CIVIL APPEAL NO 296 OF 2023 BENY EDWARD MBALINGA VERSUS EMILIA BRUNO YEGAMISE AND OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA. (CORAM: KEREFU, J.A., MGONYA. 3.A And MLACHA, J.A.^ CIVIL APPEAL NO. 296 OF 2023 BENY EDWARD M BALING A (The Administrator of the late ATHUMAN VANGINYOLOLO M BALINGA) ..... APPELLANT VERSUS EMILIA BRUNO YEGAMISE ................... .................... ....... ..1st RESPONDENT AULELIAN BRUNO YEGAMISE...........,...........................„....2ND RESPONDENT ELIZABETH ELIAS YEGAMISE (The Administratrix Of the Estate of the lateGWIDO BRUNO YEGAMISE)........ 3 rd RESPONDENT IVETA ANGELO YEGAMISE...... ...........................................4th RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Matoaolo. 3.^ dated the 14th day of September, 2021 in Land Appeal No. 10 of 2021 JUDGMENT OF THE COURT 18th & 28h March, 2025 MLACHA, 3.A.: This is a second appeal. Initially, the appellant, Beny Edward Mbalinga (the Administrator of the estate of the late Athumani Vanginyololo Mbalinga) sued the respondents, Emilia Bruno Yegamise, i Aulelian Bruno Yegamise, Gwido Bruno Yegamise and Iveta Angelo Yegamise at the District Land Housing Tribunal for Iringa, at Iringa (DLHT) in Land Application No. 127 of 2018 seeking to be declared the lawful owner of a piece of land described as, unsurveyed land/farm measuring thirteen (13) acres, located at Kigonzile Village, Nduli Ward, Iringa Municipality. The application was found to be time barred and dismissed. His first appeal to the High Court of Tanzania at Iringa in Land Appeal No. 10 of 2021 was dismissed, hence the appeal now before the Court. Briefly stated, the facts of the case, as could be gathered from the pleadings filed at the DLHT are as follows: The appellant is the son of Athumani Vanginyololo Mbalinga who died In 1971. His late father owned the suit land, 13 acres. Following his death, the land remained in the hands of his mother, Mukiinga Seiwelu. His mother released the land to the Village Government to be used as Ujamaa Village farm in 1974. It was used as such up to 1978 when the respondent's father, Bruno Yegamise, the Village Chairman, converted it to the use of his family members who included the respondents. Some years later, i.e. in 2016, the appellant obtained letters of administration of the estate of his late father and sued the respondents at the DLHT. The defence of the respondents filed at the DLHT state that, the respondents have been in occupation and use of the suit land for generations. They denied the claim that it was once an Ujamaa Village land which was grabbed by their father. They lodged a preliminary objection based on time limitation to sue. The DLHT upheld the preliminary objection and dismissed the application, The decision of the DLHT was upheld by the High Court as initiated above. In dismissing the appeal, the High Court held at page 117 of the record of appeal that, the appellant was aware of the trespass since 1978 when the respondent's father, the late Bruno Yagamise converted the land to the use of his family as stated in paragraph (v) of the application. Counting from this year up to 2016 when the case was filed at the DLHT, it was found that, the application was filed over and above the 12 years limitation period provided under item 22 of Part 1 of the First Schedule to the Law of Limitation Act, [Cap 89 R.E.2002] and dismissed the appeal as intimated above. The appellant could not see justice in the decision hence the appeal now before the Court. The memorandum of appeal which was lodged before the Court has 4 grounds of appeal. For reasons which will be apparent soon we will not reproduce them at this stage. The appellant was represented Mr. Shaba Mtung'e, learned advocate, whereas the respondents were represented by Messrs. Amandi Isuja and Jonas Burton Kajiba, also learned advocates. When Mr. Mtung'e was given the floor, he abandoned ground 1, 3, and 4. He remained with ground 2 which is rearranged to read as follows; 1. That, the High Court erred in law and facts by upholding the triai Tribunal decision based on time iimit while the record showed that the appellant instituted his claim within time. Mr. Mtung'e submitted that, the High Court erred in holding that the claim was time barred. Amplifying, referring to pages 6 and 34 of the record of appeal, he contended that, the learned Judge erred for basing his decision on the history of Bruno Yegamise, the father of the respondent who was not a party to the case. He contended further that, the limitation period ought to have been calculated from the time when the dispute arose between the parties, i.e. in the year 2016. When he was probed by the Court as to when, based on the pleadings, the dispute can be said to have arisen, he conceded that, it was in 1978. Nevertheless, he contended that, if the lower courts looked at the matter closely, it could find that the time should have started to run in 2016 when the appellant was appointed administrator of the estate of his late father. In response, Mr. Isuja, contended that, the limitation period cannot start to run in 2016 when the appellant was appointed administrator of the estate of his father but in 1971 when he died or 1978 when the suit land is alleged to have been invaded. He contended further that, in both cases there is a period of over 12 years making the case time barred. He supported his