final ruling MUSSA NYANGARIKA NGUGHU Tanzilii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI LAND CASE NO. 6158 OF 2024 MUSSA NYANGARIKA NGUGHU (The Administrator of estates of the late RASHID NYANGARIKA NGUGHU)........................................ PLAINTIFF VERSUS ARUSHA WATER SUPPLY AUTHORITY.................................….1ST DEFENDANT SINO HYDRO CORPORATION LTD............................…………..2ND DEFENDANT ATTORNEY GENERAL...............................................................3RD DEFENDANT RULING 6th March & 9th April, 2025. A.P. KILIMI, J.: Jurisdiction of courts is a creature of legislation, even if the court is confronted with a compelling situation demanding speedy resolution, it must initially satisfy itself if it is vested with the jurisdiction to entertain the matter placed before it. See Commissioner General Tanzania Revenue Authority & Another vs Milambo Limited (Civil Appeal 62 of 2022) [2022] TZCA 348 (TANZLII). Briefly in this matter the plaintiff mentioned hereinabove has filed a plaint against defendants named above praying inter alia to be declared the lawful owner of the property in dispute; The defendants to remove the 1 water pipe installed in his land; And in alternative be paid fair, prompt, and adequate compensation for the action of taking his land and construction of water canal pipe without his consent. Retaliating the above through their written statement of defence, the first and third respondent filed a notice of preliminary objection on the point of law to the effect that this suit is bad in law and incompetent before this court for being time barred. When the matter was called on before me for hearing the said objection, the two said defendants were represented by Ms. Khadija Matewele, learned State Attorney. On the other side, the plaintiff had the services of Mr. Engelberth Boniphace learned advocate. In her written submission, Ms. Matewele argued that the suit is time barred contrary to Item 1 of the Schedule of the Law of Limitation Act Cap 89 R.E 2019. Expounding her assertion, she submitted that the plaintiff claimed compensation from the 1st Defendant for being among Chemka village land owners and that their land was lawful acquired by the 1st defendant in lieu to compensate them after valuation. The learned State Attorney further argued that the said valuation was done in the year 2022 as depicted in written statement of defence on Annexture A1, thus 2 maintained that the plaintiff was aware since the same evidence that he agreed to be compensated, not only that, she added that in his plaint, the plaintiff has attached a letter BF-A which acknowledge he was among the villagers to be compensated. Ms. Matewele then from the above argued that, since 1st Defendant acquired the area in 2022, when compared with the day dated 5th March 2024 when the plaintiff filed this matter, it is undisputed that the time has lapsed contrary to the requirement of the law said above which provides that for compensation for doing or for omitting to do an act alleged to be in pursuance of any written law the period of limitation shall be one year. To bolster her position, she referred the case of Ali Shabani and 48 others vs Tanzania National Roads Agency (TANROADS) & AG Civil Appeal no.261 of 2020 (2012] TZCA 243 (TANZLII). Moreover, to maintain her assertion the learned State Attorney referred the plaintiff prayer of fair and prompt compensation, that the same acknowledge that the dispute between the 1st Defendant and the plaintiff is the compensation. She also said plaintiff’s cause of action as per paragraph 5 of the plaint shows claims against the defendants to be the 7 acres of the landed property, while his annextures deduce that he was 3 aware the said land was taken by the 1st defendant and he should be compensated. To buttress this point, she referred the case of Tanzania National Road Agency & AG vs Jonas Kinyagula Civil Appeal No. 471[2021] TZCA 310 (TANZLII) and prayed me to see merit on this objection hence this suit be dismissed with costs. Rebutting on the said objection, Mr. Engelberth commenced to insist in order an objection to be pure point of law must meet the threshold envisaged in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors LTD (1969) 1 EA 696. Then he urged this court to focus on relief claimed in relation to the cause of action. He further maintained that cause of action in the matter at hand as per the amended plaint is trespass to land made by the 2nd Defendant after he was employed by the 1st Defendant and the same is reflected in the relief claimed via Paragraph (a) and (b) of the amended plaint. In respect to the compensation relief, Mr. Engelberth argued that the same was claimed in paragraph (c) of the amended plaint as an alternative relief of paragraph (b) of the amended plaint's reliefs, therefore insisted the main relief sought was for the Court to declare that the Plaintiff is the lawful owner of the property in