avelina alfonsi magingo administratrix of the estate of the late alfonsi stefan magingo v gaudensia nyoni 2023 tzhc 18438 28 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA DISTRICT REGISTRY (LAND DIVISION) AT SONGEA LAND APPEAL NO. 18 OF 2023 (Originating from the District Land and Housing Tribunal for Songea at Songea in Land Application No. 38 of2022) AVELINA ALFONSI MAGIN GO (Administratrix of the Estate of the Late Alfonsi Stefan Magingo) .............................. APPELLANT VERSUS GAUDENSIA NYONI................. RESPONDENT JUDGMENT Date of Last Order: 07/06/2023 Date of Judgment: 28/06/2023 U. E. Madeha, J. First and foremost it is worth considering the fact that, before the District Land and Housing Tribunal for Songea, the Appellant as the administratrix of the estate of the late Alfonsi Stefan Magingo, filed an application for declaration that the Respondent is the trespasser in the disputed piece of land located at Sanangula Street within Tanga Ward and Songea Municipal. She also prayed for the declaration that the disputed piece of land is the property of the late Alfonsi Stefan Magingo. As a matter of fact, the late Alfonsi Stefan Magingo died in 1990 1 and his properties remained under the control of his patrimonial uncle one Stefan Magingo since his children were living away from where the properties were located. In the year 2014, Stefan Magingo was ordered to handle the deceased's estate to the children of the late Alfonsi Stefan Magingo and the dispute arose. The Respondent, in her part she claimed that she was given the disputed farm by her father in 2009 until 2014, she was using that particular piece of land without any interference, v When the application was called for hearing oh 15th November, 2022 the Trial Tribunal in suo moto raised a preliminary objection that the application was time-barred since the Appellant (Applicant) filed her application out of the prescribe time limit. After hearing the arguments of both parties, the Trial Tribunal sustained the preliminary objection and the application was struck out. Being discontented, the Appellant now seeks to impugn the decision of the Trial Tribunal and she filed a memorandum of appeal, which encompasses only one ground of appeal which states reads: "That the Tria! Tribunal erred in law and facts when it held that the application before it was time-barred". It is important to note that, the appeal was canvassed by way of written submissions. The Appellant was represented by the learned advocate Ms. Naomi John, whereas on the other hand, the Respondent 2 had no representation, she fended herself. To begin with the first ground of appeal Ms. Naomi submitted that the Trial Tribunal is to be blamed by holding that the application before it was time-barred since it was filed within the prescribed legal time. Looking on the application, it is clearly stated that the cause of action arose in the year 2021 but letters of administration shows that Alfonsi Stefan Magingo died in the year 1990. She submitted that there are two cdnflictihg positions or ideas' from! the decisions of the High Court of Tanzania. The first position is found in the decision reached in the case of Yusuph Same & Others v. Hadija Yusuph [1996] T.L.R. 347, which was based under section 9 (1) of The Law of Limitation (Cap. 89 R. E. 2019)r that if the deceased was the last person to own the land in dispute, time shall run from the date of death of the deceased. The second position or idea is found on the proper interpretation of section 24 (1) of The Law of Limitation Act (supra), that the cause of action arose after the death of the deceased, time limitation starts to run from the date when the right to sue accrues or from the first anniversary from the date of death of the deceased. She mentioned the decisions made basing on that position to include Shomari Omar Shomari (Administrator of the Estate of the Late Seleman Ibrahim 3 Maichila) v. Esha Seleman Ibrahim & Others, Land Appeal No. 171/2018, Rashid Togwa (Administrator of the Estate of the Late Mohamed Togwa) vs. Peapea Village Council, Land Appeal No. 60/2020, Habiba Bash (Surviving Legal Personal Representative of the Late Bush Mwinyibohari) v. Ramadhani Lila Gogo @ Jeba & Another, Land Appeal No. 40/2020. To cement it, she added that most recent decisions made by the High Court are on the second position. She contended that when a person dies while his right to sue has not accrued, then time will start to run from the date when the right to sue accrues. She argued that in the case at hand the cause of action occurred in the year 2021 and the whole period of time from the year 1990 to the year 2020 has to be excluded when it comes to limitation of time. Lastly, she submitted that the application was not time barred and she prayed for this appeal to be allowed. On the contrary, the Respondent submitted that there is no doubt that the Trial Tribunal correctly reached into its decision. She argued that the Appellant stated that she is an administrator of the deceased's estate and the said deceased died in the year 1990, but the Appellant filed land application before the Trial Tribunal after thirty-one years which is contrary to the law. 4 At the same time, she contended that from the above scenario, there is no dispute that the Appellant is aware of the time limit within which she could have filed the land application before the Trial Tribunal instead she is trying to run around the bush while knowing that the law stipulates very clearly with regard to the time limit, as it has been pointed out under section 9 (1) of The Law of Limitation Act (Cap. 89, R. E. 2019), which states that: "Where a person institutes a suit to recover land of a deceased' 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." She argued further that, from the above provision, there is no doubt that the cause of action arose in the year 1990 when the deceased died and the application was filed thirty-one years from the death of the deceased and it was out of the time limit prescribed by the law. She contended that sections 24 and 25 of The Law of Limitation Act {supra} and the cases which were cited by the Appellant's advocate are irrelevant and are quite different from the dispute at hand. To crown it all, she cited with approval section 35 of The Law of Limitation Act [Cap. 5 89, R. E. 2019], which states that: "For the purposes of the provisions of this Act relating to suits for the recovery of-land, an administrator of the estate of a deceasedperson shall betaken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration or, as the case may be, of the probate." In addition, she submitted that from the above cited provision, it is crystal clear that the Appellants application was time-barred. So, the act of the Appellant to file the suit as an administrator of the estates of the late Alfonsi Stefan Magingo, who died thirty-three (33) years ago was contrary to the law. Apart from that, she stated that what has been submitted by the Appellant in her appeal has no merit at ail and she is wasting the precious time and resources of this Court. Finally, she prayed for this Court to dismiss this appeal with costs for lack of merit. In her rejoinder submission, the Appellants advocate reiterated what was submitted in submission in chief and added that the right to sue arose on 2021 and not in 1990 when the deceased died since there was no dispute over the disputed land at that time. He made reference to the case of Harms Mohamed (the Administrator of the Estate of the Late Risasi Ngawe) v. Mtumwa Moshi (Administratrix of 6 the Estate of the Late Moshi Abdallah), Civil Application No, 526/17 of 2016. As far as I am concerned and from the submission made by both parties, the issue is whether the Appellant filed her application out of the prescribed legal time. Principally, I have thoroughly seen that both parties in this case at the Trial Tribunal were not heard and the Trial Tribunal dismissed the application prematurely. There is a common saying which states that "Don'tjudge a book by looking at its cover". This saying reminds us that we must determine the case after receiving the testimonies from both parties. k In that sense, having gone through the grounds of appeal and the submissions made by both parties to this appeal, it is clear that the case was not heard on merit. I am with the view that if the parties would have adduced their evidence, the trial Tribunal would have been in a good position to decide whether the application was time barred or it was filed within the time limit. In dealing with the issue of limitation of time the trial Tribunal ordered the parties to submit on whether the application was filed within the time or it was filed out of the legally prescribed time. This was not a proper approach in dealing with that 7 issue. It was better for the application to be heard on merit by receiving evidence from both parties. In fact, it would have determined the rights of the parties and it would have reached into the right decisions. As much as I am concerned, I find the Trial Tribunal wrongly dismissed the application. The application was to be heard by taking evidence from both parties and be determined on merit. In doing so the issue of whether the application was within the time limit or not would have been decided clearly. A ' Conclusively, in view of what has been stated above, I strongly agree with the Appellant learned counsel submission. The proceedings of the Trial Tribunal from 14th November, 2022 and the ruling of the Trial Tribunal are hereby quashed. Consequently, I order for the retrial of the application and the original case records in Land Application No. 38 of 2022, be remitted to the District Land and Housing Tribunal for Songea at Songea for the continuation of the hearing. Finally, appeal partly allowed. I give no order as to the costs. Order accordingly. 8 DATED and DELIVERED at Songea this 28th day of June, 2023. JUDGE 28/06/2023 COURT: Judgment delivered in the presence of the Appellant and in the absence of the Respondent. The Respondent be notified. Right of appeal is explained. ----- U. E. MADEHA JUDGE 28/06/2023 9