LAND CASE 5400 OF 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 5400 OF 2024 SUHEL MOHAMED JAFFER HABIB ABDULLA (As Administrator of the Estate of the Late Habib Abdulla Janmohamed) PLAINTIFF ROSHANALI 3AFFERALI MERALI (As Administrator of the Estate of the Late Jafferali Mohamed Meralli) 2ND plaintiff MOHSINALI ABDULRASUL ALINHAI PANJU (As Administrator of the Estate of the Late Nazerali Alibhai Panju).... 3*^'^ PLAINTIFF HUSSEIN RAMZANALI VALLI RAHAMTULLA (As Administrator of the Estate of the Late Ramzanali Valli) —- 4TH PLAINTIFF VERSUS NATIONAL HOUSING CORPORATION 1ST defendant THE HONOURABLE ATTORNEY GENERAL 2ND defendant RULING 29/05/2024 to 25/06/2024 E.B. LUVANDA, J The First and Second Defendant raised preiiminary objections embedded into their joint written statement of defence, asking for dismissai of the suit on the ground that: One, this Court has no jurisdiction to determine this matter; Two, 1 the matter is incompetent before this Court for non-joinder of necessary party; Three, the suit is res judicata-, Four, the suit is time barred. The learned State Attorney for the First and Second Defendant, submitted that the position of the law is very clear jurisdiction is a statutory creature. H submitted that in our case at hand, the materially contention is in regard to the ownership of Plot No. 39 Chuma Road, Dar es Salaam registered under Certificate of Title No. 186068/12. He submitted that this conflict is not a new matter before this Honourable Court. He submitted that it not disputed that the property in dispute was acquired by the Government in 1971 and was gazetted via Government Gazette Number. Vol. LII NO 22 dated 25th June 1971. He submitted that on 23rd March, 2010 and due to reasons not known to the Defendants , malafidely the Plaintiff with other persons applied to the Registrar of Title to transfer the certificate of title to the Board of Trustee of the Registered Trustees of the Federation of Khoja Ithna Asheri Jumaats of Africa pretending to be acting on the instruction of the former owners of the suit premises. He submitted that the Plaintiffs engineered the action and were happy to snatch the suit premises from the Government using their Religious Organization until the Registrar decided to rectify the error in the Land Register in 2011. He submitted that the Plaintiffs as alleged in paragraphs 8 to 10 of the Plaint are aggrieved by this decision since they do not dispute the facts that the property was acquired, arguing that the acquisition was done by operation of law by time been in force, citing section 10(3) of the Acquisition of Building Act of 1971 (Repealed in 1990), for a proposition that it established the Appeal Tribunal which deals with all grievances arising from. He submitted that the Plaintiffs are questioning the action done by law in 1971. He submitted that the fact that the names of their relatives appear in the land register did not defeat the fact that their property was acquired and there is no any other decision done by the Appealate Tribunal to change the status. He submitted that the fact that this law was repealed in 1990 by section 42 of the National Housing Act, Appeal Tribunal were dissolved there is no Court vested with jurisdiction to determine any matter arising from the acquisition of the Building done by operation of law in 1971, arguing this was done purposely to have closure of the matters and grievances arising from the acquisition process, citing Sospeter Kahindi vs Mbeshi Mashini, Civil Appeal No. 56 of 2017 CATMWANZA, for a proposition that parties cannot confer jurisdiction to a court or tribunal that lacks that jurisdiction. He submitted that another reason as to the question of jurisdiction of this Court is that the Plaintiffs herein lacks the locus standi in this matter. He submitted that the allegation of Plaintiffs to be the legal representatives (administrators) are with no proof of their appointments by the competent authority (the Court) for that effect, arguing they have no legal ground to institute a case to prove before the Court. He cited Michael Gabriel Mihayo v. National Housing Corporation & 2 Others Misc. Land Application No. 4755 of 2024; Registered Trustee of SOS Civil Children's Ullages Tanzania v Igenge Charles & 9 Others, Application No.426/08 of 201 8, for a proposition that for there to be locus standi, a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. He submitted that after a person has passed away, it is only the administrator of the estate who has locus standi to bring and defend a suit on behalf of the deceased. He submitted that there is nothing like endless administration or a lifetime administrator in our laws, citing Beatrice Brighton Kamanga v Ziada Wiliiam Kamanga. Point number two, to the second point that, the matter is incompetent before this Honourable Court for non-joinder of the necessary party. He submitted that since the suit property is registered, a competent authority to clear doubt in this issue is a Registrar of Titles who Is not a party in this case. He submitted that the background of this conflict cannot be distinguished from the decision of the Registrar of Titles to rectify the registration