BIKUBWA ISSA ALI v SULTAN MOHAMMED ZAHRAN 1997 TLR 295 (HC)

BIKUBWA ISSA ALI v SULTAN MOHAMMED ZAHRAN 1997 TLR 295 (HC)

Court High Court of Zanzibar - Zanzibar

Judge Kannonyele J

CIVIL APPEAL CASE 9 OF 1997 G

7 November 1997

Flynote

Civil Practice and Procedure - Limitation of actions - Claim that suit is time-barred

based on date of a transfer deed disowned by its alleged maker - Need to prove the

transfer deed before dealing with limitation. H

Civil Practice and Procedure - Preliminary objection - Preliminary objection based on

an allegation itself requiring to be proved with evidence - Whether preliminary

objection can be resolved before proof of the allegation.

Civil Practice and Procedure - Jurisdiction of the Courts - Ouster of I

1997 TLR p296

A jurisdiction - Statutory conferment of jurisdiction on a tribunal - Whether

jurisdiction of the ordinary courts is thereby ousted - Section 13 of the Land Tribunal

Act 1994, No. 7 of 1994 (Zanzibar).

-Headnote

B The respondent filed a suit in the Regional Court for a declaratory judgment of

ownership of a house. The plaint stated that the house had been entrusted to the

appellant in 1982 and that when later the respondent wanted to take back possession

thereof the appellant resisted, claiming that the house had actually been transferred

to her by a deed executed by the respondent himself in C 1982. The respondent

immediately disowned the transfer deed. The appellant raised preliminary objections:

(i) that the suit disclosed no cause of action; (ii) that the action was time-barred; and

(iii) that the Court had no jurisdiction. The preliminary objections were overruled

and the appellant appealed to the High Court of Zanzibar.

D Held:

(i) In determining whether the suit was time-barred or not, time could not

be computed from the time when the deed of transfer was purportedly made because

the alleged maker is the respondent; that deed was itself an issue which needed to be

proved one way or the other and it could not be relied upon to dispose of the suit on a

preliminary objection based E on the law of limitation;

(ii) The conferring of jurisdiction upon the Land Tribunal to adjudicate

upon conflicting claims to land did not divest jurisdiction from the ordinary courts in

respect of those matters; the law only conferred jurisdiction in such matters to the

Land Tribunal without undoing that F which hitherto had been enjoyed by the

ordinary courts to handle similar disputes;

(iii) Where jurisdiction was conferred concurrently on courts and on

tribunals, proceedings should normally and preferably be commenced in the one

placed lower in the hierarchy but that was not to say that the other was thereby

deprived on jurisdiction in the matter.

Case Information

G Appeal dismissed.

Mnkonje for the appellant.

Nassor for the respondent.

[zJDz]Judgment

H Kannonyele J:

The plaintiff, Sultan Mohamed Zahran filed a suit Civil Case 48 of 1996 of the

Regional Court at Vuga, Zanzibar, seeking a declaratory judgment as to ownership of

property (a house) at Michenzani No 6/2 and prohibitory orders on the said property

against the defendant, one Bimkubwa I Issa Ali. According to the plaint, the plaintiff

had, in 1982, given power of attorney to the defendant to

1997 TLR p297

KANNONYELE J

deal with his property situate in Zanzibar in any manner as he would himself,

including power to sell A and or dispose of the property in any other (lawful)

manner and also to represent him in judicial proceedings or others litigations when

and if the need arose. The property thus entrusted to the defendant including the

house at Michenzani in the municipality of Zanzibar. Subsequently (the B plaint

does not disclose when exactly), the plaintiff demanded for possession of the property

at Michenzani which, however, the defendant was not willing to part with easily.

Eventually the defendant produced a deed of gift purportedly executed by the

plaintiff way back in 1982 conveying the property at Michenzani (supra) to her, the

defendant that is. The plaintiff disowns the instrument C purportedly conveying the

property to the defendant and claims it is a forgery and fraudulent act by the

defendant intended in law to deprive him of the said property. Hence the suit filed in

court in June, 1996.

