Land case No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 000011515 OF 2024 LIBERATUS CHIJA MBOGO .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS THE OFFICE OF ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 24 & 24/01/2025 The plaintiff is suing the defendants for a declaration that he is rightful owner of the land in dispute. He claims from the defendants, general damages to the tune of T.shs 5,000,000/= to be assessed by the Court for interfering the use of land and cutting down of trees. He is also seeking costs of the suit and any other reliefs deemed just and fit by the Court to grant. Obviously, the counsel for the 1st defendant raised the following legal point of objection: 1. That the suit is hopelessly time barred in terms of item 6 Part I of the schedule to the Law of Limitation Act, Cap. 89 R.E. 2019 read together with section 3(1) of the same Act. 2. That the plaintiff has no cause of action against the 1st defendant. The preliminary objection was disposed of by way of written submissions. Mr. Renatus Lubango Shiduki, learned counsel, filed the written submission in chief. He did not wish to fail a rejoinder submission. Mr. Eliutha Kivyiro, learned counsel drew and filed the reply submission. The learned State Attorney for the 2nd, 3rd and 4th defendants was not interested in raising any preliminary objection, and was equally uninterested to lodge any written submissions. Page. 1 Elaborating on the preliminary objection, the counsel for the 1st defendant started by defining what constitutes a preliminary objection by citing Mukisa Biscuits Manufacturing Company Ltd v. West End Distributors Ltd [1969] E.A. 696, as quoted by the Court of Appeal of Tanzania in COTWO (T) OTTU Union and Another v. Honourable Iddi Simba Minister of Industries and Trade & Another [2002] T.L.R. 88. On the 1st fin of the preliminary objection that the suit is time barred, Mr. Shiduki explained that the suit is based on unauthorised entry into and constructing of a communication tower in the suit premises which is a tort of trespass. He stated that at paragraph 8 of the plaint the plaintiff alleges it is in 2016 is when the dispute arose on the land when one investor by the name Vodacom Company Ltd constructed a communication tower in the Plaintiff’s land demanding that the company has been authorized by the village council of Kalege to do so. He added that from the year 2016, to 17th May 2024 when the plaintiff filed the suit claiming against the Defendants. Mr. Shiduki cited section 3(1) of the Law of Limitation Act which provides that: “... Subject to the provisions of this Act, every proceeding described in the first column of the Schedule to this Act, and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence ...” So, went on Mr. Shiduki, the suit was supposed to be filed within 3 years from 2016 when the dispute arose. He elaborated that the suit was filed more than seven years. He re-echoed Avit Thadeus Massawe v. Isidory Assenga, Civil Appeal No. 6 of 2017, which defined the concept of trespass to mean: “... entering, remaining or causing an object to fall on the premises/land in the possession of another without permission and/ or without justifiable cause ...” For definition of trespass, he also parroted Frank Safari Mchuma v. Shaibu Ally Shemdolwa [1998] T.L.R. 280 at page 288, which defines the trespass to land as follows: “... By definition trespass to land is unjustifiable intrusion by one person upon the land in possession of another it has therefore been stated with a light touch that if the defendant place a part of his foot on the plaintiffs land unlawfully it is in law as much as a trespass as if he had walked half a mile on it ...” Mr. Shiduki therefore yearned this Court dismisses this suit with cost. As I have divulged earlier, no rejoinder submission was preferred by Mr. Shiduki. Page. 2 In response, Mr. Kivyiro observed that the preliminary objection in its totality is baseless. Starting with the first lob of the preliminary point of objection, which is based on the limitation of time, it was the remark of Mr. Kivyiro that his learned friend got lost, when she tried to exclude relief section as part of the plaint and decided to deal with only two paragraphs of the plaint. He affirmed that, the plaintiff’s claim is on ownership of land, as clearly pleaded in the plaint, on the relief section, in particular relief number one, where the plaintiff categorically prayed for the court to declare him as the rightful owner of the land in dispute, as per item 22 part I of the Law of Limitation Act Cap 89 R.E 2019 where the limitation to institute the claim for recovery of land is provided to be twelve years. He pointed out that the cases cited by the counsel for the 1st defendant did not decide on the limitation of time to institute the case of this nature, but were only defining what is trespass to land and what constitute the same hence are distinguishable with the case at hand thus this Court should disregard them. I have swept through the submissions of both counsel. I have also scrutinized what is pleaded the plaint and its annexures. It is as plain as a pikestaff that under paragraph 6 of the plaint, the plaintiff alleges that he is the customary owner of the land in dispute. At this stage, assuming that that allegation is proved, then he is entitled to the relief found under item 1 of the reliefs sought by the plaintiff. Thus, by aligning the averment in paragraph 6 of the plaint and the prayer for declaration as owner or lawful occupier of the piece of land makes the limitation to sue fall under 12 years limit as stipulated under item 22 of Part I of the Schedule to the Law of Limitation Act and not item 6 Part I of the schedule to the Law of Limitation Act, as suggested by the counsel for the 1st defendant. Thus, the