LAND CASE NO

© THE JUDICIARY OFTANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFT ANZANIA AT KIGOMA LAND CASE NO. 26 OF 2023 CASE REFERENCE NO. 20230525000500876 OLIY A GASTON LUV AKULE COMPLAINANT/ APPELLANT/ APPLICANT/ PLAINTIFF VERSUS ZUBEDA HUSSEIN KAYAGALI & 4 OTHERS RESPONDENT/ DEFENDANT RULING This ruling is to determine 7 points in lamine raised by Dr. Chacha Bhoke Murungu learned advocate for the 2nd defendant running as follows; l. In terms ofPara 11 of the Amended Plaint, and Deed of Transfer in Annex P1 of the amended plaint, taken from 26.1 I .2008, the suit is time barred under Section 3(1) and Item 22, Column Two to the Schedule to the Law ofLimitation Act, CAP 89 R.E.2019. 2. In terms of Order VII Rule 6 of the Civil Procedure Code, since the plaintiff did not plead exemption of time limitation in the amended plaint, this suit is time barred. 3. To the extent that the plaintiff withdrew Land Application No 76 of 2011 without leave to refile it in terms of para 16 ofthe amended plaint, this suit is time barred. 4. In terms of relief No.2 in the amended plaint, the suit is time barred under item JO, column Two, to the Schedule of the Law ofLimitation Act, CAP 89 R.E. 2019. 5. Since the plaintiff is seeking declaratory orders as such, this suit is time barred under item 24 of column of the Schedule to the Law ofLimitation Act, CAP 89 R.E. 2019. 6. Looking at the jurisdiction clause in para 20 of the amended plaint, this court does not have jurisdiction since the plaintiff did not state facts showing that this court has jurisdiction in terms of Order Vil Rule 1 (f) of the Civil Procedure Code and per the jurisprudence of this Court on the needfor the plaint to state facts showing the court has jurisdiction. 7. Since the amended plaint alleges trespass to land, this court has no jurisdiction since it is not a civil court as trespass to land is a tortfor which time limitation three years, from the date the cause of action occurred. It ought to be dismissed for being time barred as well under section 3(1) of the Law ofLimitation Act, CAP 89 R.E. 2019 and item 6 Column 2 of the Schedule to the Law ofLimitation Act It appears the plaintiff has been locked in a land dispute in court for over a decade, where she claims ownership of the landed property styled as Plot No. 43 "A" at Kumsenga Area in Kasulu . The land, she alleged, was acquired by purchase from the 3rd defendant on 26th November 2008. It was to her dismay that in 2011, when the Plaintiff and the 3rd Defendant were processing to transfer the rights into the names of the Plaintiff, the 1st Defendant Page. I • -~., ..:.:1 ~ ~ .... appeared to claim ownership of the suit land alleging to have purchased the same from the 2nd Defendant. The 1st Defendant it was further alleged, illegally erected a foundation using the Plaintiffs building materials found therein. The plaintiff therefore filed a dispute in the land tribunal where he was declared a rightful owner of the suit land. The decision however was overtu rned by the Court of Appeal where a trial denovo was ordered. When she retumed before the same tribunal for a retrial, things had changed. The same had ceased jurisdiction by operation of the law. She was forced to withdraw the application and have it filed before this court in 2023. lt is from this background infomrntion; the learned counsel for the 2nd defendant considers this suit is filed out of time and that this court has no jurisdiction, hence the objections. The hearing of the points raised was done by written submissions. Dr. Chacha filed bis detailed submissions, and 1 thank him for hard work and industry. On the other side, Mr. sadiki Aliki who appeared for the plaintiff filed a reply to the submission. I am happy, they were all filed in time as directed by this court. Upon going through seven objections raised, it is clear to me that 6 of the objections i.e 1,2,3,4, 5 and 7 are centered on time limitation gauged under section 3(1) of the Law of Limitation Act, Cap. 89 and Item 22, for lst objection, item l O for the 4th, item 24 for the 5th and item 6 for the 7th. Having pondered the same, I find it pertinent and time saving to have all 6 objections determined generally. If I may be pardoned, doing so appears, in my view, to avoid repetitions and verbosity. The 6th objection will be separately dealt with. To start with, it was submitted by Dr. Chacha that under section 5 of Law of Limitation Act (LMA) the right of action in respect of any proceeding, accrues on the date on which the cause of action arises. Rightly so, as held in a host of cited authorities including; Genya Gibaso Genya