SAID SAID MPOTO SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 162 OF 2023 SAID SAID MPOTO (As Administrator of the Estate of the late SAID MPOTO).................................................................................................... 1stPLAINTIFF MELCKZEDECK MKUMBO............................................................................... 2ndPLAINTIFF EMMANUEL MKUMBO.................................................................................... 3rdPLAINTIFF VERSUS TANZANIA ZAMBIA RAILWAY AUTHORITY.............................. 1st DEFENDANT THE HONOURABLE ATTORNEY GENERAL.................................2nd DEFENDANT ADOLPH BIRO (As Administrator of the Estate of the late SAID MPOTO)...................................................................................................... 3rdDEFENDAN MODESTA DAMAS MAZIKU (As Administrator of the Estate of the late MAZIKU MAGEMA).............................................................................................. 4thDEFENDAN HAPPY SIMWINGA........................................................................................ 5thDEFENDAN EASY NETWORK LIMITED.............................................................................. 6thDEFENDAN RULING July, 2024 & 19h July, 2024 L, HEMED, 1, According to the amended Plaint presented for filing on 2nd day of August 2023, the plaintiffs were formerly employees of the 1st Defendant, TANZANIA ZAMBIA RAILWAY AUTHORITY. It has been alleged that, on the 13th September 2002, the 1st Defendant issued a list of eligible i houses for sale to its employees pursuant to the guidelines issued by the 1st Defendant. The landed properties in dispute were among the houses subject for sale according to the said Guidelines. It was further pleaded by the plaintiffs that being eligible to purchase the houses as occupiers of the premises under the policy and Guidelines, they acted upon making an application to purchase the said houses after being allocated to them. Upon seeing the audit report in 2015, the Plaintiffs realized that the houses in dispute were sold to the 3rd, 4th, 5th defendants and later on to the 6th Defendant. The Plaintiffs are thus praying for judgment and decree against the defendants as follows: - "a) Declaration that the sale of the suit premised Houses No. 13,15, Block B, House No. 10 Block 'C', Maganga Fiats, Mandela Road, in Temeke District Dar es Salaam region by the 1st Defendant to the 3d, 4h and 5h Defendants is illegal and such null and void ab-initio. b) Declaration that, the 3d, 4th and 5h defendants had no good title to pass to the Gh defendants in the sale of the suit premises House No. 13, 15 Block B; House No. 10 Block C, Maganga Flats Mandela Road, in Temeke District Dar es Salaam and thus the sale thereof is null and void ab-initio. 2 c) Declaration that the plaintiffs are eligible purchasers of the suit premises. d) An order for specific performance compelling the 1st Defendant to sell the suit premises to the plaintiffs as it had offered and the plaintiffs acted upon that offer. e) General damages to be assessed by this Honourable Court. f) Defendants to pay the costs and incidentals to this suit. g) Any other relief(s) that this Honourable Court may deem fit." The defendants disputed the claims by filing the respective written statement of defence. On 13th May 2024 when the matter was called for hearing, Ms. Lucy Kimario, learned state attorney raised orally points of law against the suit thus: - "1. This suit is time barred; 2. The court has no jurisdiction as it arises from labour dispute" Mr. Nehemiah Nkoko, advocate who represented the 3rd, 4th and 6th defendants also raised another point against the suit that: - 3 "In view of Order II Rule 2 of the Civil Procedure Code, the matter is incompetent for want of leave of the court." Preliminary objections were argued by way of written submissions. Parties complied with the filing schedule directed by this court. I have opted to start with the 1st point of objection that "the suit is time barred." Ms. Kimario, learned state attorney, asserted that the matter arises from breach of contract of the sale of the disputed landed properties whose time limitation is six (6) years. According to her the cause of action accrued in August 2015 when the Plaintiff became aware of the audit report which revealed that the suit properties had been sold. Relying on the decision of the Court of Appeal of Tanzania in Barclays Bank Tanzania Limited vs Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016, the learned State Attorney urged the Court to dismiss the entire suit for being time barred. In response, Mr. George Joseph Sang'udi, learned advocate of the plaintiffs contended that the preliminary objection on time limitation is not on point of law. According to him, the point has been raised based on the attached Land