jumanne iddi chomboko administrator of the late iddi mwinyikondo chomboko vs fukayosi village council 2 others 2022 tzhclandd 12723 7 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 240 OF 2022 JUMANNE IDDI CHOMBOKO (Administrator Of the late IDDI MWINYIKONDO CHOMBOKO).................... PLAINTIFF VERSUS FUKAYOSI VILLAGE COUNCIL................................... 1st DEFENDANT BAGAMOYO DISTRICT COUNCIL............................... 2nd DEFENDANT THE HONOURABLE ATTORNEY GENERAL............ 3rd DEFENDANT RULING Date of the last Order: 02.12.2022 Date of Ruling: 07.12.2022 A.Z.MGEYEKWA This ruling is in respect of the preliminary objection raised in Land Case No. 240 of 2022, whereas, the Plaintiff is claiming against the defendants jointly and or severally compensation totaling Tzs 200, 000,000/- for 1 destruction and damages caused by the first defendant in trespassing the plaintiff’s piece of land by destroying the plaintiff’s fence polls without any colour of right or justification. The Defendant filed a Written Submission Defence and on 4th November, 2022, the suit encountered preliminary objections namely as follows:- 1. The suit hopelessly time-barred. 2. The matter is res judicata contrary to section 9 of the Civil Procedure Code Cap 33 [R.E. 2019]. When the matter was called for hearing of the preliminary objection on 22nd November, 2022, the Plaintiff enjoyed the legal service of Mr. Mathew Kalunga, counsel whereas, the Defendants had the legal service of Mr. Salehe Manoro, Learned State Attorney. As the practice of the Court has it, we had to determine the preliminary objection first before going into the merits or demerits of the suit. On the parties' concurrence, hearing of the matter was through written submissions the filing of which followed the schedule drawn by the Court. In her written submission concerning the first limb of objection that the suit is hopelessly time-barred, Ms. Careen Masonda, learned State Attorney stated that this matter at hand is time-barred. Ms. Masonda argued Section 3 and item 1 of the Law of Limitation Act Cap 89 [R.E. 2019], a 2 suit for compensation must be filed within one year from the date of cause of action. He contended that as per the Plaintiff’s Plaint the suit was instituted on 18th October, 2022, whereas the cause of action arose between 2014 to 2019 as per paragraph 7 of the Plaint, hence, the suit is time-barred. To bolster his submission, he cited the case of Hezron Nyachia v Tanzania Union of Industrial and Commercial Workers and Organization of Tanzania Workers Union, Civil Appeal No. 79 of 2001 (Unreported) where the Court of Appeal held that:- “Generally speaking, the law of limitation plays many roles including the following: One, to set a time limit within which to institute proceedings in a Court of law. Two, to prescribe the consequences where proceedings are instituted out of time without leave of the court. Where a period of limitation for any proceeding is prescribed by any other written law, the provisions of the law of limitation apply as if such period of limitation had been prescribed by the Law of Limitation Act, Cap. 89. The Law of Limitation has a provision for the consequence where a proceeding is instituted out of time without leave of the Court. It is Section 3. Under that provision, that is, section, the consequence is 3 that, such proceeding shall be dismissed whether or not limitation has been set up as a defence. ” On the second limb of objection, the State Attorney for the Defendant contended that this matter is res-judicata because there was a same case between the same parties, the same was determined by the Ward Tribunal of Fukayosi whereas the Plaintiff did not file an appeal Land Application No. 119 of 2014. The learned State Attorney went on to submit that it was contrary to section 9 of the Civil Procedure Code, Cap 33 R.E. 2019. On the strength of the above submission, he urged this Court to dismiss this suit with costs. In reply, submitting on the first limb of objection, the counsel for the Plaintiff stated that the suit was instituted within time as per Item 22 of Part 1 of the Law of Limitation Act, Cap 89 [R.E. 2019] which allows the institution of a case to recover land within 12 years. He further stated that the case referred was distinguishable from the case at hand. On the second limb