salim lakhani others vs ishfaque shabir yusufali 2022 tzca 504 11 august 2022

CIVIL APPEAL NO. 237 OF 2019 IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: MWARUA. 3.A.. SEHEL. 3.A. And KAIRO. J.A.'t CIVIL APPEAL NO. 237 OF 2019 SALIM LAKHANI............................................................... 1st APPELLANT NEVADA GOLDEN COINS LIMITED..................................... 2nd APPELLANT ISMAIL AHMED ABDULLAH............................................... 3rd APPELLANT VERSUS ISHFAQUE SHABIR YUSUFALI (As Administrator of the Estate of the Late SHABIR YUSUFALI.......................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Wambura. 3.1 dated the 24th day of August, 2018 in Land Case No. 202 of 2013 JUDGMENT OF THE COURT 6“ June & 11thAugust, 2012 KAIRO. JA.: This appeal arises from the decision of the High Court of Tanzania, Land Division (Wambura, J) in Land Case No. 202 of 2013 dated 24th August, 2018. In the said suit, one Shabir Yusufali (hereinafter the late Shabir) had jointly sued Anil Mohamed Visram, Salim Lakhani (first appellant), Nevada Golden Coins Limited (second appellant) and Ismail Ahmed Abdullah (third appellant) being the 1st, 2nd , 3rd , and 4th defendants respectively for among other reliefs, a declaration that the i respondent is a legal owner of the parcel of land known as Plot No. 943/157 UWT Street/ Lindi Street, Ilala District, Central Area, Dar es Salaam City (henceforth the suit property), an order that the appellants jointly and severally pay general damages, costs of the suit and any other reliefs the trial court may deem just, fair and equitable to grant. A brief factual background of the matter which resulted to this appeal is as follows; before year 1993, the suit property was lawfully owned by the late Shabir Yusufali, but it was later allegedly sold to two persons; Anil Mohamed Visram and the first appellant in the year 1993 by the late Shabir Yusufali. The two buyers were deceased's tenants and close to the deceased to the extent that he left the suit property in the care of Anil Mohamed Visram when he fell sick and travelled to Canada for treatment. It was the respondent's assertion that when his father, the late Shabir was away for treatment, the first and third appellants took advantage of his absence and filed a land case in the Kisutu Resident Magistrate's Court, RM Civil Case No. 105 of 2000 whereupon they managed to obtain an ex parte judgment against the late Shabir and used the same to transfer the ownership of the suit property to their joint names. When the late Shabir returned from treatment in 1999/2000, he found himself being issued with an eviction order. He reacted by filing in the High Court, Civil Revision No. 105 of 2002 against the third and first appellants moving the High Court to call the record of the Resident Magistrate's Court of Dar es Salaam at Kisutu, Civil Case No. 105 of 2000 so as to examine the correctness, legality and propriety of the orders made therein. After hearing the said application, on 8th February, 2008, the High Court held that the Court of Resident Magistrate did not have jurisdiction to entertain the said case as the subject matter of the suit did not fall under the competence of the court which determined the matter. The court proceeded to quash the impugned ruling and ordered that the suit be transferred to the Regional Housing Tribunal for inquiry and determination. Following the grant of the said revision, the late Shabir applied to the Registrar of Titles to have his name restored in the register of titles. While in the process of doing so, he alleged it came to his knowledge that Anil Mohamed Visram had transferred his shares in the suit property to the third appellant in 2002. He further alleged that he discovered that the first and third appellants had subsequently sold and transferred the suit property to the second appellant in 2004. He was further notified by 3 the Registrar of Titles that the second appellant has presented for registration of variation of the mortgage of the suit property. It appears that the late Shabir filed Misc. Civil Application No. 72 of 2008 to restrain the appellants from disposing of the suit property. The record does not however, show what the outcome of the said matter was. The facts reveal further that the late Shabir passed away on 27th of January, 2012 and the respondent who was later appointed to administer the estate of his deceased father, filed the suit, the subject of this appeal against the appellants. When he was served with the plaint, Anil Mohamed Visram did not enter appearance and the trial court ordered the suit to proceed exparte against him. Anil Mohamed Visram was later reported to have passed away. In defence, the first appellant contended that he jointly purchased the suit property with the late Anil Mohamed Visram from the late Shabir in 1993 and tendered as an exhibit, a deed of transfer (exhibit Dl) showing that the suit property was transferred