NICHOLAUS JEREMIAH

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA LAND APPEAL NO. 20 OF 2023 (Originating from District Land and Housing Tribunal for Dodoma in land Application No. 86 o f 2010) NICHOLAUS JEREMIA (Being the administrator of the late JEREMIA Mangwe)...................... APPELLANT Versus ABDILLAH JUMA MARUSU @ JUMA MARUSU .. RESPONDENT JUDGMENT 10.12.2024 HASSAN, 3.: The appellant, Nicholaus Jeremia (being the administrator of estates of the late Jeremia Mangwe), was aggrieved by the decision of the District Land and Housing Tribunal for Dodoma in Land Application No. 86 of 2010. Be in quest of redress, the appellant paraded 10 grounds of appeal to be determined by the courts However, for a reason to be apparent hereunder, I will only spot the first ground of appeal that yielding a legal issue; to wit: 1. That the honourable chairman o f the District Land and Housing Tribunal for Dodoma erred in law and in fact in not deciding that the respondent was time barred to claim the land in dispute. When the appeal was called up for hearing on 26th October, 2021, Mr. Elias Machibya, learned advocate, appeared for the appellant. Whereas, the respondent enjoyed the service of Mr. Zakayo Njulumi, also learned advocate. Before the hearing of the appeal could proceed in earnest, the court Suo motu observed some irregularities that are material to the decision reached by the tribunal, and that form not part of the grounds of appeal initially advanced by the appellant. Therefore, regard being to the facts that one, whether there was an arbitrary exchange of assessors; two, whether there was a failure by the chairman to append a signature at the end of the testimonies of DW1, DW2, and DW3; and three, whether there was unfair involvement of assessors in the decision-making. Therefore, knowing that these anomalies form no part of the memorandum of the appeal. And since, in the sought grounds of appeal, there is another legal issue raised by the appellant pertaining to the time limitation, thus parties were ordered to address the court by way of written submission, whereby, the anomalies raised by the court will be addressed together with the grounds of appeal. Notably, for the reasons to be apparent hereunder, I will not dictate the grounds of appeal. Therefore, moving forward, I will firstly analyse the first ground of appeal which question jurisdiction of the tribunal to entertain a time barred suit. And, if the appeal survives, I will proceed with the issues raised by the court. After that, if necessary, based on the outcome, I will end up with the rest grounds of appeal. To begin with the first ground of appeal, that is, the honourable chairman of the District Land and Housing Tribunal for Dodoma erred in law and in fact in not deciding that the respondent was time barred from claiming the land in dispute. Mr. Elias Machibya, learned advocate for the appellant, submitted that; the suit was time barred though the trial tribunal did not decide on this issue. He continued to submit that, after the tribunal ordered for submission from both sides, on its ruling of 3rd December 2019, the tribunal struck out the objection on the ground that it was incompetent as it was not raised in the written statement of defence. 3 In his view, learned advocate argued that the trial tribunal stepped into an error in striking out the said objection. He thus stressed that it is a cardinal principle of law that, a point of law/legal point can be raised at any time, even in the appeal. He strengthened his viewpoint by citing the case of Ex-Police No. E. 5812 PC Renatus Itansia vs The Inspector General of Police and Another, Civil Appeal no. 147 of 2018 CAT, at Dar es salaam (unreported), where at page 6 the Court had this to say: "It is a settled principle o f law that, a legal point may be raised at any time, even at the appellate stage." For that reason, he contended that this honourable Court has mandate to decide on the merit of the said point of law. Addressing precisely on the issue itself, learned counsel, Mr. Machibya, contended that, the time for which the cause of action arose was in dispute during trial. Hence, it was incumbent that, the objection had to be ascertained from the evidence. The pleadings bear the following disputing facts. That the Respondent, who was the applicant at the trial, in his amended application lodged at the tribunal on 22/3/2011, specifically paragraph 6(i)(e), alleges that, in 2008, is where he visited the land in disputed and discovered that the Appellant (who was respondent) had trespassed therein. Ordinarily, leaned counsel contended that, that year could have been the time of which the time limitation would have been reckoned. Nevertheless, in the present case, the appellant disputed this allegation. In