athman mohamed kanumgundaan administrator of estate of the late mohamed kanumgunda vs abdallah emmanuel jumapili 2 others 2023 tzhc 18510 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB - REGISTRY OF TABORA AT TABORA LAND APPEAL NO. 23 OF 2021 (Arising from Land Application No. 70/2019 in the District Land and Housing Tribunal for Tabora) ATHMAN MOHAMED KANUMGUNDA (An administrator of the estate of the Late MOHAMED KANUMGUNDA)----------- ------------------- APPELLANT VERSUS ABDALLAH EMMANUEL JUMAPILI.......................................... 1stRESPONDENT INDIA KADULYI.............................................. 2nd RESPONDENT SHIJA SAWA........................................................................... 3rdRESPONDENT JUDGMENT Date: 28/03/202& 23/06/2023 BAHATI SALEMA, J.: The material facts leading to this appeal stem from two brothers whose blood relationship was united from a polygamous marriage where the late Mohamed Kanumgunda married three wives namely Saada Ibrahim (the mother of the appellant), Mariam Selemani and Marcia Halfan. It is on the trial Tribunal's record that when Marcia Halfan was married as a 3rd wife in 1978, she came along with a child named Abdalla Emmanuel Jumapili (the 1st respondent) who was accepted as a stepson to the family by the late Mohamed Kanumgunda; during this time the first and second wives were elderly living on separate homes. i In 2002 the deceased Mohamed Kanumgunda died intestate leaving behind one wife Marcia Halfani and a good number of children. Almost sixteen years after his death, his third wife Marcia Halfani met her death in 2018. A few months after the death of the last wife, the elder son Athman Mohamed Kanumgunda (appellant) rose demanding the distribution of the estate of their late father. Before he could make up his mind he found out that the 1st respondent had already sold 70 acres of land out of 80 acres left by their deceased father. Being the administrator duly appointed to administer the estate of the late Mohamed Kanumgunda, the appellant lodged a land dispute before the District Land and Housing Tribunal via Land Application No. 70 of 2019 against Abdallah Emmanuel Jumapili (his stepbrother), India Kaulyi and Shija Sawa the alleged buyers of the disputed land. Before the District Land and Housing Tribunal, the appellant prayed for a declaration that the disputed land belonged to him, an order for vacant possession, costs for the proceedings and any other orders that the Court deems fit to grant. Upon a full hearing of the application, the District Land and Housing Tribunal dismissed the appellant's application based on three reasons that will be reproduced hereunder. I quote; One "Kwa hiyo, kwakuwa maeneo yameuzwa mnamo mwaka 2017 na mjane Maricia Halfani kwa Mjibu Maombi Na. 2 na 3, Mauzo hayo yalikuwa halali kisheria kwa mujibu wa maelekezo ya Mhe. Jaji Mackanja kwakuwa muuzaji wakati anauza alikuwa mmi/ikihalali wa maeneo hayo...." 2 Two "Mwisho, maombi ya muombaji kwa mujibu wa sheria hayana mashiko, hii ni kwa mujibu wa kifungu cha 3(1) na cha 9(1) cha Sheria ya Ukomo wa Mash taka Sura ya 89 hayana mashiko kwa kuwa yameietwa nje ya muda baada ya kupita miaka 12 tangu kufariki kwa Marehemu Mohamed Juma Kanumgunda mnamo mwaka 2002." Three "Na pia ni kinyume cha Kanuni ya 9(d) ya the Magistrate Courts(Administration of Estates) Rules ikisomwa pamoja na Kanuni ya 15(second schedule) of the Declaration of Local Customary Law GN No. 436 of 1963. Kwa pamoja kanuni hizo hapo juu zinaeiekeza kuwa mgawanyo wa maii za Marehemu ufanyike katika kipindi kisichozidi siku theiathini(30) tangu kufariki kwa Marehemu husika na si vinginevyo" Aggrieved with that decision, the appellant appealed to this Court couched with four grounds of appeal namely; 1. That the trial tribunal erred in law and facts when it went on to hold in favour of the respondents against the weight of evidence 2. That, the trial Tribunal erred in law and facts when he wrongly invoked and misapplied the doctrine of adverse possession and entered the assumption that the appellant's claim was time- barred against the weight of evidence while the initial occupation 3 by the 1st respondent was not adverse to the appellant's interest until 2017. 3. That, the trial Chairman solely erred in law and facts for holding in favour of the respondent based on a shallow interpretation of evidence and misapprehension of the evidence tendered. 