mugisha enterprises limited vs consolidated investment ltd 2 others 2021 tzhclandd 6978 30 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 183 OF 2020 MUGISHA ENTERPRISES LIMITED ...PLAINTIFF VERSUS CONSOLIDATED INVESTMENT LTD DEFENDANT ZAMZAM ABDALLAH HAMZA DEFENDANT KCB BANK TANZANIA LIMITED DEFENDANT RULING Date oflast order: Date ofRuling:30/ll/2021 T. N. MWENEGOHA,J. On 2"^ November, 2020 the plaintiff filed this suit against the defendant praying for judgment and decree of this court against the defendant as follows: - a. Declaration that the purported loan agreement between the Plaintiff and first defendant is void, b. A declaration that the attachment and sale of the house situated on Plot No. 170 Block F, CT No. 53092 and L.O Number 145994, Mbezi Beach are Dar es salaam (herein suit property) is void abnitio; c. An order that the second defendant's ownership of the suit property be cancelled and restored to its to its immediate previous original owner; d. An order that the original certificate of title of the suit property sold to the second Defend be returned to its original owner; e. Payment of general, punitive and exempiary damages by the defendants as they shaii be assessed by this honorabie court for conducts stipuiated in paragraphs 21(a-e) above; f. Payment of cost of the suit by the defendants g. Any other reiief which this honorabie court may deem fit and just to grant. Upon filing their written statement of defense each defendant raised a point of preliminary objection. The defendant raised the foilowing objections: - a. The suit is time barred as it contravenes the provisions of item 4 of Part I to the schedule of the Law of Limitation Act, Cap 89 (R. E. 2019) which prescribes two years period of limitation for fiiing a suit to set aside sale in execution of a decree of a court exercising civil jurisdiction, b. The suit is misconceived in two ways: i. The Plaintiff has not exhausted other remedies available to her like application to set aside sale under order XXI rule 87 or 88 of the Civil Procedure Code; 11. The court has no jurisdiction to entertain a suit founded on the execution of a decree of a Resident Magistrate's Court; III. The suit is not founded on a iand dispute. The second defendant raised the following point of objections, a. The suit is time barred b. The prayers are overtaken by the events hence untenable by law. The preliminary objection was heard by way of written submissions whereby the first defendant was represented by Constantine Kakula, Advocate the 2"^ defendant was represented by Hamza Abraham Senguji, Advocate while the plaintiff was represented by Fikirini Liganga, Advocate. Undisputed facts from the submission of both the plaintiff and the defendants' are that this suit originated from the decision of Resident Magistrate Court of Dar es salaam at Kisutu (henceforth Kisutu RM's Court ) whereby, the defendant sued the plaintiff herein at Kisutu for recovery of a sum of USD 31,614 comprising of USD 24,614 as principal amount advanced by defendant herein to the business of the plaintiff herein and USD. 5831 being profit accrued from the principal amount advanced to the plaintiff herein. The judgment was entered in favor of the defendant herein with costs. Following that judgment, and during execution of decree, the house which was used as a security when the plaintiff secured loan agreement from the 1^ defendant was sold. Although this fact of attachment of the house for the reasons that it was used as security for loan is one of the disputed facts and it is the center of this suit. The said house was sold in 2011. The current application was filed in this court in 2020. The time when this suit was filed and the time when the execution was done is what caused the defendants to raised their preliminary objections. On the first objection Mr. Kakula submitted that Item 4 of Part I of the Schedule to the Law of Limitation limits the action for filing a suit to set aside sale in execution of a decree of a court exercising civil jurisdiction to two years. He submitted that in 2010 Kisutu entered judgment against the plaintiff. He added that following that judgment and during execution of decree, the house which was used as a security when the plaintiff secured loan agreement from the 1'^ defendant was sold. He insisted that the said house was sold in 2011 and this suit subject to this objection was filed in this court in 2020. It is his submission that from the date when the order of sale was made to the date when this case was filed, almost nine years have elapsed contrary to the provision of item 4 of Part I of the Schedule to the Law of Limitation which limits the action for filing a suit to set aside sale in execution of a decree of a court exercising civil jurisdiction to two years as it provides. He added that the issue is that this case follow on suit to set aside the sale as prescribed by the law of limitation act, under paragraph 5 of the plaint, the plaintiff seeks the declaration by this court that the attachment and sale of the house in issue was void and an order that the house be restored to the plaintiff. He concluded that from the wording of the plaintiff prayer under paragraph 5, it is clear that the prayer sought is for the court to set aside a sale in execution of a decree which limited to two years. Mr. Senguji was of the same view and he added that the matter originates from an agreement between the 1^ defendant and the plaintiff termed as Memorandum of Understanding. He added that if that is the position, the Case is also based on a contract. He cited Part 1 of the schedule to the Law of Limitation Act Cap 89 R. E. 2002 the time for claims based on a contract is six years. He also refed to paragraph 6 of the Plaint which clearly states that on 8^^ day of October 2007 the defendant and the plaintiff entered into a Memorandum of Understanding where it was agreed that the defendant give a total amount of USD 31,732.07 to the plaintiff for the purposes of advancing her business. It was further agreed that within sixty days(60)the plaintiff should refund the 1'^ defendant USD 43,394.07. In 2008, the first defendant instituted Civil Case No. 121 of 2008 at Kisutu demanding the refund of USD 31,732.07. it was his submission that this is clearly narrated at paragraph 10 of the Plaint. He added that according to paragraph 13 of the Plaint, Kisutu RMS Court deiivered its Ruling on 20^'' day of October 2010 in favor of the defendant. He contended further that, the cause of action in respect of contract arose in October 2010. This suit was supposed to be filed