JOSEPH ALLY

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND CASE NO. 43 OF 2023 1. JOSEPH JOHN ALLY 1 2. HUSSEIN MUNA I ........................................... PLANTIFFS 3. JUMA DINDII SINGU I J VERSUS THE VILLAGE COUNCIL OF KIPUMBUIKO........................ 1st DEFENDANT IKUNGI DISTRICT COUNCIL........................................... 2nd DEFENDANT THE ATTORNEY GENERAL............................................... 3rd DEFENDANT THE SOLICITOR GENERAL.............................................. 4th DEFENDANT RULING Date: 27.09.2024 HASSAN, J:. In this suit, the plaintiffs jointly claim from the defendants 320 acres of the Land located at Inati Sub-village, Kipumbuiko Village, Ikungi District, which on the East is boarded by Yohana Ndele, Saidi Kisuda and Juma Urughu. On the north is boarded by Ndoghwe Njiku and Ramadhani Omari. 1 On the south is boarded by a Pario which goes to the enclosure of Umadilu and on the West is boarded by Juma Mpaki, Jumanne Isula and Mulula Lisu. In brief, the plaintiffs alleged to have acquired the impugned land from their late fathers and forefathers who had cleared a virgin land at different times in the 1920s. Thus, ownership of the disputed land acquired by way of transmission from generation to generation. Which means that, the plaintiffs have been using the disputed land since colonial and post­ independence time. Further to that, the plaintiffs alleged to have undergone number of litigations over the land and they have been declared the rightful owners. Annexed therewith, is a copy of judgment from Kipumbuiko Ward Tribunal. Therefore, until August, 2015 when they were informed by Kipumbuiko Village Council through their chairman that the village lai.J council will redeem 320 acres of their land, they were enjoying the said land for cultivation and grazing animals. Therefore, upon filing a written statement of defence (WSD) in order to counter the allegation fore fronted against the government entities, the 2 defendants under the legal warden of Solicitor General raised notice of preliminary objections to be determined by the court at the earliest thus: 1. The suit is time barred. 2. The suit is bad in taw for suing wrong parties. 3. The suit is bad in law for being brought without serving the ninety days' notice contrary to section 6 (2) o f the Government Proceedings Act, [Cap. 5 R.E. 2019]. 4. The suit is bad in law for failure to disclose the value o f the suit land contrary to order VII rule 1(1) o f the Civil Procedure Code, [Cap. 33 R.E. 2019]. As it is the practice of this Court, if notice of preliminary objection is lodged, the parties are allowed to argue the preliminary objection before going into merit of the matter in dispute. Conveniently, the matter was disposed by way of written submissions. Credit to the counsels, as they have strictly maintained the terms of preferences. Launching the attack against the suit, to begin with, Ms. Kumbukeni Kondo, learned State Attorney contends on the first ground of preliminary objection that the suit is time barred. Going through her submission, she 3 argued that under item 24 of column one of the First Schedule of the Law of Limitation Act, [Cap 89 RE 2019] limitation has been set for a period of 6 years for institution of any suit not otherwise provided for, declaratory order inclusive. She further submitted that the plaintiffs claim amor j other things is to be declared owners of the suit land, to her view, this suit has been instituted on 24th August, 2023, and according to paragraph 10 of the plaint the cause of action arose in 20 up to 2023 which is 8 years and thus makes the plaintiffs to be time barred for 2 years as they supposed to file their case anytime on or before August 2021. To cement her argument, the counsel for defendants referred the decision in the case of CRDB (1996) Ltd Vs Boniface Chimya, Civil Appeal No. 57 of 1999 at page 4 the court of appeal concurred that the period fixed for seeking declaratory order is six years. It does not matter whether the reliefs sought was ancillary or incidental to the substantial relief. She further contended that this position gained support in the case of Herieth Kasidi Vs Augustino Bushiri, Civil Appeal No. 480 of 2020 at page 5 first paragraph line 2. Also, in the case of Semeni Abdu Kapera Vs Ashura Hamisi and 2 others, Land case No. 36 of 2022 at page 8 and 9 4 first and second paragraphs, the same view was maintained that the time limit for declaratory orders is six years. In conclusion to this point, learned State Attorney cited Section 3 (1) of [Cap 89 R . l_ 2019] which provides the remedy incase the suit is instituted out of time thus, it ought to be dismissed. She concretized that this position was supported in the case of Semeni Abdu Kapera (supra) at page 10 last paragraph and page 11. Learned State Attorney supplemented that, reading the wording of paragraph 12, 13,14 and 17 of the plaint, where the emphasis should be at paragraph 17, the plaintiffs are admitting that they delayed to file the mater because they were seeking for amicable settlement. She thus pressed that, it was unfortunate for them because, out of court negotiations can not at any point stop the running of time. She for reference cited the case of M/S P.O International Ltd Vs. The Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020 at page 10 second paragraph and 11 paragraph 1,2 and 3. In the end, she prayed this suit to be dismissed with costs for being time barred. 