate) paraded three witnesses and tendered eleven exhibits. While defendant, being represented by Domina Madeli, an employee and in house lawyer of Kigamboni Municipal council, paraded only one witness Mpoki Daimon, Valuer 3 employed by Kigamboni Municipal Council, who tendered compensation schedule namely 'JWEDWALI LA FIDIA: WILAYA YA TEMEKE" prepared by: "University college of Lands and Architectural Studies (UCLAS). At the closure of plaintiff and defendant case, with the consent of the parties, final address, was conducted by way of written submission. In the course of submissions, by way of preliminary remarks defendant counsel raised issue of time limitation. It was submitted that present suit is based on a claim of compensation. According to the pleadings cause of action accrued in 2007 while the suit was filed 2012. Time within which to claim for compensation like the case at hand is one year from the date of cause of action. Thus, requested the court to dismiss the present suit for being filed out of time. To this court, this is preliminary objection raised in the cause of r' submissions. Procedurally, preliminary objection ought to be raised at the earliest possible time according to the rules of pleadings. The rationale is to give the opponent an opportunity to respond to the issue raised, therefore, giving opportunity the other party right to be heard. In the closing submission, there is no opportunity for either of the party to respond to each other submissions. Equally in the case at hand, plaintiff counsel, will 4 not be in a position to respond to the preliminary objection raised by way of preliminary remark by defendant counsel. The above notwithstanding, the preliminary objection raised is on time limitation, which goes to the jurisdiction of this court. Therefore, it is an issue of the court. Court ought to ascertain, regardless it has been raised, or not, by either part. Any matter heard without jurisdiction will be set aside on appeal or revision. It is so fundamental to the proceeding it cannot easily be ignored. The present case is based on two issues namely. 1. That the plaintiffs were inadequately compensated of their landed properties located at Vijibweni in Kigomboni Municipality. ii. That the plaintiffs were not involved/did not participate in the valuation of their landed properties. As correctly submitted by counsel for the defendant, Domina Madeli, and prayers sought in the plaint, the cause of action accrued in 2007 when the plaintiffs were paid and received compensation. This suit for compensation has been instituted on 11 th May, 2012, vide exchequer receipt No. 46592254. From 2007 when they received amount of compensation in terms of exhibit D1 'JEDWALI LA MALIPO to 2012, it is a period of five years. 5 Since the claim by the plaintiffs is for compensation, it falls squarely under part 1 item 1 of the Schedule to the Law of Limitation Act [Cap. 89 R.E. 2002] which provides for one year time limit for such claims to be brought to the court. Same issue was discussed, in the case of Albert Evarist Hogu and others Vs. Minister for Lands and others, Land case No. 56 of 2012 (Unreported). His Lordship A.A. Nchimbi, J of the High court of Tanzania Land Division dismissed the suit with costs because it was brought after five years from the time when the cause of action had accrued. The position has been recently dealt by this Court by Munisi, J in Land Case No. 158 of 2012 Peter Ismail Minguzi and 12 others Vs the Registered Trustees of Korean Church Mission and 3 others Munisi, J. struck out the suit for being filed out of time. The plaintiffs having received their compensation way back in 2007, and this suit having been filed in 2012, five years later, it is obvious that, the claim for compensation is out of time. The plaintiffs received their compensation in 2007, they could have filed this suit not later than the year 2008. Confronted with the same issue of time limitation within which to file a suit on contract Court of Appeal at Arusha in Civil Appeal 6 \ . No. 133 of 2006 between Tanga Cement Co. Ltd Vs Christopherson Co. Ltd, unreported Ramadhani CJ. as he then he was, held that: The court does not have the authority to waive limitation except as provided under section 14 (1) of the Limitation Act, 1971. The powers of extension are limited to institution of appeals and the filing of application and they do not extend to the filing of suits. The principle was stated by the East African Court of Appeal in the case of Shyam Thanki and Others v. New Palace Hotel, (1972) H.C.D. N.92 at page 23 that: All the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is an elementary principle of law that parties cannot by consent give a court jurisdiction which it does not possess. In recent decision by this court in an application of extension of time to file election petition in Miscellaneous Civil Application No 43 Of 2016, Kippi Ivor Warioba vs Halima Mdee and 2 others, this very court held that:- 7 The time limit for filling an election petition is 30 days from the date of announcing the results. This is according to S. 115(1) of the National election Act Cap. 343 of year 2010. This court further held that the Election Petition Act does not confer jurisdiction to a court to extend election petition beyond the 30 days provided by the law. There is no law/ to the best of my understanding/ which confers jurisdiction to the court to extend time within which to institute an election petition. Section 14(1) of the Law of Limitation Acl Cap 89 R.E 2002 relates to extension of time to file an appeal or application. An election petition is neither an appeal nor an application. It is a proceeding of its own peculiarity which in my view is superior to ordinary civil suits. The election laws are silent on the issue of extension of time to institute a petition. Howeve~ section 115(5) of Election Petition Act Cap. 313, R.E,2010/ vests power in the Minister t"" Responsible for Justice in consultation with the Chief Justice to extend the life span of a petition for a further period not exceeding six months from the period of the expiry of the petition. In Kippi Warioba vs. Halima Mdee (supra)/ it was further held by this court that: 8 It is my conviction that, the omission to insert a specific provision in the Election Petitions Act for extension of time to file a petition appears not to be ought of the blue. It was the intention of the legislature that extension of time, would remain within the exclusive domain of the Minister Responsible for Justice under section 44(1) of the Law of Limitation Act. Perhaps, that would be the proper forum for the applicant to seek for extension of time if his delay to prefer the petition was occasioned by unavoidable circumstances. It is worth insisting that time limitation in filing suit is fundamental, this explains why we have law of limitation Cap. 89 R.E. 2002 in place. In Civil Case No. 109 of 2005 this court Kalegeya, J. as he then was ruling on preliminary objection on time limitation held that; As I had an occasion to observe in (HC) civil Case No. 70 of 1998, John Cornel Vs A. Grevo (T) Ltd. "However unfortunate it may be for the plaintiff, the law of limitation on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get· caught in tis web". 9 ~ccordi_ng to exhibit P7, a letter from ZEK ADVOCATES dated 9th - October 2008 by time 30 day's notice issued to the defendant, it was a proper time within which suit could have been filed. It is not on records what happed from the date of 30 days' notice issued by advocate Ezekiel Bilabamu on behalf of plaintiffs until 11th May 2012 when the suit was filed. From what has been demonstrated above, plaintiffs' claims for compensation is out of time, accordingly dismissed in terms of section 3 (1) of Law of Limitation Act with costs. It is so ordered. JUDGE 29/11/2017 Judgment delivered in the of Mr. Ezekiel Bilabam for the plaintiff l. and Domina Madeli for the defendant. Z. G. Muruke JUDGE 29/11/2017 10