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
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 time-barred. 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
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
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
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
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
C