5 In response to the arguments fronted by the learned State Attorney, the plaintiffs jointly opposed the objection raised with respect to time limitation. Thus, in their submission in reply they submitted that, the law on limitation as stipulated under item 22 of Part I of the Schedule to the Law of Limitation Act, [Cap 89 R.E 2022] which clearly state that, the time limitation for suits for recovery of land is 12 years. As decided in the case of Erizeus Rutakubwa vs Jason Angero (1983) TLR 365, the court' aid that: "The period o f limitation o f redeeming a shamba is 12 years as governed by the Law o f Limitation Act, Cap 89 R.E. 2019." Therefore, the plaintiffs herein contended that in the instant case the plaintiffs have peacefully used the disputed land for crops <~ultivation and grazing animals ever since till 2015 where the 1st defendant informed them that the village land counsel will redeem 320 acres of their land, and unfortunately to date the plaintiffs are still enjoying their rights of usage of the disputed land despite of getting some disturbance and inconveniences from the 1st defendant. The plaintiffs submitted further that they are claiming a right of ownership of their land and are within the time to file their suit for recovery 6 of land as the date in which the suit has been instituted, August 2023 is within the 12 years limitation time. The plaintiffs went on stating that, the 1st defendant was allocated the same land after a revocation was done by the late President Mwinyi. This is a new fact that the plaintiffs are hearing and that they believe the land is theirs after they have occupied it for a long period of time. And that, this suit is not that of declaratory orders as submitted by the defendants' learned counsel. The plaintiffs also stressed that, upon reading to what are declaratory orders, declaratory orders are defined to wit, Declaratory order means; a ruling that is explanatory in purpose; it is designed to clarify what before was uncertain or doubtful. That, a declaratory order constitutes a declaration ot rights between parties to a dispute and is binding as to both present and future rights. The plaintiffs further submitted that for proper interpretation of the term declaratory orders that are sought by the plaintiffs, it is meant to be declared as a legal owner of the disputed land, and to see as to what cause of action the plaint has evolved around. As defined in the case of John M. 7 Bombalirwa vs. Agency Martime Internationale (Tanzania) LTD (1983) TLR. 1 where a cause of action was defined as: "The expression cause o f action is not defined under the Civil Procedure Code 1966 but may be taken to mean essentially facts which it is necessary for the plaintiff to prove before he can succeed in the suit." The plaintiffs further submitted as they have demonstrated in the plaint that, the course of action was after the 2nd defendant has allocated the impugned land to the 1st defendant, however the said land has never been used by neither of the 1st or 2nd defendants. Reflecting on the authorities cited by the defendants' counsel, the plaintiffs contended that the case are distinguishable from the facts in this case. They argued that, in those cases parties were suing on the tort of trespass to land and not suing on the ownership of the land. Thus, they stressed that, in the circumstances at hand, all parties are de ’aring interest on the same land. In the end, the plaintiffs prayed the court to dismiss the preliminary objection raised by the defendants and consequently, the matter to be heard on merits. 8 The crucial issue which needs court determination at this juncture is whether or not, the suit is untenable for being time barred. In my view, going through the plaint, as well as the submissions fronted by the parties, I am unhesitatingly of the opinion that, this suit is time barred. It is clear from the record, (see paragraph 10 of the plaint) that the cause of action arose in the year 2015, and up to the year 2013 when this suit was filed, eight (8) years has lapsed. Notably, as it stands, there is no dispute between the sides in controversy as to when cause of action arose. Basicallv, the two sides have only deviated on the issue whether the matter falls under item 24 of column 1 of the First Schedule of the Law of Limitation Act, [Cap 89 RE 2019], of which limitation has been set for a period of 6 years for any suit not otherwise provided for declaratory order or it falls under item 22 of Part I of the Schedule which states