Ruling Land Case No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI LAND CASE NO. 21 OF 2023 RIZIKI SAMUEL (As Administrator of the estate of the late Mama Rukia Hattasi (Deceased))……………….PLAINTIFF VERSUS THE ATTORNEY GENERAL ASSISTANT REGISTRAR OF TITLES, MOSHI MUNICIPAL DIRECTOR, MOSHI …....….....DEFENDANT MELCHIAD PETER KIMARO ABDUSAMAD SHARIFF ATASSY RULING Date of Last Order: 27.03.2024 Date of Ruling : 23.04.2024 MONGELLA, J. This Ruling is with respect to preliminary objection raised by the 4th defendant opposing the suit filed by the plaintiff herein. In this suit, the plaintiff has sued the defendants over a registered plot of Land with Certificate of Title No. 32778, Plot No. 107, Block “A” Longuo B (herein after the suit land). The Plaintiff claims the suit land as part of the estate of the late Mama Rukia Hattasi (the deceased). She alleges that the 5th defendant, her brother, had previously sold part Page 1 of 26 of the estate of the late Mama Rukia Hattasi to the 4th defendant without their knowledge. A matter was filed over the said plot of land in 2024. However, upon executing the judgement delivered in her favour, she learnt of another Certificate of Title issued to the 4th defendant by the 2nd defendant again, without their knowledge. She then decided to prefer the matter at hand. In his Written Statement of Defence (WSD), the 4th defendant raised five points of preliminary objection, to wit: 1) That the suit is hopelessly time-barred. 2) That the suit is bad in law for joining the Registrar of Titles contrary to the mandatory provisions of section 102 (1) of the Land Registration Act, Cap. 334 R.E. 2019. 3) That the suit is bad in law for suing a non-existing person i.e. the 3rd defendant and without a proper statutory notice to sue the 3rd defendant. 4) That, the plaintiff has no cause of action against the 4th defendant. 5) That, the court has no jurisdiction to try the matter for it has been moved to usurp the powers of the Probate Court. The preliminary objection was argued by written submissions. Both parties were represented by learned counsels. The 4th defendant was represented by Mr. Edward Peter Chuwa, while the plaintiff by Ms. Patricia Eric. Page 2 of 26 Mr. Chuwa opted to jointly submit on the 1st and 2nd points of objection. He asserted that it is not in dispute that the suit land is registered in the name of the 4th defendant and that the plaintiff seeks for rectification of the land register and nullification of the certificate of title issued to the 4th defendant. In that regard, he said, clearly the plaintiff is aggrieved by the acts of the 2nd defendant and thus wishes to challenge the same in this suit. Citing Section 102 (1) of the Land Registration Act [Cap 334 RE 2019], he contended that the plaintiff ought to have filed an appeal against the 2nd defendant’s act of issuing the Certificate of Title within three months from date of such decision. He supported his arguments with the case of Rafikahawa Mohamed Sadiki vs. Registrar of Titles & Others (Land Appeal 15 of 2020) [2022] TZHC 1099 TANZLII. Further, he averred that according to the official search report annexed to the Plaint, the Certificate of Title was issued on 01.04.2011, thus making it 12 years as this suit was filed on 06.10.2023. He contended that the remedy was not to file this suit, but to file an appeal as per Section 102 (1) of the Land Registration Act. He further cited the case of Registered Trustees Dawat-e- Islami Foundation vs. Registered Trustees of Madrasatul Daaru Munadhamat Dawatil Islam Foundation & 5 Others (Land Case 7 of 2021) [2022] TZHCLandD 682 TANZLII, alleging that the plaintiff was using probate allegations and fraud to challenge the 2nd defendant’s decision and to ask the suit land to be registered in the name of the Plaintiff in lieu of the 4th defendant. Page 3 of 26 Mr. Chuwa had the that even if this court finds it proper for the plaintiff to challenge the act of the 2nd defendant by way of this suit, the suit shall still be time barred. He argued so on the ground that the plaintiff is seeking for declaratory orders whose time limitation is six years, as per Item 24 of Part 1 to the Schedule of the Law of Limitation Act [Cap 89 RE 2019]. He cemented is averment with the case of Msafiri More & 22 Others vs. Morogoro District Council & 6 others (Civil Case no. 6 of 2023) [2023] TZHC 19278 TANZLII. Still on time limitation, he argued further that the cause of action in this matter arose in 1994 when the plaintiff was appointed an administrator of the estate or for benefit of doubt in 2011 when she alleged that the 5th defendant forged part of the land, obtained title and sold the same to the 4th defendant, whose interest was registered on 01.01.2011. He added that this suit was preferred on 06.10.2023, which was than 29 years counting from 1994 and more than 12 years