Ruling Civil Revision No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI CIVIL REVISION NO. 82860 OF 2023 (C/Application No. 65 of 2023 in the District Land and Housing Tribunal for Moshi at Moshi) RONALD JULDAN MOSHI (As Administrator of the estate of the Late JULDAN THIMOTHEO MOSHI)…….…………….…………...… APPLICANT VERSUS SWALEHE ABUBAKAR SHUKUMWA (As Administrator of the estate of the late MAULID WAZIRI).…………………..RESPONDENT RULING Date of Last Order: 30.04.2024 Date of Ruling : 06.06.2024 MONGELLA, J. This application has been made under Section 79(1)(2) and 95 of the Civil Procedure Code [Cap 33 R.E. 2019]; Sections 41, 42, 43(1) (a) (b), 43(2) of the Land Disputes Courts' Act, [Cap 216 R.E. 2019]; and Regulations 26 and 29(1) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2002. The applicant seeks for this court to call for the records of the District Land and Housing Tribunal for Moshi at Moshi (hereinafter, the tribunal) in Application No. 65 of 2023 and revise the decision and orders therein and quash and set the same aside. His chamber Page 1 of 12 application was duly supported by his own sworn affidavit. The respondent contested the application as reflected in his affirmed counter affidavit. The brief facts of the matter as extracted from the applicant’s supporting affidavit are to the effect that: on 28.04.2023, the applicant filed Application No. 65 of 2023 in the tribunal against the respondent for trespass. He claimed that the respondent, in 2018, trespassed into 3½ acres of his 6 acres land. In what I find disconnected facts, he stated that he first instituted a claim at Kirua Vunjo Ward Tribunal. On 13.04.2023, the tribunal struck out Application No. 103 of 2022 for want of procedures. He then filed Application No. 65 of 2023 but the respondent raised two preliminary points of objection to wit; one, that the application was hopelessly time barred; and two, the application is bad in law for being filed without adhering to the law after Application No. 103 of 2022 was struck out. The presiding chairman sustained the 1st objection on the application being time barred. Consequently, he dismissed the application with costs on 25.09.2023. The application was argued by written submissions whereby both parties were represented. The applicant was represented by Mr. Modestus A. Njau and the respondent by Mr. Desderius Hekwe, both learned advocates. Mr. Njau averred that this revision originates from the Ruling of the tribunal on preliminary objection raised by the respondent to the effect that the matter was time barred. He said that the referred Page 2 of 12 provisions in the dismissal of the application were Section 9(1) and 35 of the Law of Limitation Act, [Cap 89 R.E 2019]. The counsel further averred that the applicant owned the suit land since 2000. That, when his father, the late Juldan Timotheo Moshi, demised in 2008, the applicant was still enjoying ownership over the suit land. In that respect, he considered the suit land not being part of the estate of his father. He clarified that Application No. 65 of 2023 was not for recovery of the suit land of the late Juldan, but from the respondent who trespassed in 2018. He reiterated his claim that the applicant enjoyed ownership of the suit land without interference from 2000 to 2018 when the trespass took place. The learned counsel then directed the court to paragraph 6 (iv-viii) in Form No. 1 of Application No. 65 of 2023 asserting that the same is self-explanatory as to the need of ownership of the suit land to be determined. He thus disputed the matter being time barred nor res judicata. He added that the suit as well does not fall within the ambits of Section 9 and 35 of the Law of Limitation Act as the suit land does not form part of the estate of the late Juldan. As to why the applicant stood as administrator of the estate of the late Juldan, he explained that this is pursuant to the order of the tribunal. That the mentioned order stated that the applicant could refile the matter if he is appointed as administrator of the estate of the late Juldan. He contended that the said order was mistaken and bore confusion resulting to this matter being preferred by the applicant in capacity of an administrator. Page 3 of 12 Mr. Njau argued that there was need of proof of ownership of the suit land and thus evidence on that regard ought to be produced. This means that the preliminary objection lacked qualification as such. He cemented his argument with the case of Soitsambu Village Council vs. Tanzania Breweries Limited & Another (Civil Appeal No. 105 of 2011) [2012] TZCA 255 (17 May 2012) TANZLII and that of Edna John Mgeni vs. National Bank of Commerce Ltd and Another [2016] TLR 244. In conclusion, Mr. Njau maintained that the applicant was in ownership of the suit land since 2000 rendering the land not part of his late father’s estate. That, in that respect, Application No. 65 of 2023 was not time barred. He thus prayed for the court to examine the legality and propriety of the decision and decree of the tribunal, quash and set the same aside with costs. Replying to the respondent’s submission, Mr. Hekwe started by adopting the contents of the respondent’s counter affidavit. In that course, he foremost noted that the applicant preferred both, this application and the one before the tribunal filed in the capacity of an administrator of the estate of the deceased, thus ought to act for the interest of the deceased’s estate. He then supported the tribunal