Buzurizuri vs Yanga Judgment 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL No. 30520 OF 2024 (Arising from Land Case No. 15 of 2020 of the District Land and Housing Tribunal for Geita at Geita) 1. BUZURIZURI GASSONI ……………………………………………1st APPELANT 2. RENARD MLASA ………………………..………………………….. 2nd APPELANT 3. PASCHAL KATOROROKU …………….……………………………3rd APPELANT 4. MABUGA MAHENDE ………………………………………………..4th APPELANT VERSUS YANGA MHOGEJE (The Administrator of the estates of The Late LUFUNGULO MHOGEJE)……………………………………RESPONDENT JUDGMENT Date of last Order: 28/01/2025 Date of Judgment: 30/01/2025 MWAKAPEJE, J.: This is the first appeal. It stems from the decision of the District Land and Housing Tribunal (the DLHT) for Geita, whereby Yanga Mhogeje, the Administrator of the estates of the late Lufungulo Mhogeje, the Respondent, vide Land Application No. 15 of 2020, sued the appellants for recovery of a parcel of Land (the suit land), located at Inyala Village in Nyamigota Ward of Katoro in the District and Region of Geita measuring 200 acres, which was allegedly encroached by the appellants. Page 1 of 12 The brief facts which led to the institution of Application No. 15 of 2020 at the DLHT were that the respondent alleged that he is the administrator of the estate of the late Lufungulo Mhogeje, who left behind properties on his demise, including the suit land in dispute. It was alleged that the deceased passed away in 2003, and in 2012, the appellants started encroaching on the suit land. The respondent reported the matter to the Village Land Committee on 11/04/2012. Later, the matter was referred to the Katoro Ward Tribunal and later to the Geita District Land and Housing Tribunal, which decided in favour of the appellants. Discontented, the respondent appealed to the High Court in Land Appeal No. 70 of 2018, whereas both the judgment and orders of the DLHT were nullified and proceedings quashed as the tribunal lacked jurisdiction to try the matter. Still persistent in recovering the said piece of land, the respondent filed Land case No. 15 of 2020 before the DLHT of Geita, which, after its determination, was decided in his favour. Dissatisfied with the decision, the appellants appealed before this Court with three grounds of appeal:- 1. That the trial tribunal erred in law and in fact for entertaining the land dispute, which was time-barred. Page 2 of 12 2. That the trial tribunal erred in law and in fact, by deciding that the suit land is the property of Lufungulo Mhogeje based on the reason that he acquired that land early in 1972 without considering that the appellants were allocated the same in 1985 and they have been using it without conflict until 2020 when the respondent emerged. 3. That the trial tribunal erred in law by deciding that the suit land belonged to late Lufungulo Mhogeje without considering that the application did not adequately describe the suit land as the same is unregistered one. Pursuant to this Court's order of 11 December 2024, the appeal was argued by written submissions. The appellants were to file their submission(s)-in-chief on or before 18 December 2024, the respondent was to file his reply submission on or before 24 December 2024, and the Appellants were to file a rejoinder submission, if any, on or before 27 December 2024. The appellants complied by filing their joint written submission on 17 December 2024. The respondent never adhered to the Court's order and did not file his written submissions. In this appeal, the appellants had the services of Mr Shija Jeremia, a learned advocate, for drawing and filing the submissions. Page 3 of 12 It is settled, and the law is clear that failure to file a written submission as ordered by the Court without any justifiable reason is a manifestation of failure to appear and argue his case on the hearing date. In this appeal, the respondent was present on 11 December 2024 when the leave to dispose of the appeal by written submissions was sought by the 3rd appellant and granted by this Court. The Court's order to the parties was specific, as it provided schedules for filing their respective written submissions. It is with no avail whether the respondent either refused to heed the Court's schedule or had nothing to reply to the appellant's written submissions. In the case of P3525 LT Idahya Maganga Gregory vs The Judge Advocate General, Court Martial Criminal Appeal No. 2 of 2002 (unreported), it was stated that: "It is now settled in our jurisprudence that the practice of filing written submissions is tantamount to a hearing and, therefore, failure to file the submission as ordered is equivalent to nonappearance at a hearing or want of prosecution. The consequences of failure to file written submissions are similar to those of failure to appear and prosecute or defend, as the case may be." That being the position, I will determine the appeal accordingly on merit based on the grounds raised by the appellants. On the first ground, Mr Jeremia submitted that the suit was filed and entertained in contravention of section 9(1) and (2) of the Law of Page 4 of 12 Limitation Act Cap 89 R.E 2019, which provides for