and 271 Others vs North Mara Gold Mine Limited, High Court, Land Case No.22 of 2023, Ramadhani Nkongela vs Kasiani Paulo [1988] TLR 11 and John M Byombalirwa vs Agence Martime Internationale (T) Limited, Civil Appeal No.15 of 1983. This means, as in this case, the cause of action arose when the plaintiff became acquainted with facts that the 1st defendant took possession of her land. Dr. Chacha argued, it was on 26th November 2008 in terms of paragraph 11 of the amended plaint. For the sake of clarity, paragraph 11 states as hereunder; That, when the Plaintiff and the 3rd Defendant were processing for the transfer of right of occupancy into the names of the Plaint([[; the 1st Defendant emerged and claimed to be the owner of the suit land claiming to have had purchased the land from the 2nd Defendant and the 1st Defendant illegally built a house foundation using the Plaintiff's building materials the Plaintiff had purchased with the plot from the 3rd Defendant (to wit two trips of stones and 15,000 pieces of burnt bricks) the materials which were mobilized on the plot by the 3rd Defendant Plainly, it is clear to me that paragraph 11 does not indicate any date through which this so-called 'transfer was process' by the plaintiff. Dr. Chacha was perhaps acting under paragraph 9 of the amended plaint. Para 9 is explicit and states as here under; That, on the day of 26111/2008 the Plaintiff had purchased the land in dispute from the 3rd Defendant who was the previous owner of the suit land, and the Plaintiffpaid to the 2nd Defendant a total ofTzs.3,000,000/=[Copy of the Sales agreement is herewith attached and marked HMS] to form part of this Plaint} Page. 2 From the foregoing, with respect, Dr. Chacha got it wrong. Based on the wording of para 9 of the amended plaint, 26th November 2008 is the date the land was purchased by the plaintiff. It is shown in the collective annexture Pl to the amended plaint, that it is on the purchase date that landform No. 35 was filled by the parties upon executing the sale agreement. There is no indication that transfer was done on the same date. The form is not even signed by relevant authorities. In my cons;dcnsl view, M, Sadiki w"' ,;gbt. It w"' ML Sadiki's submiss;on ;n terms of parag,aph 12, of the amended plaint, that the plaintiff was aware of her land being trespassed into and a house built therein in 2011. I have no doubt; the amended plaint is clear on the time it was to the knowledge of the plaintiff. It is in the same year that this legal battle started by filing Application No. 76 of 2011 before the District Land and Housing Tribunal. The cause of action therefore arose when the plaintiff became aware of the alleged infringement in terms of section 5 of the LMA as Dr. Chacha argued. Clearly it was in 2011. The plaintiff, it is clear from the pleadings, (paragraphs 13 -16) that she first filed Land application No. 76 in 2011. As shown, it went all the way to the Court Appeal, and in 2022 a trial denovo was ordered which in the course, it was withdrawn. This case was then filed in 2023. Before I move on, I have to pause here and say with certainty, that based on the pleadings, this is a land dispute. It is not a tort of trespass to land as argued by Dr. Chacha. There is a difference between a land disputed and tort of trespass to land. In as much as trespass to land is actionable per se, still, the plaintiff did not file a suit claiming damages for trespass, but a claim of land taken by the l st defendant. The plaintiff was plain under paragraph 8 that she is claiming ownership of 'Plot No. 43 "A" at Kumsenga Area of Kasulu. This is therefore a land in disputed based on the facts. Trespass to land as I know the term is entering someone's estate, property or land without the permission or consent of the lawful owner. ln this case, the 2nd defendant claimed duly owns the same land as expressly stated in the amended written statement of defence. It follows therefore that within the context, there is no suggestion that the suit was founded on tort. Hem 6, part l of the schedule to the LMA does not therefore apply. In the same strength, items 10 and 24 respectively do not apply. It should be noted that Dr. Chacha argued forcefully that since the plaintiff prayed for declaratory orders (prayer 1 and 3) that is, she is to be declared a lawful owner and that the l st defendant be declared a trespasser, therefore this suit for purpose of limitation is founded on claims that the period of limitation is not provided for. It was in his view, that the suit was filed out of time of 6 years prescribed by the LMA. Still, based on prayer 2 of the