suit is not time barred. The first lobe of the preliminary objection is overruled. In connection with the second lobe of the preliminary objection that the Plaintiff has no cause of action against the 1st Defendant, Mr. Shiduki maintained that the plaintiff in this case claims that in the year 2016, one investor by the name of Vodacom Company Ltd constructed a communication tower in his land, demanding that the company has been authorized by the village council. In his plaint the Plaintiff claims against the 2nd Defendant, who authorized the Vodacom Company to construct the communication tower on the disputed land. Since the cause of the action was unauthorized entry into the disputed land by the Vodacom Company, the Plaintiff has no cause of action against the 1st Defendant. Mr. Shiduki exemplified John M. Byombalirwa v. Agency Maritime Internationale (Tanzania) Ltd [1983] T.L.R. 1 (CA), where the Court of Appeal amplified that: “... the expression “cause of action” is not defined under the Civil Procedure Code, but it may be taken to mean essentially facts which it is necessary for the plaintiff to prove before he can succeed in the suit ...” Mr. Shiduki went on to elucidate that the 8 and 9 paragraphs of the plaint which constitute the cause of action, does not state whether the 1st Defendant trespassed on the disputed land. He further said that there is no act on the part of the 1st Defendant that gives the plaintiff his cause of complaint, and to the extent that the allegations in the plaint are directed towards the 2nd Defendant and do not expressly or impliedly attribute any wrongdoing to the 1st Page. 3 Defendant. He pressed that the Plaintiff has no cause of action against the 1st Defendant Mr. Kivyiro was unhappy with the argument of his learned friend. He contended that the second limb of objection that the plaintiff has no cause of action against the 1st Defendant, does not qualify to be the preliminary objection as per the case of Mukisa Biscuits Manufacturing Company Ltd v. West End Distributers Ltd [1969] E.A. 696 which insisted the preliminary objection to be on the pure point of law. And the case of John Byombalirwa v. Agency Maritime Internationale (Tanzania) Ltd [1983] T.L.R. 1 is distinguishable as in that case the plaint did not disclose the cause of action at all, unlike in this matter where the objection is that the plaintiff has no cause of action against the 1st Defendant which is matter of evidence. He added much more point of this nature is the mixture of law and facts. Mr. Kivyiro referred me to the case of Shose Sinare v. Stanibic Bank Tanzania Limited & Another, Civil Appeal No. 89 of 2020 Court of Appeal of Tanzania at Dare es salaam. Unreported, which decided with approval in the case of Mohamed Enterprises (T) Limited v. Masoud Mohamed Nasser, Civil Application No. 133 of 2012 that, “where a preliminary objection raised contains more than a point of law, say law and facts, it must fail.”He concluded by asserting is that, the 2nd lobe of the preliminary objection must fail basing on the above submission. He reiterated that the lobe of the preliminary objection raised has no merit and consequence the same be dismissed with costs. I have contemplated the arguments of both parties, with respect I am of the considered opinion that it qualifies to be a preliminary objection based on the principle that a preliminary objection is decided on the assumption that every fact pleaded or alleged in the plaint is proved or true. Now, as I have expressed myself above, under paragraph 6 of the plaint, the plaintiff alleges that he is the customary owner of the land in dispute. At this stage, assuming that that allegation is proved, then he is entitled to the relief found under item 1 of the reliefs sought by the plaintiff. But it is unfortunate that the 1st defendant is neither pleaded in the paragraphs (because it is only indicated HTT which in my view is not the name of the 1st defendant nor indicated in the annexures under the plaint. So, indeed, the plaintiff has no cause of action against the 1st defendant. I have considered the paragraphs in the plaint and its annexures as per Serafin Antunes Affonso v. Portan Enterprises & Others, Commercial Case No. 17 of 2000, HC, Kalegeya, J. (as he then was) where he was underscored that: “… the trite position of the law is that when deciding on whether or not a cause of action is disclosed, we only have to cast our eyes within the four corners of the plaint. We only have to peruse the plaint alone together with its annexures, if any … With this limited ambit, we do assume that the factual allegations thus made, whether expressly or impliedly are true …” [Emphasis mine]. The same stance was taken by the Court of Appeal in Ali Shabani & 48 Others v. Tanzania National Roads Agency & A.G., Civil Appeal No. 262 of 2021 CAT (unreported) where it was stated that: “Having gone through paragraph 6 and 7 of the plaint and the relevant annexures ...” Page. 4 That position was, in fact reiterated in Stanbic Finance Tanzania Ltd v. Giuseppe Trupia & Chiara Malavasi [2002] T.L.R. 221 HC where the principle was stressed that: “… in determining if the plaint discloses a cause of action against the defendant, a plaint must be considered within its four corners including its annexures.” [Emphasis mine]. Of equal importance, is failure by the plaintiff to join to the suit the seller or transferer (VODACOM) of the subject matter of this suit (the communication tower) which is attached to the land thus becomes part of the land. If it was sold, the land under it becomes sold too. VODACOM Co. Ltd is impleaded under paragraph 8 and mentioned in MLC-A which is an annexure to the plaint. The situation leads to contradiction of averment on paragraph 5 which mentions the 1st defendant to construct the tower while paragraph 8 mentions VODACOM. It should be remembered, cleverly crafting the plaint is forbidden in Tanzania Revenue Authority v. New Musoma Textile Limited, Civil Appeal No. 93 of 2009 CAT, (unreported) it was held that: “The second answer provided by Mr. Magongo to the issue, is that there was no reference to any tax dispute in the body of the plaint or prayers. The answer to that is provided by this Court in KOTRA’s case. Where the decision of the Indian case of RAM SINGH vs. GRANPANCHAYAT (1986) 4 sac 364 AIR, 1986) SC. 2197 was approved. In the latter case it was held that where the civil Court’s jurisdiction is excluded, the plaintiff cannot be allowed to circumvent the bar by the clever drafting of the plaint.” [Emphasis mine]. See also Juma B. Kadala v. Laurent Mnkande [1983] T.L.R. 103 HC where this Court held: “… in a suit for the recovery of land sold to the third party, the buyer should be joined with the seller as a necessary party … non-joinder will be fatal to the proceedings.” I have also put clear to the parties the case of Masaka Mussa v. Rogers Andrew Lumenyela & 2 Others, Civil Appeal No. 497 of 2021, (Unreported) (CAT): “The worst thing from the failure by the High Court to determine the suit and decide it basing on what the parties had pleaded is the fact that the High Court ended up nullifying the purchase and transfer of title over Plot No. 437 from one Said Khamis to the appellant without having heard not only Said Khamis who was not a party to the suit but also the appellant who was not recalled to defend her title over her plot after the High Court had framed the three new issues questioning her title over the plot. Apart from this being a departure from the pleadings, it was in breach of the cardinal principles of natural justice and an abrogation of the constitutional guarantee of the right to be heard.” Page. 5 See also the case of Nestory Msoffe & 5 Others v. The Registered Trustees of Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019, CAT, it was authoritatively ruled that: “... it was incumbent on the High Court to be keen enough and require the parties to amend the pleadings and join the Registrar of titles who is alleged to have registered the respondent’s property in question held under Certificate of Title. Since it is clear that the Registrar of Titles had a role in the registration of the land in question, the non-joinder of her in the suit before the High Court means that the Registrar was not heard which occasioned a miscarriage of justice which cannot be condoned by the Court and determining the present appeal. In the result, we have no option but to annul the trial proceedings and the impugned judgment.” Filing a new suit is imperative on the added imperfection that, there was no demand notice issued to the VODACOM rather it was a mere copy of the 90 days statutory notice which is not her concern. Who knows, VODACOM might have minded to settle the dispute even before coming to court if she were issued with the notice of intention to sue. Further, no demand notice was issued and served to the 1st defendant. Too, when I think about this suit (plaint), with its attachment having regard to the decision makes me decide that it is in the best interest of justice that the suit is struck out which will enable the plaintiff, to file a proper plaint to benefit from what was said in Yara Tanzania Limited v. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019 where it was stated that: “Three things are important to be noted before we procced in this issue. One, while O. VII R. 14 of the CPC requires that documents to be relied upon by the plaintiff be attached to the plaint or entered in the list of documents as the case may be, O. VI R. 7 of the CPC requires that all material facts constituting the claim should be founded on pleadings and that new facts not pleaded cannot, unless by way of amendment of pleadings, be relied upon in determining the case. Two, while O. VII R. 14 (1) of the CPC applies to the documents sued upon and which are in the possession of the plaintiff, O. VI R. (2) of the same applies to any other documents whether they are in the possession of the plaintiff or not. These, in our view, are those evidential documents which thought not constituting the plaintiff’s cause of action, are relevant in proving the claim. Three, since the documents under O VII R. 14 (1) constitute the plaintiff’s cause of action, they cannot be attached in pleadings unless they are expressly pleaded.” “It is our firm view, however that; as the existence of exhibit P1 was not pleaded, it could not have been produced and relied upon under the above provision without denying the respondent (defendant) opportunity to make a factual rebuttal on the existence of the same by way of written statement of defence. …” Page. 6 I should make it irrefutable that I encountered a swamp, I being aware that fundamental amendment of the plaint that amounts to change of the cause of action should not be permitted as envisaged in Standard Chartered Bank & Another v. VIP Engineering & Marketing Ltd & Others, Civil Application No. 222 of 2016, CAT (unreported). In addition, if a number of oddities amount to a mistrial as per Joseph Kimera v. Idd Hemedi [1968] H.C.D. No. 355, Seaton J., why not a number of deformities make the plaint incurably defective hence incompetent to render it struck out? All things considered, the preliminary objection on the claim that the plaint does not disclose a cause of action against the 1st defendant is sustained for that ground and the concession by Mr. Kivyiro. The suit is struck out. I make no order as to costs as additional oddities have been raised by the Court suo motu. It is so ordered. Dated at KIGOMA this 24th of January 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 7