accrual right of action in cases of a person interested in land to be 12 years. He stated that from the record, the respondent became aware of the trespass in 2001 before the demise of Lufungulo Mhogeje, who passed away in 2003. He further submitted that the suit was instituted in 2020 after the lapse of 17 years, contrary to the law. He argued that because this was the suit to recover the land of the deceased, it could have complied with item 22 of Part 1 to the Schedule read together with section 3(1) and sections 9(1) and (2) of the law of Limitation Act (Cap. 89 R.E 2019). Additionally, he contended that since the appellants were in uninterrupted occupation and use of the disputed land for about 19 years, which is over the period of limitation of 12 years, it is certain that they acquired title or ownership to that land. To support his argument, he referred to the cases of Fortunatus Lwanyantika Masha & Another vs Claver Woshi Limited (Civil Appeal No. 144 of 2019) [2022] TZCA 433 (18 July 2022) and Barclays Bank Tanzania Limited vs Phylisiah Hussein Mcheni (Civil Appeal 19 of 2016) [2021] TZCA 202 (17 May 2021). He, therefore, insisted that the trial tribunal lacked jurisdiction to entertain the dispute, which was time-barred. On the second ground, Mr Jeremia contended that the District Land and Housing Tribunal erred by deciding that the suit land is the property of the late Lufungulo Mhogeje. According to him, the decision was based on the reason that he acquired the land early in 1972. The DLHT did not consider that the appellants were allocated the same land in 1985 and Page 5 of 12 have been using the disputed land without any conflict until 2020 when the respondent started claiming the land. He submitted that the process of allocation claimed by the respondent that the late Lufungulo Mhogeje was allocated by the Ward Secretary, who by then were not part of the village government. He went on to submit that if the tribunal had accorded the weight of the evidence, it would not have reached the decision it made. He further argued that it is a normal process by the village government that if the allocated land is abandoned, it may be reallocated. Referring to the proceedings, the respondent's evidence (PW1) was clear that in 2001, even before the demise of Lufungilo Mhogeje in 2003, the appellants had the disputed land. Mr Jeremia also referred to the evidence of SU1 (1st Appellant), who testified that they were allocated the same land in 1985 and insisted that the same was not cross-examined, which was an admission on the part of the respondent. To bolster his argument, he referred to the case of Emmanuel Saguda@ Sulukuka Another vs Republic (Criminal Appeal No. 422 of 2013) [2014] TZCA 2184 (17 March 2014). He further argued that the appellants occupied the disputed land since 1985, and the late Lufungulo Mhogeje was alive during his lifetime; he did not claim ownership of the disputed land until 2020, when the respondent started claiming the same to be among the estates of the late Lufungulo Mhogeje. It was his submission that the trial tribunal grossly erred in law to declare that such land belonged to the late Lufungulo Mhogeje because the appellants lived in the disputed land for 18 years of Lufungulo Mhogeje's lifetime, from 1985 to 2003, when he died. Page 6 of 12 On the third ground of appeal, Mr Jeremia contended that the trial tribunal by deciding that the suit land belonged to the late Lufungulo Mhogeje without considering that the application did not adequately describe the boundaries of the disputed land as the same was unregistered. He argued that the application filed before the DLHT did not describe the disputed land by its boundaries, rather than indicating that it is a suit land measuring 200 acres located at Inyala Village, Nyamigota Ward Geita. He insisted that the description of the suit land is mandatory. To support his argument, he cited the case of Joel Kondela Maduhu vs Siya Ndeja (Land Appeal 3 of 2021) [2022] TZHC 11978 (3 June 2022) and Fereji Said Fereji vs Jaluma General Supplies Ltd and Another (Land Case 86 of 2020) [2021] TZHCLandD 167 (23 April 2021). He retired and prayed that the appeal be allowed with costs. Having considered the submission by the appellants' counsel, this Court now proceeds to determine the grounds of appeal accordingly. The question that the Court will deliberate upon is whether the appeal is meritorious. In doing so, I will consider the grounds of appeal in the sequence presented by the appellants' counsel, starting with the first. On the first ground, Mr Jeremia contended that the DLHT entertained the matter, which was time-barred. In his submissions, he Page 7 of 12 relied on section 9(1) and (2) of the Law of Limitation Act, Cap. 89 R.E 2019. For ease of reference, the section provides that: "9(1) where a person institutes a suit to recover the 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 from the date of death. (2) where the person who institutes a suit to recover land, or some, or some through who he claims, has been in possession of and has, while entitled to the