clearly that, the time limitation for suits for recovery of land is 12 years. Now, the question is, which of the two principles apply. In the context thereof, to decide as to which principle should be applicable, it will depend upon the relief sought by the plaintiffs based on the facts presented. For that reason, looking on the plaint, the plaintiffs have made it clear under roman one (i) in the relief clause that, what they are 9 praying for the court to decide, is to give an order to declare the plaintiffs' legal owners of the impugned land. Literally, in my view, the content of Roman number (i) depicts that, the plaintiffs are seeking for the order to declare them the legal owners of the impugned land. Semantically, this phrase will have the same meaning with the phrase "declaratory order", in my opinion. To put it clear, I will copy the clause as it appears in the plaint in verbatim, the prayer r>ads: "An order to be declared legal owners of the said. " Furthermore, I have taken a note of the plaintiffs' submission that, in reference to declaratory order, it has been defined to mean a ruling that is explanatory in purpose; it is designed to clarify what before was uncertain or doubtful. If I can borrow the same view point, looking on the fact presented in the plaint as well as clarification given in the submission, it shows apparently that there was an uncertainty of ownership which needs to be cleared. For instance, looking at paragraph 13 of the plaint, the ,-iaintiffs' claim is that, the 2nd Defendant has declared the disputed land to be the village land without reasonable justification. And as per paragraph 14 of the plaint, 10 more specifically annexure P3, the plaintiffs' demand is; to be compensated or reallocating to another plot or, upon failure, to return the disputed land to them or the/ will take legal action. However, in their submission in reply of the preliminary objection, the plaintiffs submitted that, the disputed land remains unused by both the 1st and 2nd defendants. Although, inconsistently, at paragraph 11, the plaintiffs contends that the 1st defendant has redeemed the said land, and started to hire it to different people for agricultural projects including, Tar Tania Agricultural Research Institute (TARI), in my view, with this trend, it shows existence of uncertainty as to who is an owner of the disputed land. Even the 1st defendant has not filed a counter claim to demand that the disputed land is hers. See for example in Melchiades John Mwenda vs Gizelle Mbaga & Others (supra), at page 24 and 25 of the judgment. Knowing that, as I suspect, the reason why the plaintiffs have approached the court seeking for clarification of their dispute is due to the vagueness which existed. As a result, they sought to be declared as legal owners of the disputed land since the land was unjustifiably acquired. And rightly so, as it has been submitted by the plaintiffs' counsel in her li submissions, a declaratory order constitutes a declaration of rights between parties to the dispute and is binding as to both present and future rights. At this juncture, I am also alive that, it is a trite law that the court cannot grant a relief that was not specifically requested. See for instance in the case of Abdallah Mabula vs Sophia Masanilo (Civil Appeal No. 604 of 2023) [2024] TZCA 882 (11 September 2024); and Melchiades John Mwenda vs Gizelle Mbaga & Others (Civil Appeal No. 57 of 2018) [2020] TZCA 1856 (13 November 2020) it was stated: "It is elementary law which Is settled In our jurisdiction that the court will grant only a relief which has been prayed." Thus, it is from this reflection, I am of the firm view that what the plaintiffs have requested as relief to the matter at hand, is a declaratory order to declare them the legal owners of the disputed land in the same meaning given above. Consequently, that being a declaratory order, the same will fall under item 24 of column 1 of the First Schedule of the Law of Limitation Act, [Cap 89 RE 2019], of which limitation has been set for a period of 6 years. 12 That being the case, I am certain that this case has been filed beyond limitation period stipulated under item 24 of column 1 of the First Schedule of the Law of Limitation Act, [Cap 89 RE 2019]. Hence, it is time barred. For this reason, I proceed to dismiss it with costs. Ultimately, that being the position, I see no need to proceed with analysis of the remaining grounds of preliminary objections. For it, since the first ground oi objection has disposed of the matter, to go through with the rest will be marked as an academic exercise. Thus, the same are hereby reserved undecided. It is so ordered. DATED at DC DOMA this 27th day of September, 2024. S. H. HASSAN \ JUDGE 27/09/2024 Ruling delivered this 27th day of September, 2024 through video conferencing in presence of the counsel for plaintiffs and the 1st plaintiff was 13 also present connected from Singida. Whereas, learned State Attorney was also linked virtually. 27/09/2024 14