his written statement of defence which he lodged on 13/3/2011 and which was accompanied by the counterclaim, he alleged that he had been in the suit land for over 30 years and had developed it by building houses and planting trees. He proceeded that on 13/05/2011, the Respondent lodged written statement of defence to the counterclaim. Whereby at paragraph 1 of the said defence, the Respondent did not dispute the 30 years occupancy of the Appellant on the suit land. To the contrary, he tried to justify it by alleging that he was an invitee by stating thus: "...the Respondent was employed by the applicant father to look after the farm and therefore was allowed to make a temporary shelter. Unfortunately, the Respondent is turning that privilege into a right which is against virtues." In the appellant's counsel's view, this statement acknowledged the appellant's long stay and usage of the suit land, but the respondent herein tried to justify it that the appellant was an invitee and/or licensee. However, Mr. Machibya stressed that on the part of the appellant, he maintained that he was there as the owner. Furthermore, the learned counsel argued that the Respondent did not mention the year in which his father had allegedly invited the appellant into the land in dispute. However, in the Amended Application, the respondent had categorically pleaded that the administrator of the estate of his late father was appointed on 15th February 1994. However, Mr. Machibya opposed that assertion, and further contended that in the evidence, the respondent, who testified as PW1, did not tender as an exhibit the said letter of administration. Though, in cross-examination, he admitted that his father demised in 1993. Moving ahead, Mr. Machibya argued that with these facts, it was obvious that the Appellant was in the suit land even before 1993, when the alleged father of the Respondent expired. Learned counsel pointed out that, in the case of the respondent, his claim was only that the appellant was invited. However, no piece of evidence was tendered to prove the allegation that the appellant was employed by his father and that later the appellant was allowed to build temporary shelter. Pressing forward, he contended further that during hearing, the respondent did not say anything about the employment of the Appellant to the land in dispute. In cross-examination he denied having replied to that effect. However, he conceded to having signed the said written statement to the counterclaim. It is therefore the appellant's submission that the Respondent is bound by his pleadings, even the Tribunal is bound by the pleadings of the parties. He stressed that this position was well illustrated in the case of James Funke Gwagilo vs. Attorney General [2004] TLR 161, also the case of Cooper Motors Corporation (T) Ltd vs. Arusha International Conference Centre [1991] TLR 165. Mr. Machibya asserted that there is no disagreement over the fact that the late Jeremia Mangwela has owned the land in question for over 30 years. Arguably, he said that the respondent had not tendered any evidence to prove that the appellant was an invitee. The learned counsel submitted further that during the course of the hearing, the respondent endeavoured to lay the evidence that the late Jeremia Mangwela was allowed to stay in the suit land by one Reginaldo Njole, the then caretaker of the farm. However, in his evidence, the said Reginaldo Njole, who testified as PW2, in the exhibit D7, alleged that he was invited in the land in dispute by the wife of the late Jeremia Mangwela. According to him, the said Jeremia Mangwela had no piece of land. Interestingly, however, in cross-examination, this witness, as at page 16 of the said exhibit D7, admitted that at a point in time there was a boundary dispute between Khalifa Salum Pangu, who testified as PW3 at page 19 in the exhibit D7, and the late Jeremia Mangwela. The proceedings speak loudly; the said witness told the tribunal that: "Mangwela and Khalifa had a border conflict, but I mediated them." He argued that, this statement proves that the late Jeremia Mangwela had land that was bordered with the land of one said Khalifa. That is why, at a point in time, the duo had a boundary conflict that was mediated by the said witness. For this reason, the allegation that the appellant had no land at that place has no legs to stand on. Thus, he had land that he occupied for a long time through inheritance. 