atupenda chesam njiwa vs shedrack tito mkusa 2023 tzhc 22854 22 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA LAND APPEAL NO. 31 OF 2022 (Original Land Application No. 24/2018 o f the District Land and Housing Tribunal o f Iringa before Hon. A.J. Majengo, Chairperson) ATUPENDA CHESAM NJIWa " (The administratix of the estate > ................................ APPELLANT of the Late Chesam Elia) VERSUS SHEDRACK TITO MKUSA (The administrator of the estate of the .RESPONDENT Late Atwelukye Chesam Ndziva) JUDGMENT 05th & 22nd November, 2023 I.C. MUGETA, J: The appellant is a successor administrator to the estate of her late father Chesam Elia Njiwa who died interstate in 1973. Initially, Atwelukye Chesam Ndziva was appointed to administer the estate of her late father, Chesam Elia Njiwa. The former administrator met her death in 1993. The appellant then took over the administration of her deceased father's estate. In the course of administering the estate, she realized that the deceased's house located at Plot No. 29 Block "N" Mivinjeni area Iringa Municipal had been registered in the name of Atwelukye Chesam Ndziva. The appellant then sued the respondent for Page 1 of 12 a declaration that the said property is among the estate of the late Chesam Elia and that the transfer from Chesam Elia to Atwelukye Chesam Ndziva was illegal. In his written statement of defence and evidence on record, the respondent claimed that the dispute property was given to the late Atwelukye by her mother Lusia Siwelilo (the late Chesam Elia's wife) who was the legal owner of the dispute property. And that the said dispute property was built by Lusia Siwelilo. The tribunal held in favour of the respondent. In his judgment, the chairperson dismissed the application for being time barred and declared Atwelukye to be the lawful owner of the dispute property. Aggrieved by the tribunal's decision, the appellant has now appealed to this court based on six grounds: 1. That, the honourable chairman erred in iaw and fact in deciding on the issue not framed by the parties for decision without inviting the appellant to be heard first before making decision; hence the appellant was denied her right o f fair hearing. 2. That, the trial tribunal erred both in law and fact by holding that the institution of Application No. 24 of 2018 in the District Land and Housing Tribunal for Iringa was time barred and Page 2 of 12 proceeding to decide in the respondent favour white she is not the legal owner o f disputed house (She is a mere Administratrix o f the estate o f her late father Chesam Elia). 3. That, the honourable chairman erred in law and fact in misdirecting himself and concluding that, the suit by the appellant was not proved and the respondent proved her case, contrary to laws and evidence on records. 4. That, the learned trial chairman erred both in law and fact when ruled the application before him by being tied up with legal technicalities. 5. That, the honourable chairman erred both in law and fact in doubting the land ownership by the appellant on the reason of failure by the appellant to be stay in the house in dispute instead o f considering the evidences adduced by the parties. 6. That, honourable chairman erred in law and fact in holding that, SM5 (Abenance Kamomonga - Afisa Ardhi Mteule) evidence contradicted with SM4 (Collins Masudi Malekela) while the testimony/evidence o f SM4 was withdraw in the tribunal records. Page 3 of 12 The hearing of the appeal was by filing written submissions. The appellant is represented by Shaba Ntung'e learned advocate whereas the respondent appeared in person. In supporting the appeal, the appellant's counsel argued the 1st and 2nd grounds jointly. He submitted that the Chairperson raised a new issue of time limitation suo moto when composing judgment without affording the parties the right to address him on that issue. This in his view, violated the parties' right to be heard. To support his argument, he cited the case of DPP v. Tonya Mathayo (1995) TLR 23 which I find irrelevant as it concerned the application of section 225 of the Criminal Procedure Act. On the 3rd ground, the appellant's counsel submitted that the chairperson misapprehended the evidence. In his view, the appellant managed to prove on the balance of probability that the dispute property belonged to Elia Chesam since 1964. After his death in 1973, the respondent was appointed as administratrix of his estate. In 1975 the respondent then applied to be registered as the owner of the dispute property. That the appellant's evidence was supported by PW5 who testified that the owner of the dispute land according to the Page 4 of 12 Municipal records is Elia Chesam. In his view, PW5 