to them from the late Shabir. Further that the third appellant later in year 2000 purchased the shares of the late Anil Mohamed Visram and jointly owned the suit property with the first appellant. They together in 2004 sold the suit property to the second appellant as stated above. When defending herself, the second appellant contended that she legally purchased the suit property after conducting a due diligence at the Land Office, as such she is a bonafide purchaser. The appellants therefore, prayed for dismissal of the suit with costs. After analysing the evidence on record, the trial court decided in favour of the respondent. The appellants were not satisfied thus, decided to challenge the said decision in this Court armed with nine grounds of appeal as follows: - 1. That the learned trial judge erred In law and fact by failing to determine who, between Ishfaque Shabir YusufaU and the late Shabir Yusufali, was the plaintiff in Land Case No. 202 of 2103. 2. That the learned trialjudge erred in law and fact in deciding that the plaintiff's case was not time barred. 3. That the learned trial judge erred in law and in facts by determining the issue o f time limitation on the strength of facts not pleaded by the plaintiff but introduced by the trial Judge herselfcontrary to the law on pleadings. 4. That the trial judge erred in law and in fact by recognising the capacity of Ishfaque Shabir Yusufali to institute Land Case No. 202 o f 2013 and get reliefs in respect of the estate of the late Shabir Yusufali in the absence of valid letters of administration to prove that he was a legally appointed administrator of the estate. 5. That the trial Judge erred in law and fact by declaring the plaintiff to be the lawful owner of the suit property, while knowing that the Honourable trial court did not have jurisdiction to declare an administrator of estate a lawful owner of the estate he/she is appointed to administer. 6. That the trialjudge erred in law and fact in failing to endorse exhibits tendered in court in support of the 2nd, J d and 4h defendants'case. 7. That the trial Judge erred in law and in fact by her failure to analyse the evidence on record properly thereby reaching to a wrong conclusion that the plaintiff is the rightful owner of suit property. 8. That the trial judge erred in law and in fact by wrongly exercisingjurisdiction to grant relief or reliefs which were not prayed for by the plaintiff in the plaint. 9. That the trial judge erred in law and in fact by failure to pronounce the 2nd appellant the rightful owner o f the suit property irrespective of the evidence adduced by the Registrar of Titles who confirmed her ownership. Before us, the appellants had the services of Mr. Abdon Rwegasira, learned counsel, while Mr. Ashiru Lugwisa, learned counsel represented the respondent. Mr. Rwegasira began his submission in support of the appeal by praying to abandon the 5th, 6th and 8th grounds of appeal and argue the remaining grounds by categorizing them into two groups; first, grounds number 2, 3 and 4 which he submitted, contain matters of law, and second, grounds number 1, 7 and 9 which he stated to contain matters of facts. Mr. Rwegasira further adopted his written submissions filed on 8th November, 2019 and proceeded to address the 2nd and 3rd grounds collectively as they all hinge on time limitation. We wish to state from the onset that the Court will determine the grounds as they were argued. Mr. Rwegasira submitted that the issue of limitation was raised by the appellants as one of the additional issues for determination by the trial court when they filed their closing submissions. He further submitted that both parties addressed the issue before the trial court but the court rejected it, which he argued to be an error on the part of the trial court. It was his submission that, the decision was contrary to the pleadings and the evidence on record, thus, against the cherished legal principles of law. Elaborating on the stated contraventions, Mr. Rwegasira submitted that going by the plaint in paragraph 8 (iii) and (viii), the respondent had Informed the trial court that the late Shabir had travelled to Canada between 1999 and 2000 for medical treatment and in his absence Anil Mohamed Visram and the first appellant fraudulently converted the ownership of the suit property into their own names. Further that, when he returned to Tanzania, the late Shabir was issued with an order to vacate the suit property and he successfully filed application for revision No. 105 of 2002 to set aside the decision which had enabled Anil Mohamed Visram and the first appellant to become joint owners. Mr. Rwegasira went on to submit that the respondent called the widow of the late Shabir's who testified as PW3 to support this fact. He went on arguing that, PW3 testified that as a family, they knew that the name in the certificate of title was changed after they returned back from treatment in August, 1999. He referred