Application No. 67/2016; Land Application No. 67/2017; 4 Land Application No. 163/2017 and Land Application No. 155 of 2020. In his view the point falls short of merits because it is based on matters of facts. He fortified his argument by the decision of the Court of Appeal in Zubedabai Nurdin Khanbai vs Ethiopian Airline, Civil Appeal No. 133 of 2016, that the preliminary objection on time limitation that require ascertaining facts and evidence does not qualify as preliminary objection. I have carefully read and considered the preliminary point of objection on time limitation of the suit together with the rival submissions. I must start by pointing out that what constitute a preliminary objection was well articulated in a famous case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696, thus: - "... a preliminary objection consists of a point of law which has been pleaded, or which arises by dear implication out of pleadings, and which if argued as preliminary point may dispose of the suit." [Emphasis added] In the light of the above authority, determination of preliminary objection is by looking at what has been pleaded by a party against whom the objection has been raised. In the instant case, the point of time limitation has been raised against the suit instituted by the plaintiffs herein. 5 Therefore, in ascertaining whether the suit is time barred; the court has to ascertain the content of the amended Plaint. I have gone through the Amended plaint which the Plaintiffs filed it on 2nd August 2023 and found that, the plaintiffs are challenging the sale of the suit properly by alleging that they were eligible purchasers. The plaintiffs have pleaded under paragraph 14 thus: - "14. THAT, being eligible to purchase the houses as occupiers of the premises under the policy and Guidelines, the plaintiffs acted upon that offer of the 1st Defendant by making an application to purchase the said housed after being allocated to them by the 1st Defendant. That there is an implied acceptance of offer by the 1st Defendant... "[Emphasis added]. The above paragraph clearly shows that the cause of action of the plaintiffs against the defendants is founded on "contract of sale of the suit premises." The question that follows is that, when did the cause of 6 action arose? In paragraph 16 of the amended Plaint, the Plaintiffs have stated thus: - "16. ... in 2014 an audit team was appointed and it came out with the findings that, the sale was married with irregularities, which, was, kept, out, of, the plaintiffs' knowledge until in August 2015 when it came apparent to the plaintiffs..." [Emphasis added] From the above paragraph, it is obvious that the cause of action of the plaintiffs arose in August 2015. The instant suit was instituted on 29th May 2023, at least seven (7) years from the time of accrual of the cause of action. The counsel for the plaintiffs has also asserted that the court should exclude the time wasted in prosecution Land Application No. 67/2016; Land Application No. 67/2017; Land Application No. 163/207; Land Application No. 155 of 20220, all at the District Land and Housing Tribunal for Temeke and Misc. Land Application No. 571 of 2022 at this Court. I am aware of section 21(1) of the Law of Limitation Act, [Cap. 89 R.E 2019] which provides thus: - 7 "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 court of first 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 of jurisdiction or other cause of a like nature, is incompetent to entertain it. "[Emphasis added] I have ventured across the Plaint and found that in paragraph 25(b), the plaintiffs have pleaded that the time wasted was due to the persecution of Land Applications No. 67/2016, 67/2017 and 155/2020 at Temeke District Land and Housing Tribunal and Misc. Land Application No. 571 of 2022 before this court. This, in fact is pursuant to the provision of Order VII Rule 6 of the Civil Procedure Code [Cap. 33 RE 2019] which provides thus: - "where the suit is instituted after the expiration of the period prescribed by the Law of Limitation, the Plaint shall show the grounds upon which exemption from such law is claimed." In view of section 21(1) of the Law of Limitation Act (supra) and Order VII Rule 6 of the Civil Procedure Code (supra), the time which the 8 plaintiffs have pleaded to be prosecuting similar matter in 2016, 2017, 2020 and 2022 have to be excluded. Having excluded such time of at least four (4) years, then the Plaintiffs are found to be within time. From the foregoing, I find no merit in limb of time limitation. The 2nd point of objection was on the jurisdiction of this court to entertain this matter which arises from labour dispute. The learned state attorney asserted that, under paragraphs 11 and 12 of the Amended Plaint, the plaintiffs claim eligibility to by the suit premises by virtue of their employment with the 1st Defendant. In