SHABAN OMARI NZUKI VS KILEO VILLAGE COUNCIL AND ANOTHER

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND CASE NO. 3620 OF 2024 SHABAN OMARI NZUKI (suing as administrator of the estate of the late Omari Nzuki Mtinda) ...……………………….……….……........ PLAINTIFF VERSUS KILEO VILLAGE COUNCIL ……………………...…… 1ST DEFENDANT THE ATTORNEY GENERAL .................................. 2ND DEFENDANT RULING 23/09/2024 & 18/10/2024 SIMFUKWE, J. The plaintiff, as the administrator of the estate of his late father Omari Nzuki Mtinda, filed a case against the defendants for trespassing on 40 acres of land owned by his father, located at Kileo Village within Mwanga District in Kilimanjaro Region. In the Written Statement of Defence, the defendants' counsel raised the following preliminary objections: 1 1. That the suit by plaintiff is time barred 2. That the suit by the plaintiff is bad in law for non- joining the District Executive Director as the necessary party 3. That the suit before this court is bad in law for being filed in contravention of the provisions of Law of Limitation Act 4. The suit is res subjudice to Application No. 12 of 2023 pending at the District Land and Housing Tribunal of Mwanga. At the hearing of the preliminary objections, the plaintiff was represented by Emmanuel M. Ntungi, learned counsel, while the defendants were represented by Mr. Edwin Bayona Lusa, learned State Attorney. The preliminary objections were argued through written submissions. On the first and third grounds of objection which are in respect of time limitation, the learned State Attorney criticized the administrator for failing to initiate the case for more than 30 years. He said that the late Omari Nzuki Mtinda died on June 14, 1991 and the plaintiff was appointed on January 30 2023, 32 years after the death of his father. It was submitted that the right to recover the land of the deceased person accrues from the date of death of the deceased as provided under section 9(1) of the Law of Limitation Act, Cap 89 R.E 2019, and Item 22, Part 1 of the 2 Schedule of the Law of Limitation Act. The provisions prescribe 12 years as the period of limitation to recover land. Thus, the administrator was obliged by the law to institute the suit within twelve years. He asserted that, at the time of appointment, the right to sue had elapsed. Mr. Lusa cited the cases of Gumba Adamu Kasomo (the administrator of estate of the late Adam Selemani Kasomo) vs. Lucka Selemani Kasomo, Misc. Land Application No. 32 of 2021 (HC), Msamu Saidi (Administrator of estate of Said Mbwana) vs. Kisarawe District Council and 4 Others, Land Case No. 177 of 2019, High Court at Dar es Salaam and Iddi Rashid Mbogho (As Administrator of estate of the late Rashid Mbogho Mshana) vs. Kilaweni Village Executive Officer and 2 Others, Land Case No. 03 of 2023 at page 7, (HC), which interpreted section 9(1) of the Law of Limitation Act, which states that the cause of action accrues on the date of death. From the cited authorities, Mr. Lusa stated that it is clear that the present suit was filed out of time and should be dismissed under Section 3(1) of the Law of Limitation Act (supra). On the second objection, Mr. Lusa contended that the suit was defective for failing to join the District Executive Director as a necessary party, 3 contrary to section 26 of the Local Government (District Authorities) Act, Cap 287 R.E 2002, as amended by Section 30(3) of the Written Laws (Miscellaneous Amendments) Act, No. 1 of 2020. According to the learned State Attorney, non-joinder of the District Executive Director renders the present suit legally incompetent. To support his argument, he cited the case of Edward Thomas Luhanga vs. Sinjilili Village Council and Attorney General, Land Case No. 37 of 2022 (HC), and concluded that the suit should be dismissed for non- joinder of the District Executive Director. In respect of the fourth preliminary objection, Mr. Lusa averred that this suit is res sub judice to Application No. 12 of 2023, which is pending before the District Land and Housing Tribunal for Mwanga, which was instituted by the plaintiff. He elaborated that in the said application, the claim is the same as the claim in this suit, as evidenced by Annexure KL 2 attached by the defendants. He stated further that it is well settled under section 8 of the Civil Procedure Code, Cap 33 R.E. 2019, that: “No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or 4 between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed.” From the foregoing submissions, Mr. Lusa concluded that this suit is unmaintainable and should be dismissed with costs. In response to the first and third grounds of objection, Mr. Ntungi submitted that the trespass on the suit land occurred in 2022, while the case was instituted on 19th April 2023, which is approximately three years later. Thus, the issue of ownership could not be raised in the absence of trespass. He argued that prior to that the plaintiff had no material facts that would prompt him to institute a land case against the defendants. He cited the case of Mshamu Said (Administrator of the Estate of Said Mbwana) vs Kisarawe District Council and Others, Land Appeal No. 177 of 2017 (HC) to support his position. He highlighted that this suit was filed within the prescribed time. Opposing the second ground of non-joinder of the District Executive Director as a necessary party, Mr. Ntungi made reference to Black's Law Dictionary, 8th Edition which defines a necessary party, to mean: 5 “a party who, being closely connected to a lawsuit should be included in the case if feasible, but whose