The defendant, advocated by Mr Mnkonje, learned advocate, resisted the suit alleging

first, that D there was no cause of action disclosed by the plaintiff; second, that the

suit was time-barred and, thirdly, that the court had no jurisdiction to entertain the

matter taking into account the provisions of the Land Tribunal Act, 7 of 1994. These

objections were overruled by the trial Resident Magistrate E who therefore ordered

the suit to continue to its logical conclusion. The defendant is appealing against that

order.

On appeal, however, only two grounds were raised and argued. It is on the law of

limitation and F jurisdiction of the trial court. It was argued before me that the

learned Regional Magistrate erred in law in not holding that the suit was not timebarred.

It was argued that it was not open to the appellant to redeem the property

thirteen years after his right to do so first arose in 1982 when the property was

wrongfully taken from him as alleged. Mr Mnkonje cited the schedule to the Law of

G Limitation Act which gives the right to recover immovable property the period of

twelve years from the date of the alleged wrongful seizure of the property. It is

contended that from the wording of paragraph 6 of the amended plaint, the plaintiff

had knowledge of the wrongful seizure from 1982 H when, therefore, time started to

run against him.

Replying on the law of limitation, Mr Nassor, learned advocate for the respondent

submitted that his client was not aware of the wrongful seizure of the property based

on the deed of gift whose existence he knew nothing until it was produced to him

when he persisted in demands to reclaim I the property. It is argued that since

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KANNONYELE J

A the plaintiff did not know of these developments other than the general power of

attorney he had given to the defendant, he had no way of knowing of the wrongful

seizure not until he was shown the gift deed which, however, he disowns.

B By saying that the plaintiff had not in the plaint shown why he had not filed the

suit since 1982 when the alleged wrongful seizure started to count against the

plaintiff/appellant, I have no doubt that the appellant's counsel was having in mind

the provisions of Ord VII Rule 7 of the Civil Procedure Decree, Cap 8 of the Laws

although counsel did not go saying as much in quite clear C words. That rule says:

`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.'

D In my considered opinion, this rule is inapplicable in the circumstances of this

case where the plaintiff disowns and, therefore, challenges the validity of the deed of

gift which purports to have been executed in 1982. If what he says is true (to be

established or proven in evidence), the plaintiff E may be challenged for not fully

establishing the cause of action for his failure to disclose as to when exactly the deed

of gift was first shown to him which would thereby become the date when the cause

of action arose. This, however, is no longer ground of objection now that it was

excluded on appeal. But for the purpose of the law of limitation against the appellant,

time cannot be F computed from 1982 when the article of conveyance was

purportedly made because that is what the plaintiff disowns. Time cannot, therefore,

be computed from the date the document was purportedly made because that in itself

is an issue which needs proof one way or the other which is only possible upon

production of whatever evidence the parties have and which either of them relies G

on. Hence a preliminary objection is, in my view, not the proper forum for disposing

of such an issue. The trial magistrate was therefore right in refusing to dispose of the

suit on a preliminary point based on the law of limitation; the plaintiff could not

plead exemption Ord VII Rule 7 computing same from events in 1982 the validity of

which he disowns. Based on the law of limitation therefore H this appeal would

stand to collapse.

On jurisdiction, s 13 of the Land Tribunal Act 7 of 1994 was cited as taking away

primary jurisdiction I of the ordinary courts in respect of all matters respecting

conflicting claims to land and vesting the

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KANNONYELE J

same on the tribunal to be established under s 3 of the Act (supra). The operative

words of the A section provide as follows:

`13. The Land Tribunal shall have primary jurisdiction over proceedings

instituted where parties have conflicting claims to land, including the following

issues: . . .' (my own emphasis). B

The section then goes on to give in paras (a) to (r) specific examples of land disputes

which the tribunal can handle under its jurisdiction.