counting from 2011. That, although specific date of the alleged forgery was not mentioned, this suit is time barred for being filed out of six years prescribed under the law. Mr. Chuwa was not convinced by the plaintiff’s discovery of the division of the estate through the judgement delivered in 2020. He had the stance that the judgement could not be a piece of evidence and used as a sword to commence an action. In his view, it was the plaintiff’s duty to make a search in the land register when she discovered that the 5th defendant had forged and obtained a Certificate of Title before she sued both, the 4th and 5th defendants Page 4 of 26 in 2014. He fortified his assertion with Section 67 of the Land Act [Cap 113 RE 2019] and the case of Hamisi Bushiri Pazi & Others vs. Saul Henry Amon & Others (Civil Appeal 166 of 2019) [2022] TZCA 186 TANZLII. Further, he argued that the plaintiff is deemed to be aware of the entry in the land register from 2011 when the suit land was registered. That, the plaintiff ought to have made an inquiry in the land register instead of waiting for the outcome of Land Case No. 19 of 2014, which is now pending in the Cout of Appeal. Addressing the second limb of the preliminary objection, which also regards time limitation, Mr. Chuwa averred that probate wise, the matter was time barred. His argument was that since the late Mama Rukia demised on 24.02.1993 and the plaintiff was appointed as administrator on 21.01.1994, thirty (30) years have lapsed leaving the matter unclosed. He added that the plaintiff never filed any inventory. He wondered if the same existed as the annexure attached did not show the reference number of the probate case. He averred further that a probate ought to be completed within a year, unless time is extended. To that effect, he referred to section 107 (1) of the Probate and Administration of Estates Act [Cap 352 RE 2002]. He further cited Section 35 of the Law of Limitation Act alleging that the suit is time barred given that 30 years had lapsed from the date of death of the late Mama Rukia. Mr. Chuwa continued to argue that this court has the mandate to dismiss a cause brought out of prescribed time limit according to Section 3 (1) of the Law of Limitation Act. In that regard, he had the Page 5 of 26 stance that it was wrong for the judge to entertain the matter and even decide in favour of the plaintiff. Insisting on dismissal of the matter as the only remedy, he referred the case of Sarbjit Singh Bharya & Another vs. NIC Bank Tanzania Ltd & Another (Civil Appeal 94 of 2017) [2021] TZCA 212 TANZLII. With regard to the 3rd point of objection, Mr. Chuwa contended that under paragraph 5 of the Plaint, the 3rd defendant is described as a necessary party. However, he said, under paragraph 6 the 3rd defendant is described as a government institution, while in the plaint, there is no claim against the 3rd defendant. He challenged joining of the 3rd defendant arguing that he was not a legal personality, hence not a proper party. He supported his stance with the case of Respicius Emmilian Mwijage vs. Municipal Director, Ilala Municipal Council & 2 Others (Land Case 27 of 2021) [2021] TZHCLandD 627 TANZLII. The counsel further pointed out that this was not afresh suit. That, a similar suit was instituted before this court and struck out by Hon. Simfukwe J. for failure to join necessary parties. He contended that the plaintiff has failed to join the Commissioner for Lands, who was declared to be a necessary party in the previous suit. That, instead, the plaintiff joined the 3rd defendant who was not a necessary party to this suit rendering the suit bad in law. He held the view that the as per Section 25, 26 and 29 of the Land Act, the Commissioner for Lands was the proper person to be sued as he was involved in granting right of occupancy and the 4th defendant had complied with the law in applying for the same. He supported his argument Page 6 of 26 with the case of Ngerengere Estate Co. Ltd vs. Edna William Sitta (Civil Appeal 209 of 2016) [2019] TZCA 137 TANZLII. Concerning the 4th point of objection, Mr. Chuwa first defined the term “cause of action” as constituting facts that give a person a right to judicial redress or relief against another as found on the plaint and its annexures. In that regard, he referred the court to the case of Stanbic Finance Tanzania Ltd vs. Giuseppe Trupia and Chiara Malavasi [2002] TLR 221. Further, he argued that in the plaint, there is no paragraph containing a claim against the 4th defendant as the plaintiff admits that the 4th defendant purchased land from the 5th defendant. Referring to the contents of paragraph 18 of the Plaint, he averred that under the said paragraph, the plaintiff alleges that the 4th defendant forged the land. He challenged that such assertion does not constitute cause of action against the 4th defendant