ernest ephem ponera the administrator of the estate of the late ephrem victori ponera vs beno nchimbi and 3 others 2023 tzhc 17195 8 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SONGEA DISTRICT REGISTRY (LAND DIVISION)

AT SONGEA LAND APPEAL NO. 14 OF 2023 COriginating from the District land and Housing Tribunal for Songea at Songea in Land Application No. 20 of2022) ERNEST EPHREHEM PON ERA (The Administrator of the Estate of the Late Ephrehem Victori Ponera) ........ APPELLANT

VERSUS BENO NCHIMBI........ ........... .......... ............................ 1st RESPONDENT ARUSI SIMBILI.............. 2nd RESPONDENT SADI SALUMU ............................. 3rd RESPONDENT SALUM MANONG'A ................................ 4th RESPONDENT

JUDGMENT Date of Last Order: 27/04/2023 Date of Judgment: 08/05/2023 U. E. Madeha, J. To begin with, this appeal originates from the decision made by the District Land and Housing Tribunal for Songea at Songea in Land Application No. 20 of 2022. It is important to note that, the Appellant is the administrator of the estate of his late father that is none other than; Ephrehem Victori Ponera. Before the above-named Tribunal he filed an i application claiming that the Respondents has trespassed on the disputed land which was owned by his late father. As a matter of facts, before hearing of this application the Trial Tribunal suo motoraised a preliminary objection that the application was time-barred since the Appellant (Applicant) filed his application almost thirty-three solid years after the death of his father. Basically, the objection was sustained by the Trial Tribunal. Being aggrieved with the decision made by the Trial Tribunal, the Appellant preferred this appeal on the following grounds: 1. That, the Trial Tribunal erred in Law and facts by ordering that the matter was time barred.

2. That, the Trial Tribunal erred in law and facts by deciding the matter in favour of the respondents herein while on their statements of defense the first (1st) respondent claimed to be allocated the same piece of land in the year 1981, the second (2nd) respondent in the year 1982, the third (3d) respondent in the year 1983 and the fourth respondent in the year 1984 but in Judgement there is difference they claimed to be allocated in the year 1980 the fact which is quite different from the pleadings of the parties.

3. That, the Tria! Tribunal seriously erred in facts and law by violating section 32 of the Land Disputes Courts Act (Cap 216 R.E 2019).

4. That, the Tria! Tribunal erred in facts and Jaw by deciding in favour of the respondent while ignoring the evidence of the appellant 2 which shows that the appellant family members have been using the disputed land without disturbances.

5. That, the Trial Tribunal erred in facts and in law by deciding in favour of the respondent and disregarding the strong appellant evidence. It is. important to note that, this appeal was argued by way of written submissions. In fact, the Appellant appeared in person whereas the Respondents were represented by hon-other than Mr. Bernard Mapunda the learned counsel. As a matter of fact, arguing to support this appeal the Appellant opted to argue all grounds of appeal together. In short, he submitted that he is the administrator of the deceased estate of his late father named Ephrehem Victori Ponera who was the owner of the disputed land and after his death it has been used by his surviving children including the Appellant himself. He contended further that the family members have been using the land undisturbed up to the year 2019 when the dispute arose or when the Respondents invaded the same piece of land and started clearing thereon. Furthermore, he added that the Tribunal was not correct to dismiss the application on the ground that it was time barred without even taking into consideration what was pleased by the Respondents in their written statement of defence as they stated that they were allocated the land in 1981,1982,1983 and 3 1984 respectively. To crown it all, they have attached the documents titled "Klbali cha kumiliki ardhi" which was granted by the

Village Government in the year 2020, Finally, he prayed for this appeal to be allowed since the land in question has been used by the family of his late late father and each member of the family has been enjoying it without any disturbances. On the contrary, Mr. Bernard Mapunda the Respondents' learned counsel started by criticizing the Appellant for filing five grounds of appeal considering the fact that the Trial Tribunal did not deal with the matter on its merit since the application was struck out on preliminary objection that it was time barred. Also, he criticized the Trial Tribunal decision to struck out the application on its own motion. Principally, he further submitted that the Trial Tribunal did so prenatally as it failed to take the evidence of parties. Moreover, arguing considering the merit of this appeal. It is true that, the Respondents learned counsel did not oppose the appeal. Notably, he further stated that the Tribunal was not correct in its decision to struck out the application on the ground that it was time-barred. In that regard, he was of the view that the limitation of time started to run when the dispute arose and not from the date when the Appellants father died. He further submitted that since the 4 Appellants late father (the deceased) left no dispute on the disputed land. To add to it, he submitted that the cause of action arose in the year 2019