of Plaintiffs' interests 5 in the Property under the umbrella of the Registered Trustees of the Federation of Khoja Ithna Asheri Jumaats of Africa in 2011, arguing that the Plaintiffs ought to have joined the Registrar of Titles as a necessary party for determination of an issue of who is a rightfui owner over the suit property. He cited Abdullatif Mohamed Hamis v. Mehboob Yusuf Osman & Fatna Mohamed, Civii Revision No.6 of 2017, CAT-DSM, Mussa J.A. Point number three, the matter is res judicata. He submitted that the matter is directiy and substantiaiiy in issue as in a former Misc. Land Appeai No. 1 of 2012. He submitted that on paragraphs 8 of the piaint, the plaintiffs claim that in 1958 the suit property was registered in the names of their deceased relatives, and that in paragraphs 9 they do not dispute the fact that in 2010 the suit premises was registered in the names of the Registered Trustees of the Federation of Khoja Ithna Asheri Jumaats of Africa. He submitted that in paragraph 10 averred that the 1 st Defendants unlawfully removed the names of Registered Trustee of Federation of Khoja Ithna Asheri Jamaats of Africa from the Land Register. He submitted the view that this case is the continuation of the Land Appeal number 1 of 2012 which was decided against the Plaintiffs who are currently posing as the Administrators of the estate of the late owners of the suit premises, for explanation that since they knew that they were time- barred from challenging the action done by the Registrar of Titles and or Acquisition of building process done by the Government in 1971, they opted to file this fresh suit on behalf of the Board of Trustee of Khoja Ishnaasheri Jamaat of Africa. He submitted that the jurisdiction of this Court in regards to this matter is limited only to what is provided under Section 102 of the Land Registration ' Act [CAP. 334 R.E 2019], arguing that to present a fresh Land Case is to abuse of Court process which should not be entertained for the best interests of justice, citing Bandugu Gining Co. Ltd vs. CRDB Bank PLC and Others, Civil Appeal No.265 of 2019. Regarding the last point that "the matter is time-barred' he submitted that the claims in this suit cannot be distinguished from the decision of the Registrar of Titles to rectify the Land Register hence affecting the Plaintiffs' interests in the property under the umbrella of Registered Trustees of the Federation of Khoja Ithna Asheri Jumaats of Africa in 2011 as stated clearly in paragraphs 8 to 10 of their plaint. He submitted that it's a trite position of the law that claims of interests in land matters lasts for only twelve years from the date when the cause of action came into knowledge of the complainant. He submitted that counting from the date of acquisition to date is 52 years and from the year of rectification to date, it's more than twelve years hence the Plaintiffs is limited by law to bring this suit In reply, Ms. Neema Mahunga learned Counsel for Plaintiff, started with the first point that "this honorable court has no jurisdiction to determine this matter" She submitted that, it should be noted that they are not challenging the acquisition of the suit property as alleged by the Defendants, arguing that the Plaintiffs are accusing the Defendants for trespassing into their property, which is continuing trespass for reasons that the Defendants are still in possession of the suit property to date. She cited annexure P4 (which is annexed in paragraph 13 of the plaint), letter with Ref. No. LR/T/186068/12/46 dated 25th June 2019 from the Registrar of Title, for that the Registrar confirmed to the Plaintiffs that as per his records, the suit property is in the names of the Plaintiffs. She submitted that the Defendants acknowledges that the Registrar of Title rectified land records in 2011, arguing they do not inform the court whose name has been entered into the register as the owner of the suit property after the said rectification, was it the Defendants? or the Plaintiffs? It was her submission that the court can only determine all these questions when It hears the suit to its merit when all parties will tender their evidence. She submitted that the Plaintiffs at paragraph 15 of the plaint states the value of the suit property to be about TZS 1.5 billion, arguing this court has pecuniary jurisdiction to entertain the matter. She submitted that the issue of locus standi cannot be determined at this stage. She cited Sweetbert Mathias Kutaga (duly constituted Attorney of Aiiraza Kasamaii Rajani) versus Eugenia Rutatora and 3 Others, Civil Appeal No. 565 of 2023, Court of Appeal of Tanzania at Dar es Salaam (unreported) at pages 15 and 16 the court held that: On point number two, the learned Counsel cited Infosys IPS (T) LTD versus Azania Bancorp Limited and 2 Others, Commercial Case No. 288 of 2002 at page 2, for a proposition as to who is a necessary parties and proper parties as hereunder: She submitted that in presence of annexure P4 from the Registrar of Titles who confirmed the suit property to be registered in the name of the Plaintiffs, the Plaintiffs does not have any claim against the Registrar of Titles. She submitted that