was a credible and reliable witness. On the 4th and 5th grounds, the appellant's counsel argued that the chairperson misevaluated the evidence. The fact that the appellant never lived in the dispute property does not mean that he does not know ownership of the same. On the last ground he contended that PW4 and PW5 evidence did not contradict each other. The respondent resisted the appeal. On the 1st ground he argued that the issue of time limitation was not raised suo moto, it had been raised as a preliminary objection. In his view, the chairman determined all the issued framed, thus, reached a fair decision. In addition to that the appellant was not prejudiced by such act. On the 3rd ground, the respondent contended that he managed to prove that the dispute property belongs to the late Atuwelukye as evidenced in the certificate of occupancy. He contended further that PW4 and PW5 contradicted each other and they all admitted that the disputed property belongs to Atwelukye Chesam. The respondent contended on the 4th and 5th grounds that whoever alleges must prove, thus, the appellant was required to bring evidence to prove that the dispute property belonged to the late Elia Page 5 of 12 Chesam. He supported his contention with the case of Baha Matle v. Yasenta Ungeni, Misc. Land Case Appeal No. 25/2020, High Court - Arusha (unreported) where it was held that whoever alleges must prove. He contended further that the appellant did not tender any document that proved Chesam Elia's ownership of the dispute property. Lastly, on the 6th ground, he submitted that PW4 and PW5's evidence were both used in reaching a fair judgment. In rejoinder, the appellant's counsel essentially reiterated his submission in chief. I shall determine the appeal following the order by which counsel for the appellant has submitted on the grounds of appeal. I start with the 1st and 2nd grounds. The main complaint in these grounds is that the tribunal raised an issue of time limitation suo moto without affording the parties the right to address on the issue. A close scrutiny of the tribunal's judgment reveals that the chairperson raised the issue of time limitation in the course of composing the judgment. The respective paragraph reads: "Ardhi inayodaiwa na mdai kwamba ni mafi ya marehemu Chesam Elia aliyefarika (sic) mwaka 1973 na mdai akiwa msimamizi wa mirathi ameteuiiwa mwaka 2017 na kesi hii Page 6 of 12 imefungu/iwa mwaka 2018; kwa mjibu (sic) kifungu cha 9(1) cha Sheria ya Ukomo wa Madai, Sura ya 89 marejeo ya mwaka 2019 sheria tajwa hapo juu kinae/ezea kuwa muda wa kuanza kuhesabu kudai aridhi (sic) ya marehemu ni kuanzia tarehe ya kifo chake ndo chanzo cha mgogoro kinaanza, nina mtizamo kuwa maombi haya yamepitwa na wakati/muda kwani madai yameietwa baada ya miaka 12". The above paragraph shows that the chairperson raised the issue of time limitation suo moto. Indeed, the parties were not given the opportunity to address him on that. It is my view that the decision on the issue raised suo moto affected the parties' rights. They neither presented argument on it nor evidence as to whether the application was time barred or not. Interestingly, the record shows that there was raised a preliminary objection that the application was time barred. The tribunal had ruled that the application was not time barred. Therefore, it had become functus officio. In his judgment the chairperson held that time limit against the estate of the deceased started to run from the date of his death which is 1973. He concluded that as the application was filed in 2018 it is time barred. I hold a different view. In her application and evidence, the Page 7 of 12 appellant testified that upon her appointment as administratrix of the deceased's estate in December, 2017 she made follow ups of her administration of the estate. That is when she realized that the dispute property was registered in the name of Atwelukye. In my view, the cause of action accrued when the appellant discovered that the dispute property was registered in the name of Atwelukye which is in 2018. The application was filed in 2018, therefore, it was within time. The appellant's 3rd, 4th, 5th and 6th grounds of appeal raise the issue of whether the tribunal properly evaluated the evidence. In his judgment, the chairperson perfunctorily analysed the evidence on record. He applied the principle of adverse possession without considering the appellant's evidence on record. This being the first appellate court, I am duty bound to subject the evidence into a fresh evaluation and scrutiny. According to the appellant who testified as PW1, the dispute property originally belonged to the late Chesam Elia as the registered owner. This was supported by