mariam samburo vs masoud mohamed masoud and others 2020 tzhclandd 143 8 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 36 OF 2009 MARIAM SAMBURO (Legal Personal Representative Of the late Ramadhani Abasi)................................... PLAINTIFF VERSUS MASOUD MOHAMED MASOUD................... 1st DEFENDANT D. HARMESH VINESH JOSHI...................... 2nd DEFENDANT B.G. VAGHELA......... ...... ............................3 rd DEFENDANT MOHAMED JESSA............................ ..........4™ DEFENDANT RULING MAIGE, J The dispute herein pertains to ownership of a five acres land situated at Temeke within Dar Es Salaam Region ("the suit property"). The plaintiff claims against the defendants and each of them for ownership of the suit property by virtue of being the administratrix of the estate of the late Ramadhani Abasi. The late Abas expired in 1983 whereas the appellant was constituted administratrix of his estate in 1985. The factual allegations constituting her cause of action are pleaded in paragraphs 5,6,7,8 and 9 of the plaint which for obvious reason, I find it necessary to reproduce hereunder;- 5. That the 4 h Defendant claim s that he bought land from M asoud Mohamed Masoud, the 1st Defendant, but there is no p ro o f that he bought it from him. Even if he bought it from the 1st Defendant has no claim o f rig h t on the land which is p art o f the estate o f the iate Ram adhani Abasi whose Adm inistratrix is the p lain tiff. 6. That the p la in tiff is the Adm inistratrix o f the estate o f the iate Ram adhani A basi whose Adm inistratrix who expired on 31st January, 1983. H er appointm ent as Adm inistratrix dates from 17th January, 1985 under Probate and Adm inistration Cause No. 3 o f 1985 by Kariakoo Prim ary Court. Letters o f Adm inistration and Ruling are attached collectively as Annexure "C". 7. That the late Ram adhani Abasi bequeathed the 5 acres land from h is father the late Abas Mzee Mmanga M sw ahili who also bequeathed it from h is father the late Mzee bin Mmanga M sw ahili since 1911. Attached is a copy o f Certificate o f Occupancy issued by Germany Colonial O ffice m arked Annexure "C", 9. That after the death o f the late Ram adhani A basi is when a ll these problem s have arisen. The allegation that M asoud Moham ed Masoud has been in occupation from 1970 is doubted because late Ram adhani Abas had owned this 5 acres and w ithout any disturbance. O nly o f recent that 1st Defendant had decided to invade the land and se ll sm all portions to different individuals, including 2nd and 4 h Defendants. Several cases have arisen out o f th is 5 acres lan d including: (a) Probate and Adm inistration Cause No. 3 o f1983. (b) C iv il Revision No. 14 o f 1985 © C ivil Case No. 114 o f 1993. In his written statement of defense, the third defendant through his counsel Mr. Sylvester Shayo questioned the maintainability of the suit for being time barred and resjudicata. The first and second defendants have also raised the issue of time limitation. By the judgment of this Court dated 18th December 2015 as per His Lordship Mjemmas (as he then was) this suit was dismissed for want of merit. However, on appeal to the Court of Appeal vide Civil Appeal No. 109 of 2016, both the judgment and the entire proceedings thereof were struck out for being incompetent. The file was remitted to this Court for trial denovo hence the instant proceedings. On 27th February 2020 when the matter came before me in the presence of the late advocate Batuel Peter for the plaintiff; Jacqueline Masawe for the first and second defendant; Gabriel Aloyce for the 3rd defendant; and Richard Madidi for the fourth defendant; I doubted if the plaint did disclose the date of accrual of action for the purpose of ascertainment if the suit was within time. I placed the matter on 20th March 2020 so that the parties would address me on the said issue. 3 On 20th March 2020, the matter could not proceed. The plaintiff who appeared in person informed the Court that, his advocate Betuel was no more. He was thus afforded an opportunity to hire a new advocate. On the same day, Mr. Richard Madibi who appeared for the 4th defendant withdrew himself from the conduct of the matter on account that his client had expired since February 2018. The first and second defendants, for the reasons better known to themselves, did not appear. The third defendant appeared through advocate Gabriel Mushi. For obvious reason, the matter was adjoined to 23rd April 2020. On 23rd April 2020, the plaintiff appeared through Mr. Seni Malimi, learned advocate. The first and second defendants were absent. Mr. Malimi did hold the brief of advocate Shayo for the third defendant too. He informed the Court that he was, subject to further consultation to his client, preparing himself to concede to the issue raised by the Court on its own motion. I adjourned the matter therefor to 29th April 2020. On 29th April 2020 therefore, Mr. Malimi conceded, in the presence of advocate Steven Luko for the third defendant and in the absence of other defendants that the plaint did not disclose the date of the accrual of cause of action. He prayed that the suit be struck out without costs because the issue was raised by the Court on its own motion. Mr. Luko did not have any objection. 4 On my part, I am in agreement with Mr. Malimi learned advocate for the plaintiff that, the plaint is defective for not disclosing the date of accrual of cause of action. The requirement for such disclosure is mandatorily imposed by the provision of order Vii rule 1 (e) of the Civil Procedure Code, Cap. 33, R.E., 2002 which provides that the plaint must contain "facts constituting cause of action and the date of accrual". The objective behind the provision is to enable the Court and the adverse party to ascertain if the action has been brought within the time limit. The omission to disclose the date of accrual of cause of action in so far as it may have the effect of denying the defendant a defense of time limitation is not a minor irregularity in my view. In the circumstance therefore, the suit is struck out for being incompetent. Since the third defendant who rose some preliminary objections have not asked for costs, I will not grant the same. It is so ordered. DATED this 08th day of May, 2020 I. MAIGE JUDGE 08 / 05/2020 5 Ruling delivered in the presence of advocate Seni Malimi for the plaintiff and Steven Luko this 08th day of May, 2020 “' K M a i g e JUDGE 08/ 05/2020