Registrar of Titles is not a necessary party as alleged rather a proper party, arguing the Plaintiffs were in discretion either to include him as the Defendant or not, and that their non inclusion does not bar the Plaintiffs or the Defendants from calling the Registrar of Titles as witness. She submitted that the Plaintiffs' reliefs have no connection to the Registrar of Titles and in any how their execution requires his involvement. She cited Order I Rule 3 of the Civil Procedure Code, Cap. 33 [R.E 2019] for a proposition that a person may be joined as a Defendant to a suit if right to relief exists against himShe submitted that there is no relief which they sought from the Registrar of Titles. She cited the case of Juliana Francis Mkwabi versus Lawrent Chimwaga, Civil Appeal No. 531 of 2020, Court of Appeal of Tanzania at Dodoma (unreported) at page 10. She submitted that that in absence of Registrar of Titles as a party to this suit, the Court may pass an executable decree since no relief is sought against the Registrar of Titles. Point number three that "the matter is res judicata" She submitted that though the subject matter of the suit property being Plot No. 39, Chuma Road, Dar es Salaam, arguing there is no decree of the court which either declared the 1st Defendant as a rightful owner of the suit property for Section 9 of CPC to be invoked. She submitted that in the current suit the Plaintiffs are praying that the Defendants be ordered to vacate suit premises because they have been possessing the property without any legal justification. She cited the case of Ester Ignas Luambano versus Adriano Gedam Kipalile, Civil Appeal No. 91 of 2014, Court of Appeal of Tanzania at Zanzibar (Unreported). She submitted that the prerequisites set out in the case above, do not exist in the present suit. She submitted that submit that Misc. Land Appeal No. 01 of 2012 and the present suit are two different issues, and that the allegations that the Plaintiffs filed this suit on behalf of JAMAAT are baseless and there is no evidence backing up the same. She submitted that the parties in the said appeal and the issue which the court was called to determine in that appeal are different from the present suit, arguing section 9 of the CPC does not apply especially when there is no decree which declares ownership of the suit property as required under Section 9 of CPC. Regarding the last point of preliminary objection that "the matter is time barred" She submitted allegations by the Defendants are issues of facts which the court needs to look at evidence to determine the same, arguing it lacks prerequisites of being pure point of law. She submitted that the cause of action is not rectification of the registry by the Registrar of Titles or acquisition of the suit property as alleged by the Defendants, arguing it is a continuation trespass by the 1st Defendant who are in suit property to date. She submitted that from 25th June 2019 to date the 1st Defendant is still in possession of the suit property and thus the trespass which is claimed to have been done by the 1st Defendant is in continuation. She submitted that from 25th June 2019 when the Registrar of Titles confirmed on the ownership of the suit property it is when the cause of action arose and since there is continuation trespass, arguing the Plaintiffs are not time barred. On my part I will deal with the last point that the matter is time barred. It is common ground that the claim by the Plaintiffs is whole hinged on the rectification of the register which was effected by the Registrar of Titles on 10/11/2011 by an order of cancellation of transmission of the suit property to the Registered Trustees of the Federation of Khoja Ithna-Asheri Jamaats of Africa dated 23/03/2010 and in lieu thereof maintained the status quo by re instating in the register the names of Mohamedali Meralli, Nazerali Alibhai Panju, Ramzanali Valli, and Mohamedaii Dhalla Ismail (as Joint Tenants). The learned State Attorney submitted that the suit was preferred after expiry of twelve years 10 to sue for recovery of land counting from the date of rectification. The learned ’ Counsel for the Plaintiff submitted that all the allegations are issue of facts which the Court need to look on evidence to determine it. She submitted that the cause of action is not rectification by the Registrar of Titles, rather continued trespass by the First Defendant. To my view, this suit is time barred. The rectification complained off was done on 10/11/2011. Meaning that at the time of suing on 14/03/2024, already twelve years and four months had expired. It is the law that the period of limitation to sue for a claim or suit to recover land is twelve years, see item 22 of Part I to the Schedule of the Law of Limitation Act, Cap 89 R.E. 2002. Therefore, this suit is barred by time. The last preliminary objection is sustained. And so far this point alone is capable to dispose the whole matter, I cannot venture deliberating on other points raised. The suit is dismissed with costs. Judgment delivered in the presence Ms. Neema Mahunga learned Counsel for the Plaintiffs, Ms. Joyce Yonazi State Attorney for First and Second Defendants. 12