her opinion, in order to determine if the plaintiffs were eligible the court has to determine the question of employment of the applicants. In response thereto, the learned counsel for the plaintiffs contended that the suit at hand arises from breach of contract on sale of houses. In his view, there is no where in the pleadings where the plaintiffs are claiming for terminal benefits or unfair termination. The learned counsel proceeded to argue that the fact that among the criteria for purchasing the houses was one being serving employees or redundant and or retired employee does not make the cause of action to 9 emanate from labour dispute. He added that the plaintiffs sued the 1st Defendant on labour issues in labour courts which has nothing to do with the instant matter. He insisted that the matter at hand is not a labour matter citing the decision in Shose Sinare vs. Stanibic Bank Tanzania Limited & Another, Civil Case No.34 of 2016 arguing that there is no reliefs sought by the plaintiffs seeking for declaration or compensation arising out of termination or breach of employment contract. I have carefully gone through the pleadings, the amended Plaint in particular in order to find out if this court has jurisdiction to determine the matter at hand. Indeed, the plaintiffs are suing the defendants, the 1st Defendant in specifically for breach of contract to sale houses. The plaintiffs have averred that "...being eligible to purchase the houses as occupiers of the premises under the policy and Guidelines, the plaintiffs acted upon that offer of the 1st Defendant by making an application to purchase the said houses after being allocated to them by the 1st Defendant. That there is an implied acceptance of offer by the 1st Defendant." The question to be answered is whether such cause of action on breach of contract is triable in this court. io This court (the Land Division of the High Court) was established specifically to deal with land disputes only. The jurisdiction of this Court is drawn from Rule 5E of the High Court Registries Rules, of 2005 GN No.96 of 2005 which provides thus: - " There shall be a land division of the High Court within the Registry at Dar es Salaam and at any other registry or sub-registry as may be determined by the Chief Justice in which, subject, to the provision, oL dnjL relevant, jaw^ appeal proceedings, or, original, proceedings concerning (and, may, be instituted." [Emphasis added] The above provision requires elaboration of what constitutes a land dispute. In its briefing paper on Land Disputes and Land Conflict of 2011, the USAID, defined a 'land dispute' to involve conflicting claims to rights in land by two or more parties focused on a particular piece of land, which can be addressed within the existing legal framework. Therefore, for a dispute to be a land dispute, parties must be confronting each other on the ii question of ownership, usage, and or possession of a particular piece of land. From the above definition, it is imperative that, not every dispute that touches landed property will amount to land dispute unless it concerns with ownership, possessory and or usufructuary rights. In the instant dispute, the plaintiffs are suing the defendants, the 1st Defendant in particular for breach of contracts for failure to sale the houses to them despite their acceptance of offer in 2001. Among the reliefs sought by the plaintiffs is for declaration that the plaintiffs are eligible purchasers of the said houses. The plaintiffs also urge the court to order for specific performance, that the 1st Defendant to sale the said houses to the plaintiffs. My firm view is that the present dispute does not fall within the jurisdiction of this court as it is not a land dispute. Jurisdiction of court is always a creature of statute. Parties cannot just decide to give jurisdiction to a court to determine their matter. This was emphatically stated in Shyam Thanki and Others versus New Palace Hotel [1971] 1 EA 199 at 202 , that; "AH the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is 12 an elementary principle of law that parties cannot by consent give a court jurisdiction which it does not possess. "[Emphasis added] Guided by the above authority, the jurisdiction of this court is founded and limited by rule 5E of the High Court Registries Rules, (supra), that is to determine land disputes only. The instant case being emanating from breach of contract, this court has no such requisite jurisdiction. The fact that the 2nd limb of preliminary objection disposes of the suit, I cannot labour to determine the remaining limb of objection as for doing will have only an academic effect which is not the core function of this court. In the upshot, I proceed to strike out the entire suit without costs. Order accordingly. DATED at DAR ES SALAAM this 31st Jdly\2024 - - J ___ r' •- *■ •' _ / I JUDGE 13