amended plaint, that she should be refunded with the purchase price- the sum of TZS 3,000,000.00TZ as an alternative prayer and therefore this suit is bad for being filed out of time. Dr. Chacha said, based on the said prayer, this suit is therefore out of time in terms of item 10, because it is a recovery of any sum recoverable by virtue of a written Jaw, other than a penalty or forfeiture or sum by way of penalty or forfeiture. In his view, the period of 6 years had elapsed when this case was filed. I think the cause of action is not determined by prayers made in the plaint but by express statement specifying the nature of the claim. The plaintiff was clear, she is claiming for her landed property allegedly in the 1st defendant's hand. Therefore items l 0 and 24 of the LMA are not applicable. l have shown before that the plaintiff has sued for recovery of her land allegedly in the possession of the 1st defendant. It is therefore a land dispute within the meaning of the word. Therefore, the period of limited may be Page. 3 calculated based on item 22 of part I of the schedule to the LMA. I do not think , Dr. Chao ha was justified to sti 11 move around looking for different causes of action in the same amended plaint. The tw o coun sel agre e that any suit filed out of time limit must be dismissed as under section 3(1) of LMA which states that; Subject to the prnvisfons of this Act, every p,oceeding described in the [irst column of the Schedule to this Act, and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence. It was Dr. Chacha's conviction that the suit was filed in 2023 after the expiration of 12 years contrary to item 22. His assertion was that, whether the cause of action arose in 2008 as per paragraph 11 or in 2011 as Mr. Sadiki alleged, still this suit should be dismissed for failure to plead exemption as per Order Vil Rule 6 of the Civil Procedure Code. With certainty, order VII applies when the suit is filed out the prescribed time. The plaintiff did not plead exemption. The plaintiff disputes and has it that, this case was filed in time. To support his argument, Mr. Sadiki asked this court to overrule the objection because despite having withdrawn the suit before the tribunal, it was still filed before this court in time. In my considered analysis, I agree with Mr. Sadiki that; there is no reason to suppose that time begun to run against the plaintiff in 2008. The pleadings which parties are bound by, have not expressly or by implication shown the plaintiff got aware of the presence of the 1st defendant in the disputed land in 2008. All said, it was in 2011 as pleaded, which is when an attempt to transfer title was made. It was therefore followed by filing Land application No. 76/2011. Counting from 2011 to 2023 when this case was filed, it is 12 years and therefore in time. There was no reason therefore, for the plaintiff to plead exemption of time which in fact had not elapsed. Even by assumption, as Dr. Chacha intimated, that the plaint was withdrawn and filed out of time, still, the suit would be salvaged by section 21 of the LMA, which provides; Exclusion of time of proceedings bona fide in court without jurisdiction (1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a court offirst instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect ofjurisdiction or other cause of a like nature, is incompetent to entertain it. It is clear to me that the plaintiff if she was out of 12 years counting from 2011, the time spent in prosecuting the same case should be excluded. It remains therefore fine that the suit was not filed out of time and therefore section 3(1) of the LMA does not apply. 1n my view, all objection relating to time limitation are out of context, they are overruled. Further, 1 do not think, it is correct to apply Order XX.Ill Rule 1(3) of the Civil Procedure Code, as submitted by Dr. Chacha, that the plaintiff withdrew the suit and was not granted permission to refile and so was therefore precluded from refiling it. To be able to appreciate his argument, I am bound to cite the whole of order XXlll. It provides as hereunder; (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. Page.4 (2) Where the court is satisfied- (a) that a suit must fail by reason of some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorize the court to permit one of several plaintiffs to withdraw without the consent of the others With respect, I do not share Dr. Chacha's view. I will show how. First, it is as clear as crystal that Land Application No. 76 of 2011 was filed before the District Land and Housing Tribunal which has limited application of the Civil