decision arguing that it rightly dismissed Application No. 65 of 2023 for being time barred. On that stance, he advanced three reasons being: first, that the late Juldan demised on 19.09.2008 and the applicant was appointed as his legal representative on 04.10.2022. Application No. 65 of 2023 was Page 4 of 12 filed on 28.04.2023 by the applicant in the capacity of a legal representative. Second, that, according to Section 9(1) and 35 of the Law of Limitation Act, a claim for recovery of land of a deceased person accrues on the date of death. Thus, calculating from the date of the death of the late Juldan to the date the application was filed, the application was well out of time. He fortified his argument with the case of Aloysius Benedicto Rutaihwa vs. Emmanuel Bakundukize Kendurumo and 9 Others (Land Appeal 23 of 2020) [2021] TZHC 6162 (27 August 2021) and Mshamu Saidi (Administrator of the Estate of Saidi Mbwana) vs. Kisarawe District Council & Others (Land Appeal 177 of 2019) [2020] TZHCLandD 4 (11 September 2020), both from TANZLII. Thirdly, that, the applicant ought to have sought for extension of time instead of assuming the same. He further pointed out that it was not true that the order of the tribunal in the previous application that was struck out was unclear. He contended further that it is well known that when an application is struck out, time will run as normal not considering that there were remedies sought before. He distinguished the case of Soitsambu Village Council vs. Tanzania Breweries Limited & Another (supra) and Edna John Mgeni vs. National Bank of Commerce Ltd and Another (supra) on the ground that in the present case the tribunal determined the matter on a pure point of law, that the matter was time barred. On those bases, he prayed for the application to be dismissed with costs for want of merit. Page 5 of 12 Rejoining, Mr. Njau reiterated his arguments in his submission in chief contending that the applicant was the owner of the suit land since 2000 and when his father demised in 2008, he was still enjoying ownership of the suit land. In that case, he held the stance that the suit land was not part of the estate of the late Juldan. He maintained that reading from paragraph 6 (iv-viii) there was need for proving ownership of the suit land and the suit land was neither time barred nor res judicata. In addition, he alleged that the cause of action accrued in 2018 when the respondent trespassed into the suit land. He insisted on the matter needing proof of ownership by both parties thus not fit to be resolved as a preliminary objection. He again referred the case of Soitsambu Village Council (supra). With regard to the applicant’s capacity, he held the stance that the fact that the applicant was suing in the capacity as an administrator of the estate of the late Juldan does not imply that the land belongs to the deceased. Further, that the alleged trespass took place in 2018 and the application was filed on 28.04.2023. He insisted on the applicant being the owner of the suit land thus rendering the application of Sections 9 and 35 of the Law of Limitation Act irrelevant in this matter. In the end, he maintained his prayers that this court examines the legality and propriety of the decision and decree and revise, quash and set aside the same with costs. Upon considering the contentions in the parties’ counsels’ submissions, I find it is not questioned that Application No. 65 of 2023 was filed in the tribunal by the applicant on 28.04.2023. It is also not Page 6 of 12 contested that the said application was preferred by the applicant in his capacity as administrator of the estate of the late Juldan Timotheo Moshi. It is further undisputed that the respondent raised a point of objection that the matter was time barred and the tribunal sustained the same in consideration of Section 9(1) and 35 of the Law of Limitation Act. The contested matter therefore is whether the tribunal was right in holding that the Application was time barred. Being a matter of time limitation, it requires determination on time the cause of action exactly accrued. While the applicant claims it was 2018 the respondent alleges it was in 2008 at the demise of the late Juldan on whose behalf this application was preferred. It is well settled that a preliminary objection originates from pleadings of the parties under the presumption that the facts so pleaded are true. This was well expounded in Safia Ahmed Okash vs. Ms. Sikudhani Amir & Others (Civil Appeal 138 of 2016) [2018] TZCA 30 (25 July 2018) TANZLII whereby the Court of Appeal stated: “To discern and determine that point, the court must be satisfied that there is no proper contest as to the facts on the paint. The facts pleaded by the party against whom the objection has been raised must be assumed to be correct and agreed as they are prima facie presented in the pleadings on record.” It is therefore from the parties’ pleadings that the court can determine when the cause of action accrued and whether from Page 7 of 12 such date the matter is rightly before the court. This was well explained in Robby Traders Ltd vs. CRDB Bank Plc & Another (Civil Appeal 70 of 2012) [2017] TZCA 236 TANZLII “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.” It is also well settled that the matter of time limitation is a matter of jurisdiction. In that respect, courts are barred from entertaining matters that are time barred. In NBC Limited & Another vs. Bruno Vitus Swalo (Civil Appeal 331 of 2019) [2021] TZCA 122 TANZLII, the Court briefly explained: “It is that courts are enjoined not to entertain matters which are time barred. Limitation period has an impact on jurisdiction. Courts lack jurisdiction to entertain matters for which litigation period has expired” This being a question of time limitation, as a pure point of law, the facts alleging that the matter is time barred ought to originate from the application. There should not be any need for further proof or clarification, or need for evidence. In Ali Shabani & Others vs. Tanzania National Roads Agency (TANROADS) & Another (Civil Appeal 261 of 2020) [2021] TZCA 243 TANZLII, the Court of Appeal clarrified that: Page 8 of 12 “It is clear that an objection as it were on account of time bar is one of the preliminary objections which courts have held to be based on pure point of law whose determination does not require ascertainment of facts or evidence. At any rate, we hold the view that no preliminary objection will be taken from abstracts without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence.” I have observed the application filed by the applicant in Application No. 65 of 2023. It is shown on the application that the late Juldan Timotheo Moshi was given 6 acres of land by a traditional leader (Michili) by the name of Anthony Mafoe, in 1960. At paragraph 6(a) (iv)of the Application the applicant pleaded that the late Juldan Timotheo Moshi cultivated the land until 2000 whereby he gave it to him. Such facts connote that he was in possession of the 6 acres of land since the year 2000 whereby he cultivated seasonal crops on it. In 2018, the respondent trespassed the 3 acres of the land claiming that the same was owned by one Maulid Waziri prior to his demise. For ease of reference, I shall reproduce Paragraph 6 (a) items (iii), (iv), (vi) and (vii) hereunder: iii. That, the late JULDAN THIMOTHEO MOSHI had acquired the disputed land by allocation from a traditional leader called 'MCHILI by the name of ANTHONY MAFOE who allocated the deceased a total of six (6) acres in 1960. iv. That, after the said allocation of land, the Deceased, JULDAN THIMOTHEO MOSHI cleared the suit land and in 1963 he started cultivation of seasonal /perennial crops seasonally up to the year 2000 when Page 9 of 12 he decided to give the same land, six (6) acres, to the Applicant. vi. That, since the year 2000, the Applicant had been in possession of the suit land six (6) acres and he used it peaceful for cultivation of the seasonal crops. vii. That, in 2018 the Respondent trespassed into three and a half (3 ½) acres among the six (6) acres, and started cultivating seasonal crops while he is claiming that the same was owned by the late MAULID WAZIRI before his death. It is thus apparent on the applicant’s application that he never pleaded that the suit land belonged to the late Juldan at the time of his death. He explicitly indicated that he was awarded 6 acres of land formerly owned by the late Juldan in 2000. He had also explicitly pleaded that the trespass took place in 2018. As well instructed in Safia Ahmed Okash vs. Ms. Sikudhani Amir & Other (supra) the facts pleaded by the applicant ought to be presumed as true. From the applicant’s application it was clearly clarified that the cause of action accrued in 2018 rendering Application No. 65 of 2023 filed only 5 years after the accrual of the cause of action. The application was thus within time as far as Item 22 Part 1 of the Schedule to the Law of Limitation Act is concerned. The facts alleged by the respondent in relation to the date the cause of action accrued were rather presumed and did not originate from the application. Nowhere did the applicant indicate that he was claiming the suit land in place of the late Juldan. In the premises, any other claim or allegation in connection to the Page 10 of 12 applicant’s capacity and his claim before the tribunal would require evidence to be tendered in proof, hence losing the qualification of being a preliminary objection, which must be premised on a pure point of law. The Court in The Soitsambu Village Council vs. Tanzania Breweries Ltd and Another, (supra) expounded 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 of law. The court must, therefore, insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as a preliminary objection only those points that are pure law, unstained by facts or evidence, especially disputed points of fact or evidence. The objector should not condescend to the affidavits or other documents accompanying the pleadings to support the objection such as exhibits." In the foregoing circumstances, the tribunal chairman clearly erred in finding that the matter was time barred and sustaining the point of preliminary objection. Prior to making necessary orders, as I have noted earlier, there were two points of preliminary objection filed in the tribunal. The second preliminary objection was never determined In consideration of my observation as hereinabove, I find the application with merit. I quash the Ruling of the trial tribunal on the first point of preliminary objection and set aside the order for dismissal. I order the matter to be remitted to the tribunal for the Page 11 of 12 tribunal chairman to resolve the 2nd point of objection and for other necessary steps to follow as the circumstances shall direct. Dated and delivered at Moshi on this 06th day of June, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 12 of 12