absence will not require dismissal of the proceedings.” To the same effect Mr. Ntungi cited the cases of Tang Gas Distributors Limited vs Mohamed Salim Said and 2 Others, Civil Application for Revision No. 68 of 2011 (Unreported), and Abdulatif Mohamed Hamis vs Mehboob Yusuf Osman and Another, which cited the Indian case of Baranes Bank Ltd vs Bhagwandas A.I.R (1947) All 18. The learned counsel continued to submit that applying the tests underscored in the cited decisions, the question is whether in the circumstances of this case, the District Executive Director is a necessary party whose joinder in the proceeding is of imperative need. He replied that in the present matter, the District Executive Director is not a necessary party, as the suit ultimately requires the court to issue an order compelling the Kileo Village Council to vacate the suit land. It was his opinion that this order can effectively be enforced by having the Kileo Village Council and the Attorney General as parties, pursuant to section 6(3) of the Government Proceedings Act [Cap 5 R.E. 2019]. He noted 6 that the said provision does not impose a mandatory requirement to join the District Executive Director as a necessary party. In addition, the learned counsel argued that it is trite law under Order I Rule 9 of the Civil Procedure Code [Cap 33 R.E. 2019] that a suit cannot be defeated on the reason of misjoinder of parties. He substantiated the position by citing the case of Enoshi N. Lukuwi vs CRDB Bank PLC, Civil Case No. 126 of 2020, at page 4 (HC). The learned advocate insisted that the District Executive Director is not a necessary party in this matter, as he is not indispensable to the constitution of the suit, and his absence will not affect the decree or order. Responding to the fourth objection regarding the claim that the suit is res sub judice; Mr. Ntungi on the outset noted the principle that a preliminary objection must be based purely on a point of law. He supported his submission with the case of Mukisa Biscuit Manufacturing Company vs West End Distributors Limited [1969] E.A. 696, which emphasized that a preliminary objection cannot be raised if any fact has to be ascertained. 7 Having established the above legal position, Mr. Ntungi alleged that the learned State Attorney, while supporting the fourth ground of objection, referred to Annexure KL 2 as evidence to his argument. Mr. Ntungi contended that, it is clear that sustaining this ground of preliminary objection will require the court to rely on facts and evidence to ascertain as opposed to the principle expounded in Mukisa Biscuits (supra). He stressed that this ground does not qualify to be regarded as a pure point of law, and sustaining it would result in a miscarriage of justice. Notwithstanding the above arguments, in reply to the gist of the fourth ground of objection, Mr. Ntungi started by stating the meaning of the doctrine of res sub judice to mean the legal policy which limit the plaintiff to a single lawsuit avoiding the possibility of two contradicting decisions from the same court on the same issue. He quoted section 8 of the Civil Procedure Code (supra) to that effect. He further expounded that the essence of section 8 is that the matter in issue must be directly and substantially the same as in the previously instituted suit. He supported his argument by citing the Indian case of Guru Prasad Mohanty and Others v. Biyoj Kumar Das, AIR 1984 I OLR 447 which held inter alia that: 8 “The purpose of this clause is to safeguard a person from several legal proceedings and to prevent a conflict of decisions. It also tries to minimize the parties’ discomfort and effect to the law of res judicata….” Mr. Ntungi continued by submitting that, for the doctrine of res sub judice to apply, the following conditions must be met: First, there must be two suits, one previously instituted and another subsequently filed; second, the issues in both suits must be directly and substantially the same; third, the pending matters must involve the same parties; fourth, the courts in which the matters are pending must be competent to grant the relief sought; and fifth, the parties must be litigating under the same title. Looking at the matter at hand, Mr. Ntungi noted that Application No. 12 of 2023 before the District Land and Housing Tribunal for Mwanga is no longer pending as the plaintiff had withdrawn the same on 21st February 2024. Furthermore, the parties in the present case are Shaban Omari Nzuki versus Kileo Village Council and the Attorney General, whereas in the alleged Application No. 12 of 2023, the parties were Shaban Omari Nzuki versus Phillipo Samson. Thus, the essential elements for the doctrine of res sub judice to apply are lacking. 9 In the final analysis, Mr. Ntungi prayed that the preliminary objections be dismissed with costs. Having carefully considered the submissions of the parties and their pleadings, the issue is whether the preliminary objections hold water. On the first and third points of objection, Mr. Lusa argued that the suit is time-barred. His reasoning was based on the fact that the late Omari Nzuki Mtinda died on 14th June 1991, and the plaintiff was appointed to administer the estate 32 years later, on 30th January 2023. He commented that, when he was appointed, the time to institute the suit had already lapsed. On the other hand, the learned counsel for the plaintiff argued that the issue of trespass arose in 2022 and that the present matter was instituted in 2024. I have carefully examined the pleadings, particularly at paragraph 9 and 10 of the amended Plaint, where the plaintiff avers that the letter to restrain the plaintiff was issued by the 1st defendant on 6th December, 2022. It was received on 23rd May 2023. 