20110927 TZHC Dodoma

... -._ :~------ . . . . __.-_:·_.!\>._-- . . . . . . . ' . ' . I I IN THE HIGH COURT OF TANZANIA AT DODOMA LAND APPEAL NUMBER 06 OF 2010 (ORIGINAL tAND'APPLICATION NUMBER 31 OF 2009 OF-THE DISTRICT LAND AND HOUSING TRIBUNAL OF SING/DA.) ATHUMANI HAMISI (Suing as .Administrator of Fundi Hamisi) ---------------------- ----- APPELLANT VERSUS CH ILOCK J. NYI MB 1-------------------------------------------.":----R ES POND ENT JUDGMENT 21-07-2011 & 27-09-2011 - S.S. MWANGESI J.: According to the application that was lodged at the District Land and th Housing Tribunal of Singida on the 15 July 2009, and the amended one which rd was lodged _o~ the 23 December 2009, the appellant w~o happened to be the . . ~ . applicant, claimed to be the administrator of the estate of the late Fundi Hamisi who died in 2000. And that in the course of collecting and/or making follow ups· of · the deceased's estates, he came to learn_ that the respondent had changed the 1 "~,;'~<· ::c:l~i1ership of the suit property from the deceased and registered it into himself as . ' -~·-.. '.. ,· ·. ~-· ·-· ' . . //-- '; '. ~ <·:theJegal ow11er thereof, while the same was still part of the deceased's estate. It f .\ . · ~as been the contention of the appellant that, the said property has never at any p.oint in time; changed its ownership from the deceased to any other person. As such, its title illegally appears in the ownership of the respondent. When the respondent was served with the application, he did raise a preliminary objection founded on two limbed ground, that is, first that it was time barred, and in the second limb, that the application had been lodged beyond the time that ha_d been prescribed by the Honourable Chairman of the District Land and Housing Tribunal. The said preliminary objection was sustained by the Honourable Chairman of the District Land and Housing Tribunal in both limbs, and thereby dismissing the application with costs. Such decision did aggrieve the appellant who has preferred his appeal to this Court. In his memorandum of appeal, the appellant has· basic.ally raised one ground of appeal, which is to the effect that the District Land and Housing Tribunal did err in fact and on law, in dismissing the application on the sole ground that it was time barred, and thereby denying justice to the appellant. He has thus requested this Court to quash the findings of the District Land and Housing Tribunal', and order that the said application, be heard and determined on merit. 2 l J When the appeal was called on for hearing before this Court on the 21 st July ' .. , :, 2011,. th.e Court did at the instance of the learned counsel for both sides that is ,, .. , , I I •·,,, rylr. Kidumage learned counsel from Njulumi and Company Advocates for the appellant, and Mr. Stella learned counsel from the Noble Attorneys advocating for the respondent, order that the appeal be argued by way of writte·n submissions. Both counsel are extolled for their timefy compliance with the scheduled time frame in filing their written submissions. In his submission to expound the sole ground of the appeal, the learned counsel for the appellant had twofold confrontation to the decision of the District Land and Housing Tribunal. In the first one,• it has been his view that the trial District Land and Housing Tribunal was erroneous at law to hold that the application was time barred. And secondly, that the said trial Tribunal, was as .well legally erroneous in striking out the entire application on the bases that, the amended application by the applicant was filed beyond the period granted by the District Land and Housing Tribunal. It has been the contention of Mr. Kidumage learned counsel with regard to the first part that, there was no justification for the Honourable Chairman of the District Land and Housing Tribunal, to hold that the application was time barred basing on documents purporting to be a sale agreement and a transfer deed of the disputed premises, both documents allegedly executed in 1994, while the authenticity of those documents was being strongly disputed by the appellant. And that, the application that got dismissed, was in essence meant to challenge 3 /'' ; ,· . . . ' )t .: .t_h~--ye't,acity of those documents. To solidify this assertion, the lear~ed counsel ' . ./~.- · .'t . · has: referr~d this Court to the decision in the case ~f Bikubwa Issa Alli Vs Sultan i(~:?\4:\/ i.- ,-::: { • ~' . • . . • . • • ·. ~t\ ;>. ~ohamed Zahran [1997] TLR 295 and that of COTWU (T) OTTU Union and ·.; "'' ' Another _Vs Honourable lddi Simba, Minister of Industries and Trade and Others [2002] TLR88. Mr. Kidumage has argued further on behalf of his client the appellant that, the suit premises has never at any point in time, fallen into neither occupation nor use of the respondent since the alleged year of 1994 to when the application to challenge his alleged ownership got lodged, and that to date, the appellant's family has been and is still living therein. It was only in 2009, when the respondent started to interfere with the use of the said house, a thing that did inspire the filing of the application that got dismissed unjustly .. Under the circumstances, the learned counsel has argued that, there was no way in which the appellant could have come to be aware that, the respondent had any interest to the disputed premises. And therefore, the question of acquiescence could not arise. The decision in the case of Abel Rwebogora \Is Raphael Mukaja [1970] HCD No. 100 has been cited by the lea_rned counsel for the appellant to back up his contention. Lastly on the first part~·· the appellant through his learned counsel has submitted that, the circumstances surrounding this matter, is one of forgery of the sale document and the transfer deed. The discovery of this treachery was made by the appellant after he had been appointed to administer the estate of 4 . I . tho 4~.teased which was· in 2002. Under the circumstances, the limitation period stirted:running against him from then. This according to Mr. Kidumage, is in . conformity with the provisions of section 9 of the Law of Limitation Act, Cap 89, .