us to page 247 of the record of appeal to back up his argument. He added that the said testimony was also confirmed by the respondent's final submission at page 511 of the record of appeal. It was the argument of Mr. Rwegasira that the pleadings as well as the evidence clearly show that Shabir and his family became aware of the transfer at least in August, 1999 when the late Shabir came back from Canada but until his demise in 2012, he never preferred any action to 8 challenge the said transfer of right of occupancy over the suit property. It was his contention that, going by the Law of Limitation Act, [Cap 89 R.E 2002, now R.E. 2019] (the Limitation Act) particularly Part I of the First Schedule which clearly prescribes the period of limitation for the recovery of land to be twelve years, the suit was time barred. He went on arguing that since the year 1999 was pleaded by the respondent in the plaint to be the year when the cause of action arose, the trial court was expected to go by the pleading and evidence on record and hold that the suit which was instituted in 2013 was time barred. Instead, the trial Judge held that time began to run for purpose of limitation, in year 2008, which did not feature in the pleadings. He further argued that neither the years 2002 when the late Shabir was alleged to have been ordered to vacate the suit premises, nor 2008 when the said eviction order was quashed through application for revision No. 105 of 2002 were pleaded to constitute time as to when the cause of action arose as decided by the trial court. It was his submission that, the trial court had its own cause of action as well as its own date of accrual, both of which do not feature in the pleadings nor supported by the evidence on record. Mr. Rwegasira therefore concluded that, the decision of the trial court is contrary to the settled law and practice on 9 the cause of action having been pleaded in the plaint as required. He cited the case of Robby Traders Limited vs. CRDB Bank PLC and Another, Civil Appeal No. 70 of 2012 and The Registered Trustees of Roman Catholic Archdiocese of Dar es Salaam vs. Sophia Kamani, Civil Appeal No. 158 of 2015 (both unreported) to substantiate his argument. He further insisted that the cause of action did not arise in 2008 as found by the trial court. Mr. Rwegasira argued that, though it was pleaded and there is also evidence on record that in 2008 the High Court granted revision application No 105 of 2002 and further exhibit PI was tendered to that effect, the application did not determine the ownership of the property in dispute which was determined in Land Case No. 202 of 2013, the subject of this appeal. In that regard, the respondent could not take refuge on the exclusion period provided under s. 21 (1) of the Limitation Act. Mr. Rwegasira elaborated that, the time the respondent spent prosecuting Civil Revision No. 2 of 2008 could only be excluded where the proceedings instituted is found on the same cause of action and was prosecuted in good faith in court which from the defect of jurisdiction or other cause of a like nature, is incompetent to entertain it. He however 10 argued that not to be the case in the matter at hand. He concluded that, basing on the legal principle that parties are bound by their own pleadings, the respondent could not seek reliance on s. 21 (1) of the Limitation Act. He therefore beseeched the Court to find the 2nd and 3rd grounds of appeal meritorious. In reply, Mr. Lugwisa argued that, the suit was instituted within time, as such the 2nd and 3rd grounds of appeal are meritless. To amplify his argument, he submitted that, according to paragraph 8 (iii) and (v) of the plaint, the issue in dispute concerned the transfer of title of the property in dispute. It was his submission that, the respondent did not know when the transfer was effected until when the late Shabir came back from Canada where he went for treatment. He went on to submit that, according to the Limitation Act, time starts to run for the purpose of limitation, when the plaintiff becomes aware of an act giving rise to a cause of action. He asserted that, in the matter at hand, the respondent successfully instituted Civil Revision No. 105 of 2002 to challenge the transfer immediately after becoming aware of the eviction order against him whereby the said decision was delivered in 2008. Thus, under s. 21 (1) of the Limitation Act, the period from the years 2002 until 2008 when the respondent prosecuted the said application, was to be ii excluded as decided by the trial court. In the premise, he added, the suit filed in 2013 was well within time. As regards the cases of Robby Traders Limited and The Registered Trustees of Roman Catholic Archdiocese of Dar es Salaam (supra) cited by Mr. Rwegasira, Mr. Lugwisa conceded the same to be relevant in this case but they do not assist the respondent in his arguments as the facts concerning the cause of action and the time when the same accrued