4. That, the decision of the trial tribunal is bad in law for failure to consider the applicant's evidence. Based on the four listed grounds of appeal, the appellant prayed this Court to allow the appeal with costs by setting aside the judgment and decree of the trial tribunal and declaring him the lawful owner of the suit land. On 15/02/2023 when the appeal was called up for hearing the appellant was represented by Mr .Kelvin Kayaga learned counsel and the respondent enjoyed the service of Mr. Samwel Ndanga learned counsel. With the permission of this Court, the matter was set to be disposed of by way of written submissions, thanks to the learned counsels for adhering to the scheduled order. Submitting in support of the appeal the learned Tribunal Chairman misdirected himself by invoking the doctrine of adverse possession to the circumstances of the case at hand without paying due regard to the initial presence of the applicant in the suit land. Moreover, the appellant submitted that the respondent's claim that he was given the suit land by the deceased Mohamed Kanumgunda lacks credence and it was just an attempt to defeat the interests of the estate of the deceased since no evidence was adduced to prove the same. The appellant contended further that, it was never disputed that the suit land was the property of the late Mohamed Kanumgunda whose 4 estate is under the administration of the applicant and it is the fact that the 1st respondent's mother is not the sole heir to the deceased's estate and being a wife does not automatically give one right to extinguish the interests of other heirs. To reinforce his argument the appellant cited the case of Anjum Vical Saleem Abdi vs Mrs Nasee Akhtar Saleem Zangie, Civil Appeal No. 73/2003 where it was held that; ".. . The suit land or the matrimonial home or property as the trial High Court labelled it, formed part of the estate of the deceased following his death. Whether the deceased died testate or intestate, its distribution to its beneficiary or beneficiaries provided it was not disposed of by the deceased inter vivos was governed by the laws of probate and administration of deceased estates." It is the appellant's standing that the views of the Tribunal's Chairman were against the dictate of the law as explained by the Court thus the learned Chairman wrongly acted without jurisdiction due to misapprehension of evidence and therefore such a decision ought to be set aside. Regarding non-consideration of the appellant's evidence during the trial, the appellant submitted that the evidence on pages 13, 15 - 17 and 19 points out the reality that the suit land was the property of the late Mohamed Kanumgunda and there is no evidence of transfer to any other person. The appellant alleged that no reason was stated by the trial Chairman as to why he ignored such evidence. In reply, the counsel for the respondent submitted that the evidence in the trial tribunal reveals that the 1st respondent owned and occupied 5 55 acres of land since 1987 many years before the death of the late Mohamed Kanumgunda. He submitted further that the deceased divided his land to his children including the appellant but the appellant sold away all of his land and is now coming back to claim the piece given to the 1st respondent. Mr.Ndanga submitted further that, since the dispute arose in 2017 and the 1st respondent had been in occupation of the suit land since 1987 uninterrupted, the claim by the appellant is hopelessly time-barred because the law under Part one (1) of the Schedule to the Law of Limitation Act, Cap. 89 [R.E 2019] stipulates that the time to recover the land is 12 years. Moreover, he stated that another piece of the suit land was originally owned by 1st respondent's late mother who sold the same to 2nd and 3rd respondent before she met her death in 2016. 30 acres were sold to the 2nd respondent in 2016 for TZS: 1,400,000/= and 24 acres were sold to 3rd respondent for TZS: 2,000,000/= and the duo have been using their lands peacefully until when the dispute arose in 2017. Mr. Ndanga contended further that, there is no direct evidence to prove that the suit land is owned by the appellant's late father since the evidence on record shows that the deceased passed away in 2002 and the appellant came to court seeking Form No. 4 after 12 years had passed. It is Mr Ndanga's standing that since the respondents have occupied the suit land for such a long time it would be unreasonable and unfair to allow the appellant to disturb them at this stage. Having carefully gone through the grounds of appeal, the record of the trial tribunal and the rival arguments made by the learned counsel, the issues that need the determination of this Court are: - 6 1. Whether the application before the District Land and Housing Tribunal was out of time and whether it was right for the trial Chairman to invoke the doctrine of adverse possession. 