10 Therefore, with all due respect to Mr. Lusa, as rightly submitted by Mr. Ntungi, and as explicitly stated in the Plaint, the cause of action arose in 2022 and not otherwise. The cause of action cannot be said to have accrued from the time of the deceased's death, as there were no material facts to institute a case against the defendants at that time. The provisions of the Law of Limitation Act are inapplicable in the circumstances of this case. Thus, it goes without saying that the 1st and 3rd grounds of objection are devoid of merit. Turning to the second preliminary objection, Mr. Lusa strongly submitted that the suit is bad in law due to the non-joinder of the District Executive Officer, as a necessary party. He anchored his argument on section 26 of the Local Government (District Authorities) Act (supra), as amended by section 30(3) of the Written Laws (Miscellaneous Amendments) Act (supra). In opposition, Mr. Ntungi, learned counsel for the plaintiff, submitted, with reference to several authorities, that the District Executive Director was not a necessary party, as the Village Council and the Attorney General were already joined. He further argued that the relief sought by the 11 plaintiff could be effectively executed against the Village Council and the Attorney General as parties. He relied on section 6(3) of the Section 26 of the Local Government (District Authorities) Act, Cap. 287 as amended by section 30(2) of the Written Laws (Miscellaneous Amendment) Act, No. 1 of 2020 provides that: “The principal Act is amended in section 26, by adding immediately after subsection (2) the following: (3) Notwithstanding subsection (2), the District Executive Director shall have the right to be joined as a party in any suit or matter instituted by or against the Village Council, and for that purpose the Village Council shall have a duty to notify the District Executive Director of any impending suit or intention to institute a suit or matter against the Village Council.” Before determining whether the DED was a necessary party or not, let me construe the above provision. It is the interpretation of this court that the above provision grants the right to the DED to be joined as a necessary party whenever the Village Council sues or is sued. Nevertheless, the 12 provision places the duty on the Village Council to notify the District Executive Director of any impending suit or intention to institute a suit or matter against the Village Council. Thus, the plaintiff cannot be blamed for not joining the DED, as it was the defendant who failed to fulfil his duty to inform the District Executive Director. This position inevitably leads me to address Mr. Ntungi's argument whether the District Executive Director is a necessary party or not. It is the considered opinion of this court that since it is the duty of the Village Council to inform the DED. Otherwise, as rightly submitted by Mr. Ntungi, when the Village Council is sued together with the Attorney General, the DED is not a necessary party, as the relief sought, if granted, can be enforced in the absence of the DED. Moreover, the Attorney General can effectively defend the interests of the District Council, if any. With due respect to Mr. Lusa, the case of Edward Thomas Luhanga (supra) is distinguishable from the present case. In the said case, this court categorically stated that it was the duty of the Village Council to inform the DED of the existence of the suit, not the duty of the plaintiff. Furthermore, the said case was struck out because the notice of intention 13 to sue was issued to Chunya District Council, which is a different authority from the Sijilili Village Council. Having said that, the second preliminary objection is also without merit. Lastly, on the fourth ground, Mr. Lusa, relied on Annexure KL 2 attached to the defendants’ Written Statement of Defence and submitted that the present suit is res sub judice to Application No. 12 of 2023, which was pending before the District Land and Housing Tribunal for Mwanga at Mwanga. In opposition, Mr. Ntungi contended that the said application is no longer pending as it was withdrawn in February 2024. Furthermore, he submitted that the parties in the said application were not the same as in the present suit. This ground does not warrant prolonged discussion. Upon a careful perusal of Annexure KL 2, which constitutes a summons directed at the respondent by Mwanga District Land and Housing Tribunal, it is evident that the parties in that case are Shabani Omari Nzuki as the applicant versus Phillipo Samson as the respondent. In the present suit, the parties are definitely different as the plaintiff is Shaban Omari Nzuki (in his 14 capacity as the administrator of the estate of the late Omari Nzuki Mtinda) versus Kileo Village Council as the 1st defendant and the Attorney General as the 2nd defendant. In view of the foregoing, and as rightly submitted by the learned counsel Mr. Ntungi, the first element of the doctrine of res sub judice, as prescribed under section 8 of the Civil Procedure Act (supra) is missing. Accordingly, this ground of objection is devoid of merit. In conclusion, I find that the raised preliminary objections lack substance. Consequently, the preliminary objections are hereby overruled with costs. The main suit shall proceed for determination on merit. Dated and delivered at Moshi this 18th day of October 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 18/10/2024 15 16