8 In furtherance to what the appellant's counsel has submitted earlier, he proceeded to argue that the Respondent, from the beginning, has been changing version of his status to the land in dispute. For instance, he shows that in 2009, when the respondent first lodged a case at Zuzu Ward Tribunal, he alleged that he was claiming the land of his father, one Juma Marusu. According to his statement that was referred to as exhibit D2, he was claiming on behalf of his other 11 relatives. This means the property was under the deceased estate. Unexpectedly, however, learned counsel reveals that when the said case was nullified, and upon lodging the present suit, the respondent, or then applicant, came out with a new version. That is, the suit property was his property as he inherited it from the estates of his late father. Therefore, owing to such contradictory status of the respondent, Mr. Machibya argued that, in whatever case, what is not in dispute is the fact that the alleged original owner was the father of the respondent. However, learned counsel Machibya pressed that a significant question to be answered at this stage is, when can a time of limitation start to be reckoned in this situation? 9 Based on the question posed, he submitted that since there is no dispute that the respondent claims interest from the inheritance of his late father, one Juma Marusu. Also, there is no dispute that Juma Marusu demised in 1993, and according to the amended application, the administrator of his estates was appointed in 1994. He succumbed, therefore, that, under item 22 of Part I of the first schedule to the Law of Limitation Act, Cap. 89 R. E. 2019, a time available to institute a suit in order to redeem land ownership is 12 years. That being the case, Mr. Machibya arguably submitted that since it is not disputed that the late Jeremia Mangwela has been in the suit land for more than 30 years, as owner of the said land, it was incumbent that the father of the respondent was duty bound to sue the said Jeremia Mangwela. But he did not. Learned counsel further stressed that, under the provision of section 24(1) of the Law of Limitation Act, time started to run on the first anniversary of the death of the late Juma Marusu. That is to say, the time started to run in 1994. Adding to that, Mr. Machibya avowed that even where it is taken that the time started to run when the administrator was appointed as envisaged 10 under section 25(1) and (2) of the Law of Limitation Act, yet again, the application indicated that the administrator was appointed on 15th February 1994. Therefore, time to reckon the limitation still remains to be in 1994. Thus, from the background, he argued, it is vivid that the twelve years expired in 2006. Needless to say, he added that when the respondent lodged his suit in 2010, he was hopelessly out of time for four years. For this reason, he pressed that the trial tribunal had no jurisdiction to entertain the suit, which was barred by limitation. Consequentially, the remedy for the suit of this nature is to be dismissed under section 3(1) of the Law of Limitation Act, Cap. 89 R. E. 2019. Mr. Machibya concluded that the authorities akin to this scenario are legion, but for this matter, he submitted, one authority suffices their purpose. Thus, he cited that case of John Barnabas vs. Hadija Shomari, Civil Appeal No. 195 of 2018, (reported in Tanzlii as Criminal Appeal No. 195 of 2018) [2019] TZCA 280 (28 August 2019), where the Court of Appeal of Tanzania was faced with the analogous situation to decide on whether the suit at Ward Tribunal was time barred or not. Hence, the said court examined the evidence at the trial, and decided since from the date when the Appellant li purchased the land to the date of institution of the suit, 12 years had elapsed. At page 8 of the judgment, the Court held: "When a reckon is made from when the Respondent was heard to complain about the sale for the disputed plot o f land in the office o f the VEO to when she lodged the dispute in respect o f the said piece o f land, as submitted by the learned counsel for the Appellant, the outcome is a period o f about 12 years and 357 days or so. Indeed, such a period is by far beyond the 12 years stipulated under paragraph 22 of the First Schedule to the Law o f Limitation Act. In terms o f the dictates o f section 3(1) o f the same Act, the dispute ought to have been dismissed..." He therefore cemented that, in the present case, the respondent pleaded that the late Jeremia Mangwela was employed by his late father, and he was allowed to build temporary shelter. In the learned counsel Machibya's view, the respondent sought to convince the trial tribunal that the late Jeremia Mangwela's long stay in the suit land was licensed by his late father. Unfortunately, it was argued that no evidence was laid to prove 12 his allegations. He therefore stressed that, to their submission, it remains undisputed that the late Jeremia Mangwela has been in the suit land even before the death of the late Juma Marusu. Therefore, since the said Juma Marusu demised in 1993, and the administrator was appointed in 