LAND CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA LAND CASE NO. 6906 OF 2024 SELE MANI ISSA KIE MO 15T PLAINTIFF HUSSEIN MZEE CHI CHA 2ND PLAINTIFF MWAMVITA YUSUFU MARUZUKU (ADMINISTRATRIX OF THE ESTATE OF THE LATE AHMAD JUMA MARUZUKU JRD PLAINTIFF MWAMVITA YUSUFU MARUZUKU (ADMINISTRIX OF THE ESTATE OF THE LATE FATUMA DUNIA MARUZUKU 4TH PLAINTIFF FATUMA ZACHARIA 5TH PLAINTIFF SAD I KI JUMA MCHAKULA 6TH PLAINTIFF LELA ATHUMANI SHARANI 7m PLAINTIFF STU MAI OMARY NGARIBA gm PLAINTIFF MIKIDADI SAIDI ALLY gm PLAINTIFF ZUWENA ABDALLAH HAM IS 10TH PLAINTIFF MUSTAFA ABU MARIJANI 11 TH PLAINTIFF VERSUS KIGOMA UJIJI MUNICIPAL COUNCIL 15T DEFENDANT THE ATTORNEY GENERAL 2ND DEFENDANT RULING 1 07/08 & 08/11/2024 NKWABI, J.: The plaintiffs are suing the defendants praying for the upcoming reliefs: 1. The defendants jointly be ordered to pay to each and every plaintiff, an amount of compensation pleaded in paragraph 4 above, summing up to a total of T.shs 152,399,725/= being compensation for the plaintiff's respective shambas acquired by the 1st defendant for Kitongoni primary school and secondary school construction. 2. That, the defendants jointly be ordered to pay interest on the decreed sum at the commercial rate of 25% and court rate of 10% or any other rates as will be dully assessed by the honourable Court from 2014/2015 when valuation was commenced and completed in 2021 to the date of judgment and subsequently to the date of full payment. 3. That, the defendants jointly be ordered to pay T.shs five million (5,000,000/=) to each and every plaintiff equal to T.shs 55,000,000/= or any other sum as may be dully assessed by the honourable Court as general damages suffered by the respective plaintiffs. 4. Costs of this suit. 5. Any other reliefs deemed just and fit by the Court. 2 The written statement of defence lodged by the defendants was accompanied with a notice of preliminary objection. The preliminary objection has three fins of the legal point of objection which are: l. That the plaintiffs' claims for compensation is time barred contrary to Item 1 of Part 1 to the Law of Limitation Act [Cap. 89 R.E. 2019]. 2. That, the suit is unmaintainable in law for being pre-maturely instituted without issuing 90 days' statutory notice of intention to sue the Government contrary to section 6 (1), (2) and (3) of the Government Proceedings Act [Cap. 5 R.E. 2019] and section 106 (1) (a) and (b) of the Local Government (Urban Authorities) Act, Cap 288 R.E. 2002 as amended by section 33 of the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020. 3. That, the plaint is incurably defective for failure to contain the description of the disputed property sufficiently to identify it contrary to Order VII Rule 3 of the Civil Procedure Code, Cap. 33 R.E. 2019. The preliminary objection was disposed of by way of oral submissions. Mr. Ignatus Kagashe, learned counsel, represented the plaintiffs while Mr. Nixon Tenges, learned State Attorney, argued the preliminary objection for the defendants. I am immensely indebted to them for their eloquent 3 submissions. For the reasons that will be discernible in less than no time, however, I will only deal with the first fin of the preliminary objection. On the first stem of the preliminary objection, Mr. Tenges passionately contended that the suit is time barred under item 1 of part 1 of the Law of Limitation Act because under paragraphs 4, and 5 of the plaint the plaintiffs claim for compensation and added that in item one of the reliefs sought by the plaintiffs in this case, the plaintiffs claim for compensation. Mr. Tenges explained that the provision provides that claim(s) for compensation should be lodged in court within one year. He pointed out th that the 5 paragraph indicates that the valuation was done in the year 2021, so there is a lapse of three years since the cause of action arose and thus 12 months had lapsed. Mr. Tenges pressed that, communications with the pt defendant do not affect the law of limitation. He credited Kigoma Ujiji Municipal Council v. Ulimwengu Rashid t/a Ujiji Mark Foundation, Civil Appeal No. 222 of 2020, CAT. He beefed up that in the plaint there are no reasons that may exempt. Mr. Tenges stressed, under section 3(1) of the Limitation Act this suit be dismissed with costs. Responding to the submissions launched by his learned brother, Mr. Kagashe argued that the objection is misconceived. He intimated his view 4 that this suit is against the government so, limitation falls under the Law of Limitation Act at Part 1 item 23, which provides that the suits against the government could be brought within 6 years. Mr. Kagashe invoked the provisions of section 7 of the Law of Limitation Act and section 27(1) (b ), stressing that where there is continuing breach, like here where the defendant took the land and ought to pay compensation under the Land Acquisition Act. He stressed that where the 1st defendant failed to pay the compensation, then there is continuous breach. Mr. Kagashe explained that where there is a last promise to pay, or acknowledge the compensation, then time starts to run from then. Mr. Kagashe further elaborated that the defendants promised to pay in st the year 2022, then, if time is calculated from where the 1 defendant promised to pay, 6 years have not lapsed. He pressed that there is no proof of acquiring the piece of land in accordance with law by publishing the acquisition in government gazette. Then, the government is trespasser, Mr. Kagashe explained and added that then, the plaintiffs have the right to claim for compensation within 12 years under Part 1 item 22. Mr. Kagashe finally prayed the 1st limb of the preliminary objection be overruled. 