Counsel for the appellant argues that this section (s 13 of the Act) provides (by those

words) that C primary jurisdiction on all land matters including recovery of

possession shall vest in the Land Tribunal alone and that it was wrong for the court to

held that had or retained the jurisdiction only because the Tribunal had not been

constituted yet. On the other hand, counsel for the respondent argued that courts do

still have jurisdiction because the Tribunal envisaged by the Act, has never D existed

as yet and that with inherent powers conferred on the courts under s 129 of the Civil

Procedure Decree, the courts are deemed to have powers to handle any suit and do

whatever which enhances the interests and ends of justice. E

Mr Nassor, learned advocate further submitted that the hands of the courts should not

be fettered to do justice and settle disputes where the sole organ vested with the right

to exercise jurisdiction over certain or particular types of disputes does not exist. F

On my part, I do concur that s 13 of the Land Tribunal Act, 1994 confers primary

jurisdiction in respect of disputes to land on the Land Tribunal to be established and

constituted under ss 3(1) and 4 of that Act. With great respect, however, I do not read

anything in that section which can be G construed as divesting jurisdiction from the

ordinary courts in respect of matters related to land disputes which but for the

coming into force of the Act (supra) they enjoyed hitherto. In my understanding the

section does not deprive the courts of their erstwhile jurisdiction over land related

disputes previously enjoyed by those courts. The section only confers primary

jurisdiction in such H matters to quasi-judicial tribunal over and above but without

undoing that which hitherto is enjoyed by the ordinary courts to handle similar

disputes. This is concurrent jurisdiction being conferred on two different organs

without interfering with same which the elder of the two organs enjoyed hitherto.

Incidentally, the older of these organs happens to be the courts which I

1997 TLR p300

KANNONYELE J

A have always enjoyed superior jurisdiction over those of quast-judicial tribunals.

I am fortified in my view by the wording of s 34 of the Magistrates' Courts Act No 6

of 1985 where the possibility of there being two or more courts having concurrent

jurisdiction in respect of the same kind of proceedings is lauded. It is therefore not

beyond the scope and province of the B legislature that it may have intended to

confer adjudication jurisdiction to the tribunal over and above that hitherto enjoyed

by the ordinary courts. Be that as it may, what is certain to me is that the section not

anywhere in the statute is there provided that primary jurisdiction in land disputes

shall vest solely on the Land Tribunal alone. Nor do I read anywhere thereunder

where it is provided that C jurisdiction formerly enjoyed by the ordinary courts in

land related disputed is thereby divested from those courts or any such of them of any

particular description. So jurisdiction of the courts in respect of land disputes in my

view, is still intact and in full force notwithstanding the provisions of s D 13 of the

Act 7 of 1994.

If I may go further, I may only add that probably, and I emphasize `probably', the

magistrate would E have been right if he held that non-appointment of the chairman

of the Tribunal by the President as provided under s 4(1) of the Act may, by

inference, be construed as a deliberate suspension of the Act by the President for

whatever reason which in any case he is not bound to disclose. Only this may be

interpreted as an act to suspend the Act so that it may not operate even with its

coming into F force as provided under s 1(2) thereof. But this is by no means

deprivation of jurisdiction from the courts which hitherto they enjoyed in land

disputes.

If anything more, it is that where jurisdiction is conferred concurrently on courts and

on tribunals of G various juridical descriptions, proceedings should normally and

preferably be commenced in one of themselves lowest placed in the hierarchy. It is

undesirable in such situations that original proceedings should go straight to the

highly placed again in the set up. But this is not to say that the later is thereby

deprived of the primary or original juridical jurisdiction in the matter. To the

contrary. H This, together with the other in the foregoing paragraph are, however,

only but observations in passing. They are not the scope of this appeal. But even if

they were the very fact that the tribunal does not exist and is not operative for the

time being would make it more meaningful and I reasonable that the Resident

Magistrate entertained the suit. He should now not be

1997 TLR p301

hindered to dispose of it and settle the dispute by ineffective purportedly preliminary

points of law. It A is not in the interests of justice to do so.

The cumulative and ultimate result of these views is that this appeal is dismissed. The

respondent to have his costs in this court and in the court below. It is so ordered. B

1997 TLR p301

C