sometimes in 2016 and not this year as the plaintiff did. It was his humble submission that in all four corners the suit is hopelessly time barred and it is ought to be dismissed with costs. In reply Mr. Liganga submitted that what is before this honorabie court is iand case founded on ownership of the landed property, and not an application to set aside any sale, as implied by the defendant. He submitted that consequently, this being not an application to set aside sale of immovable property, and thus the provisions of order XXI rules 87 and 88 cannot apply. That, it is not proper to cap its limitation period to two years under item 4 to part 1 of the schedule to the Law of Limitation Act, Cap 89(R. E. 2019). It was his submission that what is before this Court is a land dispute and that the final prayers in the plaint cleariy indicates so. To him the plaintiff is claiming back ownership of the landed property. He contended that all other facts contained in the plaint are so as to give a concise, proper and chronological sequence of series of events as to what exactly transpired up to the occurrence of what the piaintiff is using as the basis of her daim. He insisted that this being a pure land dispute founded on regaining back ownership of the landed property, the proper time limitation is twelve years as per item 22 of part I to the schedule of the Law of Limitation Act, Cap 89 (R. E. 2019), and not two years as wrongly put by the Defendant. Replying to Mr. Senguji's submissions on time limitation Mr. Liganga submitted that the counsel for the 2"^* defendants seems to be confused as to the plaintiff's cause of action in this case as between one founded on contract (memorandum of understanding) with limitation of six years and one involving setting aside a sale in execution of a decree with limitation of two years. He stated that this is not a suit involving setting aside sale in execution of any decree. To him there is nothing in the plaintiff's case to that effect. He stated that the plaintiff's case is based on regaining the ownership of the landed property illegally sold to the 2""^ defendant as a result of combination of series of events including forgery by the defendant and negligence by the 3*^^ defendant. It was his submission that a suit for setting aside sale in execution of a decree must be preferred under the provisions of order XXI rule 87 or 88 of the Civil Procedure Code, Cap 33 (R. E. 2019) which provides for_applications and not main suits like the present case. The plaintiff in this case did not choose to go that way given the nature of her claims and the parties to be involved. He added that looking at the reliefs sought by the plaintiff in the plaint, the prayers are very clear. The plaintiff is seeking for declaration that the purported loan agreement between the plaintiff and the defendant to be declared null and void and declaration of the resulting saie to be void ab initio^ and thereafter gaining back the ownership of the disputed landed property. He insisted that this clearly indicates that this case is a land case founded on a dispute over a ianded property; and hence ,the proper time limitation is twelve years as per item 22 of part I to the schedule of the Law of Limitation Act, Cap 89(R. E. 2019), and not two years or six years as wrongly put by the defendant. Having heard submissions by the learned advocates, I proceed to determine on issue whether the suit is time barred. In addressing this objection, I find it prudent to put clear the meaning of the preliminary objection. It has been defined by number of decisions including ceiebrated case of Mukisa Biscuits Manufacturing Co. L.T.D vs. West End Distributors L.T.D(1969)EA 696(supra), which affirmed that:- A preh'mindry objection consists of d point of iaw wfiich has been pieaded, or which arises by dear implication out ofpleadings, and which ifargued as a preliminary point may dispose ofthe suit". It is dear that the plaintiff under paragraph 5 of the Plaint is praying for this court to declare that the attachment and sale of the suit property to be void abnitio. The piaintiff has also attached the decision of Kisutu RM's Court which was delivered in favor of the defendant and executed by attaching the said suit property. I am of the view that this case cannot be separated with the decision of Kisutu RM's Court, and therefore it is settled that the plaintiff is hereby praying to set aside sale in execution of a decree of Kisutu in exercising civil jurisdiction. Therefore, from the facts provided in the pleadings, the sale of the house in dispute was conducted on 30^^ October 2011 while the present suit was filed on 18^^ November, 2020. This is more than eight years. Thus, I am in agreement with the cited authority of Part 1 of the schedule in the Law of Limitation Act, Cap 89 R. E. 2002 which provides that, "... for suit to set aside a saie in execution ofa decree ofa Court execution exercising CiviiJurisdiction. two years'' Having said that it I find that the suit is filed out of time. I noted that even when we address the issue of Memorandum of Understanding as pointed out in paragraph 8 and 6 of the Plaint. That the plaintiff prayed for the same to be nullified due to the fact that the purported loan agreement between the plaintiff and first defendant is void. As stated by Mr. Senguji, the cause of action in respect of contract arose in October 2010. The position as stated under Paragraph 6 of the Plaint is that on 8'^'^ day of October 2007 the 1^ defendant and the plaintiff entered into a Memorandum of Understanding where it was agreed for the defendant give a total amount of USD 31,732.07 to the plaintiff for the purposes of advancing her business. The condition was that the plaintiff should refund the l^'^ defendant USD 43,394.07 within sixty days (60). According to Part 1 of the schedule to the Law of Limitation Act Cap 89 R. E. 2002 the time for claims based on a contract is six years. It is written as hereunder:- .. suitfounded on contractnot otherwise specificaiiy provided for... six years." The cause of action in respect of contract which arose in October 2010 when Kisutu RM's Court decision was reached. Therefore, this suit was supposed to be filed sometimes in 2016 in order to still be within time and not in 2020 as the plaintiff did. Therefore, this court finds that the suit is time barred. Having said that I find no need to determine the other objections as the first one is capable disposing the matter. The case is hereby dismissed with costs. Dated at Dar es Salaam this 30'*' day of November, 2021. T. N. M OHA 5 ^UDGE