african mable company limited vs seleman menengali 64 others 2023 tzhclandd 16432 25 april 2023

IN THE HIGH COURT OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 322 OF 2022 AFRICAN MARBLE COMPANY LIMITED............................. PLAINTIFF VERSUS SELEMANI MENENGALI.......................................................... 1st DEFENDANT CHARLES LAWRENCE MAKAKALA........................................... 2nd DEFENDANT OMARY CHUO 3rd DEFENDANT MANASE KIPINGU ............................................................ 4th DEFENDANT ISAACK KESSY ....................................................................... 5th DEFENDANT KASEJA BARAKA ....................................................................... 6th DEFENDANT RICHARD URASA ....................................................................... 7th DEFENDANT GODLOVE MBISE ................................................................... 8th DEFENDANT GODBLESS TARIMO ...........................................................9th DEFENDANT FELICIAN ISHEMO ......................................................... 10th DEFENDANT EMANUEL NSESE ................................................................... 11th DEFENDANT AYOUB KAATA ................................................................... 12th DEFENDANT PANTAI I T .............................................................................. 13th DEFENDANT CHARLES M...................................................................................................... 14thDEFENDANT HYASINT PETER .................................................................. 15th DEFENDANT SIMON GERVAS ................................................................... 16th DEFENDANT FORD MARO ................................................................... 17th DEFENDANT 1 ISSA AHMED 18th DEFENDANT KULWA MVANGA 19th DEFENDANT MOHAMED SHEIKH 20th DEFENDANT SIMON KULWA 21st DEFENDANT STEVEN MNUBI 22nd DEFENDANT GASPER TEGA 23rd DEFENDANT NADHIFA ABDUL 24th DEFENDANT SUNFLOWER ABOUBAKARY 25th DEFENDANT MELVIN MWANKENJA 26th DEFENDANT SOMOE SAID 27th DEFENDANT PULKERIA GABRIEL 28™ DEFENDANT DAUDI K ELIYA 29th DEFENDANT ELISARIA PALLANO 30th DEFENDANT FRANSICICA KATAGIRA 31st DEFENDANT ZAINAA JANGAME 32nd DEFENDANT MARSHAM KIMARO 33rd DEFENDANT ALLY ZUBERI 34th DEFENDANT BUPE SAMWELI 35th DEFENDANT MASJID SHURA MOJA 36th DEFENDANT AISHA MASOUD 37th DEFENDANT DIANA ASAJENE 38th DEFENDANT SHAFII JUMA 39th DEFENDANT ROMANUS M LAN GALAN GA 40th DEFENDANT 2 MARTIN SUFANGA 41st DEFENDANT MOHAMED KISESA 42nd DEFENDANT FAITH MWANUKE 43rd DEFENDANT HUSNS MGANGA 44th DEFENDANT BERNALD WAMBOGA 45th DEFENDANT MOSES KAJEJO 46th DEFENDANT HENRY MASEKO 47th DEFENDANT HASSAN GHASSIR 48™ DEFENDANT YUDA KIPINGU 49th DEFENDANT JAMES KIMARO 50th DEFENDANT MARCEL SAFARI 51st DEFENDANT PITER MUSHI 52nd DEFENDANT PAULO KITIN DI 53rd DEFENDANT CLAUDIANA KAJWA 54th DEFENDANT ABISAY NGOMALE 55th DEFENDANT DR. ANDREW MWENDAPOLE 56th DEFENDANT DR. AYOUB RIOBA 57th DEFENDANT PAULO MBAYA 58th DEFENDANT FORD MURO 59th DEFENDANT EDWIN KILIMBA 60th DEFENDANT BAKARI ZIGOLA 61st DEFENDANT KIMOSO 62nd DEFENDANT SUNGURA 63rd DEFENDANT 3 MARY JUMBE MANYAMALI 64th DEFENDANT STANLEY MARIKI................................................................. ...65™ DEFENDANT RULING Date of Last Order: 23.03.2023 Date of Ruling 25.04.2023 A.MSAFIRI, J. At the centre of controversy between the plaintiff and 65 defendants in the Plaint filed on 06.12.2022 before this Court, is a landed property described as Plot No. 199, Mbezi Industrial, Kinondoni Municipality, Dar es Salaam (herein as suit premises). The Plaintiff is a private limited liability company incorporated under the Companies Act Cap 212 [R.E. 2019]. It claims to be the lawful owner of the suit premises and that the defendants have trespassed and unlawfully occupied the suit premises. Among the reliefs the plaintiff is seeking is a declaration that the 1st to 65th defendants' invasion to the suit premises is unlawful and illegal ab initio. The defendants filed their defence through their Joint Written Statement of Defence (WSD) in which they vehemently disputed the plaintiff's claims. In their WSD, the defendants raised the preliminary objection on points of law to the effect that; 1. The plaintiff suit is time barred on account that the plaintiff since the year 2001 was aware with the defendant's occupation of the suit land and he attempted to evict them through Civil Case No. 81 of2001 through the defendants' community known as Kambarage Community. 