2. Whether the transfer of land from the deceased to Marcia Halfani was automatic upon the death of her husband Mohamed Kanumgunda. 3. Whether the law requires to distribute of the deceased assets within 30 days as decided by the Tribunal Chairman. On the first issue was whether the application before the District Land and Housing Tribunal was out of time and whether it was right for the trial Chairman to invoke the doctrine of adverse possession. The Tribunal's findings on this issue were based on the findings of this Court in Shabani Nassoro vs Rajab Simba (1967) HCD No. 233 and the case of Lemayani vs Mhayi (1972) HCD No. 149. The decision of the tribunal was founded on the quotation below; "Siku zote Mahakama za Tanzania huwa hazimbugudhi mtu aiiyetumia eneo kwa zaidi ya miaka 12, kwa kuwa yeye hata kama ni mvamizi anakuwa ni mmiliki halali kwa ridhaa ya mwenyemaii wa awali kwa uzembe wa mmiliki wa awa/i kutokuchukua hatua kwa wakati muafaka This should not detain me, it is obvious in the decision of the tribunal that, the learned chairman faulted the appellant for initiating an administration case 16 years after the death of his father and he concluded that the same was overtaken by the principle of adverse possession and that he was barred from initiating complaints over the deceased's estate. It is my view that the trial Chairman misdirected himself on the time available for initiating Probate and Administration cases and the 7 doctrine of adverse possession. To be precise, the Magistrates Court Act, Cap. 11 does not prescribe the time limit for one to open a Probate or Administration cause in respect of the estate of a deceased relative(this should not be confused with the limitations set by Rule 31 of the Probate Rules which does not apply to Primary Courts). The appellant's move to apply for appointment as administrator of the estate of his late father in the primary Court was within time and being appointed administrator, he has the right to sue anyone whom he thinks has interfered with the deceased's estate and it was not fair for the Chairman to impose the doctrine of adverse possession in the situation. Moreover, the evidence on record reveals that there are possibilities that the deceased's estate has been privately divided among a few members of the family while excluding others, from the proceeding the 1st respondent stated in court that; "Baada ya kufariki Mzee Mohamed mashamba yaiigawiwa, mama yangu alipata eka 30, na familia ya akina Athmani (Muombaji) walipata eka 10 na mipaka ipo na hakukuwa na shida yoyote." This quotation supports that few members distributed the deceased's estate among themselves without informing other relatives, also the quoted statement contradicts the allegation that the 1st respondent's mother owned the disputed land together with the deceased. If they owned the land jointly how come the same land was distributed upon his death and the mother ended up getting 30 acres? This proves that the land has never been jointly owned. As to the second issue of whether the transfer of land from the deceased to Marcia Halfani was automatic upon the death of her husband 8 Mohamed Kanumgunda. The trial tribunal's chairman based his findings on case law whereby he borrowed the findings in the case of Constantino Mhaluka vs Piusi Lupaia Civil Appeal No. 1 of 1999 HC at Mbeya to the case at hand, he quoted; "Iwapo mume atafariki na kuacha mjane basi mjane anachukua umiliki wa ardhi Hiyoachwa kama vile mjane na mume walikuwa wabia katika umiliki. Tamaduni yoyote inayokwenda kinyume na utaratibu huu utamaduni huo au mila hiyo ni batiii katika jicho ia sheria." In the above-quoted case law, I am of the considered view that the learned judge was speaking of the right of survivorship to the land jointly owned by two or more persons. For the above quoted principle to apply in a particular case like the case in hand it must be proved in evidence that the property in question