20030515 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MAKAME, J. A., KISANGA, J. A. AND RAMADHANI, J. A.) CIVIL APPEAL NO. 64 OF 1999 BETWEEN 1. THE NATIONAi,. HOUSING CORPORATION 2. MINISTER, LANDS, HOUSING AND URBAN DEVELOPMENT ......................... APPELLANTS AND TURABALI GULAMALI ABDULRASUL (EXECUTOR OF THE ESTATE OF GULAMALI ABDULRASUL SATCHU) .................... RESPONDENT (Appeal from the ruling and order of the High Court of Tanzania at Dar es Salaam) (Msumi, J. K.) dated the 13 th August, 1998 in Misc. Civil Case No. 44 of 1997 JUDGEMENT ------------------- RAMADHANI, J. A.: The dispute if over Plot No. 1975/55 situate along Zanaki/Kaluta/Bridge Streets in Dar es Salaam. It is admitted that I ' . t the building that was on this plot, now demolished, belonged to Gulamali abdulrasul Satchu, now deceased. Also there is no dispute that the respondent, Turabali Gulamali Abdulrasul, is the surviving Executor of the deceased. At the wake of the Acquisition of Buildings Act, 1971, the deceased was under an impression that the building had been nationalized. When the building on the disputed plot was demolished, the plot was given to the · Dar es Salaam City Commission, the third respondent in the litigation, for development. The Executor claims that in September, 1997, he realized that the building had not been acquired and hence he applied for prerogative orders of certiorari and mandamus to have the plot restored to the estate of the deceased. The application was against The Ministe(for Lands, Housing and Urban Development as the first respondent, The Registrar of Titles as the second respondent, The Dar es Salaam City Commission as the third respondent and The National Housing ,· Corporation as the fourth respondent. For clarity we shall refer,to · these former respondents, who are now appellants, by their nam_es 2 I, and we shall refer to Turabali Gulamali Abdulrasul, who is the respondent in this appeal, simply as the Executor. One of the is5.ues in the application was whether or not the buildings was legally acquired under the Acquisition of Buildings Act, 1971. However, a preliminary objection was raised on a number of grounds one of which was limitation: the purported acquisition was in 1971 so the application had to be filed within twelve years that is, by 1984. But that application was filed in November, 1997, that is, twenty-six years after the event. Limitation is also one of the grounds of appeal before us. As limitation pertains to jurisdiction, we are of the opinion that we have to deal with that issue first and foremost. Msumi, J. K. decided that the application was within time. The learned J. K. said: It is noticeable that first and second respondents who are being represented by·· ...... · ; -·· . the Attorney General have not filed counter- affidavits in reply to the affidavit of the applicant ... May be they are relying on the counter-affidavit or Mr. Malaba filed in reply !O the applicant's affidavit in support of his 3 application for leave to file application for prerogative orders. However, the said counter-affidavit challenges the affidavit of the applicant on the preliminary issues and not on the substance of what has been deposed. For example the deponent does not controvert the assertion of the applicant that it was as late as September, 1997 when he came to learn that contrary to his belief and that of the first respondent, the suit property was in fact never acquired. The learned J. K. continued that elsewhere in his ruling: As noted earlier, the first respondent has not disputed by way of evidence that the applicant came to learn of the alleged mistake in September 1997. Hence according to section 26(b) of the Law of Limitation Act, 1971 the period of limitation in this case begins to accrue from September 1997 when the applicant discovered the alleged mistake. Mr. Ismail Chandoo, learned counsel for the National Housing Corporation in this appeal, submitted that the Executor did not bring evidence to establish that it was in September, 1997, that he became aware that the building had not been acquired. Mr. Chandoo pointed out that the learned J. K. heavily relied on the submissions of the counsel to fill the gaps in evidence. 4 Let us see what was before MSUMI, J. K. The Executor stated in paragraph 9 of his affidavit as follows: That in the process of pursuing my rights as an ex-owner of the disputed property, I discovered, in September 1997, that the property had not been acquired and that the assumed fact that there has been acquisition was mistaken. Hence, my father, the late GULAMALI ABDULRASUL SATCHU PIRA, and the heirs to his estate have at all times been the lawful owners of the suit property. We agree with learned J. K. that the Minister for Lands, Housing and Urban Development, the Registrar of Titles and the City Commission did not file counter-affidavits. We are again at one with him that the learned Attorney-General, who represented the first two respondents, filed a counter-affidavit but did not challenge the averment by ·the Executor that he became aware in 1997 that the building had not be acquired. How.ever, on perusing. the record of appeal -we stumbled -over a counter-affidavit of Mr. Moses Kaluwa, the then corporation counsel of the National Housing Corporation, which apparently, the learned J. 5 \ ' I K. overlooked. Paragraph 15 of that counter-affidavit states as follows: That the contents of para No. 9 [ quoted above] of the Affidavit are strongly disputed. The Applicant does not show what was the mistake, the basis of the mistake, what made him discover the unnamed mistake in September, 1977 and what presented (sic) him from discovering the mistake before September, 1997. I state that the averments therein are back-the-door attempts to circumvent the law of limitation. In his reply to that counter-affidavit, the Executor had this to say in paragraph 11: That in answer to paragraph 15 of the counter-affidavit, I repeat the contents of paragraph 7 hereinabove. Now, in paragraph 7 the Executor merely said: That with reference to paragraphs 9, 10 and 11, I repeat the contents of paragraph 5 of my affidavit and my advocate further advises me that while it is true that an area declared to be a developed area reverts back to the president, the law requires that the same is reallocated to it should be re-allocated to the previous owner thereof and not to a third party, and since the property in question is 6 ' ,. I not wholly owned by the 4th respondent, the grant of the entire property (and especially the suit property) to the 4th respondent was contrary to law. It is palpably obvious that paragraph 15 of the counter-affidavit of Mr. Moses Kaluwa was not replied to. But apart from that we agree with Mr. Chandoo that the Executor had to prove his case on a balance of probabilities but he did not. Instead the learned J. K. misdirected himself in relying on unsubstantiated averment of the Executor. Therefore, we are unable to agree with MSUMI, J. K. that the application for the prerogative orders was within time. The application was obviously time-barred and should have been struck out. We, therefore, allow the appeal by the National Housing Corporation and the Minister for Lands, Housing and Urban Development. We, therefore, quash the findings and the orders of the learned J. K. strike out the application for the prerogative orders. Appellants to have their costs. 7 th DATED at DAR ES SALAAM this 15 day of May, 2003. L. M. MAKAME JUSTICE OF APPEAL R. H. KI SAN GA JUSTICE OF APPEAL A. S. L. RAMADHANI JUSTICE OF APPEAL I certify that this is a true copy of the original. ' A. G~warija Ag. REGISTRAR 8