Kisiroti Mgikira Rugatiri

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA LAND CASE NO. 000024543 OF 2024 REFERENCE NO. 02410011000024543 BETWEEN KISIROTI MGIKIRA RUGATIRI...................................................................... 1stPLAINTIFF JUMAPILI ATHUMANI RUGATIRI................................................................. 2ndPLAINTIFF MAKURU MGIKIRA RUGATIRI...................................................................... 3rdPLAINTIFF SAMORA MARTIN WAMBURA....................................................................... 4thPLAINTIFF JUMA MAGO MONYIKA.................................................................................. 5thPLAINTIFF VERSUS TANZANIA NATIONAL ROADS AGENCY.................................. 1st DEFENDANT THE ATTORNEY GENERAL....................................................... 2nd DEFENDANT RULING 25th & 27th March, 2025 M, L, KOMBA, J. This is the ruling in respect of the Preliminary Objection (PO) raised by the 1st, and 2nddefendants on points of law that: 1. That, the suit is time barred hence this court has no jurisdiction to entertain it. Briefly, plaintiffs herein filed a Land Case against the defendants claiming for compensation for the land hold by defendants (disputed land) at Tingirima village in Mugeta ward in Bunda District. Each plaintiff owns Page 1 of 6 different size of the land with different value which were in physical occupation till 26/11/2020 when the 1st defendant holds their land to give way to Sanzati-Nata Road construction. Valuation of the land in dispute was complete but defendants failed to pay compensation to plaintiffs despite being reminded. After expiration of 90 days' notice, plaintiffs filed this suit claiming for compensation and cost of the suit. Upon service, the 1st, and 2nd defendants filed a joint written statement of defence (WSD) which contains the said Preliminary Objection (PO). As it is already settled, that PO has to be determined first before moving to the merit of the case, I did the same. See Khaji Abubakar Athumani vs Daud Lyakugile Ta D. C Aluminium & Another (Civil Appeal No. 86 of 2018) [2021] TZCA 32 (24th February, 2021) and Deonisia Onesmo Muyoga & Others vs Emmanuel Jumanne Luhahula (Civil Appeal No. 219 of 2020) [2023] TZCA 124 (20th March, 2023). When the matter was placed for hearing of the PO, the 1st and 2nd defendants were represented by Ms. Neema Mwaipyana (SSA) and Mr. Anesius Kamugisha, State Attorneys while on the other hand, plaintiffs enjoyed legal service of Mr. Aloyce Osea Kajitanus, Advocate. Page 2 of 6 When started to argue in support of their PO, Ms. Neema Mwaipyana submitted that the plaintiff has filed the suit for compensation basing on the contents of paragraph 4 and 7 of the plaint together with relief thought. The suit for compensation falls under item I of the first schedule of the Law of Limitation Act, Cap. 89 of the laws, she insisted. She went on submitting that Item I of the cited schedule prescribes the time limit for suits in compensation is 12 months (one year). She insisted that paragraph 7 and 8 of the plaint indicates that cause of action started on 22/11/2022 when valuation was done and therefore, plaintiffs were supposed to file a suit before 22/11/2023. However, she submitted that this suit was filed on 18/09/2024 which is one year later. So far as plaintiffs did not indicate in their plaint that they were exempted by the minister responsible for Constitution as per order VII rule 6 of the Civil Procedure Code (the CPC), she maintained that the matter is filled out of time and prayed it be dismissed under section 3(1) of Cap 89. She supports her submission by the decision of M/S P & O International Ltd vs The Trustee of Tanzania National Parks (TANAPA) Civil Appeal No. 265 of 2020 page 8 where the Court decided that the time limitation for compensation is 12 months. Page 3 of 6 On the other side Mr. Kajitanus submitted that the PO has no merit as issues submitted by the state Attorney need evidence and when other documents are consulted it defeat the meaning of PO. He directed his submission on when cause of action arose, as it appear under section 5 of Cap. 89 and refreshed the memory on the qualities of PO as found in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] E.A 696 that the PO must be on point of law. He went on submitting that at paragraph 9 of the plaint, plaintiffs attached letters which were written to Regional Manager TANROAD in year 2023. He preceded that in the said communication, 1st respondent directed plaintiffs to wait for the next budget and it was January 2024 when plaintiffs were informed that they will not be paid. Immediately they started to pursue their rights. He cited the case of Faraji Ally Lukwanja vs Lindi Town Council, Land Appeal No. 07 of 2009 (2021) that ongoing communication were considered by the trial judge. In that case the delay was for 12 years but the suit was maintained on the basis that it is not right to rule on time. He insisted that cause of action arose when the plaintiffs received a letter that 1st respondent will not pay them and prayed this court to overrule the PO so that the matter can proceed on merit. Page 4 of 6 In rejoinder state Attorney insisted that PO has quality as it is on point of law which is the first schedule of Cap. 89. She clarified that previous cited case of M/S P & O International Ltd vs The Trustee of Tanzania National Parks (TANAPA) explain pre negotiation or any communication does not stop the time to run. Further, the case cited by the Mr. Kajitanus was not to bind this court while Court of Appeal has different position on that aspect. She prayed the matter to be dismissed with costs. My duty is to decide whether the PO has merit. Defendants maintained that the suit for compensation has to be filed within twelve months from when the cause of action arose and they define cause of action arose when valuation process take place. Plaintiffs claim for compensation for their land which was taken and hold by 1st defendant in Sanzati-Nata Road Construction Project which is at finishing stage. There is no doubt that at paragraph 7 and 8 of the plaint indicated that valuation of the disputed land was done in November 2022. The issue to be considered is whether, under normal circumstances, big Government projects which attract compensation by the Government, the compensation is done to victim on the date of valuation of the victim property, definitely the answer is in negative. Page 5 of 6 Circumstance of this case is different as the payment for not only compensation of acquisition of land but acquisition of land by the Government is different from other compensation. While I subscribe to principles in all cited case, circumstance of this case is different. Am alive that each case has to be decided basing on its own facts. Facts of this case need to visit evidence in order to ascertain when cause of action arose in cases involve compensation by the Government. That long drawn research defeats the meaning of PO and I find the PO has no merit and I hereby overrule it. I order the matter to proceed on merit. Each party to bear its own costs. It is so ordered. K M. L. KOMBA Judge 27th March, 2025 Page 6 of 6