Land Case 11838 of 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND CASE NO.11838 OF 2024 HAMISI MGENI HAMISI 1st PLAINTIFF KHERRY OMART CHICHO 2nd PLAINTIFF HAMISI SAID CHANZI 3rd PLAINTIFF IDDI HAMISI MTAWA 4th PLAINTIFF KITWANA ALLY MGAYA 5th PLAINTIFF RAMADHANI SHABANI RASHIDI 6th PLAINTIFF SHOMVI MOHAMED MTAWA 7th PLAINTIFF HUSNA RAJABU MOHAMED 8th PLAINTIFF FUAD S. MWINYIMKUU 9th PLAINTIFF RAMADHANI MINJAA MTAWA 10th PLAINTIFF MSAFIRI MGENI KHAMISI 11th PLAINTIFF MWALAM MGENI HAMISI 12th PLAINTIFF JUMANNE KONDO HAJI 13th PLAINTIFF DUA ABDALA KISUGULU 14th PLAINTIFF RAMADHANI SALUM JUMA 15th PLAINTIFF RAMADHANI OMARY MWINSHEE 16th PLAINTIFF MARIAM IBRAHIM KAPU 17th PLAINTIFF HADIJA HAMISI MWINYIMKUU 18th PLAINTIFF 1 MWALAHA MGENI DEVU...................................................... 19™ PLAINTIFF MWINYIMKUU HAMISI DEVU.............................................. 20™ PLAINTIFF AMINA MZEE UBEGETE.......................................................... 21st PLAINTIFF JUTO MOHAMED MTAWA.......................................................22nd PLAINTIFF MUSA SALUM MBALAMI....................................................... 23rd PLAINTIFF ATHUMANI SAIDI MTANDARA............................................. 24™ PLAINTIFF JUMA OMARY MWINSHEHE.................................................. 25™ PLAINTIFF TAUSI JUMA MBONDE........................................................... 26™ PLAINTIFF WAZIRI JUMA

MKIMO.......................................................... 27™ PLAINTIFF FATUMA ALLY JOKOO........................................................... 28™ PLAINTIFF SAFIA MOHAMED OMARY......................................................29™ PLAINTIFF ASHA HAMISI SEIF............................................................... 30™ PLAINTIFF KILOBA SELEMANI MWINYIMKUU...................................... 31st PLAINTIFF HAMISI SALUM MWINSHEHE.............................................. 32nd PLAINTIFF RAJABU BAKARI SERUNGWI.............................................. 33rd PLAINTIFF IBRAHIM SALUM ABDALA...................................................34™ PLAINTIFF ZURUFA MGENI HAMISI..................................................... 35™ PLAINTIFF DAUDI HAMISI DAUDI........................................................36™ PLAINTIFF BARAKA ALLY NYANGU.......................................................37™ PLAINTIFF HADIJA BAKARI HASANI.................................................... 38™ PLAINTIFF HAWA ALLY ISSA................................................................ 39™ PLAINTIFF ZAINA MGENI DEVU........................................................... 40™ PLAINTIFF J 2 SULTAN SALUM...................................................................................... 4].stPLAINTIFF ASHA SAIDI MTIGA............. .................................

42nd PLAINTIFF HADIJA MUHAMMED ATHUMANI........................................................ 43rdPLAINTIFF SAUDA NASORO KIUMBO.................................................................... 44™PLAINTIFF SHABANI SALUMU MBALAMI.......................................... 45™ PLAINTIFF KAMBI MGAZA KAMBI.......................................................................... 46™PLAINTIFF MARIAMU MOHAMED MVUONI........................................................... 47™PLAINTIFF KONDO HAJI JUNGU............................................................................. 48™PLAINTIFF MOHAMED SEFU ABDALA..................................................................... 49™PLAINTIFF ALLY MOHAMED MOHAMED.................................................................. 50™PLAINTIFF RAMADHANI WAZIRI MTILWA............................................................. 51stPLAINTIFF HAMISI SEFU SHAHA............................................................................ 52NOPLAINTIFF HADIJA SAIDI MTIGA........................................................................... 53rdPLAINTIFF HALIMA MWINYIMANI CHANZI.......................................................... 54™PLAINTIFF SALUM CHUMU MKILALU..................................................................... 55™PLAINTIFF MWANAHARUSI HAMISI MTAWA........................................................