as land cannot be forged. Further, referring to paragraph 19 of the Plaint, he asserted that since reference therein is made to a letter used by the 5th defendant, the 4th defendant is rendered not privy to what was done by the 5th defendant. He contended that a certificate of title is presumed to be legally obtained, unless the granting authority is implicated, which is not the case in this matter. In support of his argument, he referred the court to the case of John M. Byombalirwa vs. Agency Maritime Internationale (Tanzania) Ltd. [1983] TLR 1. With respect to the 5th point of objection, Mr. Chuwa contended that since the plaintiff admitted that she had been overseas from Page 7 of 26 1994 to 2010, it means she had not taken necessary steps to file inventory and distribute the assets of the deceased to the heirs. In his view, the plaintiff is using this court to perfect what she failed to perfect in the probate matter. He considered that an abuse of court process which should not be tolerated. In that regard, he had the stance that if this court proceeds to determine the matter, it would be usurping powers of the probate court which are far beyond its jurisdiction. He cemented his argument on abuse of court process with the case of JV Tangerm Construction Co. Ltd & Technocombine Construction Ltd (A Joint Venture) vs. Tanzania Ports Authority & Another (Commercial Case 117 of 2015) [2022] TZHCComD 180 TANZLII. He finalized his submissions by praying for the points of preliminary objection to be upheld and the suit dismissed with costs. In reply, Ms. Eric first addressed the 3rd point of objection in which she conceded. She submitted that indeed the Municipal Director, Moshi was not a legal entity, but a person holding such capacity. She as well conceded to the fact the Hon. Simfukwe J. in Land Case No. 2 of 2021 ruled that the Registrar of Titles and the Commissioner for Lands ought to have been joined as necessary parties. She further conceded that the statutory notice is only addressed to the Registrar of titles and Municipal director on behalf of Moshi Municipal Council, who is the Moshi Planning Authority. However, she defended that the same was a typographical error occasioned by the fact that the Municipal Director is the person responsible for Page 8 of 26 receiving all correspondences on behalf of the Municipal Council. Thereat, she made reference to the statutory notice annexed to the Plaint. As to non-joining of the parties, she referred to Order 1 Rule 9 of the Civil Procedure Code [Cap 33 RE 2019] arguing that the provision is clear to the effect that a suit shall not be defeated by reason of misjoinder or non-joinder of parties. Further, that, Order 1 Rule 10 (2) of the Code allows the court by application of either party or not, to order the name of a party improperly joined struck out and that of a proper party joined. In addition, she referred to Order 1 Rule 10 (4) of the Code, averring that the same provides that where a defendant is added, then, the plaint has to be amended. In that regard, she had the view that all the provisions cited aim at curing the defect of non- joinder and misjoinder of parties to ensure that the court reaches a just determination of proceedings, timely and effectively. In an endeavour to save the suit, she alleged that striking out the suit would be delaying the matter and would be going against the principle of the overriding objective as provided under Section 3A and 3B of the Civil Procedure Code. Ms. Eric opted to separately address the 1st and 2nd points of objection. As to the 1st point, she replied that Section 26 of the Law of Limitation Act read together with Order VII Rule 6 of the Civil Procedure Code requires the court to automatically exclude all the time prior to the pleaded fraud being discovered. She contended Page 9 of 26 that under paragraph 16 to 22of the Plaint, the plaintiff pleaded fraud. That, the plaintiff stated that she discovered the fraud after November 2020 while executing Land Case No. 19 of 2014, which bore the same facts as this case. She pointed out that this suit was filed in 2021, but struck out for non-joinder of the Registrar of Titles and was then reinstituted on 06.10.2023. Explaining the time limit set for land cases, she contended that Item 22 of the Law of Limitation Act has set the time limit for suits to recover land to be 12 years. She had the stance that computing from the date the alleged fraud was discovered, which was after November 2020 to institution of this suit in October 2023, only about 3 years had lapsed by then rendering the suit well within time. In her view, she said, all that is required is for the plaintiff to plead allegations of fraud in her plaint and not to demonstrate or prove the alleged fraud. That, all facts pleaded must be assumed to be correct and agreed. In support of her arguments, she