· ·_.,. , which was clearly expounded in the case of Calico Textile Industries Limited and Another Vs Tanzania Development Finance Company Limited (1996] TLR 257. In . . conclusion thus of this first part of the appeal, the learned counsel has argued that, there was no justification at all for the District Land and Housing Tribunal to dismiss the application on the allegation that it was time barred. Regarding the second part, it has been the contention of the learned counsel for the appellant that, the filing of the application outside the time prescribed by the Chairman of the District Land and Housing Tribunal, did only render the amended application incompetent before the Tribunal, and the consequence thereof, was for the amended application to get expunged from the record of the Tribunal and thereby leaving the previous.one. To the contrary, the Chairman of the District Land and Housing Tribunal did strike out the entire ., application, an act which was offensive of the provisions of Order VI Rule 18 of the Civil Procedure Code Act, Cap 33 Revised Edition of 2002. On the bases of the foregoing, it has humbly been requested that, this appeal be allowed with costs. The submission·. in response to what has been submitted by his leaned brother, on the question of the time bar, Mr. Stolla Esquire has argued that, the late Fundi Hamisi was supposed to have taken action against the respondent regarding the disputed premises from 1994 when the transaction was concluded, 5 7t\~]j~;r · ):.';'': . I _. • . , , which means, up to the time when he died, that is. in 2000, six (6) years had elapsed. While he has admitted to the fact that indeed Athumani Hamisi who happens to the appellant was supposed to have taken action from 2002 when he got appointed to be. the administrator of the estate of .the deceased, and that, when the said period is computed to when the application was ·1odged in 2009, it gives us only seven years, the said period has to be combined with the other six years which the late Fundi Hamisi did not take an action and therefore, making a tota·I of thirteen (13} years. In amplification to the foregoing position, Mr. Stolla has argued that, by virtue of being appointed to be the administrator, the appellant did inherit all actions, omissions, rights and liabilities of the deceased, and therefore, he cannot deny the liability or blameworthiness of the deceased for having-failed to take any action against the respondent in respect of the disputed premises for the above indicated period, and hence, the period which the deceased sat on his right has to be combined with that of his own, and therefore making a total of 13 years, which is beyond the limitation period of twelve years prescribed by the Law of -limitation Act. As such, the Learned Chairman of the District Land and Housing Tribunal was justified to rule out that, the applica~ion was time barred. On the question of adverse possession which arises. fr.arr{ implied acquiescence, it has been submitted by the learned counsel for the· respondent that, the respondeQ.t in this matter has been in _occupation of the suit premises _ since 1994, when he purchased it to 2009. Since in the whole of that period, 6 . -..• neither the late Fundi Hamisi ·nor the appellant e_v·er disturbed him, then even if he had been a trespas~er, he is to be held the rightful occupier by virtue of the doctrine of adverse possession~ . Lastly, it has been the contention of Mr. Stolla that, the appellant was allowed by the Tribunal to amend his application. However, he failed to do so within the time that had been prescribed by the Tribunal. The learned counsel has averred that, by the time the appellant prayed for amendment of his application, the old. version was abandoned and put out of use, and therefore, could not get resurrected after the failure to lodge the amended one. To that end, it has been argued that for all intends and purposes, the application by the appellant was correctly dismissed by the District Land and Housing Tribunal and therefore, this appeal is without any founded grounds and has to fail with costs. In the light of the submissions from the learned counsel for both sides above, two issues stand for deliberation by this Court, that is first, as to whether the District Land and Housing Tribunal was legally sound to strike out the application by the applicant after he had failed to lodge the amend~d one timely, in compliance with the order of the Tribunat: ,Sec·ondly, _-as :to· Whether, the application that got lodged .at the District. LancJ. ·and ·t?t·iusing fri~-~-h:.was time 7 Undoubtedly, the application by the appellant to amend the application was made under the provisions of Order VI Rule 17 of the Civil Procedure Code Act, Cap 33. If that had been the case, the consequent for failure to comply with . the order given by the Court/Tribunal, is provided for under the subsequent Rule that is, Rule 18 which stipulates inter alia that: "If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the court." My understanding of the above quoted provision of law is that where an amendment of the suit/application has ultimately not been made, the applicant/plaintiff will have to proceed with the one which he had intended to amend. With such view, I am far from being moved by Mr. Stella's suggestion th~t, the making of the application for amendment, meant that the previous application had been abandoned. As such, I hold that, the Hon·ourable Chairman of the District Land and Housing Tribunal had no legal justification to strike out the entire application of the applicant. If he firmly did not wish to extend the time which he had prescribed to the applicant, then he ought to have ordered to proceed with the one sought to be amended. 8 _.. , -.• :r I .. ..:.··;.:•.