PW4, the Land Officer from Iringa Municipal Office who testified that the late Chesam Elia was the registered owner of the dispute property since 1963 and had the certificate of occupancy. The same was not admitted for technical Page 8 of 12 reasons. He testified further that in 1978 the late Atwelukye Chesam applied to have the dispute property registered in her own name as administratrix of the estate of Chesam Elia. PW5 who is from the Municipality offices corroborates this evidence. He admitted that his office had wrongly issued the certificate of occupancy to Atwelukye as owner instead of legal representative of the deceased, Chesam Elia. The respondent's evidence according to DW1 is that he was told by Siwililo (Atwelukye's mother and wife of Chesam Elia) that she built the house on the dispute land. DW2, daughter of Atwelukye on the other hand testified that Atwelukye obtained the dispute property from Chesam Elia and that they have been using the property since 1978 without any disturbance. On cross examination she stated: "Mama yangu Atwelukye a/ipata nyumba kwa njia ya urithi kutoka kwa mama yake toka mwaka 1978. Chesam Elia alikuwa mmiliki na alipofariki akabaki Atwelukye Chesam na hati ya to/eo ya kiwanja ilitolewa kwajina lake". DW3 on the other hand testified that he has lived in the dispute property since 1981 at his grandmother's house (Siwililo). He further testified that after the demise of Siwililo, the said house was given to Atwelukye. Page 9 of 12 In my view, the respondent's evidence is contradictory on who the registered owner of the dispute property is. While DW1 and DW3 testified that the property belonged to Siwililo from whom it was transferred to Atwelukye, DW2 testified to the contrary. DW2 testified that the dispute property belonged to Chesam Elia, upon his death it passed to Atwelukye. I find the evidence of DW2 probable because: one, being the daughter of Atwelukye she is better placed to know the owner of the dispute property. Two, the evidence of DW3 only covers a period from 1981 when the late Chesam had already died, therefore, DW3 is not in a good position to know the legal owner of the dispute property. DW2's evidence supports the appellant's evidence that the dispute property was originally owned by the late Chesam Elia. There is no evidence that the property belonged to Atwelukye's mother (Siwililo). Therefore, the reliable evidence on ownership of the dispute property is that it belongs to the late Chesam Elia as testified by PW4 and PW5 and the late Atwelukye was wrongly registered as owner instead of a legal representative. The law under section 67 of the Land Registration Act [Cap. 334 R.E 2019] permits an administrator of the deceased property to apply Page 10 of 12 for a deceased property to be registered in his/her own name. In doing so, the administrator is only acting in a representative capacity. This was stated in Joseph Shumbusho v. Mary Grace Tigerwa and 2 Others, Civil Appeal No. 183/2016, Court of Appeal - Dar es Salaam (unreported) where it was held: "As legal representative o f the deceased's estate, all the deceased's estate are vested to him and has all the powers over the deceased assets as the deceased would have, save that he is acting in a representative capacity"{Emphasis added). I hold that the late Atwelukye wrongly registered the dispute property in her name as testified by PW5. She being administratrix of the deceased's estate, there is no evidence that she distributed the said house to the lawful heirs nor that she was the lawful heir to whom it was bequeathed. Therefore, it was wrong for the tribunal to declare Atwelukye as the lawful owner of the dispute property. In their opinion, the assessors found for the appellant. The learned chairperson differed with them for reasons which are not clear. I agree with the assessors' finding that the dispute property belongs to the estate of the late Chesam Elia. Page 11 of 12 I find merits in the appeal. The appeal is allowed, the decision of the tribunal is set aside. The dispute property is declared part of the estate of the late Chesam Elia. The transfer of the property to Atwelukye Chesam Ndziva is declared illegal. The respondent and all people in occupation of the dispute property through him are ordered to give vacant possession and they are permanently barred from interfering with the appellant's duties as administratrix of the deceased's estate in relation to the dispute property. As parties are relatives, I give no orders as to costs. Court: Judgment delivered in chambers in the presence of the appellant in person, Joel Kimumwe, learned advocate for the appellant and the respondent in person. Sgd. I.C. MUGETA JUDGE 22/ 11/2023 Page 12 of 12