as per the trial court's finding, were pleaded and thus the 2nd and 3rd grounds have no merit and ought to be dismissed. In his rejoinder, regarding the 2nd and 3rd grounds, Mr. Rwegasira submitted that there is no dispute that the cause of action arose between 1999 and 2000 when Shabir knew about the transfer of the ownership of the suit property and thereafter instituted Civil Revision No 105 of 2002 which was determined in 2008 in his favour. He however, insisted that, s. 21 (1) of the Limitation Act cannot apply in the circumstances of this case as the causes of actions differs in Civil Application No. 105 of 2002 and in Land Case No. 202 of 2013. Besides, even the parties in the two matters were not the same. He added that, in the circumstances, since the case was instituted beyond the period of 12 twelve years of the date of the cause of action, it cannot be salvaged by s. 21 (1) of the Limitation Act as argued by Mr. Lugwisa. Mr. Rwegasira reiterated his prayer to the Court to find that the case was instituted out of time and thus urged us to find that the two grounds have merits. He thus implored us to allow the appeal as a consequence. We, on our part, after a careful examination of the record and the rival submissions by the counsel, we are of the considered view that the main issues for consideration and decisions in the 2nd and 3rd grounds of appeal are as follows: - 1. Whether or not the suit was instituted beyond the period of 12 years prescribed by law, 2. If the answer is in affirmative, whether or not s. 21 (1) of the Limitation Act applies in the circumstances o f this case. Essentially, s. 5 of the Limitation 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. The law is further settled that; the right of action begins to run when one becomes aware of the said transaction or act which is complained of. See: Ramadhani Nkongela vs. Kasan Paulo [1988] T.L.R. 56. 13 As earlier stated, the respondent's claim at the trial court was for declaration that he is a legal owner of the suit property following the alleged conversion of ownership from the late Shabir to the appellants. Both counsel are at one that Shabir and his family became aware of the transfer of ownership of the suit property from his name into the names of the appellants when he came back from treatment. This fact was stated in paragraph 8 (iii), (v) and (viii) of the plaint. As to exact time when the said fact was known, PW3; the widow of the late Shabir categorically stated as follows when cross examined by Mr. Rwegasira and we wish to quote: - "What I know is that the title of my husband had been changed... They changed the title while we were in Canada. We knew that the name in the certificate of title was changed when we returned in August, 1999." [page 247 of the record of appeal] Flowing from the above testimony, it was in 1999 when the cause of action arose and it was from that year the time began to run for the purpose of limitation in the case at hand. It is the legal position as per Part I of the First Schedule to the Limitation Act, Item 22 that a suit for recovery of land is required to be instituted within 12 years from the accrual of the right of action. In the case at hand, the respondent 14 instituted the suit giving rise to this appeal (Land Case No. 202 of 2013) in 2013, which means, after the lapse of 14 years thus, beyond 12 years prescribed by the Limitation Act. The trial court held that the time began to run from 2008 when the decision with regard to application for revision No. 105 of 2002 was made. It is worth noting that in the said application, the respondent was seeking to revise the decision of the Court of Resident Magistrate in Civil Case No. 105 of 2002 in which the appellants were successfully granted the sought order to evict the late Shabir from the suit property. However, as rightly argued by Mr. Rwegasira, that fact was not pleaded in the plaint to constitute the cause of action in the said suit. In the Registered Trustees of Roman Catholic Archdiocese of Dar es salam (supra) the Court had observed as follows on the importance of pleadings: "7/7 civil litigation, it is through pleadings where parties establish their cases before adjudication. In that context therefore, pleadings are road map which should show the destination the parties to the case intended to reach..." With much respect to the Hon. trial Judge, we are of the firm view that the said finding which was not based on the pleaded fact, was not 15 correct. We hasten to add that the discussion to follow will address the issue whether or not the conclusion in the case at hand would have changed if the said time was pleaded. When refuting the contention by Mr. Rwegasira that the suit was filed out of the prescribed time limit, Mr. Lugwisa argued that the time spent when the late Shabir was prosecuting Application for Revision No. 105 of 2002, which was determined in 2008, was to be excluded under the provisions of s. 21 (1) of the