as claimed by the Appellant. To buttress his argument, he made reference to the case of Rashid Togwa (The Administrator of the Estate of the Late Mohamedi Togwa) v. Peapea Village Counsel, Land Appeal No.60 of 2020, High Court of Tanzania Dar es Salaam (unreported) and Habiba Bash (Surviving Legal Personal Representative of the Late Bush Mwinyibohari) v. Ramadhani Lila Gogo @ Jeba & Another, Land Appeal No. 40 of 2020 High Court of Tanzania at Dar es Salaam (unreported). In those cases, the High Court of Tanzania held that since the death of the Appellant's father there was no dispute, the cause of action arose in the year when the dispute arose. Finally, he prayed for this appeal to be allowed as prayed by the Appellant's advocate. In fact, taking into consideration the Respondents' learned counsel submission the Applicants advocate has nothing to add in rejoinder submission. Taking into account the circumstances of this appeal, I find the main issue which needs to be addressed by this Court is whether an order to struck out the application was correctly made by the Trial Tribunal. As a matter of fact, before addressing this issue it is important 5 to note the fact that the decision to strike out the application for the reasons that it was time-barred was reached following the objection raised by the Trial Tribunal in its own motion (suo moto) after going through the pleadings

filed by the parties. Basically, in its decision the Trial Tribunal premised its decision under section 9 (1) and 35 of the Law of the Limitation Act (Cap. 89, R. E. 2019). The Trial Tribunal stated that since the Appellant's father died on 25-h September, 1986 and the application was filed after approximately thirty-three years later, it was contrary to section 9 (1) and 35 of the Law of Limitation Act (supra). Section 9 (1) of the Acts it reads: "9. (1) 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.” Notably, from the above provision of the law I think that provision cannot be read in isolation of section 24 (1) and 24 (2) of the Law of Limitation Act (supra), which reads: 6 "24-(l) Where a person who would, if he were living, ha ve a right of action in respect of any proceeding, dies before the right of action accrues, the period of limitation shall be computed from the first anniversary of the date of the death of the deceased or from the date when the right to sue accrues to the estate of the deceased, whichever is the later date. (2) Where a person against whom, if he were living, a

right of action would have accrued, dies before the right accrues, the period of limitation shall be computed from the date when there is a legal representative of the deceased against whom such proceeding may be instituted or from the date when the right of action accrues against the estate of the deceased, whichever date last occurs/' To crown it all, the Appellant and Respondents' learned advocate are on the view that the application was filed within the time frame prescribed by law. As much as I am concerned, I hastate to state clearly that the application was time barred at this point. I find it was proper for the Trial Tribunal to conduct a full trial and determine the merit or otherwise of the application. That being said, this Court finds the preliminary objection raised and sustained by the Trial Tribunal against the application filed by the Appellant was not properly dealt with in order to determine when the cause of action arose. 7 In the circumstance, having found the first ground of appeal has merit, there is no need to address the other grounds of appeal which has no merits in this appeal. Finally, I find the Trial Tribunal wrongly dismissed the application which was supposed to be heard until final determination. Conclusively, in view of the stated omission, I strongly agree with the Appellant's and the Respondents' learned counsel and condone the District Land

and Housing Tribunal for delay. I quash the proceedings of the Trial Tribunal which commenced on 27th October, 2022 and the District Land and Housing Tribunal Judgement. Thus, the proceedings in respect of the services of summons and hearing of the Appellant's case are salvaged. This is because they have not been affected by the said omission. I order a retrial before another chairman. Appeal partly allowed. I give no order to costs. Order accordingly. DATED and DELIVERED at Songea this 8th day of May, 2023. U.E MADEHA

JUDGE 08/05/2023 8 COURT: Judgment delivered on this 8th day of May, 2023 in the presence of the Appellant and the Respondents. Right of appeal is explained. -—— U. E. MADEHA

JUDGE 08/05/2023 9