referred the case of Safia Ahmed Okash (As Administratrix of the estate of the late AHMED OKASH) vs. Ms. Sikudhani Amir & Others (Civil Appeal 138 of 2016) [2018] TZCA 30 (25 July 2018). In that respect, she had a firm stance that the suit was not time barred. Addressing the 2nd point of objection, Ms. Eric averred that, as seen in the plaint, the main cause of action is against the 4th and 5th defendants. She argued so on the ground that the cause of action emanates from the 4th defendant’s fraudulent transactions under the aid of the 5th defendant whereby he falsely represented himself as the owner of the suit land and improperly made an application Page 10 of 26 for a long-term Certificate of Title, while he had knowledge that the suit land belonged to the late mama Rukia Hattasi. The learned counsel contended that Section 101 and 102 of the Land Registration Act are applicable in circumstances where a party is aggrieved by the decision of the Registrar, thus seeking for the High Court to reverse the same. She was of the view that provisions relate to areas such as refusal to register caveats, disposition, Mortgages etc. Referring to Section 71 of the same Act, she contended that the provision allows the Registrar to execute orders of the court through transmission by operation of law. That, Part VIII of the same Act provides for orders of the court to the Registrar and his subsequent requirement to register the same. She further made reference to Section 43 of the Registration of Documents Act [Cap 117 RE 2019] which gives power to the High Court to cancel registration of an instrument that is a forgery or has been registered without due authority or in contravention of any provision of the Act. That, none of the provisions require the registrations to have been obtained according to Section 101 and 102 of the Land Registration Act. Reacting to the decisions cited by Mr. Chuwa, she found them distinguishable to the matter at hand. Specifically referring to the case of Rafikihawa Mohamed Sadiki (supra) she challenged that the same was an appeal from the Registrar of Titles in regard to rectification of Certificate of Title revoking ownership of an appellant. That in the case, the appellant had failed to issue 30 Page 11 of 26 days’ notice of her intention to appeal against the order of the registrar and she never requested for extension of time rendering the court to employ Section 102 (1) of the Land Registration Act. As to the case of Registered Trustees of Dawat-e-Islami Foundation (supra), she contended that in this case there was an application by the 1st defendant for registration of Certificate of Title. That, since there was a caveat lifted by the plaintiff at the Commissioner for Lands and the Registrar of Titles, the plaintiff was served with a 30 days’ notice requiring him to present to the Registrar of Titles an injunctive order from the High Court to restrain him from registering the 1st defendant’s title, but no injunction order was presented after the given 30 days, hence the title was registered. She contended that in the said case, it was noted that a person aggrieved by the decision of the registrar must lodge an appeal to the High Court and not file a normal suit to challenge the same. Regarding Mr. Chuwa’s contention that the plaintiff was attempting to trick the court by using probate allegations and fraud to challenge the decision of the Registrar of Titles and ask the land to be registered in name of the plaintiff in lieu of the 1st defendant, she found the same being was baseless and not qualifying as a preliminary objection. Arguing further, she contended that this being a preliminary objection, it ought to have centred on a pure point of law and not facts. She averred that all facts pleaded by the plaintiff ought to be assumed as correct. Page 12 of 26 In that respect, Ms. Eric held the view that Section 102 of the Land Registration Act is inapplicable in the case at hand. She had the stance that this is a normal suit and since the Registrar is also impleaded, Section 6(2) of the Government Proceedings Act [Cap 5 RE 2019] is the relevant provision to be applied. She prayed to employ the same arguments in regard to the contention of time limitation on declaratory orders being 6 years. As to the 4th defendant’s argument that the plaintiff ought to have made an official search in the land register when she discovered that the 5th defendant had forged and obtained Certificate of Title before she sued both of them in 2014; Ms. Eric challenged the argument for not qualifying as a point of law. She argued so saying that the argument calls for evidence from the plaintiff to prove the reason behind such search not being conducted. The 4th and 5th points of objection were jointly addressed. On these, Ms. Eric contended that the plaintiff pleaded her cause of action against the 4th