56™PLAINTIFF MUSSA ABDALA SEFU........................................................................... 57™PLAINTIFF MUHARAMI MZEE UBEGETE................................................................. 58™PLAINTIFF JANINI MGENI CHANZI......................................................................... 59™PLAINTIFF ABDALA MGENI CHANZI...................................................................... 60™PLAINTIFF KHAMISI MWINYIMKUU DEVU......................................... 61st PLAINTIFF KITWANA SEFU SHAHA...................................................... 62nd PLAINTIFF 3 JAFARI SAIDI CHANZI.... ................ ................................... 63rd PLAINTIFF ASHA ABDALA SAMATA................................... ................... 64™ PLAINTIFF MGENI SELEMANI KOO....................................................... 65™ PLAINTIFF ZUBERI MGENI HAMISI...................................................... 66™ PLAINTIFF TINYANGO MUSSA SHOMVI................................................ 67™ PLAINTIFF RAMADHANI SEFU SHAHA.................................................. 68™ PLAINTIFF ASUMANI JUMA MGANA..................................................... 69™ PLAINTIFF REHEMA KAMBI MALOLOSA................................................ 70™ PLAINTIFF HALIMA BAKARI HASSANI.................................................. 71st PLAINTIFF SAUDA ISSA SWARE............................................................ 72nd PLAINTIFF

VERSUS BUYUNI COMPANY LIMITED............................................... 1st DEFENDANT THE MUNICIPAL DIRECTOR, KIGAMBONI MUNICIPAL COUNCIL.................................. 2nd DEFENDANT THE ATTORNEY GENERAL.................................................. 3rd DEFENDANT

RULING 15/10/2024 & 28/10/2024 A.MSAFIRI, J This is a Ruling on the preliminary objections raised by the herein above defendants while filing their written statements of defence pertaining this suit. The 1st defendant raised four points of objection as follows; 4 1. The suit is time barred.

2. The plaintiffs have no locus standi to sue.

3. The suit is incompetent as the 2nd respondent has no legal capacity to sue or be sued. On their part, the 2nd and 3rd defendants also filed their preliminary points of objection to the effect that; a) The suit is time barred. b) That the suit is incompetent and untenable in law for suing a party who has no legal capacity to be sued contrary to Section 14(1) of the Local Government (Urban Authorities Act), Cap 288 R.E2002. The preliminary objections were argued by way of written submissions and I have gone through the whole submissions in support of and opposition of the objections and I commend the parties with their learned counsels for the well-researched and articulated submissions which have greatly assisted this court in determining whether the preliminary objections have merit or not. Taking into consideration the submissions of the parties, I will combine the first limb of objection because they are similar. They both round on the claim that the instant suit is time barred. 5 In the submissions, the 1st defendant was represented by Mr Daimu Halfani, learned advocate, the 2nd and 3rd defendants were represented by Ms Careen Massonda, State Attorney. Both counsels submitted on the first limb that the suit is time barred. That the cause of action in this suit is the tort of trespass by re-survey. That the plaintiffs claims that their land have been trespassed and

according to paragraphs 11 and 12 of the Plaint read together with annexure PF-4, it shows that the re-survey was conducted in the year 2016. Therefore, according to the defendants, trespass started on 2016 when resurvey was done. That the plaintiffs were supposed to institute the suit to claim on tort for trespass from 23/6/2016 when the suit land was resurveyed while the suit at hand was instituted on 20/5/2024 where about eight (8) years have passed. That the statutory time for the plaintiffs to institute the suit lapsed on 25/6/2019. The counsels argued that according to Item 6 of Part 1 of the schedule to the Law of Limitation Act, Cap 89 R.E 2019, the period of limitation for claim under tort is three (3) years. The counsels submitted that it follows that the suit at hand was filed out of the period of limitation prescribed and the remedy is for the same to be dismissed with costs as provided under Section 3(1) of the Law of Limitation Act., A p 6 The plaintiffs were represented by Baraka Masse, learned advocate. He submitted in contest of the preliminary objection on the first limb that the suit is not time barred. That, paragraph 11 of the plaint read together with annexure P4 shows clearly that the plaintiffs were not aware of the existence of the resurvey by the 2nd defendant. That the 2nd defendant made a resurvey in 2016 without informing the plaintiffs and the