position with the decisions of the lower courts. He cited to us our decision in Lesusu Lesilale Saidurak v. Mela Yeki Saiduraki Laizer (Administrator of the estate of the late Lekimbonyipoi Saiduraki) (Civil Appeal No. 529 of 2021) [2024] TZCA 1258 (13 December 2024); TANZLII to support his stance. He urged the Court to dismiss the appeal. Mr. Kajiba added that, parties in civil cases are bound by their pleadings; in this case the application and the written statement of defence. They are not supposed to travel outside their pleadings. Citing paragraph (v) of the application, he contended that, the limitation period should start in 1978 because that is the year pleaded to be the time when the suit land passed to the respondent's family. Counting from this date, he contended that the lower courts were correct to dismiss the matter as being time barred. He cited us to our decisions in Salim Said Mtomekela v. Mohamed Abdallah Mohamed, (Civil Appeal No. 149 of 2019) [2024] TZCA 15 (15 February, 2023); TANZLII and Rashid Anthony Kandengele v. Republic Criminal Appeal No. 204 of 2020 (unreported) to support his stance. In rejoinder, Mr. Mtung'e reiterated his earlier position. We had time to consider the submissions made by the parties and the record of appeal. We think there is no dispute between the parties that the period of limitation to recover land is regulated by item 22 of Part 1 of the First Schedule to the Law of Limitation Act, which is 12 years. It is further not disputed that under section 3 (1) of the Law of Limitation Act, every proceeding described In the first column of the schedule to the Act and which is instituted after the period of limitation prescribed thereof, must be dismissed. The words used are; "shall be dismissed whether or not {imitation has been set up as a defence" The issue before the Court is when did limitation start to run in this case? The appellant takes it to 2016 when he obtained the letters of administration while the respondents take it to 1978 when the respondents are alleged to have invaded the suit land. Having considered the matter critically, we agree with Mr. Kajiba that, parties must be guided by their pleadings presented before the DLHT. The rule that parties are bound by their pleadings is not novel. It has been a subject of several decisions of the Court including Maria Amandus Kavishe v. Norah Waziri Mzeru & Another (Civil Appeal 6 No. 365 of 2019) [2023] TZCA 31 (20 February 2023), Charles Christopher Humphrey Richard Kombe T/A Humphrey Building Materials v. Kinondoni Municipal Council, (Civil Appeal No. 125 of 2016) [2021] TZCA 337 (2 August, 2021); TanzLII and Ami Tanzania Limited V. Prosper Joseph Mseie, Civil Appeal No. 159 of 2020, [2021] TZCA 668 (11 November 2021) TanzLII. In Maria Amandus Kavishe (supra) we stated thus: "We also fee1 compelled, at this point, to restate the time honoured principle o f law that, parties are bound by their own pleadings and they cannot be allowed to raise a different matter without amendments being property made. That, no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. Furthermore, the court itself is as bound by the pleadings o f the parties as they are themselves. " (Emphasis added) By pleadings here, we mean the application and the written statement of defence presented at the DLHT. Paragraph (vi) and (v) of the application, as appearing at page 6 of the record of appeal reads as follows: "(iv) That, sometimes in 1974 after the death o f the late Athumani Vanginyololo Mbalinga, the father o f the respondents one Bruno Yagamise while was a KingonzHe Village Chairman requested the wife o f the late Athumani Vanginyololo Mbalingwa, one Mukiinga Sefwelu to allow the Kingonizie village council to utilize the suit land as ujamaa farm temporarily. (v) That, after such request being successful, the suit land was utilized by KingonzHe Village Council as Ujamaa farm for some time; after a meanwhile and or 1978 the said chairman inverted the use of the suit land to be the property of his family instead of Ujamaa (KingonzHe Village Socialism farm) without any lawful justification." [Emphasis supplied] The above paragraphs give the background and shows clearly that, the dispute arose in 1978 when the father of the respondents is alleged to have converted the land to his personal property. It follows therefore that, the respondents are alleged to have been on the suit land without lawful justification from 1978. Counting from 1978 up to 2016, one gets 38 years. This is far and above the period of limitation of 12 years provided under the Law of Limitation Act. We understand that the appellant had no letters of administration in 1978 to allow him to sue, but that is not the fault of the respondents. It was his own fault. As long as he was aware of the trespass in 1978, it was upon him to seek letters of administration and sue whoever had invaded the land. It follows that the lower courts were correct in finding the suit time barred. That said, the appeal is found to be devoid of merit and dismissed with costs. DATED at IRINGA this 28thday of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 28th day of March, 2025 in the presence of Mr. Joshua Erasto Chussy, holding brief for Mr. Shaba Mtung'e, learned counsel for the Appellant and Mr. Jonas Burton Kajiba, learned counsel for the Respondents; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL