20191121 TZHC Mbeya

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA LAND CASE APPEAL NO 70 OF 2016 (From the District Land and Housing Tribunal for Mbeya at Mbeya in Land Application No. 158 of 2013.) BETINA NGANYANGA..............................................................APPELLANT VERSUS SADICK MWASUMBI (Administrator of the Estate of the Late Kabafu Mwasumbi)............................. RESPONDENT JUDGEMENT Date of Hearing 12/09/2019 Date of Judgement: 21/11/2019 MONGELLA, J. This judgment arises out of an ex-parte hearing conducted on 12th September 2019 following non-appearance of the Respondent on several dates fixed for hearing of the matter despite being aware of the existence of the same. In the memorandum of appeal the Appellant raised two grounds to wit: ~ jo Page 1 of 4 That the Hon. Trial Chairman erred in law by entertaining and determining the application filed by the Respondent which was inordinately time barred. That the Hon. Chairman erred in law and facts by failing to evaluate properly the evidence in record and hence leading to unjust decision to the detriment of the Appellant. During the ex-parfe hearing the Appellanf ,,,represented by Mr. Luka Ngogo, learned Advocate, abandoned ground two and argued on ground one only. In his submissions Mr. Ngogo argued that the Respondent filed the application in the Tribunal in the capacity of administrator of the estate of the late Kabafu Mwasumbi. He submitted that the said Kabafu Mwasumbi, as also shown at page 1 of the Tribunal judgment, died in the year 2000 and the application was filed in 2013. Mr. Ngogo argued further that the law is settled to the effect that the time to claim land of a deceased person is twelve (12) years from the date of the death of that deceased person. The same is provided under section 9(1) of the Law of Limitation Act, Cap 89, R. E. 2002. In addition he cited decisions of this Court which reiterated the position of the law. These are Edison Mwaipungu v. Aman Ramadhan Mwakisale, Misc. Land Case Appeal No. 14 of 2013 (HC-Mbeya, Levira, J. as she then was-(unreported) and Dominicus M. Mvamba v. Thadel Mwangunga & The Registered Trustees of SDA Association, Land Appeal No. 10 of 2016 (HC-lringa, Shangali, J. as she then was (unreported). Mr. Ngogo concluded that from the year 2000 to 2013 when the matter was instituted in the DLHT the time limitation of 12 years had already lapsed thus the Tribunal ought tQ Page 2 of 4 IN have dismissed the matter under section 3 of the Law of Limitation Act, which is applicable to the DLHT through section 51 of the Land Disputes Courts Act, Cap 216, R.E. 2002. have considered the submissions of the Appellant's Advocate and gone through the records of the DLHT. It is clearly stated in the judgment and the records that the deceased, one Kabafu Mwasumbi, whom the Respondent is the administrator of his estate died in 2000. The matter was instituted iniAr the DLHT in 2013 whereby the 12 years limitation period prescribed under the law had already elapsed. I agree with Mr. Ngogo's argument that the Hon. Chairman of the DLHT ought to have taken this factor into consideration because the courts/tribunals are not vested with jurisdiction to entertain matters that are time barred unless a party obtains leave to institute the claim out of time in accordance with the law. I find this ground of appeal meritorious and thus allow it. On the other hand, as I was perusing the records of the DLHT I also noted that the opinion of assessors was not recorded in the proceedings. The Hon. Chairman purports to have considered the opinion of assessors in his judgment but does not state what kind of opinion the said assessors gave. This is in clear contravention of the law as provided under section 23 (2) of the Land Disputes Courts Act, Cap 216 and Regulation 19 (1) and (2) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, G.N. No. 174 of 2003. The same has also been decided in a number of cases by the CAT and this Court. See for instance: Ameir Mbarak and Azania Bank Corp Ltd. v. Edgar Kahwili, Civil Appeal No. 154 of 2015 (Unreported,); Edina Adam Kibona v. Absolom Swebe (Shell), Ci1jl Page 3 of 4 Appeal No. 286 of 201 7; Tubone Mwambefa v. Mbeya City Council, Civil Appeal No. 287 of 2017 just to mention a few. In the upshot I allow the appeal with costs. The proceedings and judgment of the DLHT are hereby quashed in entirety. DatedatMbeyathis2lstdayofNovember20l9 10 (r L. M. M NGELLA JUDGE 21/11/2019 Court: Judgement delivered in Mbeya in Chambfs on this 21Sf day of November 2019 in the presence of MV Luka Ngogo, learned Advocate representing the Appellant. L. M. MONGELLA JUDG,E1 21/1 1/019 Right of appeal to the Court of Appeal h been duly explained. L. M. NGELLA ,YtJDGE 2//11/2019 Page 4 of 4