1994, the filing of the present suit in 2010 was out of time. He therefore urged the court to allow this ground of appeal. On the other hand, the learned advocate for the respondent opposed the objection raised by the appellant's counsel that the application was time barred in the trial tribunal. He further submitted that the issue of whether the application was time barred or not has been discussed and finally determined in the ruling delivered on 3rd December 2019. In that effect, the objection was struck out. He further contended that even the appellant has admitted in his submission at page number 1 of the proceedings that it has been determined in 2019. Mr. Zakayo Njulumi, stressed further that the appellant had an opportunity to file the appeal within time in order to challenge the ruling if he was not satisfied, but he did not, and so, it is incompetent to discuss the said issue at this time. He went ahead to argue that it was clear that the 13 appellant did not appeal because he knew it was not a pure point of the law. Therefore, to raise it now becomes an afterthought. Learned advocate, Mr. Njulumi submitted that the application before the trial tribunal was not time barred. He stressed that, in his written submission, the Appellant admitted on page 2, paragraph 2, that "The time for which the cause o f action arose in the suit at the trial was in dispute. Hence, it was incumbent that the objection had to be ascertained from the evidence." Therefore, he argued that since the appellant has admitted in his written submission, then it was proper for him to withdraw the ground of appeal because it has no legs to stand on. That being the case, advocate Njulumi argued that the trial tribunal was correct to strike out the objection on the ground that it was incompetent as it was not raised in the Written Statement of Defence, but it was raised during the hearing of the case, which was wrong. Then, since it is a settled principle of law that limitation is a mixture of point of law and fact, it lacks the criteria of being a preliminary objection, as it was stated in the case of Shose Sinare Versus Stanbic Bank Tanzania Limited And ICBC 14 Standard Bank Pic (Formerly Standard Bank Pic), Civil Appeal No. 89 of 2020 at page number 12 that: "A preliminary objection must be free from facts calling for proof or requiring evidence to be adduced for its verification; where a court needs to investigate such facts, such an issue cannot be raised as a preliminary objection on a point o f law" Therefore, it was argued by the appellant's advocate that it cannot be raised at any stage. Also, it is supported by the case of Riziki Samuel (As Administratrix of The Estate of the Late Mama Rukia Hattasi) Versus Melchiad Peter Kimaro and Abdusamad Sharrif Attassy, in Land Case No. 02 Of 2021, (unreported) at page 8 that: "The point o f law raised must either be pleaded or must arise as a dear implication from proceedings; it must be a pure point o f law that does not require cross-examination or scrutiny o f the affidavit and counter-affidavit, and the determination o f such a point o f law in issue must not depend on the court's discretion." 15 Hence, it was the respondent's learned counsel's submission that this the appeal has no merit. Rejoining his submission in chief, Mr. Machibya reiterated the first issue of time limitation. Thus, the Respondent did not respond to any of the points raised in the submission in chief. Therefore, it remains undisputed. He cleared the claim that the issue of time limitation was decided by the trial tribunal and that the appellant ought to have appealed by that time by arguing that the argument is not only unfounded but also unfortunate. He therefore pressed that a point of law can be raised at any stage of the case, even at the appellate level. He also faulted the learned advocate for the respondent for not disputing the decision he cited in Ex-Police No. E. 5812 PC Renatus Itansia vs. The Inspector General of Police and Another if he had an opposite view on the same. In the circumstance, the appellant's advocate maintained his earlier position that the suit was time barred. He also faulted the respondent's submission that it envisaged nothing as to when the time had started to run. Furthermore, Mr. Machibya reiterated that, in his reply and defence evidence, the respondent did not dispute the pleadings and the appellant's evidence that the time of the present suit started to run in 1994. And 16 consequently, the appellant's advocate stressed that when the present application was lodged in 2010, it was hopelessly time barred; therefore, there is no serious response on this point from the respondent. Moreover, the learned advocate for the appellant insisted further that in his submission in chief, he cited the provisions