defendant in paragraphs 16 through 24 of the Plaint. That, whether the plaintiff has or lacks cause of action is a factual matter requiring scrutiny of evidence. She cemented her argument with the case of Jackline Hamson Ghikas vs. Mlatie Richie Assey (Civil Application 656 of 2021) [2022] TZCA 438 TANZLII. She further averred that the preliminary objection requires scrutinization of evidence and application of the court’s discretion thus, lack the qualification as such. She argued that this matter being a landed matter, its time limitation is 12 years and not 6 Page 13 of 26 months as alleged. She further challenged Mr. Chuwa’s reliance on Section 107 of the Probate and Administration of Estates Act arguing that the provision is inapplicable in this matter as the plaintiff obtained the letters of administration at Moshi Urban Primary Court and the Act does not apply in primary courts. She contended that the law applicable in primary courts is the Primary Court (Administration of Estates) Rules. Referring to Rule 10 of this law, she contended that the same does set mandatory requirement for the administrator of the estate to file Form No. VI, an account of the estate, but it does not state that failure to file account will nullify the appointment of an administrator. In addition, she argued that pursuant to Rule 9 of the Primary Court Rules, the court may revoke letters of administration, but the same is not automatic. That, from pleadings, it is not indicated that there was ever any such application for revocation. With regard to allegations of abuse of court process, Ms. Eric contended that a matter would be regarded an abuse of court process where it is instituted with mala fides and with intention to harass the other party and make him incur costs. That, such suits are usually frivolous, repetitive and contrary to legal rules, but this application is not such. She argued further that the plaintiff has serious triable issues and has never had multiple matters on the same cause of action. She added that considering that the plaintiff claims fraudulent action against her deceased mother, then the court shall have to Page 14 of 26 receive evidence and this does not qualify as pure point of law. In support of her contentions, she cited the case of Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors Limited [1969] EA 696; Uganda vs. Commissioner of Prisons, Ex-parte Matovu [1966] 1 EA and Ms. Safia Ahmed Okash (As Administratrix of the Estate of the Late Ahmed Okash) (supra). She finalized her submissions by maintaining that the points of preliminary objection raised are not pure points of law, thus cannot be determined at this stage. She therefore prayed for the same to be dismissed with costs and for the matter to proceed on merit. Rejoining, Mr. Chuwa challenged Ms. Eric’s request for amendment of the Plaint. He contended that doing so after the preliminary objection already being raised amounted to pre-empting the preliminary objection. He supported his averment with the case of Jaluma General Suppliers Ltd vs. Stanbic Bank T. Ltd (Civil Appeal 34 of 2010) [2011] TZCA 123 TANZLII. He added that even if Ms. Eric admitted to the suit being preferred against a non-existing person, the same cannot be cured by an amendment. That, since the Municipal Council is a statutory body, the procedure requires the issuance and service of notice as per The Local Government (Urban Authorities) Act. He challenged that the former issued notice would not be applicable in the matter at hand as the same was issued to the Municipal Director, a non- existing entity. In that respect, he further challenged Ms. Erics argument that the inclusion of the said party in the application was Page 15 of 26 a typographical error. He had the stance that the same was rather intentional. He further argued that the plaintiff intentionally withheld the information that a similar suit was struck out by Hon. Simfukwe J, for failure to join the Commissioner for Lands and the Registrar of Titles as necessary parties. Further, he disputed there being any notice issued to the Commissioner for Lands as alleged by the plaintiff. In that respect, he had the stance that the Commissioner for Lands cannot simply be joined as a party to the suit by mere order of amendment. In his view, in the circumstances, the only remedy was for the suit to be dismissed. He further challenged Ms. Eric’s reliance on the overriding objective principle contending that the same cannot assist the plaintiff in circumventing the laid down principles and procedures of law. He fortified his argument with the case of Juma Busiya vs. Zonal Manager, South Tanzania Postal Corporation (Civil Appeal 273 of 2020) [2021] TZCA 522 and Mondorosi Village Council & Others vs. Tanzania Breweries Ltd & Others (Civil Appeal 66 of 2017) [2018] TZCA 303 (both from TANZLII). Regarding the issue