of objection, the counsel for the Plaintiff contended that the elements of res judicata under section 9 of the Civil Procedure Code, Cap.33 [R.E. 2019] were not met, hence this suit is not res judicata, 4 In his conclusion, the learned counsel for the Plaintiff urged this Court to dismiss the preliminary objections. In rejoinder, the learned State Attorney for the Defendant reiterated her submission in chief and further added that according to paragraph 5 of the plaint, the Plaintiff was not suing to recover the suit land but he is calcimining for compensation. Therefore, the Plaintiff did not a plea to recover land as stated in his reply. She went on to submit that on the second limb, the Plaintiff did not match the elements of res judicata with the suit at land. He further reiterated the case of Tanzania National Roads Agency and Another v Jonas Kinyagula, Civil Appeal No. 471 of 2020 (unreported), whereas the Court of Appeal cited the case of Ali Shabani & 48 Others v Tanzania National Roads Agency (TANROADS) and Another, Civil Appeal No 261 of 2020 (unreported). Concluding, the Defendants’ counsel urged this court to dismiss this suit with costs. Having gone through the submission of the parties, and amended Plaint, specifically paragraphs 5 and 6, it is apparent that this suit was instituted by the Plaintiff on 18th October, 2022 after the Plaintiff was appointed to administer the estate of the late Iddi Mwinyikondo Chomboko claiming for a compensation of Tshs 200,000,000/- for the destruction of the Plaintiff’s 5 properties. For ease of reference, I reproduce paragraph 5 of the plaint hereunder:- 5, That the Plaintiff’s claims against the Defendants jointly and or severally, is for compensation totalling Tshs. 200,000.000/= for destruction and damages caused by the first Defendant in trespassing the Plaintiff's fence polls without any colour of rights, consent from the Plaintiffs of justification. [Emphasis added]. Based on the above excerpt it is difficult to find that the cause of action was a trespass because as rightly stated by the learned State Attorney there is nowhere in the Plaint shown that the Plaintiff is the lawful owner of the suit land because no any facts to avail that the Plaintiff was allocated the suit land, therefore the only cause of action which visibly seen is compensation. Item 1 of PART I of the schedule of the Law of limitation Act Cap 89 [R.E. 2019] provides; - “For compensation for doing or for omitting to do an act alleged to be in pursuance of any written law one year. ” Being guided by the above provision, it is clear that this suit is time-barred for being brought out of time. The Plaintiff filed his claims for compensation after a lapse of eight years from the date of the cause of action. I do not subscribe the argument by counsel for the Plaintiff that the 6 suit was brought within time to recover the land because, as pointed out earlier, the Plaintiff did not claim ownership of the suit land nor to recover the disputed land within which the time limit for the same is twelve years as per item 22 of Part I of the Law of Limitation Act Cap 89 [R.E. 2019], but the plaintiff had pleaded for compensation in his plaint and not land recovery. Section 3 (1) of the Law of Limitation Act, Cap.89 [R.E. 2019] provides; - 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." It should be remembered that parties are bound by their pleadings, see the case of YARA Tanzania Limited v Charles Aloyce Msemwa & 2 others, Commercial case No.5 of 2015 High Court Commercial Division DSM (unreported), where it was held that: - “It is a cardinal principle of law of civil procedure founded upon prudence that parties are bound by their pleadings. That is, it is settled law that parties are bound by their pleadings and that no party is allowed to present a case contrary to its pleadings. ” 7 Having said that, I find it out that this suit is time-barred for the above reason, I see no reason for consuming more time determining the second objection, hence this satisfies to dismiss this suit regarding compensation without costs. Order accordingly. Dated at Dar es Salaam this date 7th December, 2022. Judgment delivered .TWj gP December, 2022 via video conferencing whereas Mr. Mathew, learned counsel for the Plaintiff was remotely present. YEKWA Right to appeal fully explained. 8