LUSIUS KAPUNGU SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 22190 OF 2024 LUSIUS CHALE KAPUNGU (Suing as an Administrator of the Estate of the Late Engilibert Chale Kapungu)......................................... PLAINTIFF VERSUS GULF BULK PETROLEUM (GBP)...................................................... 1st DEFENDANT ALI MOHAMED SALEH.................................................................... 2ND DEFENDANT CONRAD CHALE KAPUNGU............................................................ 3rd DEFENDANT RULING 8/11/2024 to 12/12/2024 E.B. LU VAN DA, J The First and Second Defendant above mentioned raised a preliminary objection to the effects that: One, The Plaintiff's Plaint is defective and legally inept for contravention of the mandatory provisions of Order VI Rule 14 of the Civil Procedure Code, Cap 33 R.E. 2019, as it has not been signed by the Plaintiff's Advocate; Two, this Court has no jurisdiction to hear and determine the suit; Three, the Plaintiff's claim as set forth in the plaint is time barred; Four, the Plaintiff is suing a non-existent corporation namely Gulf Bulk Petroleum (GBP). Point number two: this Court has no jurisdiction to hear and determine the suit i Mr. Gilbert Daniel Masaga learned Counsel for First and Second Defendant submitted that the Plaintiff prays this Court to issue a declaration that the agreement between the deceased the late Engelbert Chale Kapungu and the First and Second Defendants, respectively be null and void abinitio; payment of sum of TZS 2,000,000,000/- being a specific damages arising from loss of business after entering a wrongful and illegal agreement for disposition of the Plaintiff's property deceitfully; damages for loss of property; and costs. He submitted that all the reliefs sought in the suit are essentially based on the validity of the agreement and not at all concerning ownership or possession of land. He submitted that throughout the Plaint, the Plaintiff did not establish any claim for ownership or possession of land but simply questions the validity of the agreement executed between the late Engelbert Chale Kapungu and the Second Defendant, argued this Court - being the one specifically vested with an authority to determine land disputes, lacks jurisdiction to entertain the suit. He submitted that the suit ought to have been filed at the Commercial Division or the Sub-Registry of the High Court at Dar es Salaam. He cited the case of Amon Petro Amon and Another vs Nakuhaja Moses Myombo and Another, (Civil Review 2 of 2022), HC, at page 12, citing with 2 approval the decision in the case of Charles Rick Mulaki vs. William Jackson Magero, Civil Appeal No. 69 of 2017. He submitted that the Plaintiff's suit being not a land matter, it is wrongly filed in the High Court - Land Division, arguing this Court has no requisite jurisdiction to entertain this matter. In reply to this point, Mr. Hassan Yassin learned Counsel for Plaintiff submitted that by conflicting claims of right including right to dispose the land or lease the same. He submitted that by virtue of section 75 of the Land Act Cap 113 RE 2019, under Subpart 3, on sale of right of occupancy has provided for a relief against rescission of contract for sale of right of occupancy. He submitted that under the provision the vendor has the right to rescind the contract, argued the Plaintiff's prayers one of them being for this Court to declare the contractual agreement between the deceased the late Engilibert Chale Kapungu and the First Defendant to be null and void, by rescission of the contract the court will have to first determine if the contract was after all valid or not and then the order of rescission will be given, and that means this court by virtue of the above quoted provision it has a competence to entertain this matter. He cited section 167 under Part XIII, for a proposition that it establishes the courts to deal with the dispute emanating from land. 3 He submitted that it is wrong and barbaric for First and Second Defendants to say that this matter arose from land disposition which is wrongly executed, we are of the view that to say this matter is the commercial matter it is wrong observation. On rejoinder, the learned Counsel for First and Second Defendant submitted that the Plaintiff prays this Court to issue a declaration that the agreement between the deceased the late Engelbert Chale Kapungu and the First and Second Defendants respectively be null and void abinitio; payment of sum of TZS 2,000,000,000/- being a specific damages arising from loss of business after entering a wrongful and illegal agreement for disposition of the Plaintiff's property deceitfully; damages for loss of property; and costs. He submitted that the above stated reliefs sought in the suit are essentially based on the validity of the agreement and not at all concerning ownership or possession of land and not breach of agreement as alluded by the Plaintiff in his reply. He submitted that, the above prayers are not covered under the definition of what forms to matters concerning land defined in the case of Amon Petro Amon (supra). He submitted that this Court has no requisite jurisdiction to entertain this matter hence should be dismissed. 4 Going by the reliefs sought by the Plaintiff in the plaint clearly depict that are based on the validity of the agreement. Neither of the reliefs sought is concerning ownership or possession of land. In the entire contents of the plaint, the Plaintiff did not establish any claim for ownership or possession of land. All what the Plaintiffs is complaining is on the question of the validity of the agreement executed between the late Engelbert Chale Kapungu and the Second Defendant. It is now a settled position that, this Division having a mandate to determine land disputes, lacks jurisdiction to entertain the suit whose cause of action is exclusively based on the breach of contract per se. In the case of Amon Petro Amon (supra), at page 12, cited the decision in the case of Charles Rick Mulaki vs. William Jackson Magero, Civil Appeal No. 69 of 2017, that, 'the expression "matters concerning land" would only cover proceedings for protection of ownership and possessory rights in /and' In the case of Edna Asheri Nyika vs Tanzania Buildings Agency, Land Case No. 15600 of 2024, this Court speaking through Hemed, J had this to say, at page six, 'From the foregoing, for disposition ofland by sale to constitute a land dispute, parties must be rocking horns regarding the sa/e/disposition of rights or interest on land' 5 At page eight, this Court went on to say, 'The dispute on contract that has no connection with land dispute does not fall in the type of disputes to be admitted and determined by this court' Herein the substantive cause of action is on the validity of the contract and the reliefs sought are for the declaration that the contract was null and void and payment of specific damages arising from the loss of business after entering on the alleged wrongful and illegal agreement and damages for loss of property. Nowhere the Plaintiff claimed for ownership or to have any interest on the suit premises. In that way it cannot be said that the suit is a land matter, rather contractual. And hence this Court cannot dwell on adjudicating on the cause of action which is out of the scope of its jurisdiction. Regard being there is no fact pleaded in connection to land disputes or possession thereof, no relief claimed by the Plaintiff intimating taking possession or any declaration in respect of ownership of the suit land. Point number three: the Plaintiff's claim as set forth in the plaint is time barred. The learned Counsel for First and Second Defendant submitted that suit is time barred as it is in contravention with the provision of item 7 of Part 1 of the First (sic) Schedule to the Law of Limitation Act, Cap 89 R.E. 2019, argued the time limitation for suit founded on contract is six years. He submitted that it is 6 reflected from the pleadings that the issue in dispute is about the contract dated 18/6/2013 that was entered between the late Engelbert Chale Kapungu (as the vendor) and the First Defendant (as the purchaser) of the suit property. He submitted that looking at the date of execution, which is 18/6/2013, eleven years and four months have passed. He submitted that the suit has been filed way beyond the time provided under the law. He cited section 3(1) Cap 89 (supra); Deogratius Peter Ngowi vs. Regional Air Company Limited, Civil Case No. 1 of 2022, HC, regarding the remedy where the suit is time barred. In reply, the learned Counsel for Plaintiff submitted that the Plaintiff is the administrator of estate of the late Engilibert Chale Kapungu, arguing that the Law of Limitation provides for the effects of death after accrual of right of action under section 24(1) of the Law of Limitation Act. He submitted that the deceased died on 10/3/2014 and the said contract of disposition was executed before his death and the cause of action begun to arise from the date the Defendants made their first deposit of payment to a wrong vendor not in the names of the deceased which