of time limitation, Mr. Chuwa reiterated his submission in chief maintaining that the suit is time barred. On suing the Registrar of Titles contrary to Section 102 (1) of the Land Registration Act, he averred that contrary to what was stated by Ms. Eric, that the cause of action is against the 4th and 5th defendants, the Plaint is clear that before filing of the suit, the plaintiff issued notice of intention to sue the Registrar of Titles on Page 16 of 26 10.05.2023. That, it is clear that the Registrar of Titles has been sued as a proper party for failure to heed to the demand which was coupled with a threat t in the 90 days’ notice issued to her. That, the Plaint shows that the plaintiff is challenging the registration of Certificate of Title in the name of the 4th Defendant by the 2nd defendant and thus challenges the act of the Registrar of Titles per Section 102 of the Land Registration Act. With regard to the rest of the points of objection, Mr. Chuwa observed that Ms. Erric had failed to address the other objections raised. He thus reiterated his submission on chief on the said points and prayed for the matter to be dismissed, with costs. After considering the rival submission by the learned counsels I prefer to commence with resolving the question of time limitation that appears to cut across the 1st and 2nd points of objection. This is because, if proved in the affirmative, it would warrant the dismissal of this suit. Mr. Chuwa’s stance is that the suit is time barred. He advanced several grounds to consider the suit time barred being: One, that, since the plaintiff has expressed that he is aggrieved by the decision of the Registrar of Titles and seeks to have the same deregister the 4th defendant and instead register the plaintiff as the owner of the suit land then she ought to have lodged an appeal to challenge the same pursuant to Section 107 (1) of the Land Registration Act. He alleged the said provision has set limitation of time to appeal to be 3 months from the date the decision of the Registrar was made. Page 17 of 26 On those bases, he found the matter at hand overdue counting from 2011 when the Certificate of Title was granted, which totals to 12 years. Two, that the cause of action arose in 1994 upon death of the late Mama Rukia or 2011 upon the grant of Right of Occupancy over the suit land which is allegedly forged. Three, that the time limitation for declaratory orders is six years and the plaintiff had sought some declaratory orders which means they cannot be sought since the cause of action arose in 1994 or 2011. Four, that the suit relates to a probate matter, and a probate matter has to be completed within a year period pursuant to Section 107 of the Probate and Administration of Estates Act, thus, the suit herein is out of time. With regard to the 1st argument, I find the same baseless. This is because the cited provision, that is, Section 102 of the Land Registration Act does not relate to this matter. As argued by Ms. Eric, the said provision is relevant to matters in which the Registrar of Titles is exercising his discretion, such as, on application for registration under section 10 of the same Act, registration of legal personal representative under Section 67, registration of survivor of joint owners, entering a caveat under Section 78 or entering an injunction under Section 79; to name a few. Some of such decisions were expounded in the case of Registered Trustees Dawat-e- Islami Page 18 of 26 Foundation (supra) and Rafikahawa Mohamed Sadiki vs Registrar of Titles & Others (supra). However, the matter at hand relates to a dispute over ownership of land. The plaintiff’s act of including the Registrar of Titles was only meant to ensure his presence in regard to any decision that he would require to be involved. This is because the failure to observe the same could be fatal as decided in Ngerengere Estate Co. Ltd vs. Edna William Sitta (supra), in which non-involvement of the Registrar of Titles in a dispute requiring his presence as a necessary party rendered the decision of the trial court a nullity. In the said case, the Court of Appeal stated: “In view of the settled law on the right to be heard, we are of a serious considered view that, it will be absurd for this Court to make any order against the Registrar of Titles as prayed by the appellant without availing her opportunity to be heard. In this regard, we agree with Mr. Lutema that, the Registrar of Titles ought to have been joined as a party in the application before the High Court, failure of which amounted to a fundamental procedural error and occasioned a miscarriage of justice which cannot be condoned by the Court by hearing the appeal.” Concerning the 2nd and 3rd line of argument, I wish to note that, as seen on paragraph 16 to 22, the plaintiff did plead fraud on the part of the 4th and 5th defendants. She also