CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT KIGOMA (CORAM: KWARIKO. J.A., GALE BA, J.A.. And MASOUP. J J U CIVIL APPEAL NO. 629 OF 2022 REGISTERED TRUSTEES OF BARAZA KUU LA WAISLAMU TANZANIA (BAKWATA)..................................APPELLANT VERSUS 1. BODIYA WADHAMINI YA JUMUIYA YA WAISLAMU KUMWELULO........................................ 1st RESPONDENT 2. REGISTERED TRUSTEES OF THE NURU MOSQUE KIBONDO................................. 2nd RESPONDENT 3. ADAMU ABDALLAH SAMBILO................................... 3rd RESPONDENT 4. KIBONDO DISTRICT COUNCIL................................. 4th RESPONDENT 5. HON. ATTORNEY GENERAL...................................... 5th RESPONDENT (Appeal from the ruling of the High Court of Tanzania at Kigoma) (Mlacha, J.) dated the 9th June, 2022 in Land Case No. 29 of 2021 JUDGMENT OF THE COURT 23rd April & 2nd May, 2024 KWARIKO, J.A.: This present appeal emanates from the ruling of the High Court of Tanzania at Kigoma (the trial court) which upheld the preliminary objection that was raised by the first respondent as to the competence of l the suit. In that suit, the appellant, the Registered Trustees of Baraza la Waislamu Tanzania (BAKWATA) sued the respondents herein for a declaration order that the appellant is a lawful owner of the mosque situated at Kumwelulo, Kibondo urban area with the whole land surrounding the mosque (suit land); the fourth respondent be ordered to deregister the land from ownership of the second respondent and register it in name of the appellant; perpetual injunction restraining any person from trespassing on the suit land purporting to be its owner; general damages; and costs of the case to be borne by the third respondent. According to the plaint, on 20th September, 1989 through her District Secretary at Kibondo, one Adamu Abdallah Sambilo (the third respondent), the appellant applied and was allocated a piece of land for the purpose of building a mosque at Kumwelulo area within Kibondo District. Thereafter, on 7th December, 1990 again through the third respondent, the appellant applied for another piece of land to be used as a grave yard on the same area and additional land for the purpose of building a mosque. Upon receiving the request, the District Executive Committee in Kibondo responded that it was working on it. Then, the appellant paid TZS. 7,000.00 for the survey of the land. It was stated further that, in the year 1994, the third respondent retired as the BAKWATA's District Secretary but did not hand over the letter of offer to the suit land to his successor. However, in 2015 it was discovered that after surveying the area, the fourth respondent having colluded with the third respondent issued a letter of offer with Reference No. KDC/LD/1761/4 dated 5th August, 1992 in the name of the second respondent. Based on those allegations, the appellant instituted the suit in 2021. On their part, the first, second, and third respondents filed a joint written statement of defence (WSD) and raised a preliminary objection to the effect that the suit was time barred and further, denied the claim against them. It was their case that the suit land was allocated to the second respondent by the fourth respondent. Likewise, in their WSD, the fourth and fifth respondents, apart from denying the appellant's claim, they asserted that the suit land was properly allocated to the second respondent. They also raised a preliminary objection on a point that the notice of intention to sue was not issued to the Commissioner for Lands who was a necessary party to the suit. 3 As per the court practice, the High Court first set out to dispose of the preliminary objection. Hence, the parties were given opportunity to address the court on the said points of preliminary objection. Arguing in support of the first point, it was the first, second and third respondents' position that the suit was time barred when it was filed in 2021 which was about thirty years after the suit land was allocated to the second respondent on 5th August, 1992. That, according to them, that was beyond twelve years contravening item 22 of the First Schedule to the Law of Limitation Act [CAP 89 R.E. 2002] (the Act). As regards the objection by the fourth and fifth respondents, it was argued that the Commissioner for Lands was a necessary party who ought to have been joined and its failure rendered the suit incompetent deserving to be dismissed with costs. In response, the argument in respect of the objection concerning limitation period, it was argued that, the appellant became aware of the allocation of the suit land to the second respondent in 2015 which was within twelve years to bring an action for a claim of land, the fact which was stated at paragraph 13 of the plaint. As regards the second point of objection, the appellant's counsel submitted that the Commissioner for Lands is not a necessary party to this suit, since it was Kibondo District Council which issued the letter of offer to the second respondent. The learned counsel argued that, even if there was non-joinder