Limitation Act. This brings us to the second issue as to whether or not s. 21 (1) of the Limitation Act is applicable in the circumstances of this case. We take liberty to reproduce that section to which the respondent placed reliance in his argument that the time spent in prosecuting Civil Revision No. 105 of 2002 ought to be excluded. For ease of reference we reproduce it below: - "21. -(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civii proceeding, whether in a court o f 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 16 good faith in a court which, from defect of jurisdiction or other cause of a tike nature, is incompetent to entertain it", [emphasis added] Interpreting the application of the quoted provision vis a vis the matter at hand, it is clear that, before the respondent can press into service the applicability of the said provision, he has to satisfy the following conditions among others:- one; the earlier proceeding from which the respondent is seeking to exempt the time spent prosecuting the same was rejected for want of jurisdiction or other cause of a like nature, two; that the earlier proceeding and the latter proceeding are founded upon the same cause of action or matters at issue, and three; he was prosecuting High Court Civil Revision No. 105 of 2002 with due diligence and in good faith. It is imperative to note that the two matters referred in this case are High Court Civil Revision No. 105 of 2002 from which the time spent prosecuting it is sought to be excluded and High Court Land Case No. 202 of 2013, the subject of this appeal. The Court had the opportunity to discuss the applicability of s. 21 (1) of the Limitation Act in among others, the case of Tanzania Cotton Marketing vs. COGECOT Cotton Company S.A., [2004] T.L.R. 132. In that case, the appeal was 17 against the decision of the High Court which found that the appeal was time barred. One of the arguments advanced by the advocate for the appellant was to the effect that, under s. 21 (1) of the Limitation Act, the period spent in prosecuting the proceedings between the same parties which terminated on 16th June, 1997 ought to have been excluded. The Court held that: - "In order for section 21 (1) to apply, and for time spent in prosecution o f another proceeding to be excluded, it has to be shown, inter alia, that other proceeding was prosecuted in a court incompetent to entertain it " The guidance from the above decision is applicable to the matter before us. Principally, the prior proceeding would have been failed on account of jurisdiction or cause of a similar nature. However, applying the condition above cited to the case at hand, it goes that Civil Revision No. 105 of 2002 was instituted in the High Court, heard and determined conclusively, thus, the same was not rejected since the court was competent to determine it. As such, the first condition was not fulfilled. Regarding the second condition; the High Court Civil Revision No. 105 of 2002 in which the time spent in prosecuting is sought to be excluded, concerned revising the eviction order granted by the Court of 18 Resident Magistrate while the proceeding in the High Court, Land Division concerned ownership of land. Looking at the distinction in the two matters, we can say without hesitation that the two are not founded on the same cause of action though both were instituted by the respondent. Again, the second condition was not fulfilled. That apart, the parties in the two cases were distinct also since in the Application for Revision which was determined by the High Court, the respondent sued the third and first respondents, but in the Land Case which was determined by the same court, the respondent sued Anil Visram together with first, second and third respondents. Considering that other conditions were not met, s. 21 (1) of the Limitation Act is not applicable in the circumstances of this case as rightly argued by Mr. Rwegasira. On that account, we wholly agree with Mr. Rwegasira that the suit which is the subject of this appeal was time barred when instituted in 2013 and ought to have been dismissed by the trial court under the provision of s. 3 (1) of the Limitation Act. We therefore find merit in the 2nd and 3rdgrounds of appeal. Since the 2nd and 3rd grounds are sufficient to dispose this appeal, we need not belabour on the merits of the remaining grounds of appeal. Consequently, we allow the appeal and proceed to quash the judgment 19 of the High Court of Tanzania, Land Division in Land Case No. 202 of 2013 and set aside the orders arising therefrom. The appellants shall have their costs. DATED at DAR-ES-SALAAM this 2ndday of August, 2022. A. G. MWAFOJA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL The Judgment delivered this 11th day of August, 2022 in the presence of Ms. Jonesia Rugemalila, learned counsel for the appellants and Mr. Ashiru Lugwisa, learned counsel for the respondent, is hereby certified as a true copy of the original^~N f] 20