· :r--· ·"'· i ... Th~ sec(?nd issue "'{hich was posed above is whether the application that , 0 . . . . got lodged at the -District Land and Housing Tribunal by the applicant was time . barred. It has been conceded by Mr. Stolla learhecl counsel for the respondent ·_ . . that, the limitation period for the appellant started to count when he got appointed to be the administrator of the estate of the deceased, that is in 2002. The learned counsel has however argued that, the appellant has also to inhe~it the period that had ran against the deceased, that is, from 1994 when the sale transaction of the disputed premises is alleged to have been executed, to the year 2000 when he passed away, which makes a total of thirteen (13) years, which is well beyond the limitation period of twelve (12) years prescribed by the law. The question that crops in the light of what has been averred above ·is whether the contention of the learned counsel is tenable. The provision of section 9 (1) of ·the Law of Limitation Act, provides for accrual of right of action in a situation like the one encountered by the appellant and it states that;· "'l} Where a person institutes a suit to recover land of '! deceasef' person, whether under a will or intestacy. and the deceased person was, on the date of his death, in possession of the land and was the last person entitled to the land to be in possession of the land, the right of action shall be deemed to have accrued on the date of death." 9 ?,0f4 ' On the bases of what is stipulated in the above provision, the assertion of / ! · Mr. Stolla Lear~ed counsel that, the period that did run against the deceased and that which did run against the appellant have to be combined, finds no base to ·. ·stand on: Additionally, it has not been ascertained if while passing away, the deceased was aware that his ownership to the disputed premises had been · tempered with. This argument arises on the bases that, the sale agreement, and . the transfer deed, alleged to have been executed by the two, has been disclaimed. So even if the suggestion by the learned counsel was to be honoured, still the probability to rescue the situation could have remained afar. Since in the matter at hand, the centre of contention is on the period when the appellant, who set the application in motion, came to be aware that the disputed property had been tempered with, · then the computation of the . limitation period has to commence from when he discovered the anqmaly. In the · case of Calico Textiles cited by Mr. Kidumage learned counsel (supra), the statementof the Court of Appeal was that: '7he period of limitation for the bringing of legal proceedings in the Law of Limitation Act'.does not begin to run until the victim of the fraud has discovered the fraud." · lt is evident on the bases of the foregoing holding th<lt, the computation of . . . .. . .....• ···._•. .-. ·.""''-=-~ . ·.: ...... ; the limitation period in the case at hand. by the.appel:ra.nt, c~r:nJl'lced after his . . . . . . ,,;~~~) 10 appointment to administer the estate of the deceased which in any_ case, nas w be on or after the year 2002. Furthermore, ·in computing the limitation period, the respondent has based on the pe~iod from when the sale transaction between him and the deceased is alleged to have been cqncluded. However, the alleged sale transaction has been strongly disputed by the appellant who has claimed that, the sale document and the transfer deed both of which have been relied upon by the respondent are forged documents. Until such allegation by the appellant has been proved or disproved in either way, currently those documents cannot be used as a determining factor. This position finds support in the decision of Bikubwa Issa Ally (supra.) where the Court held that: "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 or the other and it could not be used to dispose of the suit on a preliminary I objection based on the Law of Limitation Act." There was yet the principle of adverse possession that got invoked by the learned counsel for the respondent to defend the interest of client to the disputed property. It has been submitted that since the respondent has been in occupation of the disputed property from 1994 when he purchased it from the 11 ·~r ------r~· :1 - l deceased, to 2009 when this application got lodged, that is a period of ·about fifteen ·(15) years/ there was no any poi_nt in time when he got disturb.ed by neither the deceased nor the appellant, then he should be presumed t_o be the lawful owner. Indeed, the law protects a long user to landed property to be dedared the lawful owner if he fulfils certain conditions. A person claiming ownership through adverse possession must among other things, sufficiently establish· that, his possession to the claimed landed property for the claimed period, was actual, open and notorious, exclusive, hostile and continuous and uninterrupted. When we revert to_ the case under discussion, it has been contended by the appellant that his family _has ever since prior to 1994 to date been occupying the disputed· premises. That alone, means that the respondent is not in actual possession of the claimed landed property, which already, is a disqualification to the invoca~ion of the principle even before considering other factors. ✓ Be that as it might be, on the bases of what has been discussed above, it is obvious that this matter was not one which was fit to end up on a preliminary objection. The finding of the District Land and Housing Tribunal both in striking out the application as well as dismissing it for being time barred is hereby reversed. It is ordered that the application be heard and determined on merit. 12 . ·- .. . The costs shall abide the outcome of the application. 27-09-2011 J. 13 Dated : 27th September,2011 Coram: R. I. RUTTA- DR Applicant : Present & Mr. Kidumage Adv. R~spondent : Present C/C: R. Mahmoud. Court : Judgment delivered in the presence of the both parties and Mr. Kidumage Adv. for the Appellant. Right of appeal explained. R. I. RUTA~£T DISTRICT REGISTRAR 27/9/2011