the registered trustee of evangelistic asemblies of god tanzania vs swale traders company limited 4 others 2022 tzhclandd 177 23 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 133 OF 2021 THE REGISTERED TRUSTEES OF THE EVANGELISTIC ASSEMBLIES OF GOD TANZANIA............................ PLAINTIFF VERSUS SWALE TRADERS COMPANY LIMITED ........ 1st DEFENDANT THE HONOURABLE ATTORNEY GENERAL.................. 2nd DEFENDANT THE REGISTRAR OF TITLES ............... 3rd DEFENDANT THE COMMISSIONER FOR LAND ............................. 4th DEFENDANT TEMEKE MUNICIPAL COUNCIL .......................... 5th DEFENDANT RULING Date of Last Order: 09/03/2022 & Date of Ruling: 23/03/2022 A. MSAFIRI, J. The 1st defendant in this case has raised the preliminary objection on point of law that the suit is time barred in terms of Paragraphs 9, 21, 22,23,24,25 and 26 of the Plaint to this suit. Mr. Deiniol Joseph Msemwa, learned counsel appeared for the 1st defendant while Catha and Sons Advocates appeared for the plaintiff. The 2nd to 5th defendants were represented by Felix Chakila, State Attorney. With this Court's leave, the preliminary objection was disposed of by way of written submissions. ^r - j 1 I Page In his submission to the preliminary objection, advocate Msemwa stated that the land suit is time barred basing on averment of the plaintiff in the Plaint particularly paragraphs 9, 21,22,23,24, 25 and 26. According to him those paragraphs suggest the cause of action began in the year 1994 when the plaintiff claimed to start receiving disturbances based on the suit property which the plaintiff claims to have been custodian since 1974. That, counting from 1994 when the disturbances began to the year 2021 when the suit was instituted it is 27 years. In the advocate's opinion based on the Plaint, it is clear that the plaintiff was aware and was aggrieved by an acts of disturbances done which in the counsel's opinion, that amount to cause of action. He made reference to Part 1 of the Schedule of the Law of Limitation Act of Tanzania, Cap. 89 R.E 2019 which provides for time limitation for recovery of Land to be 12 years. The fact that 26 years has lapsed since 1994 when the plaintiff was aggrieved to the date of filing this suit, it makes the suit time barred and it should be dismissed with costs in accordance to section 3(1) of the Law of Limitation Act (supra). In reply to advocate Msemwa's submission, counsel for plaintiff argued that the preliminary objection lacks merits on the sense that the allegations on the mentioned paragraphs in the Plaint does not reveal when the cause of action arose. In his opinion, the cause of action arose in the year 2011 when the plaintiff received the 3rd defendant's letter No. LR/T/40489/93 whereby the plaintiff was notified that on 7th November 1995, the plot with title No. 40489 was returned to his Excellence President of United Republic of Tanzania and through the same letter the plaintiff was informed that, the lstdefendant ownership was once again reinstated. The paragraphs referred by the 1st defendant in his objection AIL 2 | Page simply explain the history of the disputes and measures taken by the 2nd, 3rd, 4th and 5th defendants up to the year 2011 when they informed the plaintiff that the suit premises was officially granted to the 1st defendant. Mr. Msemwa re-joined by saying that even so the suit is time barred on the sense that the plaintiff was aware of the disputes in respect of the suit premises but maintained silence for more than 12 years until 2021. Even if it is the defendants who were involved but still, the plaintiff knew he had interest and a cause of action against the defendants. Having closely examined the Plaint and the submissions by the learned counsels for and against the preliminary objection, I am of the considered view that the preliminary objection raised is not sufficient to dispose of the suit. The law is well established that a Court seized with a preliminary objection is first required to determine that objection before going into the merits or the substance of the case or application before it. In the case of Bank of Tanzania Ltd vs. Devram P. Valambia, Civil Application No 15 of 2002 (CAT) (unreported) the Court observed: "The aim of a preliminary objection is to save the time of the court and of the parties by not going into the merits of the application because there is a point of law that will dispose of the matter summarily." With respect to advocate Msemwa, it is true a time limit set for recovery of land is twelve years. In the case of Ridwani Jumaa Hatibu vs Mwinyihatibu Jumaa Hatibu, Land Case No. 5 of 2017 HC, h / 3 | Page Tanga District Registry (unreported), Hon. Mruma, J defined the term time barred suit to mean that the time permitted to bring forward a claim against your opponent has passed and it is no longer possible to pursue a case against him on that particular cause of action. Also under Item 22 of Part I of the Schedule to the Law of Limitation Act, [Cap 89 R. E. 2019], all claims related to recovery of land, have time limit of 12 years. The point of objection which was raised by the 1st defendant is that the suit is time barred. In advocate Msemwa's arguments in respect of this suit, the computation of limitation of time stated when the plaintiff claimed to have received disturbances in the year 1994 and since this matter was filed in the year 2021 and almost 26 years has lapsed since the said disturbances has started, therefore it is time barred as it was filed beyond the 12 months statutory period, and it contravene the Law of Limitation Act on matter for recovery of land. However in my view, the plaintiff's argument that the cause of action arose in the year 2011 when he was informed by the 3rd respondent regarding the ownership of the suit land does hold water on the sense that the cause of action of the plaintiff against the 1st defendant was officialized when the 1st defendant was declared the owner of the suit premises. From this, time started to run in the year 2011 when the plaintiff was informed by the Land Authorities that they had no powers to grant him a right of occupancy. Counting from 2011 to 2021 when the matter was filed before this Court, only ten (10) years have lapsed. Applying Item 4 | Page 22 of Part I of the Schedule to the Law of Limitation Act, the suit is still within time. Having said so, I find the preliminary object to have no merit and it is hereby overruled accordingly. It is so ordered. Dated at Dar es Salaam this 23rd Day of March 2022. 5 | Page