stated that she discovered the same when attempting to execute the decree issued in Land Case No. 19 of 2014. As contended by Ms. Eric, the Law of Limitation Page 19 of 26 Act provides for computation of period of limitation where fraud is pleaded. This is found under Section 26 of the Act, which states: “26. Where in the case of any proceeding for which a period of limitation is prescribed— (a) the proceeding is based on the fraud of the party against whom the proceeding is prosecuted or of his agent, or of any person through whom such party or agent claims; (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the proceeding is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, or could, with reasonable diligence, have discovered…” to this point, it is worth noting that preliminary objections are premised on the assumption pleaded facts being true. See, Gideon Wasonga & Others vs. The Attorney General & Others (Civil Appeal No. 37 of 2018) [2021] TZCA 3534 TANZLII; Safia Ahmed Okash (As Administratrix of the estate of the late AHMED OKASH) vs. Ms. Sikudhani Amir & Others (supra). Therefore, for the court to employ the computation, is for the plaintiff to plead facts on when the cause of action arose and or provide other necessary details therein. This was explained in the case of Robby Traders Ltd vs. CRDB Bank Plc & Another (Civil Appeal 70 of 2012) [2017] TZCA 236 TANZLII, in which it was stated: Page 20 of 26 “The particulars as to when the cause of action arose must be pleaded in the plaint. The significance of this is that from the date given the Court will know whether or not the suit is barred by the law of limitation, and the defendant will be under no illusion as to the date or time the events took place.” In the matter at hand, the Plaint indicates that the discovery of fraud was made after Land Case No. 19 of 2014 was determined on 16.11.2020 and while execution of the decree issued therein was being effected. In the circumstances, computation of time commenced sometime from November 2020. Time limitation for land disputes is 12 years as provided under Item 22 of the Law of Limitation Act. As such, the matter at hand being filed on 06.10.2023, is well within time. In the same line, I find the declaratory orders sought also being within time. With respect to the 4th argument in which Mr. Chuwa contended that the matter related to probate and that the law requires inventory be filed within a year to close a probate mater, I am of the following observation: First, I wish to note that the Probate and Administration of Estate Act does not apply in primary courts in which the plaintiff is alleged to have obtained her letters of administering the estate of the late Mama Rukia. On the other hand, the allegations raised by Mr. Chuwa require proof in evidence given the fact that he contends that the Plaintiff did not complete her duties as administrator of the deceased’s estate. In that respect, I am at one with Ms. Eric that the point of objection advanced lacks qualification as such. See, Mukisa Biscuits Page 21 of 26 Manufacturing Co. Ltd. vs. West End Distributors Limited (supra) and Jackline Hamson Ghikas vs. Mlatie Richie Assey, (supra). In the foregoing I find the arguments raised in regard to time limitation baseless and herein overrule the 1st and 2nd points of objection. Following my observation on the 1st and 2nd points of objection, as above, I find it apposite to second deliberate on the 4th objection. On this, Mr. Chuwa challenged the suit at hand on the ground that the plaintiff failed to display that there is a cause of action against the 4th defendant. He contended that the 4th defendant has been sued in connection to the act done by the 5th defendant he is not privy to the acts of the 5th defendant. In the same vein he argues that the cause of action against the 4th defendant could not exist given that land cannot be forged as claimed by the plaintiff. As much as “cause of action” is a legal issue, after consideration of Mr. Chuwa’s contentions, I am of the firm view that the same refer to factual issues, which are not apparent on the face of the pleadings. In that respect, deliberating on the same need of scrutiny of evidence of both parties. As such, the meaning of preliminary objection shall be defeated. See also: The Soitsambu Village Council vs. Tanzania Breweries Ltd and Tanzania Conservation Ltd. (Civil Appeal No. 105 of 2011) [2012] TZCA 255, (17th May 2012), in which it was held: Page 22 of 26 “A preliminary objection should be free from facts calling for proof or requiring evidences to be adduced for its verification. Where a court needs to investigate facts, such an issue cannot be raised as preliminary objection on a point of law. The court must therefore insist on the adoption of proper procedure for entertaining application for preliminary objections. It will treat