Fortunatus Lwanyantika Masha and Another vs Claver Motors Limited (Civil Appeal No. 144 of 2019) [2022] TZCA 3075 (18 July 2022)

FORTUNATUS LWANYANTIKA MASHA, JOHN WOSHIOBONGO V. CLAVER MOTORS LIMITED IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, J.A., KEREFU, J.A. And KIHWELO, J JU) CIVIL APPEAL NO. 144 OF 2019 (Appeal from the Judgment and Decree of the High Court of Tanzania 18th July 2022). Land Law-limitation period for the institution of a suit to recover land- whether the suit was filed out of the prescribed time . This appeal arose from a dispute over the ownership of a property. The first appellant originally sold the suit property to the respondent on 13th October 2004 for TZS 55,000,000, payable in installments. By 1st August 2005, the respondent had paid TZS 37,000,000. The first appellant claimed that the respondent breached the agreement by failing to pay the remaining TZS 18,000,000, rendering the sale agreement voidable. Subsequently, the first appellant sold the property to the second appellant on 13th December 2016 for TZS 120,000,000, and ownership was transferred on 21st December 2016. The appellants filed a suit in the High Court of Tanzania at Mwanza (Civil Case No. 25 of 2017) to recover the property. The High Court ruled in favor of the respondent, dismissing the appellants’ suit with costs. Dissatisfied, the appellants appealed to the Court of Appeal. Before hearing, the Court of Appeal considered whether the suit was time-barred under the Law of Limitation Act, [Cap. 89 R.E. 2019], which prescribes a limitation period of twelve (12) years for suits for recovery of land. The sale agreement was dated 13th October 2004, and the suit was filed on 28th April 2017, more than twelve years later. The appellants argued that the suit was timely because it was filed upon discovery of misrepresentation by the respondent. Held: (i) The prescribed limitation period for a suit for recovery of land is twelve (12) years

from the date the cause of action accrued. (ii) The appellants’ suit, filed on 28th April 2017, was beyond the twelve-year limitation period. (iii) To avoid dismissal, the appellants needed to comply with Order VII Rule 6 of the CPC, showing the grounds for exemption from the limitation period. (iv) Mere communications or negotiations between the parties do not stop the running of time under the Limitation Act. The incompetent appeal was accordingly struck out. Statutory provision referred to: (i) The Law of Limitation Act [Cap. 89 R.E. 2019] (ii) Civil Procedure Code [Cap. 33 R.E. 2019] (iii) Tanzania Court of Appeal Rules, 2009 (iv) Appellate Jurisdiction Act, [Cap. 141 R.E. 2019] Cases referred to: (i) The Registered Trustees of Roman Catholic Archdiocese of Dar es Salaam v. Sophia Kamani, Civil Appeal No. 158 of 2015. (ii) Consolidated Holding Corporation v. Rajan Industries Ltd & Another, Civil Appeal No. 2 of 2003 (unreported). (iii) Makamba Kigome& Another v. Ubungo Farm Implements Limited & PRSC, Civil Case No. 109 of 2005 (unreported). (iv) M/S P & 0 International Ltd v. The Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020.