dispute which its time limit is 12 4 years. Whereas relief in paragraph (b) of the amended plaint is for this Court to pass an order that Defendants remove the water pipes installed within the plaintiff's property to allow his unfettered access to his property. He then had a view the court must resolve first two reliefs which are main reliefs before stepping into alternative relief. To support his stance, he referred to me the Mulla; the Code of Civil Procedure Abridged, 16th Edition 2014 at page 902 and the case of Sheuff Iqubal Hussein Ahmad vs Kota Ventaka Subbamma AIR 1994 AP 164 (DB). Arguing further on issues this court will be called for determination, Mr. Engelbert contended that pleadings state the matters on which parties agrees or disagree, thus triggers issues to be determined. He then insisted pleading must be looked without examination of any other evidence. To bolster his assertion the counsel referred the cases of James Funge Ngwagilo vs The Attorney General (2004) TLR 161, Eunice Ndasario Urio and Another vs Mamlaka Ya Elimu Na Mafunzo Ya Ufundi Stadi Na Mwanasheria Mkuu Wa Serikali (Revision Application NO. 425 of 2022) [2023] TZHCLD and Ali Shabani & Others vs Tanzania National Roads Agency & Another (Civil Appeal NO. 261 OF 2020) [2021] TZCA 243 (TANZLII). 5 Responding about annexture A1 annexed to the written statement of defense, Mr. Engelberth contended that the same was not a valuation report but inspection of properties for compensation "Ukaguzi wa Mali kwa ajili ya fidia" thus the way as it is needs to be cross examined if suffice to be valuation report which is contrary to the principles of pure point of law stated in Mukisa Biscuits (Supra), then he concluded that the same as it is cannot ascertain the time frame as to when the real valuation was made and when the same was executed in paying consideration to the plaintiff. In the above regard the learned advocate prayed the objection raised be dismissed with costs. On my part, having carefully considered the grounds of the submissions made by the learned counsel for the parties and examined the pleading before me, the question which quickly comes in my mind is whether the preliminary objection raised that this suit is time barred can be ascertained without evidence. Before I proceed further, I wish to be guided by the principles of law on the requisites for objection on pure point of law in Ali Shabani and 48 others vs Tanzania National Roads Agency (supra), the court referred 6 its earlier case of Karata Ernest & Others vs Attorney General (Civil Revision 10 of 2020) [2010] TZCA 30 (TANZLII) which held as follows: "At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the courts of deciding it only "consists of a point of law w hich has been pleaded or w hich arise by clear im plication out of the pleading s". Obvious examples include, objection to the jurisdiction of the court; a plea of lim itation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law..." [Emphasis added] Moreover, in my study I see the above position of the law was also put clearly by the Court in the case of Tanzania Telecommunications Co. Ltd vs Vedasto Ngashwa and Others (Civil Application No. 67 of 2009) [2009] TZCA 272 (TANZLII) where the Court established three conditions to be satisfied before the ground is considered as the preliminary point of objection. These are: One, the point of law raised must either be pleaded or arise as a clear implication from the proceedings. Second, it must be a pure point of law which does not require close 7 examination or scrutiny of the affidavits and counter affidavits, and third, the determination of such point of law in issue must not depend on the exercise of the Court’s discretion. Now, in lieu of the above principles I find necessary for reference to reproduce part of the pleading giving rise to the cause of action and prayers thereto, which upon them this court can gauge when the cause of action accrued and whether plaintiff is claiming for compensation. According to paragraph 9 and 10 of the amended plaint provides that; “9. That, the 2ndDefendant and the 3rd Defendant without any claim of right did invade into the Plaintiff land without any claim legal justification and made tangible developments such as installing pipes, destruction Plaintiff trees, farming product and collecting stones in the said land to the extent that, the suit land can no longer be utilized by the estate in the same manner as was before defendant illegal encroachment. 10. That, Plaintiff herein made effort to approach the Defendant and to find amicable solution for this dispute but and mitigate impact caused by destruction caused by the defendants and the results was fruitless.” 