4 2. The case is res judicator against the 1st, 4h and 59h defendants in respect oflandApplication No.314 of2017 between the plaintiffand the defendants. The hearing of the preliminary objection was by way of written submissions whereas the plaintiff had the legal service of Mr. Heri Kayinga learned advocate while the respondents enjoyed the legal service of Living Raphael learned advocate. The defendants abandoned the second limb of the preliminary objection and opted to submit on the first limb only. Mr Living submitting in support of the preliminary objection was of the view that the plaintiff's suit is time barred suitable for dismissal as per Section 3 of the Law of Limitation Act Cap 89 [R.E. 2019] read together with 1st Schedule Part I paragraph 12 which provides that a suit to recover land is 12 years and that the remedy for the suit caught with limitation is dismissal. Mr Living stated further that the issue of time limitation is pleaded by the plaintiff in paragraph 6 of the Plaint where it shows that the cause of action arose in 2001. He pointed that from the year 2001 to 2022 when this suit was instituted is 22 years. That, in that regard, this suit is time barred and that the plaintiff has not stated any ground for bringing this suit out of time. Mr Living contended that the plaintiff's claims that he was following proceedings of Civil Case No. 81 of 2001 after he has issued a notice of appeal have nothing to do with this suit because this is not an appeal of the Civil Case No. 81 of 2001, but this is a separate suit. That this fact cement the fact that the plaintiff was aware of the invasion of the defendants since 2001 when he instituted a case against them. Af III n 5 He added that the limitation of time does not stop running while an intending litigant is pursuing the extra judicial means of solving disputes. To cement this point he referred this Court to the case of Israel Solomoni Kivuyo vs. Waijana Longoi and Another Application No. 35. of 1993 Court of Appeal. Mr Living pointed that, the remedy for the current situation is dismissal of the suit with costs as it is provided under Section 3 of the Law of Limitation Act (supra). In reply. Mr. Kayinga submitted that the defendants7 objection on time limitation is misconceived and devoid of merits. That, the plaintiff has pleaded fraud on paragraphs 10, 11 and 19 of the Plaint that the defendants jointly and severally and fraudulently encroached into suit premises under a disguise of unknown and unregistered community which defendants self-claimed to be named "Kambarage Community and Members and Officers". Mr Kayinga stated further that Civil Case No. 81 of 2001 between the plaintiff and the so called Kambarage Community and Members and Officers, has nothing to do with the present case. And that the plaintiff became aware of the actual names of the trespassers on 16.02.2018 as per paragraphs 10, 11, and 19 of the Plaint. He argued that Section 26(a) of the Law of Limitation Act, states that the limitation of time begins to run from when the plaintiff discovered the fraud, or ought to have discovered the fraud. That, the plaintiff detected the fraud and actual names of the defendants on 16 February 2018 at so that was when the cause of action against the defendants arose. To cement his points he cited the case of Isaack& Sons Limited 6 vs. North Mara Gold Mine Limited, Commercial Case No. 3 of 2020, CAT at Mwanza (unreported). He prayed that the preliminary objection be dismissed with costs. In rejoinder the defendants reiterated what was submitted in chief and added that, despite the fact that the plaintiff has pleaded fraud, the law of limitation does not protect it because the time started to run when the fraud was discovered which is on 27 January 2001 when the plaintiff alleged the defendants severally, and fraudulently trespassed into the suit premises. Having