was on 12/06/2013. He submitted that by this date he believes have the deceased been alive would have realized the cause of action has arose and may start to accrual from the said date. He submitted that the Law of Limitation has elaborated that the time to exclude from computing the same starting from first anniversary or from the 7 date when the right to sue accrues to the estate of the deceased, whichever is the later date. He submitted that the Plaintiff got hold of his letters of administration from 2017 to date, and was given the mandate to distribute the properties to heirs by court on 17/5/2022, argued it is when the Plaintiff became aware of the property being disposed of to another person and the manner of which it was disposed was illegal. He submitted that the suit is not out of time, for explanation that the Plaintiff's awareness of his father's estate has been found out to be illegally disposed to the Defendants and the cause of action for the Plaintiff arose on 17/5/2022 when he was finally authorized to deal with his late father properties and not otherwise. On rejoinder, the learned Counsel for First and Second Defendant submitted that, the Plaintiff in this point is submitting against his prayers when he states that cause of action arisen when the Defendants made their first deposit of payment to a wrong vendor whereas in his prayers he prays this Court to issue a declaration that the agreement between the deceased the late Engelbert Chale Kapungu and the First and Second Defendants respectively be null and void abinitio. He submitted that since the matter is based on contract executed on 18/6/2013 between the late Engelbert Chale Kapungu (as the vendor) and the First Defendant (as the purchaser) of the property, argued that according 8 to item 7 of Part 1 of the First (sic) Schedule to Cap 89 (supra), the matter is time barred. At paragraph 6(iv) of the plaint, the Plaintiff pleaded that, 'On 12fh June 2013 while the deceased was still ill there was a contractual agreementpurported to had been entered between the deceased and the First Defendant in respect of the disposition of the disputed land' In that way it can be said that the Plaintiff pleaded on facts which were known from then. In the plaint, the Plaintiff did not plead any fact of fraud, neither pleaded to have been granted letters of administration in 2017, nor pleaded on a fact of having been given the mandate to distribute the properties to heirs by the court on 17/5/2022. Nowhere the Plaintiff pleaded that it is on 17/05/2022 when he was acquainted with the fact that the suit land was disposed the way back on 12/06/2013. Nor stated that he was not aware of the said sale. The provision of section 24(1) Cap 89 (supra), relied by the learned Counsel for Plaintiff, provide for effect of death before right of action accrues. Herein, annexure KAPU4 to the plaint being a letter of administration of estate Form No. IV, depict the late Engelibert Chale Kapungu passed away on 10/03/2014, the Plaintiff was granted with letters of administration on 10/08/2016. And the disputed sale was on 12/06/2013 when the late Engelibert 9 Chale Kapungu was still alive. Therefore, the applicable provision to this situation will be section 25(1) Cap 89 (supra), which provide, 'Where a person dies after a right of action in respect of any proceeding accrues to him, the time during which an application for letters of administration or for probate have been prosecuted shall be excluded in computing the period of limitation for such proceeding' In that way only the period from 12/03/2013 when the disputed disposition was done to 10/08/2016 when the letters of administration were granted to the Plaintiff, will be excluded for purpose of computation of time limit to sue. Now, as ruled above, the substantive cause of action is based on the validity of the contract alleged contracted on 12/03/2013. According to item 7 Part I, Schedule to Cap 89 (supra), the period of limitation on the suit founded on contract, is six years. Counting from 10/08/2016 when letters of administration were granted to the Plaintiff, six years ended on 10/8/2022. Therefore, when this suit was presented for filing on 6/09/2024 it was already time barred. Having sustained objection number two and three, will bail me out from discussing the rest points. io The suit is dismissed. Each party will defray its own costs. Judgment delivered in the presence of Geofrey Adrian (young brother) who appeared on behalf of the Plaintiff and Mr. Aron Tenga learned Counsel for First and Second Defendant. 11