resurveys has some illegalities. The counsel for the plaintiffs submitted further that had the 2nd defendant followed the necessary procedure of issuing notice to the neighbours, definitely the plaintiffs would have information by the time when the survey was conducted i.e., 2016. To cement his argument, the counsel for the plaintiff cited a case on discovery rule in Cart vs Marcum, 188 W.Va 241,423 S.E 2d 644 (1992) where the court (West Virginia) held that; "generally, a cause of action accrues (i.e. the statute of limitations begins to run) when a tort occurs: under the discovery rule', the statute of limitation is tolled until a claimant knows or by reasonable diligence know of his claim ". The counsel for the plaintiffs insisted that the re-survey was conducted in 2016 but the knowledge of the survey by the plaintiffs came in 2022. 7 through reply letter by the defendant. That the time of limitation then began to run in 2022 not 2016 as contended by the defendants. In rejoinder, the defendants submitted that the date on which the cause of action arises referred to in Section 5 of the Law of Limitation Act does not incorporate the aspect of knowledge or awareness of the claimant/plaintiff. The counsels added that the knowledge of re-survey is not an exclusion prescribed by the law and such fact is not stated in the plaint as required by Section 6 of the Civil Procedure

Code, Cap 33 R.E 2019 whereby it is provided that; 'Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed' The counsels for the defendants reiterated their submissions in chief. Section 4 of the Law of Limitation Act provides that the period of limitation prescribed under the act shall commence from the date on which the right of action for such proceeding accrues. 8 Section 5 of the Law of Limitation Act provides that the right of action in respect of any proceeding shall accrue on the date on which the cause of action arises. Therefore, the important question here is when did the cause of action arise in the instant suit? In their submissions, the plaintiff through their counsel stated that the cause of action arose in 2022 when they got the knowledge through the letter from the 2nd defendant that their land (the suit land) belongs to the 1st defendant and have been surveyed since 2016. The defendants contend that the cause of action arose in 2016 when the suit land was surveyed in respect of the 1st defendant. Having read the whole of the pleadings along with the submission by the parties, it is my firm belief that the cause of action arose in 2020 when the 1st defendant's workers allegedly invaded the plaintiffs land and causes disturbance to the

plaintiffs hindering their daily activities. At paragraph 9 of the plaint, the plaintiffs stated as follows: "That the plaintiffs were enjoying the use of their land up to the year 2020 when they started experiencing disturbances from the workers of the 1st defendant hindering their daily activities they. 9 used to perform. This disturbance led the plaintiffs to complain to their Chairman of Local Government of Songani Centre regarding the invasion of their land and the other land which they believe to be owned by the Go vernment..." (emphasis added). From this paragraph 9 of the plaint, the cause of action arose in 2020 where the invasion of the suit land began as claimed by the plaintiffs. As a result of the said invasion by the workers of the 1st defendant, the plaintiffs took action by taking the matter to the Chairman of the Local Government of Songani Center who made a follow up then it came to the knowledge of the plaintiffs that their land was already surveyed hence it cannot be resurveyed. Therefore, since all parties agreed that the plaintiffs' claims are based on the tort of trespass whose time limit is three years then the cause of action accrued in 2020 and the current suit was filed in 2024 when the statutory time for filing the suit has already passed. For the above analysis, I find the suit to be time barred and for that reason, it is hereby dismissed as per Section 3 of the Law of Limitation Act. Costs of the suit to be borne by the plaintiffs. io Since the first limb of objection suffices to dispose of the matter, then I will not labour on the second limb of objection. It is so ordered.

JUDGE 28/10/2024 11