8 Furthermore, on his prayers to the plaintiff avers as follows; “Plaintiff prays before this honourable Court judgement and decree against the Defendants as follows; (a) A declaration that the Plaintiff is the lawful owner of the property in dispute. (b) An order that the defendants remove the water pipe installed within Plaintiff property to allow his unfettered access to his property. (c) Alternative to (b) above mentioned, defendants be ordered to pay fair, prompt, and adequate compensation to the Plaintiff for the action of taking his land and construction of water canal pipe without his consent.” Whereas in their joint written statement of defence the 1st and 3rd defendants replied the above paragraphs at paragraph 9 and 10 as follows; “9. The contents of paragraph 9 of the plaint are partly noted to the extent that the 1st Defendant did install pipes to the plaintiff's legally on the year 2022 through the project named as Arusha Sustainable Urban Water and 9 Sanitation Delivery Project which was initiated from 2017, where under the Land Act cap 113 R .E 2002 the 18T Defendant has legal authorization to acquire the way leave in lieu of compensation the party through valuation and valuers R egistration Act no. 7 of 2016, the plaintiff was one of the Project affected persons whom is subjected to compensation and he consented to be compensated on the area acquired located at Chemka village. The rest of the contents pertaining to destruction of plaintiff trees and farming products are hereby denied and the plaintiff is subjected into strict proof thereto. The copy of the Valuation prescribed form No. 3 for description of the property and the ow ner of the property is hereby attached as annexture Al and leave is sought to form part of this w ritten statem ent of Defense. It shall be noted that, in such form the Plaintiff signed meaning that he consented. 10. The contents of paragraph 10 of the plaint are strictly denied; the 1st Defendant did collaborate with the plaintiff via the local leaders of the area of his jurisdiction and took initiative to explain to the plaintiff on what he deserves out of the acquired piece of land however the Plaintiff kept on being reluctant 10 and wanted to be compensated for what he does not deserve.” I have scanned the above pleaded facts in my view the battle is that the plaintiff is claiming that the defendants did trespass to his land without legal justification while the defendants maintain that the issue of compensation was settled but the plaintiff resisted the amount to be compensated. It is therefore my considered opinion from the above pleading the issue in dispute rises is whether the plaintiff’s land was acquired legally and his land was valued and is ready for compensation in accordance to the law. From the above, I am settled that the time said by the defendants in paragraph 9 of when the said project which acquired plaintiff cannot be ascertained in above circumstances where the plaintiff denies as depicted above, thus the same need to be proved by evidence when the plaintiff was engaged on the said project if at all is true. Be that as it may, the argument by the learned state attorney that annexure A1 a valuation form annexed to defendants’ written statement of defence proves that the plaintiff was aware that valuation of his land was done since 2022 and he signed to the said form to be compensated 11 and further relied on Annexture BF-A annexed in the plaint that it clearly shows that the plaintiff was aware of the compensation to be provided by the 1st Defendant, in my view, and with due respect to the learned State Attorney, the above cannot be used to prove the existence of the asserted facts because annexures attached to the plaint or written statement of defence are not evidence. (See Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265 (TANZLII), Godbless Jonathan Lema vs Mussa Hamisi Mkanga and 2 Others Civil Appeal No. 47 of 2012 and Sabry Hafidhi Khaifan vs Zanzibar Telecom Ltd (Zantel) Zanzibar Civil Appeal No. 47 of 2009 (Both unreported), just to mention a few. In respect to reliefs claimed by the plaintiff, as rightly pointed out by Mr. Engelbert that the compensation relief was prayed as an alternative to other two main claims which in fact also need to be proved by evidence as depicted above, otherwise if this court decides to choose the prayer of compensation and leave out the others prayers will be exercising discretion of this court which is prohibited by the principle stated above that determination of point of law in issue must not depend on the exercise of 12 the Court’s discretion. (see Tanzania Telecommunications Co. Ltd vs Vedasto Ngashwa and Others (supra). In the light of what I have demonstrated above, the objection raised is hereby overruled forthwith. In the circumstances of this matter, costs should be in the cause. It is so ordered. DATED at MOSHI this 9th day of April, 2025. X JUDGE Signed by: A. P. KILIMI Court: - Ruling delivered today on 9th day of April, 2025 in the presence of Ms. Hadija Matewele learned State Attorney for the first and third defendant, Mr. Engelberth Boniphace for the Plaintiff and plaintiff present. Sgd: A. P. KILIMI JUDGE 9/04/2025 13