as preliminary objection only those points that are pure law, unstained by facts or evidence, especially disputed points of fact or evidence …” [Emphasis added] The point of objection is therefore overruled. In the same line, the 5th point of objection is also overruled. Under this point, Mr. Chuwa addressed question of probate, which I find can only be resolved after evidence is heard in regard to alleged matters. Finally, is shall deliberate on the 3rd point of objection. Under this point, the 4th defendant challenges the propriety of suing the 3rd defendant. Arguing on this point, Mr. Chuwa was of the view that it was improper for the plaintiff to sue the 3rd defendant as he was not a legal entity. That, he was merely a person holding such capacity. He made reference to the case of Respicius Emmilian Mwijage vs. Municipal Director, Ilala Municipal Council & 2 Others (supra). On the same point he further questioned the non-joinder of the Commissioner for Lands. On her part, Ms. Eric did not oppose Mr. Chuwa’s contention on this matter, rather she prayed to be afforded the opportunity to rectify the Plaint after serving the Commissioner for Lands. In support of her stance, she made reference to Oder 1 Rule 9, 10(2) and 10(4) of the Page 23 of 26 Civil Procedure Code which provides for non-defeating of a suit on account of non-joinder or mis-joinder of parties. She further employed the court to invoke the overriding objective principle envisaged under Section 3A and 3B of the of the Civil Procedure Code to save the suit. A prayer which was vehemently disputed by Mr. Chuwa. It is apparent on the pleading that the plaintiff sued the Municipal Director - Moshi, as the 3rd defendant. As conceded by Miss Eric, such party is not a legal entity, hence incapable of being sued. This was a clear error on the part of the Plaintiff. It is also undisputed that the Commissioner for Lands ought to have been joined as a party as adjudged in the previous suit which was struck out by this Court (Simfukwe, J.). In the premises, the question is whether the plaintiff can be allowed to amend the Plaint to rectify the names of the 3rd defendant and join the Commissioner for Lands. It is well set under Order 1 Rule 9 of the Civil Procedure Code that a suit would not be defeated by the non-joinder or misjoinder of parties. Under Order 1 Rule 10 (2) of the Civil Procedure Code, this court can issue an order to strike out the name of the 3rd defendant and substitute the same with the appropriate party thereto. The provisions accord room for amendment at any stage of the proceedings. I do not subscribe to Mr. Chuwa’s contention that allowing the plaintiff at this point, to amend the Plaint, would amount to pre- empting the preliminary objection. This is because the said Page 24 of 26 preliminary objection has been argued by the parties and is hereby being determined. Pre-empting a preliminary objection relates to a scenario where a party is allowed to fix the defect raised by the adverse party before the preliminary objection has been argued by the parties and deliberated upon by the court. This was well explained in Standard Chartered Bank & Another vs VIP Engineering & Marketing Ltd & Others (Civil Application 222 of 2016) [2021] TZCA 344 TANZLII whereby the Court of Appeal stated: “It is trite principle that where a party has raised a preliminary objection in a case, the other party cannot be allowed to rectify the defect complained of by the party who raised the objection. This is because, to do so would amount to pre-empting that preliminary objection.” See also, Method Kimomogoro vs. Board of Trustees of TANAPA, Civil Application No. 1 of 2005 (unreported) and; Commissioner General (TRA) vs. Pan African Energy T. Ltd (Civil Application 206 of 2016) [2017] TZCA 157. On the other hand, however, considering that the point of objection contains allegations regarding failure to join the Commissioner for Lands as a necessary party, as adjudged by this court in Land Case No. 02 of 2021, the provisions of Order 1 Rule 9 and 10 of the Civil Procedure Code, cannot easily be invoked to allow amendment of the Plaint. This is because, suing the Commissioner for Lands is coupled with a mandatory requirement to issue a ninety (90) days’ notice according to Section 6 of the Government Proceedings Act. The said notice is to be served prior Page 25 of 26 to filing of the suit. The failure to file the said notice shall render this suit prematurely before this court. In the foregoing the 3rd point of preliminary objection is hereby sustained. The suit is hereby struck out. Considering the outcome on the points of objection, I make no orders as to costs. The plaintiff is at liberty to refile his claim in accordance with the law. Dated and delivered at Moshi on this 23rd day of April, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 26 of 26