of a party the remedy was to order amendment of the pleadings so as to join him and not to dismiss the suit. Having considered the submissions by the counsel for the parties, the learned High Court Judge was convinced that the matter was time barred because the cause of action arose on 5th August, 1992 when the letter of offer was issued to the second respondent. The High Court also found that, since the letter of offer to the second respondent was issued by the Ministry of Lands, Housing and Human Settlements Development, the Commissioner for Lands was a necessary party to the suit. It also observed that, although the defect was curable through amendment of the plaint to join the said party, the same could not be effected without giving a 90 days' notice as per the Government Proceedings Act. In the end, the High Court sustained both objections and dismissed the suit with Aggrieved, the appellant has preferred the instant appeal on following three grounds: ”1. That, the learned Judge erred in law and fact in ruling that the appellant's suit was time barred. 2. That, the learned Judge erred in law and fact in holding that the Commissioner for Lands was a necessary a party to the appellant's suit 3. That the learned Judge erred in law and fact by dismissing the appellant's suit on the ground on non-joinder of the Commissioner for Lands." At the hearing of the appeal, the appellant was represented by Mr. Sadiki Aliki, learned advocate, while the first, second and third respondents had the services of Mr. Daniel Edward Rumenyela, learned advocate and the fourth and fifth respondents were represented by a legal team led by Mr. Francis Rogers, learned Principal State Attorney assisted by Messrs. George Kalenda, Arnold Simeo and Nixon Tenges, all learned State Attorneys. In support of the appeal, Mr. Aliki reiterated his submission given before the High Court in respect of the first and second grounds of appeal regarding the time limitation and non-joinder to the suit of the Commissioner for Lands. To give credence to his argument, concerning the time limitation, he cited our earlier decision in Oscar Karsan Kanji v. Abdallah Hassan (Suing as a Legal Personal Representative of Hassan Abdallah- Deceased), Civil Appeal No. 9 of 2020 (unreported), where this Court observed that, the time to bring an action starts to run when the complainant becomes aware of an act complained of. Whereas in respect of the non-joinder of a necessary party, he referred us to the case of George Ndege Gwandu & 19 Others v. Kastuli Safari Tekko & Another, Civil Appeal No. 255 of 2018 (unreported). In that case, the Court stated, that for a party to be joined in a suit it must have interest in the case. Concerning the third ground, Mr. Aliki argued that the High Court ought not to have dismissed the suit for non-joinder of a party but it was either supposed to strike it out or order amendment of pleadings in order to join the missing party. He referred us to the case of Tanzania Railways Corporation (TRC) v. GBP (T) Limited, Civil Appeal No. 218 of 2020 (unreported) in which the Court stated that, a trial court has a duty to ensure that a necessary party is joined in the case for issues raised in the suit to be resolved. In response to our query, Mr. Aliki submitted that, it was not correct for the learned Judge to deliberate upon the issue of non-joinder of a party after he had ruled out that the suit was time barred. He finally urged us to allow the appeal and remit the case to the High Court for trial according to law. On his part, in respect of the first and the second grounds of appeal, Mr. Rumenyela maintained his earlier submission that the cause of action arose in 1992 when the second respondent was issued with a letter of offer. He also argued that the Commissioner for Lands was a necessary party as he is the official custodian of all the land in the country. He distinguished the case of Oscar Karsan Kanji (supra) as in that case the appellant had no documents in relation to ownership of land. Regarding the third ground, the learned counsel contended that the High Court did not dismiss the suit for non-joinder of a party but did so because of all the reasons that were highlighted in its ruling. He however added that, the suit was supposed to be dismissed for being time barred pursuant to section 3 (1) of the Act. As to the issue posed by the Court in relation to the jurisdiction of the High Court having found that the suit was time barred, Mr. Rumenyela argued that the learned Judge ought to have ended there without going into the discussion on the issue of non-joinder of the Commissioner for Lands. However, he was quick to add that the omission did not invalidate the decision of the High Court. For this submission, the learned counsel implored us to dismiss the appeal and left the issue of costs to the discretion of the Court. Mr. Rogers supported the appeal in respect of the first ground. He added that a similar suit was filed before the Ward Tribunal in 2018 where the appellant sued the third respondent and another