gone through the submission of the parties and the pleadings, the pertinent issue for determination is whether the suit is time barred. Without taking more time, I would like to reproduce paragraph 6 of the Plaint which disclosed when the cause of action arose. "That on 27th day of January 2001, the 1st and 5(fh defendants jointly and severally, fraudulently, and without any colour ofright, trespassed into a piece parcel of suit premises under a disguise of unknown and unregistered community which they seif - proclaimed to be named "the Kambarage Community and Members and or officers. Following the said trespass, they severally erected two separate residential structures in the suit premises to plaintiff's detriment. The said three Defendants namely the 1st and 5(fh defendants, prevented the plaintiff from complying with terms and conditions attached to the above referred Certificate of Title", (emphasis added). Mi- 7 It is very clear from paragraph 6 of the Plaint that at least the 1st and 50th defendants have trespassed into the plaintiff's alleged suit land in 2001, and the plaintiff became aware of such trespass and was aware that it was the said defendants who has trespassed. The plaintiff did not institute a case to recover his trespassed land against the defendants until on 06.12.2022 when this suit was instituted. I say so because this suit is neither an alternative nor appeal of Civil Case No. 81 of 2001. This is a fresh disseminated Court against the defendants. The fact that the plaintiff was trying to resolve the matter through the office of the Regional Commissioner in Dar es Salaam on 16.02.2018 in which list of names was given to him, cannot protect the plaintiff when it comes to issue of limitation of time. This is so because it is a cardinal principle that the time does not stop running while an intending litigant is pursuing the extra judicial means of solving disputes. Furthermore, it is trite law that parties are bound by their own pleadings, hence, once the plaintiff has alleged that the defendants have trespassed into the suit premises on 27th January 2001 as pleaded under paragraph 6 of the plaint, then the cause of action has arisen in 2001. The plaintiff is bound by its own pleadings and cannot at this juncture, be allowed to depart from the said pleadings. See the case of YARA Tanzania Limited vs. Charles Aloyce Msemwa and 2 others; Commercial Case No5 of 2015, High Court Commercial Division DSM (unreported), where it was held that; "/? is a cardinal principle of law of civil procedure founded upon prudence that parties are bound by their pleadings. That is, it is 8 settled law that parties are bound by their pleadings and that no party is allowed to present a case contrary to its pleadings". Further, I agree with counsel for the defendants that seeking intervention of the Regional Commissioner was an extra judicial effort which could not stop the time to run as per the law of limitation, however it is apparent that the effort was also taken after lapse of 17 years from 2001, again out of 12 years if this Court had to agree with the plaintiff's submission. To be precise the cause of action arose in 2001, the plaintiff instituted this suit in 2022, being 22 years lapse out of 12 years permissible by the law of limitation in this country. See also the case of Rhode Sobe (As Administratrix of the Estate of the late Sobe Masiror vs James Fredy Sagaria (As Administrator of the Estate of the late Willson Manusu HC, Mwanza District Registry (Unreported) which ruled among other things that a suit to recover landed property must be filed within 12 years. Basing on the above analysis, the issue for my determination is answered into affirmative that this suit was instituted completely out of time hence it is incompetent before this Court for being time barred. Section 3(1) of the Law of Limitation Act reads; 3(1) Subject to the provisions of this Act, every proceeding described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence. Ijl L 9 Having said that, it is my finding that this suit was filed out of time, thus the same is dismissed with costs under Section 3(1) of the Law of Limitation Act. It is so ordered. JUB^I 27/04/2 10