land, been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of dispossession or discontinuance." Accordingly, subsection (1) of section 9 of the Law of Limitation Act establishes that the cause of action in a suit to recover land accrues upon the death of the last owner provided that the deceased was in possession of the land at the time of death. Conversely, subsection (2) stipulates that if dispossession or discontinuance of possession occurs during the owner's lifetime, the cause of action accrues on the date of such dispossession or discontinuance. In this appeal, the cause of action could be interpreted in two ways, depending on the applicable subsection. Firstly, if the cause of action is deemed to have accrued upon the death of the late Lufungulo Mhogeje in 2003, under subsection (1) of Page 8 of 12 section 9, then the limitation period for instituting the suit to recover the land would have expired by 2015, based on the statutory limitation period of 12 years under item 22 of Part I of the Schedule to the Law of Limitation Act. Secondly, if the cause of action is linked to the dispossession of the deceased's land in 2001, the limitation period would have expired in 2013. Given these considerations, the question arises: when exactly did the cause of action accrue in this case? Upon reviewing the trial tribunal's records, it is noted on pages 11 and 12 of the trial tribunal's typed proceedings that in 2001, the respondent, along with Zumbe Lufungulo, who was granted the land by Lufungulo Mhogeje as a caretaker during his prolonged illness, discovered that the disputed land had already been allocated to the appellants. This revelation contradicts the trial tribunal's determination that the appellants trespassed on the land in question in 2012. There is no doubt that the late Lufungulo Mhogeje was dispossessed of his land during his lifetime in or before 2001, as discovered by the respondent and the said Zumbe. Therefore, the cause of action accrued in 2001, and that is where section 9(2) of the Law of Limitation Act comes into play. Alternatively, the respondent and his colleagues could have acted promptly upon the Page 9 of 12 demise of Lufungulo Mhogeje in 2003 by instituting a suit in accordance with item 22 of Part I of the First Schedule as read together with section 9(1) of the Act. However, the evidence on record indicates that the deceased did not initiate any legal action during his lifetime, nor did his estate administrator take any action until 2020. This resulted in a delay of 19 years from the date of dispossession and 17 years from the death of Lufungulo Mhogeje, who is purported to be the last owner of the disputed land. This delay surpasses the stipulated 12-year limitation period for instituting such suits. In his application before the District Land and Housing Tribunal (DLHT), the respondent did not claim any exemption from the limitation period as per Order VII Rule 6 of the Civil Procedure Code, Cap 33 R.E. 2022. Moreover, no evidence was presented to the trial tribunal to indicate that the respondent sought and was granted an extension of time before filing Land Case No. 15 of 2020 on 27/03/2020. The law is settled that time limit is a jurisdictional issue, and the Court lacks jurisdiction to determine the suit instituted beyond the described time. In the case of Fortunatus Lwanyantika Masha and Another vs Claver Motors Limited (supra), the Court of Appeal Page 10 of 12 reiterated the position set in the case of Barclays Bank Tanzania Limited vs Phylisiah Hussein Mcheni (supra), which was inspired by the decision in the case of this Court in John Cornel vs A. Grevo (T) Limited, Civil Case No. 70 of 1998, where it was stated that: "However, unfortunate it may be for the plaintiff the law of limitation is on actions knows no sympathy or equity. It is merciless sword that cuts across and deep into all those who get caught in its web." Additionally, the Court of Appeal in the case of Fortunatus Lwanyantika Masha and Another vs Claver Motors Limited (supra) further stated that: - "It is therefore settled view that since the suit before the High Court was time-barred, that Court did not have requisite jurisdiction to adjudicate on matter and pronounce judgment from which an appeal could lie to this Court." Guided by the authorities cited above, I concur with Mr Jeremia's submission that the trial tribunal lacked jurisdiction to entertain the application, as it was time-barred as far as section 3(1) of the Law of Limitation Act is concerned. Given the jurisdictional nature of this matter and considering the application before the DLHT was time-barred, there is no need to address the remaining two grounds of appeal, as the first ground is sufficient to resolve the appeal. Page 11 of 12 Therefore, this Court finds the appeal meritorious and hereby allows it with costs. Additionally, the decision and orders issued by the District Land and Housing Tribunal in Land Application No. 15 of 2020 are quashed and set aside. It is so ordered. DATED at GEITA this 30th day of January 2025. G.V. MWAKAPEJE JUDGE Right to appeal explained. G.V. MWAKAPEJE JUDGE 30/01/2025 Page 12 of 12