Procedure code. Second, even assuming that the tribunal was bound to apply the CPC, still in terms of order XXlll (2) the tribunal as submitted by Mr. Sadiki did not allow withdrawal of the suit by reason of defect in the pleadings. lt was due to operation of the Jaw that the tribunal had no jurisdiction as it previously had when the case was instituted before it for the first time in 2011. Third and perhaps most importantly, the matter was withdrawn by the plaintiff to be filed in the court of competent jurisdiction. The tribunal had no jurisdiction to grant leave or pennission to the plaintiff to withdraw a matter and yet file it in court that is not subordinated to it or that which it shares concurrent jurisdiction. It is always the case that leave to refile a fresh suit are powers exercised by the trial court when a suit is to be refiled before it. This was not the case; I therefore find this point baseless as well. The last objection is on jurisdiction of the court. It is pegged in two limbs, that the case be dismissed because it is not only offensive to Order VII Rule l (f) of the CPC on a lacking jurisdiction clause but also Order VII Rule 3 of the CPC on description of the suit land. Dr. Chacha's argument on jurisdiction clause is centered on paragraphs 8 to 20 of the amended plaint. He argued that para 20 of the amended plaint does not contain facts showing that this court has jurisdiction over this suit. Having cited a litany of authorities of this court and of the Court Appeal, he urged this court to hold that paragraph 20 is lacking and therefore this suit should be dismissed. In actual fact order VII Rule 1 deals with particulars to be contained in the plaint. Inter alia, it includes facts constituting the cause of action and where it arose and the facts showing that the court has jurisdiction. Paragraph 20 of the amended plaint according to Dr. Chacha lacks such qualities. For ease reference Paragraph 20 reads; That, the cause of action arose in Kasulu District with Kigoma region and regarding the nature of the parties herein; this Hon. Court is statutorily vested with jurisdiction to determine this suit and for the purposes of court fees the value of the suit land is estimated to be Tzs. 7,000,000/=. ~ Page. 5 [~ I have read the law, the paragraph above and the reasoning of my brother Mwambegele J (as he then was) in the case of China Pesticide (T) Limited vs Safari Radio Limited, Commercial Case No.170 of 2014, which was cited in detail by Dr. Chacha. It was the court conclusion, which I associated myself with that "a plea in the plaint that the court has jurisdiction to entertain the suit is technically defective where it does not allege how and where the cause of action arose ... " The amended plaint has stated in terms that are clear, how and when the cause of action arose. I do not think therefore facts envisaged by Order VII Rule 1 (f) must necessarily appear in one paragraph, since the plaint is read as one unit and not an isolation of each paragraph. I entertain no doubt, that the amended plaint did not comply with the law. The authorities cited here if applied in the manner Dr. Chacha invites this court to do, will be tantamount to applying them upside down. In the other limb, which is a description of the landed property. It should be noted that Order VII Rule 3 of the CPC provides in words that need no interpretation that; Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number. Facts are clear that the land in dispute is registered. It has the title number, and under para 8 of the amended plaint, it is stated that; the cause of action against the defendant is on trespass to land/land dispute on ownership of Plot No. 43 "A" at KUMSENGA AREA AT KASULU whereas the recent approved survey it is said to be Plot No. 43 "A". (Herein after to be referred to as the land in dispute). In Dr. Chacha's view, which I think is a misconception, the above is not against the law. With respect, he is not right, and this court does not see any trace of doubt that there is no proper description of the suit land. When the land in dispute is surveyed, it is sufficient to state the title number as the plaintiff did, that is what the law says. The question of boundaries, neighbours and size are necessary perhaps when the land in dispute is not surveyed. The title number sufficiently identifies it. In all, I find no merit even in this last objection. It is, as well, overruled. Having overruled all objections, the 2nd defendant is condemned to pay costs. RULING Dated at KIGOMA ZONE this 10th of February 2025. Hon. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page.6