connoting that, she became aware of the omission in 2015. Nonetheless, he opposed the second ground and maintained that the Commissioner for Lands was a necessary party as he is the custodian of the entire land in the country. In the third ground, the leaned Principal State Attorney argued that, dismissal is a result of the suit being time barred but not for non- joinder of a party. He also submitted that the High Court could have ended there when it found that the suit was time barred. In the end, Mr. Rogers prayed for the Court to partly allow the appeal without costs. In rejoinder, Mr. Aliki maintained his earlier submission. We have dispassionately considered the rival submissions advanced by the learned counsel for the parties and we find the issue to be determined is whether the appeal before us has merit. Starting with the first ground, what we are called to decide is whether the suit which the appellant filed before the High Court was time barred. While the appellant has maintained the time started to run when he became aware of the matter in 2015, the first, second and third respondents argue that the cause of action arose in 1992 when the second respondent was issued with a letter of offer to the suit land. The position of the law is that as per item 22 of Part I of the First Schedule to the Act, a suit for recovery of land is required to be instituted within 12 years from the accrual of the right of action. It is also noteworthy that section 5 of the Act prescribes that the period of limitation in relation to any proceedings shall commence from the date on which the right of action for such proceeding accrues. It is provided thus: "Subject to the provisions of this Act the right of action in respect of any proceeding, shall accrue on the date on which the cause of action arises." This position of the law was interpreted in the case of Salim Lakhani & Two Others v. Ishfaque Yusufali (As Administrator of the Estate of the Late Shabir Yusufali), Civil Appeal 237 of 2019 (unreported). In this case when the Court was faced with an akin situation, it referred to section 5 of the Act and the case of Ramadhani Nkongela v. Kasan Paulo [1988] T.L.R. 56 and stated thus: "The law is further settled that; the right o f action begins to run when one becomes aware o f the said transaction or act which is complained of." See also: Maulid Makame Ali v. Kesi Khamis Vuai, Civil Appeal No. 100 of 2004 (unreported) and Oscar Karsan Kanji (supra). Back to the instant appeal, it is clear as per paragraph 13 of the plaint that the appellant became aware of the ownership of the second respondent in the year 2015. For clarity, this paragraph states thus: 'That\ the year 1994 the J d Defendant stopped being the district secretary o f BAKWATA after his tenure in the position the J d Defendant did not hand over the letter of offer to his successor AMANI ABDALLAH KIHEMO the plot/mosque in dispute and it was in the year 2015 under BAKWATA District Secretary Mr. MANENO YAHAY A RUGAGE the letter of offer on the mosque was obtained from one ABDUL SEGATWA (now deceased) who was BAKWATA Ward Secretary for Kibondo Urban Ward but the then leaders including MANENO YAHAYA RUGAGE were astonished seeing the letter o f offer bearing the name o f 2nd Defendant instead o f the Plaintiff." Therefore, according to the allegations quoted above, the cause of action accrued in 2015 when the appellant became aware that the suit land had not been registered in its name but in the name of the second respondent. This was within twelve years within which to bring an action for a claim of land in 2021. The first ground of appeal thus succeeds. Moving forward, we have found that the complaints in the second and third grounds are interrelated. They relate to the issue of non-joinder of the Commissioner for Lands as a necessary party to the suit and whether the High Court dismissed the suit on account of non-joinder of a party. Upon our consideration, we agree with the learned counsel for the parties that, whether rightly or wrongly, having found that the suit was time barred, the learned Judge would not have jurisdiction to deal with the issue of non-joinder of a party. He could have accordingly dismissed the suit as per section 3 of the Act. Accordingly, the complaints in these two grounds have no legal bearing on the matter and we leave them at that. Consequently, we find merit in the appeal and proceed to allow it, quash the impugned decision and order that the case be remitted to the High Court for trial according to law. In the circumstances of the case, we make an order that each party shall bear their own costs. DATED at KIGOMA this 30th day of April, 2024. M. A. KWARIKO JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 2nd day of May, 2024 in the presence of Mr. Sadiki Aliki, learned counsel for the appellant, Mr. Daniel Edward Rumenyela, learned counsel for the first, second and third respondents and Mr. George Kalenda, learned State Attorney for the fourth and fifth Respondents, is hereby certified as a true copy of the original.