| dc.description.sponsorship | IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, J.A., KEREFU, J.A. And KIHWELO, J. A CIVIL APPEAL NO. 144 OF 2019
FORTUNATUS LWANYANTIKA MASHA, JOHN WOSHIOBONGO VS. CLAVER MOTORS LIMITED.
(Appeal from the Judgment and Decree of the High Court of Tanzania 13th 8118th July, 2022.
KEREFU, J.A.:
Land Law-limitation period for the institution of a suit to recover land-
whether the suit was filed out of the prescribed time.
The first appellant was the previous owner of the suit property. However, on 13th October, 2004, he at Mwanza) sold the suit property to the respondent at a consideration of TZS 55.000.000.00 (the purchase price) which was to be paid by installments. Then later, on 1st August, 2005, upon signing of a supplementary agreement the first appellant received another installment of TZS 12.000.000.00, thus making a total sum of TZS 37,000,000.00 as the purchase price paid by the respondent. It was the claim by the first appellant that, since the remaining balance of TZS 18,000,000.00 was not paid, the respondent had breached the terms of the agreement, hence, the sale agreement was rendered voidable. Subsequently, on 13th December, 2016, the first appellant resorted to sell the suit property to the second appellant for a consideration of TZS 120.000.000.00. A sale agreement to that effect was signed between the first and second appellants and the ownership of the suit property was transferred to the second appellant on 21st December, 2016.
Thereafter, on 28th April, 2017, the appellants instituted a suit in the High Court of Tanzania at Mwanza, Civil Case No. 25 of 2017. Having heard the evidence of the witnesses for both sides, the suit was decided in favour of the respondent. Hence the appellants' suit was dismissed with costs. The decision of the High Court prompted the appellants to lodge the current appeal to express their dissatisfaction. Before the court of appeal to embark on hearing of the appeal, the court wanted to satisfy themselves on the propriety or otherwise of the suit before the High Court and the resultant judgement and ultimately the appeal before the court of appeal. That was due to the fact that, the appellants' suit falls under Item 22 of Part I to the Schedule of the Law of Limitation Act, [Cap. 89 R.E. 2019] (the Act) read together with section 3 of same Act which prescribe the time limitation on suit for recovery of land to be twelve (12) years from the date when the cause of action accrued. We thus, invited the counsel for the parties to address us on that issue. In his response, although, Mr. Aaron submitted that the sale agreement between the first appellant and the respondent was entered on 13th October, 2004 and the suit was lodged on 28th April, 2017 after lapse of twelve (12) years, he contended that the suit was not time barred as it was instituted upon a discovery by the first appellant that there was misrepresentation on the status of the respondent and thus a breach of the agreement. He added that, the parties exchanged a number of correspondences on the matter and finally, the first appellant demanded for vacant possession but the respondent did not heed to the demand. Hence, the delay in instituting the suit.
HELD
i) he prescribed time on a suit for recovery of land is twelve (12) years from the date when the cause of action accrued.
ii) It is on record that the appellants' suit was filed on 28th April, 2017 after lapse of twelve years of recovery of land prescribed by the Act. Therefore, to rescue their suit, the appellants were required to comply with the requirement of Order VII Rule 6 of the CPC which provides that: "Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed."
iii) It is settled that communications or negotiations between the parties is not a ground for stopping the running of the time.
the incompetent appeal is accordingly struck out.
Statutory provision
The Law of Limitation Act [Cap. 89 R.E. 2019]
Civil Procedure Code [Cap. 33 R.E. 2019]
Tanzania Court of Appeal Rules, 2009
Appellate Jurisdiction Act, [Cap. 141 R.E. 2019]
Cases referred to
The Registered Trustees of Roman Catholic Archdiocese of Dar es Salaam v. Sophia Kamani, Civil Appeal No. 158 of 2015,
Consolidated Holding Corporation v. Rajan Industries Ltd & Another, Civil Appeal No. 2 of 2003 (unreported)
Makamba Kigome& Another v. Ubungo Farm Implements Limited & PRSC, Civil Case No. 109 of 2005 (unreported)
M/S P & 0 International Ltd v. The Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020, | en_US |