in the Law of Limitation Act but the respondent has not commented on or disputed the said law. And that, more importantly, the appellant's advocate referred the court to the case of John Barnabas vs. Hadija Shomari, Civil Appeal No. 195 of 2018, but the respondent's advocate had not even mentioned it in the reply submission. In the end, he submitted that the first ground of appeal should be held meritorious. And, in his view, he contended that this only ground of appeal suffices to dispose of the appeal. And thus, he further averred that in an unlikely situation, if this ground fails, this Court may wish to decide on the other issue of which the Appellant made submissions. That being the submissions from the contesting sides, the point for determination is whether or not a point of objection raised is qualified to be a point of law which is subject to a preliminary objection. After that, if the 17 answer is in positive, the follow-up question will be whether or not the same has merit. Having gone through the record of proceedings and hearing the rival submissions by learned counsel for both parties, the issue for our determination is whether or not the suit was lodged within time. To start with, it is a common ground that, as per the record of proceedings and submissions thereof, the suit at hand is founded on the redemption of the land ownership, of which, under item 22 of Part I of the first schedule to the Law of Limitation Act, Cap. 89 R. E. 2019, has a time available to institute a suit of 12 years. Looking on the submissions and pleadings, basically the parties are at one that the cause of action accrued in 1994 after the respondent attained a status of being an administrator of estate of the suit land. This is the date when the right to sue commenced. The record also reveals that the suit at hand was instituted in 2010, that is fourteen years later. It is on this reason that, Mr. Machibya faulted the trial court for failing to hold that the suit at hand was time barred and thus, the court had no jurisdiction to entertain the suit. 18 In his submission, he averred the late Jeremia Mangwela has been in the suit land for more than 30 years, as owner of the said land. Thus, it was incumbent if there was any claim of ownership from the respondent's father, then he was duty bound to sue the said Jeremia Mangwela, but he did not. Adding to that, Mr. Machibya avowed further that, even where it is taken that the time started to run when the administrator was appointed as envisaged under section 25(1) and (2) of the Law of Limitation Act, yet again, the application indicated that the administrator was appointed on 15th February 1994. Therefore, time to reckon the limitation remains to be in 1994. Thus, in his view, when the respondent lodged his suit in 2010, he was hopelessly out of time for four years. Consequently, the suit should be dismissed under section 3(1) of the Law of Limitation Act, Cap. 89 R. E. 2019. Therefore, he argued that the trial tribunal has misdirected its self to strike out the objection raised by the appellant during trial. Provided that, as a point of law, issue of time limitation can be raised at any stage of the trial. In response to this argument, the respondent's advocate had not disputed the dates of which time was alleged to have reckoned. He merely opposed that the suit was not time barred without detailing on the dates earmarked. In his reply submission, he only contended that the issue of 19 whether the application was time barred or not has been discussed and finally determined in the ruling delivered on 3rd December 2019 where the objection raised by the appellant was struck out. In my view, owing to the arguments between the counsels, it is clear that the time of limitation has reckoned in 1994, when the administrator of the estate of the late Juma Marusu was first appointed. Having said so, I therefore hold it in affirmative that, the time for the respondent to institute the suit reckoned in 1994. If that is so, then, as rightly submitted by the appellant's advocate, by instituting the suit in 2010 for the purpose of redeeming the land ownership, the suit was time barred. By observing further, Mr. Zakayo Njulumi, also disputed the claim raised by the appellant's advocate by faulting the trial tribunal for striking out the objection for the reason that it was incompetently raised. In his argument advocate Njulumi succumbed that the appellant had an opportunity to file the appeal within the time to challenge the ruling if he was not satisfied, but he did not, and so, it is incompetent to discuss the same issue at this juncture. Therefore, he said, to raise it now, it becomes an afterthought. Though, addressing this issue in rejoinder, the appellant's advocate squarely resisted the blame of