was in joint ownership between the deceased and her wife.This Court in the case of Theresia Vicent Rimoy and Another vs MecktHda Vicent Rimoy and Three Others (8 of 2019) [2022] TZHC15146 (12 December 2022) Mlacha J, explained how the right of ownership passed to the surviving partner where death occurs to the other he stated; "The law has vested all the assets of the deceased in the hands of the Executor or Administrator in all aspects save where there is a right of survivorship or corporation sole. An example of a right ofsurvivorship is where the deceased had owned land jointly with another person where if one dies, the land falls to the surviving person. In all other instances, he has full control of the assets independent of the heirs and all other people. 9 In this matter at hand, the appellant in his evidence upon which the trial chairman founded his base was that, the 1st respondent's mother was married in 1978 and they acquired the land in dispute in 1979 but on page 22 of the typed proceedings, there is a piece of contradicting evidence adduced by the 1st respondent himself saying that her mother was married in 1981 and the disputed land was acquired in 1983. Nowhere stated in the judgment why the learned trial Chairman opted to believe the statement of the appellant while neither of the two statements proved joint ownership of the land in dispute. Based on the evidence on record it is my view that the trial Chairman misconceived the findings in Constantino Mhaiuka's case (supra) to decide that the disputed property automatically transferred to Marcia Halfani after the death of his husband. The last issue is whether the law requires the distribution of the deceased assets within 30 days as it was decided by the Tribunal Chairman. In this issue, the learned trial Charman faulted the appellant's motion for the administration of the deceased's estate by referring to Rule 15 to the 2nd Schedule to the Declaration of the Local Customary Law, GN No. 436 of 1963 that the deceased estate ought to be distributed within 30 days from the date of death. It is my considered view that the learned Chairman imported new matters that were not in the contest between the parties. Having keenly traversed the whole evidence adduced in the trial tribunal; no single witness informed the tribunal as to what law the Administration case was conducted in the primary Court. In the absence of that, it was not proper for the trial chairman to insist on the use of Customary Law in the application. 10 Based on the above analysis, the evidence of SM2 and SM3 as found on pages 16 and 18 respectively of the typed proceedings remains to be more believable that the properties of the deceased Mohamed Kanumgunda were yet to be divided to his heirs. Regarding the 2nd and 3rd respondents who alleged to have bought pieces of land from Marcia Halfan, this court finds that any disposition made by Marcia Halfan in the absence of powers to administer her late husband's estate was illegal. Also, there was a contradiction in evidence on the size of the land Marcia owned before selling the same to the 2nd and 3rd respondents. At page 25 of the typed proceedings the 1st respondent stated that, "Naomba kumalizia kwa kusema kuwa baada ya kufariki Mzee Mohamed Mashamba yaligawiwa. Mama yangu alipata eka 30 na familia ya akina Athmani waiipata eka 10 na mipaka ipo na hakukuwa na shida yoyote" This evidence contradicts the evidence of the 2nd and 3rd respondents, the 2nd respondent alleged that he bought 30 acres from Marcia Halfani while the 3rd respondent claimed to have bought 24 acres from Marcia; Where did Marcia get extra 24 acres while in the distribution, she got 30 acres? In the absence of a clear explanation and legal contracts to exhibit the said sales, it makes the appellant's allegations more believable that the disputed land belongs to the deceased's estate. In the circumstance, the appeal is allowed, the judgment of the District and Housing Tribunal is reversed, therefore the appellant in his capacity as administrator of the estate of the late Mohamed Kanumgunda is the rightful owner of the disputed land situated at Kilumbi village, Sikonge District. li No order as to costs, since the parties are related. A. BAHATI SALEMA JUDGE 23/06/2023 Court: Judgment delivered in presence of both parties. A. BAHATI SALEMA JUDGE 23/06/2023 Right of Appeal fully explained. A. BAHATI SALEMA JUDGE 23/06/2023 12