5 The reply submission unsettled Mr. Tenges. He clearly told the Court that he had to make a rejoinder submission. In that rejoinder address he maintained that the provision of the law which has been referred by Mr. Kagashe Part 1 item 23 of the law of limitation Act is inapplicable in this case because this suit is against the government. He denied there was any continuous breach. The last communication was that the plaintiffs were promised to be paid in the year 2021/2022 fiscal year. Then calculation indicates that the suit is out of time. The suit was filed after 19 months. So, the suit is time barred. He argued that the case of TUCTA (supra) is distinguishable to the present case. I have had an ample time going through the submissions by both counsel. I appreciate that it is common ground that this suit is about compensation for a piece of land allegedly acquired by the local government the 1st defendant. I would like to make it very clear at this point that the arguments of Mr. Kagashe, enticing as they are, should be considered in conjunction with the rule that lower courts are bound by the decisions of the Court of Appeal, which I have no doubt that Mr. Kagashe is aware of the same. Just to remind the parties to this case, in Juwata v. Kiuta, Civil Appeal No. 29 of 1987, (Unreported) (CAT) it was held that: "Under our common law doctrine of precedent; which is one of the pillars of the law of the Lena. all courts and 6 tribunals below this Court are bound by the decisions of the Court regardless of their correctness. // That being the position, while I appreciate the firm position of the Court of Appeal in the case of TUCTA (supra) that the law frowns at unjust enrichment, therefore trade unions cannot be an exception and that there is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs since the root principle of law married to justice, is ubijus ibi remedtam. yet there is the decision in Kigoma Ujiji Municipal Council v. Ulimwengu Rashid t/a Ujiji Mark Foundation, Civil Appeal No. 222 of 2020, CAT where it was ruled that: "That being the case, and as correctly argued by Ms. Lupondo, the respondent's suit founded on a claim for compensation ought to have been instituted within the period of twelve (12) months from October, 2014 when the cause of action accrued and not otherwise. Thus, the respondent's suit being lodged on 2flh November, 2016 after lapse ofmore than two (2) years was definitely time barred." 7 In the case under my consideration, according to the 8 th paragraph of the plaint, the last promise to pay is through a letter dated 4th September 2020 that compensation would be done in financial year 2021/2022. Under paragraph 10 valuation for compensation was completed in 2021. Therefore, it occurs to me that this case is identical about limitation of time to sue like in Ulimwengu's case (supra) in which the appellant had valuated the land in the subject of the dispute just like in this case the 1st defendant has. In the present case, the cause of action therefore accrued in 2021 but this suit was filed in 2024 more than 2 years, which according to Ulimwengu's case (supra) this suit instituted for claiming for compensation is time barred. If the plaintiffs are strongly convinced that the position that there is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs since the root principle of law married to justice, is ubi Jus ibi remedium. is available to them in this suit, they should take up the matter to the Court of Appeal, in accordance with the law, for the Court of Appeal to consider it, but this Court has its hands tied up. Mr. Kagashe too argued that the government is trespasser in this case. I have checked all the paragraphs of the plaint, I have seen nowhere it is 8 so alleged. I would like to remind the counsel for the plaintiffs that parties are bound by their pleadings, so, is this Court. I reject the proposition at this stage for that reason. All in all, since the suit is time barred, the result is that this Court has no jurisdiction to entertain it. It is obligatory on me, therefore, not to consider and determine the other branches of the preliminary objection because I have no jurisdiction to do so. For avoidance of uncertainty, I rule that the preliminary objection on time limitation is not misconceived as Mr. Kagashe wanted this Court to take it because even in the case of Ulimwengu (supra), the suit was against the government. In fine, I rule that this Court has no jurisdiction to entertain this suit because suit is time barred in terms of Ulimwengu's case (supra). I proceed to dismiss the suit with costs. It is so ordered. DATED at KIGOMA this sth day of November, 2024 JUDGE 9