his failure to appeal. He thus argued 20 that point raised by the respondent's advocate is not only unfounded, but also unfortunate. He therefore maintained that in our jurisprudence, a point of law, can be raised at any stage of the case, even on appeal. He thus cited case of Ex-Police No. E. 5812 PC Renatus Itansia vs. The Inspector General of Police and Another (supra). In my judgment, I hold the same view, that, a legal point which touches on the jurisdiction of the court to entertain the matter can be raised at any stage of the trial even at appellate phase. It is common knowledge that, all courts in Tanzania are creatures of statutes and their jurisdiction is purely statutory. This position was stated in the case of Shyam Thanki and Others Vs. New Palace Hotel (1971) EA 199 where the erstwhile East African Court of Appeal held at page 202 thus: "All the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is an elementary principle o f law thatparties cannot by consentgive a court jurisdiction which it does not possess See also in Fanuel Mantiri 8 Ng'unda Vs. Herman M. Ng'unda, Civil Appeal No. 8 of 1995 CAT (unreported); Ex-Police No. E. 5812 PC 21 Renatus Itansia vs The Inspector General of Police and Another (all supra) Given the aforementioned authorities, any court's jurisdiction must be established as soon as feasible, and, I would add, before the subject is decided. In my opinion, the goal of allowing the question of jurisdiction to be brought up at any point throughout the case is to prevent the possibility that the court will proceed with the hearing of any matter on the pretext that it lacks the necessary jurisdiction. This position was adumbrated in the case of Fanuel Mantiri 8 Ng'unda Vs. Herman M. Ng'unda, Civil Appeal No. 8 of 1995 CAT (unreported) when said: 'The jurisdiction o f any court is basic; it goes to the very authority o f the court to adjudicate upon cases o fdifferent nature... the question o fjurisdiction is so fundamental that courts must as a matter o f practice on the face o f it be certain and assured o f their jurisdictional position at the commencement o f the trial. It is risky and unsafe for the court to proceed on assumption that the court has jurisdiction to adjudicate upon case."(emphasis supplied) 22 Given the aforesaid stance and goal of the statute, I think the trial tribunal ought to have found it expedient to ascertain its jurisdiction before moving forward with a final merit finding of the action. Therefore, by rejecting the objection and leaving the legal question open, the trial panel has blatantly misdirected its function. As a result, this court is required to fix the errors; thus, for the appellant to raise such a legal point at this stage, it cannot be judged as an afterthought. Furthermore, learned advocate Njulumi also argued that the trial tribunal was correct to strike out the objection on the ground that it was incompetent as it was not raised in the Written Statement of Defence, but it was raised during the hearing of the case, which was wrong. In my view, without misusing much of my energy, I am certain that this argument has attained the same response as above. That is, a legal point may be raised at any time, even at the appellate stage. See, Ex-Police No. E. 5812 PC Renatus Itansia vs The Inspector General of Police and Another (supra). Thus, this argument has also failed. In his final yelling, learned advocate Njulumi also contended that it is a settled principle of law that limitation is a mixture of point of law and 23 fact, thus it lacks the criteria of being a preliminary objection. Again, I am in opposite with the respondent's advocate. As indicated earlier on, issue of time limitation under the aspect of redemption of land ownership is addressed in terms of item 22 of Part I of the first schedule to the Law of Limitation Act, Cap. 89 R. E. 2019, read together with section 3(1) of the same Act. That said, this argument is also let fall. All in all, having gone through other submitted grounds of appeals and including the legal points raised Suo Mottu by the court, I am of the view that, this suit which was lodged four (4) years after the accrual of the cause of action, was time barred and ought to have been dismissed. I thus find merit in the first ground of appeal. Given that the foregoing determination is dispositive of the matter, I find no need to consider the other grounds of appeal as well as the legal issues primarily raised. Consequently, I allow the appeal with costs and proceed to quash and set aside the trial tribunal's judgment. Ordered accordingly. 24 DATED at DODOMA this 10th day of December, 2024. r. H. HASSAN JUDGE 10/ 12/2024 This judgment delivered this 10th day of December, 2024 in presence of the parties. /S. H. HASSAN JUDGE 10/ 12/2024 25